IV. Equal Protection Cases
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Alvinson DayritIV. Equal Protection Cases
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Alvinson DayritVOL. 446, DECEMBER 15, 2004 299 VOL.
446, DECEMBER 15, 2004 301
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed
G.R. No. 148208. December 15, 2004. *
conditions.
CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., Same; Same; Government Financial Institutions (GFIs); Salary Standardization Law (R.A. No.
petitioner, vs.BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, 6758); It is noteworthy that the subsequent charters of the seven other GFIs share the common proviso of a
respondents. blanket exemption of all their employees from the coverage of the SSL, expressly or impliedly.—We take
Constitutional Law; Equal Protection Clause; The “equal protection” clause does not prevent the judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of
Legislature from establishing classes of individuals or objects upon which different rules shall operate—so the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz.: 1. R.A. No. 7907
long as the classification is not unreasonable.—It is settled in constitutional law that the “equal protection” (1995) for Land Bank of the Philippines (LBP); 2. R.A. No. 8282 (1997) for Social Security System (SSS); 3.
clause does not prevent the Legislature from establishing classes of individuals or objects upon which different R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC); 4. R.A. No. 8291
rules shall operate—so long as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope (1997) for Government Service Insurance System (GSIS); 5. R.A. No. 8523 (1998) for Development Bank of
Workers’ Union, and reiterated in a long line of cases: The guaranty of equal protection of the laws is not a the Philippines (DBP); 6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC); and 7. R.A. No. 9302
guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a (2004) for Philippine Deposit Insurance Corporation (PDIC). It is noteworthy, as petitioner points out, that the
requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and subsequent charters of the seven other GFIs share this common proviso: a blanket exemption of all their
child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate employees from the coverage of the SSL, expressly or impliedly.
operation on persons merely as such, but on persons according to the circumstances surrounding them. It Same; Same; Same; Same; Standards of Review; Strict Scrutiny; Two-Tier Analysis; While the prior
guarantees equality, not identity of rights. The Constitution does not require that things which are different in view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the
fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination rank-and-file and the officers of the BSP, which was found reasonable because there were substantial
as to things that are different. It does not prohibit legislation which is limited either in the object to which it is distinctions that made real differences between the two classes, subsequent enactments involving the
directed or by the territory within which it is to operate. exemption of all rank and file employees of other GFIs constitute significant changes in circumstance that
Same; In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of
and above) from the SSL was intended to address the BSP’s lack of competitiveness in terms of attracting Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny.—The prior view on the
competent officers and executives—it was not intended to discriminate against the rank-and-file, and the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the rank-and-file
resulting discrimination or distinction has a rational basis and is not palpably, purely, and entirely arbitrary and the officers of the BSP, found reasonable because there were substantial distinctions that made real
in the legislative sense.—Congress is allowed a differences between the two classes. The above-mentioned subsequent enactments, however, constitute
_______________ significant changes in circumstance that considerably alter the reasonability of the continued operation of the
last proviso of Section 15(c), Article II of Republic Act
EN BANC.
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas No. 7653, thereby exposing the proviso to more serious scrutiny.The scrutiny relates to the
wide leeway in providing for a valid classification. The equal protection clause is not infringed by constitutionality of the classification—albeit made indirectly as a consequence of the passage of eight other
legislation which applies only to those persons falling within a specified class. If the groupings are laws—between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be
characterized by substantial distinctions that make real differences, one class may be treated and regulated reasonable, but must also apply equally to all members of the class. The provisomay be fair on its face and
differently from another. The classification must also be germane to the purpose of the law and must apply to impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make
all those belonging to the same class. In the case at bar, it is clear in the legislative deliberations that the unjust distinctions between persons who are without differences.
exemption of officers (SG 20 and above) from the SSL was intended to address the BSP’s lack of Same; Same; Same; Same; Same; Same; Same; The second level of inquiry deals with the following
competitiveness in terms of attracting competent officers and executives. It was not intended to discriminate questions—Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can
against the rank-and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that
the rank-and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis and is Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress’ power to classify so
not palpably, purely, and entirely arbitrary in the legislative sense. unbridled as to sanction unequal and discriminatory treatment, simply because the inequity manifested itself,
Same; Enrolled Bill Doctrine; As early as 1947 and reiterated in subsequent cases, the Supreme Court not instantly through a single overt act, but gradually and progressively, through seven separate acts of
has subscribed to the conclusiveness of an enrolled bill to refuse invalidating a provision of law, on the Congress? Is the right to equal protection of the law bounded in time and space?—Stated differently, the
ground that the bill from which it originated contained no such provision and was merely inserted by the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs
bicameral conference committee of both Houses.—That the provision was a product of amendments (aside the BSP) from the coverage of the SSL, can the exclusion of the rankand-file employees of the BSP
introduced during the deliberation of the Senate Bill does not detract from its validity. As early as 1947 and stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees
reiterated in subsequent cases, this Court has subscribed to the conclusiveness of an enrolled bill to refuse of the other GFIs? Is Congress’ power to classify so unbridled as to sanction unequal and discriminatory
invalidating a provision of law, on the ground that the bill from which it originated contained no such treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually
provision and was merely inserted by the bicameral conference committee of both Houses. and progressively, through seven separate acts of Congress? Is the right to equal protection of the law bounded
Same; Doctrine of Relative Constitutionality; A statute valid at one time may become void at another in time and space that: (a) the right can only be invoked against a classification made directly and deliberately,
time because of altered circumstances.—The constitutionality of a statute cannot, in every instance, be as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the
determined by a mere comparison of its provisions with applicable provisions of the Constitution, since the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the
statute may be constitutionally valid as applied to one set of facts and invalid in its application to another. A inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack
statute valid at one time may become void at another time because of altered circumstances. Thus, if a statute thereof, among several similar enactments made over a period of time?
in its practical operation becomes arbitrary or confiscatory, its validity, even 303
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Same; Same; Same; Same; Same; Same; It is patent that the classification made between the BSP
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas rank-and-file and those of the other seven GFIs was inadvertent, and not intended, i.e., it was not based on
Same; Same; Same; Same; Same; Same; Same; Separation of Powers; In the second level of scrutiny, any substantial distinction vis-à-vis the particular circumstances of each GFI.—It is certainly misleading to
the inequality of treatment cannot be justified on the mere assertion that each exemption rests “on a policy say that “the need for the scope of exemption necessarily varies with the particular circumstances of each
consideration by the legislature”—there is nothing inherently sacrosanct in a policy determination by institution.” Nowhere in the deliberations is there a cogent basis for the exclusion of the BSP rank-and-file
Congress or by the Executive as it cannot run riot and overrun the ramparts of protection of the Constitution; from the exemption which was granted to the rank-and-file of the other GFIs and the SEC. As point in fact, the
The “policy determination” argument may support the inequality of treatment between the rank-and-file and BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these institutions
the offices of the BSP, but it cannot justify the inequality of treatment between BSP rank-and-file and other to be exempted from the SSL. True, the SSL-exemption of the BSP and the seven GFIs was granted in the
GFIs’ who are similarly situated; In the field of equal protection, the guarantee includes the prohibition amended charters of each GFI, enacted separately and over a period of time. But it bears emphasis that, while
against enacting laws that allow invidious discrimination directly or indirectly.—In this second level of each GFI has a mandate different and distinct from that of another, the deliberations show that the raison
scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to d’être of the SSL-exemption was inextricably linked to and for the most part basedon factors common to the
the seven other GFIs) rests “on a policy determination by the legislature.” All legislative enactments eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified
necessarily rest on a policy determination—even those that have been declared to contravene the Constitution. and effective personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package
Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal of these GFIs is not competitive, and fall substantially below industry standards. Considering further that (a)
protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs did not
made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the distinguish between the officers and the rank-and-file; it is patent that the classification made between the BSP
Constitution. In fine, the “policy determination” argument may support the inequality of treatment between the rank-and-file and those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on
rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank- any substantial distinction vis-à-vis the particular circumstances of each GFI. Moreover, the exemption granted
and-file and other GFIs’ who are similarly situated. It fails to appreciate that what is at issue in the second to two GFIs makes express reference to allowance and fringe benefits similar to those extended to and
level of scrutiny is not the declared policy of each law per se, but the oppressive results of Congress’ currently enjoyed by the employees and personnel of other GFIs, underscoring that GFIs are a particular class
inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFIs. At bottom, within the realm of government entities.
the second challenge to the constitutionality of Section 15(c), Article II of Republic Act No. 7653 is premised Same; Same; Same; Same; Same; Same; It is precisely the unpremeditated discrepancy in treatment
precisely on the irrational discriminatory policy adopted by Congress in its treatment of persons similarly of the rank-and-file of the BSP—made manifest and glaring with each and every consequential grant of
situated. In the field of equal protection, the guarantee that “no person shall be . . . denied the equal protection blanket exemption from the SSL to the other GFIs—that cannot be rationalized or justified. If Congress had
of the laws” includes the prohibition against enacting laws that allow invidious discrimination, directly or enacted a law for the sole purpose of exempting the eight GFIs from the coverage of the SSL, the exclusion of
indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is the BSP rank-and-file employees would have
unconstitutional. 306
304
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas been devoid of any substantial or material basis.—It is precisely this unpremeditated discrepancy in
Same; Same; Same; Same; Same; Same; Same; As regards the exemption from the coverage of the treatment of the rank-and-file of the BSP—made manifest and glaring with each and every consequential grant
SSL, there exists no substantial distinctions so as to differentiate the BSP rank-and-file from the other rank- of blanket exemption from the SSL to the other GFIs—that cannot be rationalized or justified. Even more so,
and-file of the seven GFIs—our legal history shows that GFIs have long been recognized as comprising one when the SEC—which is not a GFI—was given leave to have a compensation plan that “shall be comparable
distinct class, separate from other government entities.—It is against this standard that the disparate treatment with the prevailing compensation plan in the [BSP] and other [GFIs],” then granted a blanket exemption from
of the BSP rank-and-file from the other GFIs cannot stand judicial scrutiny. For as regards the exemption from the SSL, and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP. The
the coverage of the SSL, there exist no substantial distinctions so as to differentiate, the BSP rank-and-file violation to the equal protection clause becomes even more pronounced when we are faced with this
from the other rank-and-file of the seven GFIs. On the contrary, our legal history shows that GFIs have long undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs from the
been recognized as comprising one distinct class, separate from other governmental entities. coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid of any
Same; Same; Same; Same; Same; Same; The argument that the rank-and-file employees of the seven substantial or material basis. It bears no moment, therefore, that the unlawful discrimination was not a direct
GFIs were exempted because of the importance of their institution’s mandate cannot stand any more than an result arising from one law. “Nemo potest facere per alium quod non potest facere per directum.” No one is
empty sack can stand.—It has been proffered that legislative deliberations justify the grant or withdrawal of allowed to do indirectly what he is prohibited to do directly.
exemption from the SSL, based on the perceived need “to fulfill the mandate of the institution concerned Same; Same; Same; Same; Same; Same; As regards the exemption from the SSL, there are no
considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP
or GFI is in direct competition with their [sic] counterparts in the private sector, not only in terms of the rank-and-file employees were denied—the distinction made by the law is not only superficial, but also
provisions of goods or services, but also in terms of hiring and retaining competent personnel; and (3) the arbitrary.—In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no
GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla positions with competent characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP
personnel and/or retaining these personnel. The need for the scope of exemption necessarily varies with the rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction
particular circumstances of each institution, and the corresponding variance in the benefits received by the made by the law is not only superficial, but also arbitrary. It is not based on substantial distinctions that make
employees is merely incidental.” The fragility of this argument is manifest. First, the BSP is the central real differences between the BSP rank-and-file and the seven other GFIs.
monetary authority, and the banker of the government and all its political subdivisions. It has the sole power Same; Same; Same; Same; Same; Same; Separation of Powers; While the granting of a privilege per
and authority to issue currency; provide policy directions in the areas of money, banking, and credit; and se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of
supervise banks and regulate finance companies and non-bank financial institutions performing quasi-banking the exercise of this prerogative is subject to judicial review; The disparity in treatment between BSP rank-and-
functions, including the exempted GFIs. Hence, the argument that the rank-and-file employees of the seven file and the rank-and-file of the other seven GFIs definitely bear the unmistakable badge of invidious
GFIs were exempted because of the importance of their institution’s mandate cannot stand any more than an discrimination.—It bears stressing that the ex-
empty sack can stand. 307
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
emption from the SSL is a “privilege” fully within the legislative prerogative to give or deny. Constitution, and when these violations arise, the Supreme Court must discharge its primary role as the
However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional
rank-and-file employees breached the latter’s right to equal protection. In other words, while the granting of a limitations—rational basis should not suffice.—Congress retains its wide discretion in providing for a valid
privilege per seis a matter of policy exclusively within the domain and prerogative of Congress, the validity or classification, and its policies should be accorded recognition and respect by the courts of justice except when
legality of the exercise of this prerogative is subject to judicial review. So when the distinction made is they run afoul of the Constitution. The deference stops where the classification violates a fundamental right,
superficial, and not based on substantial distinctions that make real differences between those included and or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court
excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct. As held in must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more
the United Kingdom case of Hooper v. Secretary of State for Work and Pensions, once the State has chosen to exacting adherence to constitutional limitations. Rational basis should not suffice.
confer benefits, “discrimination” contrary to law may occur where favorable treatment already afforded to one Same; Same; Same; Legal Research; Foreign Jurisprudence;Foreign decisions and authorities are
group is refused to another, even though the State is under no obligation to provide that favorable treatment. not per se controlling in this jurisdiction—at best, they are persuasive and have been used to support many of
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely our decisions—and we should not place undue and fawning reliance upon them and regard them as
bears the unmistakable badge of invidious discrimination—no one can, with candor and fairness, deny the indispensable mental crutches without which we cannot come to our own decisions through the employment of
discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL our own endowments.—Admittedly, the view that prejudice to persons accorded special protection by the
when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis. Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
Same; Standards of Review; In our jurisdiction, the standard and analysis of equal protection Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they
challenges in the main have followed the “rational basis” test, coupled with a deferential attitude to are persuasive and have been used to support many of our decisions. We should not place undue and fawning
legislative classifications.—In our jurisdiction, the standard and analysis of equal protection challenges in the reliance upon them and regard them as indispensable mental crutches without which we cannot come to our
main have followed the “rational basis” test, coupled with a deferential attitude to legislative classifications own decisions through the employment of our own endowments. We live in a different ambience and must
and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the decide our own problems in the light of our own interests and needs, and of our qualities and even
Constitution. idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in
Same; Same; International Law; The equality provisions in the international instruments do not accordance with the intention of our own lawmakers and such intent may be deduced from the language of
merely function as traditional “first generation” rights, commonly viewed as concerned only with each law and the context of other local legislation related thereto. More importantly, they must be construed to
constraining rather than requiring State action—they imposed a measure of positive obligation on States serve our own public interest
Parties to take steps to eradicate discrimination.—Most, if not all, international human rights 310
instruments include some prohibition on discrimination and/or provisions about equality. The general 3 SUPREME COURT REPORTS ANNOTATED
international provisions pertinent to
308 10
3 SUPREME COURT REPORTS ANNOTATED Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
08 which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is
distinct and different from others.
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Same; Same; Same; Same; Judicial Activism; The quest for a better and more “equal” world calls for
discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR); the use of equal protection as a tool of effective judicial intervention.—Further, the quest for a better and more
the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention “equal” world calls for the use of equal protection as a tool of effective judicial intervention. Equality is one
on the Elimination of all Forms of Racial Discrimination (CERD); the Convention on the Elimination of all ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims “equality” as an
Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC). In ideal precisely in protest against crushing inequities in Philippine society. The command to promote social
the broader international context, equality is also enshrined in regional instruments such as the American justice in Article II, Section 10, in “all phases of national development,” further explicated in Article XIII, are
Convention on Human Rights; the African Charter on Human and People’s Rights; the European Convention clear commands to the State to take affirmative action in the direction of greater equality . . . . [T]here is thus
on Human Rights; the European Social Charter of 1961 and revised Social Charter of 1996; and the European in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a
Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab reasonable measure of equality.
States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member Same; Same; Social Justice; Under the policy of social justice, the law bends over backward to
States of the League. The equality provisions in these instruments do not merely function as traditional “first accommodate the interests of the working class on the humane justification that those with less privilege in life
generation” rights, commonly viewed as concerned only with constraining rather than requiring State should have more in law.—Our present Constitution has gone further in guaranteeing vital social and
action. Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection against economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law
discrimination” while Articles 1 and 14 of the American and European Conventions oblige States Parties “to bends over backward to accommodate the interests of the working class on the humane justification that those
ensure . . . the full and free exercise of [the rights guaranteed] . . . without any discrimination” and to “secure with less privilege in life should have more in law. And the obligation to afford protection to labor is
without discrimination” the enjoyment of the rights guaranteed. These provisions impose a measure of positive incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge
obligation on States Parties to take steps to eradicate discrimination. into a living reality. Social justice calls for the humanization of laws and the equalization of social and
Same; Same; Same; Two-Tier Analysis; The two-tier analysis made in the case at bar of the economic forces by the State so that justice in its rational and objectively secular conception may at least be
challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in approximated.
consonance with the progressive trend of other jurisdictions and in international law.—Thus, the two-tier Same; Same; Same; Under most circumstances, the Court will exercise judicial restraint in deciding
analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and power.—Concerns have been raised as to the propriety of a ruling voiding the challenged provision. It has been
in international law. There should be no hesitation in using the equal protection clause as a major cutting edge proffered that the remedy of petitioner is not with this Court, but with Congress, which alone has the power to
to eliminate every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in erase any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing the exemption of the BSP rank-
the Constitution, coupled with the special status and protection afforded to labor, compel this approach. 311
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas and-file from the SSL has supposedly been filed. Under most circumstances, the Court will exercise
Same; Same; Separation of Powers; The deference to Congressional discretion stops where the judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress
classification violates a fundamental right, or prejudices persons accorded special protection by the in exercising its legislative power. Judicial scrutiny would be based on the “rational basis” test, and the
legislative discretion would be given deferential treatment. But if the challenge to the statute is premised on traffic or motor-driven vehicles on public roads, the payment of salaries at differing scales in various GFIs vis-
the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution à-vis in the BSP, is not such a change in conditions as would cause deprivation of property without due process
with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call of law. Petitioner’s members have not been deprived of their right to income as mandated by law. They
for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the have not received less than what they were entitled to ever since RA 7653 was passed eleven years ago.
rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the Same; Separation of Powers; Applying the concept of relative constitutionality strongly advocated in
government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the the ponencia not only goes beyond the parameters of traditional constitutionalism, but also finds no express
character or nature of the actor. basis in positive law; In a constitutional order that commands respect for coequal branches of government,
Same; Same; Same; Considering that majority, if not all, the rank-and-file employees consist of people speculation by the judiciary becomes incendiary and deserves no respectable place in our judicial chronicles.
whose status and rank in life are less and limited, especially in terms of job marketability, it is they—and not —Applying the concept of relative constitutionality strongly advocated in the ponencia, therefore, not only
the officers—who have the real economic and financial need for the adjustment.—In the case at bar, the goes beyond the parameters of traditional constitutionalism, but also finds no express basis in positive law.
challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a While it has been asserted that “a statute valid when enacted may become invalid by change in conditions to
distinction based on economic class and status, with the higher grades as recipients of a benefit specifically which it is applied,” the present case has shown no such change in conditions that would warrant the
withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are invalidation of the assailed provision if applied under such conditions. Hence, no semblance of constitutional
competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by impuissance, other than its conjured possibility, can be seen. In a constitutional order that commands respect
the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented for coequal branches of government, speculation by the judiciary becomes incendiary and deserves no
rates of the SSL while employees higher in rank—possessing higher and better education and opportunities for respectable place in our judicial chronicles.
career advancement—are given higher compensation packages to entice them to stay. Considering that Same; International Law; Government employees at the BSP with salary grades 19 and below are not
majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and entities vested with international personality—any possible discrimination as to them, in the light of the
limited, especially in terms of job marketability, it is they—and not the officers—who have the real economic principles and application of international law would be too far-fetched.—The ponencia further contends that
and financial need for the adjustment. This is in accord with the policy of the Constitution “to free the people the principles of international law can operate to render a valid law unconstitutional. The generally accepted
from poverty, provide adequate social services, extend to them a decent standard of living, and improve the definition states that international law is a body of legal rules that apply between sovereign states and such
quality of life for all.” Any act of Congress that runs counter to this constitutional desideratum deserves strict other entities as have been granted international personality. Government employees at the BSP with salary
scrutiny by this Court before it can pass muster. grades 19 and below are
312 314
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas 14
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
PANGANIBAN, J., Dissenting Opinion: not such entities vested with international personality; any possible discrimination as to them, in the
light of the principles and application of international law would be too far-fetched.
Doctrine of Relative Constitutionality; From the manner in which it has been utilized in American and Same; The ponencia overlooks the fact that the Bangko Sentral is not a GFI but a regulatory body of
Philippine jurisprudence, the novel theory of relative constitutionality finds relevance only when the factual GFIs and other financial-banking institutions—it should not be compared with them as there is no parity.—
situation covered by an assailed law changes, not when another law is passed pertaining to subjects not The dangerous consequences of the majority’s Decision in the present case cannot and should not be ignored.
directly covered by the former.—The ponencia advocates the application of the theory of relative Will there now be an automatic SSL exemption for employees of other GFIs and financial regulatory agencies?
constitutionality to the present case. The theory says that a statute valid at one time may become Will such exemption not infringe on Congress’ prerogative? The ponencia overlooks the fact that the Bangko
unconstitutional at another, because of altered circumstances or changed conditions that make the practical Sentral is not a GFI, but a regulatory body of GFIs and other financial/banking institutions. Therefore, it
operation of such a statute arbitrary or confiscatory. Thus, the provisions of that statute, which may be valid as should not be compared with them. There is no parity. The Bangko Sentral is more akin to the Insurance
applied to one set of facts but invalid as applied to another, cannot be merely compared with those applicable Commission, the National Telecommunications Commission, and the Energy Regulatory Commission. Should
under the Constitution. From the manner in which it has been utilized in American and Philippine not more appropriate comparisons be made with such regulatory bodies and their employees?
jurisprudence, however, this novel theory finds relevance only when the factual situation covered by an Same; Separation of Powers; Judicial Activism; The trust reposed in this Court is “not to formulate
assailed law changes, not when another law is passed pertaining to subjects not directly covered by the former. policy but to determine its legality as tested by the Constitution”; Judicial activism should not be allowed to
Thus, the theory applies only when circumstances that were specifically addressed upon the passage of the law become judicial exuberance.—The trust reposed in this Court is “not to formulate policy but to determine its
change. It does not apply to changes or alterations extraneous to those specifically addressed. legality as tested by the Constitution.” “It does not extend to an unwarranted intrusion into that broad and
Same; A statute that is declared invalid because of a change in circumstances affecting its validity legitimate sphere of discretion enjoyed by the political branches to determine the policies to be pursued. This
belongs only to a class of emergency laws; Unlike congested traffic or motor-driven vehicles on public roads, Court should ever be on the alert lest, without design or intent, it oversteps the boundary of judicial
the payment of salaries at differing scales in various GFIs vis-à-vis in the BSP, is not such a change in competence.” Judicial activism should not be allowed to become judicial exuberance. “As was so well put by
conditions as would cause deprivation of property without due process of law.—With due respect, Justice Malcolm: ‘Just as the Supreme Court, as the guardian of constitutional rights, should not sanction
the ponencia’s reference to “changed conditions” is totally misplaced. In the above-cited US cases, this phrase usurpations by any other department of the government, so should it as strictly confine its own sphere of
never referred to subsequent laws or executive pronouncements, but rather to the facts and circumstances that influence to the powers expressly or by implication conferred on it by the Organic Act.’ ”
the law or ordinance specifically addressed upon its passage or adoption. A statute that is declared invalid Same; Same; Same; The remedy against any perceived legislative failure to enact corrective
because of a change in circumstances affecting its validity belongs only to a class of emergency laws. Being a legislation is a resort, not to the Supreme Court, but to the bar of public opinion. —Since Congress itself did
manifestation of the State’s exercise of its police power, it is valid at the time of its enactment. In contrast not commit any constitutional violation or gravely abusive conduct when it enacted RA 7653, it should not be
thereto, RA 7653 cannot be regarded as an emergency measure that is merely temporary in operation. It is not summarily blamed
315
even a statute limited to the exigency that brought it about. The
313 VOL. 446, DECEMBER 15, 2004 315
VOL. 446, DECEMBER 15, 2004 313 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas for what the ponencia calls “altered circumstances.” Congress should be given the opportunity to
facts and circumstances it specifically addressed upon its passage have not been shown to have changed correct the problem, if any. I repeat, I am not against exemption from the SSL of Bangko Sentral employees
at all. Hence, the assailed provision of such a declaratory statute cannot be invalidated. Unlike congested with salary grades 19 and below. Neither am I against increases in their pay. However, it is Congress, not this
Court, that should provide a solution to their predicament, at least in the first instance. The remedy against any
perceived legislative failure to enact corrective legislation is a resort, not to this Court, but to the bar of public Same; Same; Same; Since the authority to declare a legal provision void is of a “delicate and awful
opinion. The electorate can refuse to return to Congress members who, in their view, have been remiss in the nature,” the Court should “never resort to that authority, but in a clear and urgent case.”—Taking
discharge of their constitutional duties. Our Constitution presumes that, absent any inference of antipathy, cognizance of this case and disposing of, or altogether ignoring, the constitutional question leads us to the
improvident legislative decisions “will eventually be rectified by the democratic processes”; and that judicial same inevitable conclusion: the assailed provision should not be declared “unconstitutional, unless it is clearly
intervention is unwarranted, no matter how unwisely a political branch may have acted. so.” Whichever path is chosen by this Court, I am of the firm belief that such provision cannot and should not
Same; Same; Same; To compel this Court to make a more decisive but unnecessary action in advance be declared unconstitutional. Since the authority to declare a legal provision void is of a “delicate and awful
of what Congress will do is a downright derogation of the Constitution itself, for it converts the judiciary into nature,” the Court should “never resort to that authority, but in a clear and urgent case.” If ever there is doubt
a super-legislature and invests it with a power that to it has never belonged.—It is only the legislature, not the —and clearly there is, as manifested herein by a sharply divided Court—“the expressed will of the legislature
courts, that “must be appealed to for the change.” If, however, Congress decides to act, the choice of should be sustained.”
appropriate measure lies within its discretion. Once determined, the measure chosen cannot be attacked on the Same; Same; Same; Future changes in both legislation and its executive implementation should
ground that it is not the best solution, or that it is unwise or inefficacious. A law that advances a legitimate certainly not be the benchmark for a preemptive declaration of unconstitutionality, especially when the said
governmental interest will be sustained, even if it “works to the disadvantage of a particular group, or x x x provision is not even constitutionally infirm to begin with.—Indeed, this Court is of the unanimous opinion
the rationale for it seems tenuous.” To compel this Court to make a more decisive but unnecessary action in that the assailed provision was at the outset constitutional; however, with recent amendments to related laws,
advance of what Congress will do is a downright derogation of the Constitution itself, for it converts the the majority now feels that said provision could no longer pass constitutional muster. To nail my colors to the
judiciary into a super-legislature and invests it with a power that to it has never belonged. mast, such proclivity to declare it immediately unconstitutional not only imprudently creeps into the legislative
Same; It is equally true that the levels of difficulty and responsibility for BSP employees with salary sphere, but also sorely clings to the strands of obscurantism. Future changes in both legislation and its
grades 19 and below are different from those of other BSP employees with salary grades 20 and above; To executive implementation should certainly not be the benchmark for a preemptive declaration of
assert, as petitioner does, that the statutory classification is just an “artifice based on arbitrariness,” without unconstitutionality, especially when the said provision is not even constitutionally infirm to begin with.
more, is nothing more than throwing a few jabs at an imaginary foe.—While it is true that all employees of the 318
BSP are appointed under the authority of the Monetary Board, observe the same set of office rules and regula- 3 SUPREME COURT REPORTS ANNOTATED
316
18
3 SUPREME COURT REPORTS ANNOTATED
16 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Same; Same; Same; This Court should bide its time, for it has neither the authority nor the
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas competence to contemplate laws, much less to create or amend them.—The congressional enactment into law
tions, and perform their work in practically the same offices, it is equally true that the levels of of pending bills on the compensation of BSP employees—or even those related thereto—will certainly affect
difficulty and responsibility for BSP employees with salary grades 19 and below are different from those of the assailed provision. This Court should bide its time, for it has neither the authority nor the competence to
other BSP employees with salary grades 20 and above. All those classes of position belonging to the contemplate laws, much less to create or amend them. Given the current status of these pending bills, the
Professional Supervisory Category of the Position Classification System under RA 6758, for instance, are arguments raised by petitioner against the assailed provision become all the more tenuous and amorphous. I
obviously not subjected to the same levels of difficulty, responsibility, and qualification requirements as those feel we should leave that provision untouched, and instead just accord proper courtesy to our legislators to
belonging to the Professional Non-Supervisory Category, although to both categories are assigned positions determine at the proper time and in the manner they deem best the appropriate content of any modifications to
that include salary grades 19 and 20. To assert, as petitioner does, that the statutory classification is just an it. Besides, there is an omnipresent presumption of constitutionality in every legislative enactment. No
“artifice based on arbitrariness,” without more, is nothing more than throwing a few jabs at an imaginary foe. confutation of the proviso was ever shown before; none should be considered now.
Same; The BSP and the GFIs cited in the ponencia do not belong to the same category of government Same; Same; Same; A judicial determination is fallow when inspired by purely cerebral casuistry or
institutions, although it may be said that both are, broadly speaking, “involved” in banking and finance— emotional puffery, especially during rowelling times.—It would be wise “not to anticipate the serious
while the former performs primarily governmental or regulatory functions, the latter execute purely constitutional law problems that would arise under situations where only a tentative judgment is dictated by
proprietary ones.—In like manner, petitioner’s denunciation of the proviso for allegedly discriminating against prudence.” Attempts “at abstraction could only lead to dialectics and barren legal questions and to sterile
its members vis-à-vis the rank and filers of other GFIs ignores the fact that the BSP and the GFIs cited in conclusions unrelated to actualities.” A judicial determination is fallow when inspired by purely cerebral
the ponencia do not belong to the same category of government institutions, although it may be said that both casuistry or emotional puffery, especially during rowelling times.
are, broadly speaking, “involved” in banking and finance. While the former performs primarily governmental Same; Same; Standards of Review; Under the first tier or the rational relationship or rational basis
or regulatory functions, the latter execute purely proprietary ones. test, courts will uphold a classification if it bears a rational relationship to an accepted governmental end—it
Same; Judicial Review; Canons of Judicial Avoidance; One such canon of avoidance is that the Court must be “rationally related to a legitimate state interest.”—Under the first tier or the rational relationship or
must not anticipate a question of constitutional law in advance of the necessity of deciding it; Applying to this rational basis test, courts will uphold a classification if it bears a rational relationship to an accepted
case the contours of constitutional avoidance Brandeis brilliantly summarized, this Court may choose to governmental end. In other words, it must be “rationally related to a legitimate state interest.” To be
ignore the constitutional question presented by petitioner, since there is indeed some other ground upon which reasonable, such classification must be (1) based on substantial distinction that makes for real differences; (2)
this case can be disposed of.—In the United States more than sixty years ago, Justice Brandeis delineated the germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all
famous canons of avoidance under which their Supreme Court had refrained from passing upon constitutional members of the same class.
questions. One such canon is that the Court must “not anticipate a question of constitutional law in advance of 319
the necessity of deciding it x x x. It is not the habit of the Court to decide questions of a constitutional nature VOL. 446, DECEMBER 15, 2004 319
317
VOL. 446, DECEMBER 15, 2004 317 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Same; Same; Same; The retention of the best and the brightest officials in an independent central
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas monetary authority is a valid governmental objective that can be reasonably met by a corresponding
unless absolutely necessary to a decision of the case.” In addition, the Court must not “pass upon a exemption from a salary standardization scheme that is based on graduated salary levels.—Murphy states that
constitutional question although properly presented by the record, if there is also present some other ground when a governmental classification is attacked on equal protection grounds, such classification is in most
upon which the case may be disposed of.” Applying to this case the contours of constitutional avoidance instances reviewed under the standard rational basis test. Accordingly, courts will not overturn that
Brandeis brilliantly summarized, this Court may choose to ignore the constitutional question presented by classification, unless the varying treatments of different groups are so unrelated to the achievement of any
petitioner, since there is indeed some other ground upon which this case can be disposed of—its clear lack of legitimate purpose that the courts can only conclude that the governmental actions are irrational. A
urgency, by reason of which Congress should be allowed to do its primary task of reviewing and possibly classification must “be reasonable, not arbitrary, and x x x rest upon some ground of difference having a fair
amending the law. and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be
treated alike.” All these conditions are met in the present case. The retention of the best and the
brightest officials in an independent central monetary authority is a valid governmental objective that can be compelling objective to justify a possible infringement under the strict scrutiny test.—Since employment in the
reasonably met by a corresponding exemption from a salary standardization scheme that is based on graduated government is not a fundamental right and government employees below salary grade 20 are not a suspect
salary levels. The legislature in fact enjoys a wide berth in continually classifying whenever it enacts a law, class, the government is not required to present a compelling objective to justify a possible infringement under
provided that no persons similarly situated within a given class are treated differently. To contend otherwise is the strict scrutiny test. The assailed provision thus cannot be invalidated via the strict scrutiny gauntlet. “ In
to be presumptuous about the legislative intent or lack of it. areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor
Same; Same; Same; Separation of Powers; Comity with and courtesy to a coequal branch dictate that infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any
our lawmakers be given sufficient time and leeway to address the alleged problem of differing pay scales reasonably conceivable state of facts that could provide a rational basis for the classification.”
—“Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to Same; Same; Same; Under the third tier or the intensified means test, the Court should accept the
preserve to the legislative branch its rightful independence and its ability to function.”—The Philippine legislative end, but should closely scrutinize its relationship to the classification made; There exist
Deposit Insurance Corporation (PDIC) is also a government regulatory agency almost on the same level of classifications, which have not been deemed to involve suspect classes or fundamental rights thus not
importance as the BSP. However, its charter was only amended very recently—to be more precise, on July 27, subjected to the strict scrutiny test, are subjected to a higher or intermediate degree of scrutiny than
2004. Consequently, it would be most unfair to implicitly accuse Congress of inaction, discrimination and 322
unequal treatment. Comity with and courtesy to a coequal branch dictate that our lawmakers be given 3 SUPREME COURT REPORTS ANNOTATED
sufficient time and leeway to address the alleged problem of differing pay scales. “Only by faithful adherence
to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its 22
rightful independ-
320 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
the deferential or traditional rational basis test.—Under the third tier or the intensified means test, the
3 SUPREME COURT REPORTS ANNOTATED Court should accept the legislative end, but should closely scrutinize its relationship to the classification made.
20 There exist classifications that are subjected to a higher or intermediate degree of scrutiny than the deferential
or traditional rational basis test. These classifications, however, have not been deemed to involve suspect
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas classes or fundamental rights; thus, they have not been subjected to the strict scrutiny test. In other words, such
ence and its ability to function.” Besides, it is a cardinal rule that courts first ascertain whether classifications must be “substantially related to a sufficiently important governmental interest.” Examples of
construction of a statute is fairly possible by which any constitutional question therein may be avoided. these so-called “quasi-suspect” classifications are those based on gender, legitimacy under certain
Same; Same; Same; The validity of a law is to be determined not by its effects on a particular case or circumstances, legal residency with regard to availment of free public education, civil service employment
by an incidental result arising therefrom, but by the purpose and efficacy of the law in accomplishing that preference for armed forces veterans who are state residents upon entry to military service, and the right to
effect or result.—The validity of a law is to be determined not by its effects on a particular case or by an practice for compensation the profession for which certain persons have been qualified and licensed.
incidental result arising therefrom, but by the purpose and efficacy of the law in accomplishing that effect or Same; Same; Same; Non-exempt government employees may be a sensitive but not a suspect class,
result. This point confirms my earlier position that the enactment of a law is not the same as its operation. and their employment status may be important although not fundamental; In the area of economics and social
Unlike Vera in which the Court invalidated the law on probation because of the unequal effect in the operation welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its
of such law, the assailed provision in the present case suffers from no such invidious discrimination. It very laws are imperfect.—Non-exempt government employees may be a sensitive but not a suspect class, and their
well achieves its purpose, and it applies equally to all government employees within the BSP. Furthermore, the employment status may be important although not fundamental. Yet, the enactment of the assailed provision is
application of this provision is not made subject to any discretion, uneven appropriation of funds, or time a reasonable means by which the State seeks to advance its interest. Since such provision sufficiently serves
limitation. Consequently, such a law neither denies equal protection nor permits of such denial. important governmental interests and is substantially related to the achievement thereof, then, again it
Same; Same; Same; Under the second tier or the strict scrutiny test, the Court will require the stands. “In the area of economics and social welfare, a State does not violate the Equal Protection Clause
government to show a compelling or overriding end to justify (1) the limitation on fundamental rights or (2) merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable
the implication of suspect classes.—Under the second tier or the strict scrutiny test, the Court will require the basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical
government to show a compelling or overriding end to justify (1) the limitation on fundamental rights or (2) nicety or because in practice it results in some inequality.’ ” “The very idea of classification is that of
the implication of suspect classes. Where a statutory classification impinges upon a fundamental right or inequality, so that x x x the fact of inequality in no manner determines the matter of constitutionality.”
burdens a suspect class, such classification is subjected to strict scrutiny. It will be upheld only if it is shown to Same; Same; Separation of Powers; Since relative constitutionality was not discussed by the parties in
be “suitably tailored to serve a compelling state interest.” Therefore, all legal restrictions that curtail the civil any of their pleadings, fundamental fairness and evenhandedness still dictate that Congress be
rights of a suspect class, like a single racial or ethnic group, are immediately suspect. “ That is not to say that 323
all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” VOL. 446, DECEMBER 15, 2004 323
Pressing public necessity, for instance, may justify the existence of those restrictions, but antagonism toward
such suspect classes never can. Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
321 heard on this concept before the Court imposes it in a definitive ruling.—In our jurisdiction, relative
VOL. 446, DECEMBER 15, 2004 321 constitutionality is a rarely utilized theory having radical consequences; hence, I believe it should not be
imposed by the Court unilaterally. Even in the US, it applies only when there is a change in factual
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas circumstancescovered by the law, not when there is an enactment of another law pertaining to subjects not
Same; Same; Same; Salary grade or class of position is not a fundamental right like marriage, directly covered by the assailed law. Whether factual conditions have so changed as to call for a partial or even
procreation, voting, speech and interstate travel.—To date, no American case—federal or state—has yet been a total abrogation of the law is a matter that rests primarily within the constitutional prerogative of Congress to
decided involving equal pay schemes as applied either to government employees vis-à-vis private ones, or determine. To justify a judicial nullification, the constitutional breach of a legal provision must be very clear
within the governmental ranks. Salary grade or class of position is not a fundamental right like marriage, and unequivocal, not doubtful or argumentative. In short, this Court can go no further than to inquire whether
procreation, voting, speech and interstate travel. American courts have in fact even refused to declare Congress had the power to enact a law; it cannot delve into the wisdom of policies it adopts or into the
government employment a fundamental right. adequacy under existing conditions of measures it enacts. The equal protection clause is not a license for the
Same; Same; Same; For purposes of equal protection analysis, financial need alone does not identify courts “to judge the wisdom, fairness, or logic of legislative choices.” Since relative constitutionality was not
a suspect class.—In fact, for purposes of equal protection analysis, financial need alone does not identify a discussed by the parties in any of their pleadings, fundamental fairness and evenhandedness still dictate that
suspect class. And even if it were to consider government pay to be akin to wealth, it has already been held that Congress be heard on this concept before the Court imposes it in a definitive ruling.
“where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal
advantages.” After all, a law does not become invalid “because of simple inequality,” financial or otherwise. CARPIO,J., Dissenting Opinion:
Same; Same; Same; Since employment in the government is not a fundamental right and government
employees below salary grade 20 are not a suspect class, the government is not required to present a
Judicial Review; Judicial Legislation; The majority opinion does not annul a law but enacts a pending subject to the SSL. This is not an annulment of a legislative act but an enactment of legislation exempting one
bill in Congress into law.—The majority opinion does not annul a law but enacts a pending bill in Congress agency from the SSL without exempting the remaining agencies similarly situated.
into law. The majority opinion invades the legislative domain by enacting into law a bill that the 13th Congress
is now considering for approval. The majority opinion does this in the guise of annulling a proviso in Section CARPIO-MORALES, J., Dissenting Opinion:
15(c), Article II of Republic Act No. 7653 (“RA 7653”).
Equal Protection; Government Financial Institutions (GFIs);The majority opinion erroneously
classifies the Bangko Sentral ng Pilipinas (“BSP”), a regulatory agency exercising sovereign functions, in the Equal Protection Clause; Standards of Review; In the United States, from where the equal protection
same category as non-regulatory corporations exercising purely commercial functions.—The majority opinion provision of our Constitution has its roots, the Rational Basis Test remains a primary standard for evaluating
erroneously classifies the Bangko Sentral ng Pilipinas (“BSP”), a regulatory agency exercising sovereign the constitutionality of a statute.—The Rational Basis Test has been described as adopting a “deferential”
functions, in the same category as non-regulatory corporations exercising purely commercial functions like attitude towards legislative classifications. As previously discussed, this “deference” comes from the
Land Bank recognition that classification is often an unavoidable element of the task of legislation which, under the
324 separation of
326
3 SUPREME COURT REPORTS ANNOTATED
3 SUPREME COURT REPORTS ANNOTATED
24
26
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
of the Philippines (“LBP”), Social Security System (“SSS”), Government Service Insurance System Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
(“GSIS”), Development Bank of the Philippines (“DBP”), Small Borrowers Guarantee Fund Corporation powers embodied in our Constitution, is primarily the prerogative of Congress. Indeed, in the United
(“SBGFC”), and Home Guarantee Corporation (“HGC”). States, from where the equal protection provision of our Constitution has its roots, the Rational Basis Test
Same; Same; Separation of Powers; Salary Standardization Law (SSL); The Supreme Court cannot remains a primary standard for evaluating the constitutionality of a statute.
simply ordain an exemption from SSL without considering serious ramifications on fiscal policies of the Same; Same; Strict scrutiny is applied when the challenged statute either (1) classifies on the basis of
government—the Court cannot intrude into fiscal policies that are the province of the Executive and an inherently suspect characteristic or (2) infringes fundamental constitutional rights.—While in the
Legislative Departments.—The grant of SSL exemption to GFIs has ramifications on the deepening budget Philippines the Rational Basis Test has, so far, served as a sufficient standard for evaluating governmental
deficit of the government. Under Republic Act No. 7656, all GFIs are required to remit to the National actions against the Constitutional guaranty of equal protection, the American Federal Supreme Court, as
Treasury at least 50% of their annual net earnings. This remittance forms part of the government revenues that pointed out in the main opinion, has developed a more demanding standard as a complement to the traditional
fund the annual appropriations act. If the remittances from GFIs decrease, the national revenues funding the deferential test, which it applies in certain well-defined circumstances. This more demanding standard is often
annual appropriations act correspondingly decrease. This results in widening even more the budget deficit. A referred to as Strict Scrutiny. Briefly stated, Strict Scrutiny is applied when the challenged statute either (1)
bigger budget deficit means there are no revenues to fund salary increases of all government employees who classifies on the basis of an inherently suspect characteristic or (2) infringes fundamental constitutional rights.
are paid out of the annual appropriations act. The exemption of GFIs from SSL may delay or even prevent a With respect to such classifications, the usual presumption of constitutionality is reversed, and it is incumbent
general increase in the salary of all government employees, including rank-and-file employees in the judiciary. upon the government to demonstrate that its classification has been narrowly tailored to further compelling
This Court cannot simply ordain an exemption from SSL without considering serious ramifications on fiscal governmental interests, otherwise the law shall be declared unconstitutional for being violative of the Equal
policies of the government. This is a matter better left to the Executive and Legislative Departments. This Protection Clause.
Court cannot intrude into fiscal policies that are the province of the Executive and Legislative Departments. Same; Same; The central purpose of the Equal Protection Clause was to eliminate racial
Same; Same; Same; Same; Judicial Review; The Supreme Court cannot exercise its power of judicial discrimination from official sources in the States.—The central purpose of the Equal Protection Clause was to
review before Congress has enacted the questioned law.—The power of judicial review of legislative acts eliminate racial discrimination emanating from official sources in the States. Like other rights guaranteed by
presumes that Congress has enacted a law that may violate the Constitution. This Court cannot exercise its the post-Civil War Amendments, the Equal Protection Clause (also known as the Fourteenth Amendment) was
power of judicial review before Congress has enacted the questioned law. In this case, Congress is still motivated in large part by a desire to protect the civil rights of African-Americans recently freed from slavery.
considering the bill exempting BSP rank-and-file employees from the SSL. There is still no opportunity for Thus, initially, the U.S. Supreme Court attempted to limit the scope of the Equal Protection Clause to
this Court to exercise its review power because there is nothing to review. discrimination claims brought by African-Americans. In Strauder v. West Virginia, the American Supreme
Same; Same; Same; Same; The power to exempt a government agency from the SSL is a legislative Court in striking down a West Virginia statute which prohibited a “colored man” from serving in a jury, traced
power, not a judicial power.— the roots of the Equal Protection Clause.
325 327
VOL. 446, DECEMBER 15, 2004 325 VOL. 446, DECEMBER 15, 2004 327
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
The majority opinion, however, claims that because of the failure of Congress to enact the bill Same; Same; Over the years the Equal Protection Clause has been applied against unreasonable
exempting BSP rank-and-file employees from the SSL, this Court should now annul the proviso in Section governmental discrimination directed at any identifiable group.—Over the years however, the Equal
15(c) of RA 7653 to totally exempt BSP from the SSL. This is no longer an exercise of the power of judicial Protection Clause has been applied against unreasonable governmental discrimination directed at any
review but an exercise of the power of legislation—a power that this Court does not possess. The power to identifiable group. In what Laurence H. Tribe and Michael C. Dorf call the most famous footnote in American
exempt a government agency from the SSL is a legislative power, not a judicial power. By annulling a prior constitutional law, Justice Stone in U.S. v. Carolene Products Co. maintained that state-sanctioned
valid law that has the effect of exempting BSP from the SSL, this Court is exercising a legislative power. discriminatory practices against discrete and insular minorities are entitled to a diminished presumption of
Same; Same; Same; Same; By annulling the proviso in Section 15(c) of R.A. 7653, BSP is not reverted constitutionality.
to its previous situation but brought to a new situation that BSP cannot attain without a new legislation.—The Same; Same; Words and Phrases; The use of the term “suspect” originated in the case of Korematsu
power of judicial review is the power to strike down an unconstitutional act of a department or agency of v. U.S., 323 U.S. 214 (1944).—The use of the term “suspect” originated in the case of Korematsu v.
government, not the power to initiate or perform an act that is lodged in another department or agency of U.S. In Korematsu, the American Supreme Court upheld the constitutionality of Civilian Exclusion Order No.
government. If this Court strikes down the law exempting PDIC from the SSL because it is discriminatory 34 of the Commanding General of the Western Command, U.S. Army, which directed that all persons of
against other government agencies similarly situated, this Court is exercising its judicial review power. The Japanese ancestry should be excluded from San Leandro California, a military area, beginning May 9, 1942.
effect is to revert PDIC to its previous situation of being subject to the SSL, the same situation governing BSP However, in reviewing the validity of laws which employ race as a means of classification, the Court held: It
and other agencies similarly situated. However, by annulling the proviso in Section 15(c) of RA 7653, BSP is should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group
not reverted to its previous situation but brought to a new situation that BSP cannot attain without a new are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that
legislation. Other government agencies similarly situated as BSP remain in their old situation—still being
courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the States’ conception of the Equal Protection Clause was largely influenced by its history of systematically
existence of such restrictions; racial antagonism never can. (Emphasis and italics supplied) discriminating along racial lines, it is perhaps no surprise that the Philippines which does not have any
Same; Same; Same; The underlying rationale of the suspect classification theory is that where comparable experience has not found a similar occasion to apply this particular American approach of Equal
legislation affects discrete and insular minorities, the presumption of constitutionality fades because Protection.
traditional political processes may have broken down.—Racial classifications are generally thought to be Same; Same; The U.S. Supreme Court has generally applied Intermediate or Heightened Scrutiny
“suspect” because throughout the United States’ history these have generally been used to discriminate when the challenged statute’s classification is based on either (1) gender or (2) illegitimacy—gender-based
officially against groups which are politically subordinate and subject to private prejudice and discrimination. classifications are presumed unconstitutional as such classifications generally provide no sensible ground for
Thus, the U.S. Supreme Court has “consistently repudiated distinctions between citizens solely because of their differential treatment, and classifications based on illegitimacy are also presumed unconstitutional as
ancestry as being odious to a free people whose institutions are founded upon the doctrine of equality.” The illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate
underlying rationale of the suspect classification theory is that where legislation affects discrete and insular 330
minorities, the pre- 3 SUPREME COURT REPORTS ANNOTATED
328
30
3 SUPREME COURT REPORTS ANNOTATED
28 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
in and contribute to society.—Despite numerous criticisms from American legal luminaries, the U.S.
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Supreme Court has not done away with the Rational Basis Test and Strict Scrutiny as they continue to remain
sumption of constitutionality fades because traditional political processes may have broken down. viable approaches in equal protection analysis. On the contrary, the American Court has developed yet a third
Moreover, classifications based on race, alienage or national origin are so seldom relevant to the achievement tier of equal protection review, falling between the Rational Basis Test and Strict Scrutiny—Intermediate
of any legitimate state interest that laws grounded on such considerations are deemed to reflect prejudice and Scrutiny (also known as Heightened Scrutiny). The U.S. Supreme Court has generally applied Intermediate or
antipathy—a view that those in the burdened class are not as worthy or deserving as others. Heightened Scrutiny when the challenged statute’s classification is based on either (1) gender or (2)
Same; Same; Precisely because statutes infringing upon fundamental constitutionally protected rights illegitimacy. Gender-based classifications are presumed unconstitutional as such classifications generally
affect fundamental liberties, any experiment involving basic freedoms which the legislature conducts must be provide no sensible ground for differential treatment. In City of Cleburne, Texas v. Cleburne Living Center, the
critically examined under the lens of Strict Scrutiny.—The application of Strict Scrutiny has not been limited United States Supreme Court said: “[W]hat differentiates sex from such nonsuspect statuses as intelligence or
to statutes which proceed along suspect lines but has been utilized on statutes infringing upon fundamental physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or
constitutionally protected rights. Most fundamental rights cases decided in the United States require equal contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583
protection analysis because these cases would involve a review of statutes which classify persons and impose (1973) (plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and
differing restrictions on the ability of a certain class of persons to exercise a fundamental right. Fundamental burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of
rights include only those basic liberties explicitly or implicitly guaranteed by the U.S. Constitution. And men and women. In the same manner, classifications based on illegitimacy are also presumed unconstitutional
precisely because these statutes affect, fundamental liberties, any experiment involving basic freedoms which as illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate
the legislature conducts must be critically examined under the lens of Strict Scrutiny. Fundamental rights in and contribute to society. Similar to Strict Scrutiny, the burden of justification for the classification rests
which give rise to Strict Scrutiny include the right of procreation, the right to marry, the right to exercise First entirely on the government. Thus, the government must show at least that the statute serves an important
Amendment freedoms such as free speech, political expression, press, assembly, and so forth, the right to purpose and that the discriminatory means employed is substantially related to the achievement of those
travel, and the right to vote. objectives.
Same; Same; Because Strict Scrutiny involves statutes which either classifies on the basis of an Same; Same; I fail to see the justification for the use of a “double standard” in determining the
inherently suspect characteristic or infringes fundamental constitutional rights, the presumption of constitutionality of the questioned proviso—why a “deferential test” for one comparison (between the
constitutionality is reversed—such legislation is assumed to be unconstitutional until the government executives and rank and file of the BSP) and a “strict test” for the other (between the rank and file of the BSP
demonstrates otherwise.—Because Strict Scrutiny involves statutes which either classifies on the basis of an and the rank and file of the other GOCCs/GFIs).—As noted earlier, the main opinion, in arriving at its
inherently suspect characteristic or infringes fundamental constitutional rights, the presumption of conclusion, simultaneously makes use of both the Rational Basis Test and the Strict Scrutiny Test. Thus, in
constitutionality is reversed; that is, such legislation is assumed to be unconstitutional until the government assessing the validity of the classification between executive and rank and file employees in Section 15 (c) of
demonstrates otherwise. The government must show that the statute is supported by a compelling The New Central Bank Act, the Ra-
governmental 331
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas tional Basis Test was applied. In evaluating the distinction between the rank and file employees of the
interest and the means chosen to accomplish that interest are narrowly tailored. Gerald Gunther BSP and the rank and file employees of the LBP, DBP, SSS and GSIS, the Strict Scrutiny Test was employed.
explains as follows: . . . The intensive review associated with the new equal protection imposed two demands a Despite my best efforts, I fail to see the justification for the use of this “double standard” in determining the
demand not only as to means but also as to ends. Legislation qualifying for strict scrutiny required a far closer constitutionality of the questioned proviso. Why a “deferential test” for one comparison (between the
fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by executives and rank and file of the BSP) and a “strict test” for the other (between the rank and file of the BSP
the old equal protection: means had to be shown “necessary” to achieve statutory ends, not merely “reasonably and the rank and file of the other GOCCs/GFIs)?
related.” Moreover, equal protection became a source of ends scrutiny as well: legislation in the areas of the Same; Same; Legal Research; Foreign Jurisprudence; To my knowledge, the American Court has
new equal protection had to be justified by “compelling” state interests, not merely the wide spectrum of never applied more than one standard to a given set of facts, and where one standard was found to be
“legitimate” state ends. Furthermore, the legislature must adopt the least burdensome or least drastic means appropriate, the U.S. Supreme Court has deliberately eschewed any discussion of another; Assuming that the
available for achieving the governmental objective. equal protection standards evolved by the U.S. Supreme Court may be adopted in this jurisdiction, there is no
Same; Same; Since the United States’ conception of the Equal Protection Clause was largely reason why the exclusive manner of their application should not be adopted also.—As the preceding review of
influenced by its history of systematically discriminating along racial lines, it is perhaps no surprise that the the standards developed by the U.S. Federal Supreme Court shows, the choice of the appropriate test for
Philippines which does not have any comparable experience has not found a similar occasion to apply this evaluating a legislative classification is dependent on the nature of the rights affected ( i.e. whether
particular American approach to Equal Protection of applying Strict Scrutiny to certain legislative “fundamental” or not) and the character of the persons allegedly discriminated against (i.e.whether belonging
classifications.—While Strict Scrutiny has, as yet, not found widespread application in this jurisdiction, the to a “suspect class” or not). As determined by these two parameters, the scope of application of each standard
tenet that legislative classifications involving fundamental rights require a more rigorous justification under is distinct and exclusive of the others. Indeed, to my knowledge, the American Court has never applied more
more stringent standards of analysis has been acknowledged in a number of Philippine cases. Since the United than one standard to a given set of facts, and where one standard was found to be appropriate, the U.S.
Supreme Court has deliberately eschewed any discussion of another. Assuming that the equal protection Same; Same; Legal Research; Foreign Jurisprudence; After an excessive dependence by the main
standards evolved by the U.S. Supreme Court may be adopted in this jurisdiction, there is no reason why the opinion to American jurisprudence it contradicted itself when it stated that “American jurisprudence and
exclusive manner of their application should not be adopted also. authorities, much less the American Constitution, are of dubious application for these are no longer
Same; Same; Doctrine of Relative Constitutionality; “Substantial distinctions” must necessarily be controlling within our jurisdiction and have only limited persuasive merit.”—Notably, the main opinion, after
derived from the objective factual circumstances of the classes or groups that a statute seeks to differentiate. discussing lengthily the developments in equal protection analysis in the United States and Europe, and finding
—“Substantial distinctions” must necessarily be derived from the objective factual circumstances of the classes no support thereto, incongruously concluded that “in resolving constitutional disputes, this Court should not be
or groups that a statute seeks to differentiate. The classification must be real and factual and not wholly beguiled by foreign jurisprudence
abstract, artificial, or contrived. Thus, in Victoriano v. Elizalde Rope Workers’ Union, this Court stated: We 334
332
3 SUPREME COURT REPORTS ANNOTATED
3 SUPREME COURT REPORTS ANNOTATED
34
32
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas some of which are hardly applicable because they have been dictated by different constitutional settings
believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies and needs.” After an excessive dependence by the main opinion to American jurisprudence it contradicted
employees and workers, as to the effect and coverage of union shop security agreements, into those who by itself when it stated that “American jurisprudence and authorities, much less the American Constitution, are of
reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose religion dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive
does not prohibit membership in labor unions. The classification rests on real or substantial, not merely merit.”
imaginary or whimsical, distinctions. There is such real distinction in the beliefs, feelings and sentiments of Same; Salary Standardization Law (R.A. 6758); Neither the text nor the legislative record of the
employees. Employees do not believe in the same religious faith and different religions differ in their dogmas Salary Standardization Law manifests the intent to provide “favored treatment” for GOCCs and GFIs.—
and cannons. Religious beliefs, manifestations and practices, though they are found in all places, and in all Neither the text nor the legislative record of the Salary Standardization Law manifests the intent to provide
times, take so many varied forms as to be almost beyond imagination. There are many views that comprise the “favored treatment” for GOCCs and GFIs. Thus, Section 3 (b), erroneously cited by the main opinion, provides
broad spectrum of religious beliefs among the people. There are diverse manners in which beliefs, equally for the general principle that compensation for all government personnel, whether employed in a GOCC/GFI
paramount in the lives of their possessors, may be articulated. Today the country is far more heterogenous in or not, should generally be comparable with that in the private sector.
religion than before, differences in religion do exist, and these differences are important and should not be Same; Same; During the Bicameral Conference Committee deliberations, the sentiment was that
ignored. (Emphasis supplied) exemptions from the general Compensation Classification System applicable to all government employees
Same; Same; Same; In the absence of factual changes which may have occurred vis-à-vis the BSP would be limited only to key positions in order not to lose these personnel to the private sector. —During the
personnel, it is difficult to see how relative constitutionality may be applied in the instant petition.—In the case Bicameral Conference Committee deliberations, the sentiment was that exemptions from the general
at bar, however, petitioner does not allege a comparable change in the factual milieu as regards the Compensation Classification System applicable to all government employees would be limited only to key
compensation, position classification and qualifications standards of the employees of the BSP (whether of the positions in order not to lose these personnel to the private sector. A provision was moreover inserted
executive level or of the rank and file) since the enactment of The New Central Bank Act. Neither does the empowering the President to, in truly exceptional cases, approve higher compensation, exceeding Salary Grade
main opinion identify the relevant factual changes which may have occurred vis-à-vis the BSP personnel that 30, to the chairman, president, general manager, and the board of directors of government-owned or controlled
may justify the application of the principle of relative constitutionality as above-discussed. Nor, to my corporations and financial institutions.
knowledge, are there any relevant factual changes of which this Court may take judicial knowledge. Hence, it Same; Same; The basis for the exemption of certain employees of GOCCs or GFIs from the coverage
is difficult to see how relative constitutionality may be applied to the instant petition. of the Salary Standardization Law rests not on the mere fact that they are employees of GOCCs or GFIs, but
Same; Same; While it is true that the Equal Protection Clause is found in the Bill of Rights of both the on a policy determination by the legislature that such exemption is needed to fulfill the mandate of the
American and Philippine Constitutions, for strict scrutiny to apply there must be a violation of a institution concerned.—In sum, the basis for the exemption of certain employees of GOCCs or GFIs from the
Constitutional right other than the right to equal protection of the laws.—Strict Scrutiny cannot be applied in coverage of the Salary Standardization Law rests not on the mere fact that they are employees of GOCCs or
the case at bar since nowhere in the petition does petitioner allege that Article II, Section 335
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas GFIs, but on a policy determination by the legislature that such exemption is needed to fulfill the
15 (c) of the New Central Bank Act burdens a fundamental right of its members. The petition merely mandate of the institution concerned considering, among others, that: (1) the GOCC or GFI is essentially
states that “the proviso in question violates the right to equal protection of the laws of the BSP rank and file proprietary in character; (2) the GOCC or GFI is in direct competition with their counterparts in the private
employees who are members of the petitioner.” While it is true that the Equal Protection Clause is found in the sector, not only in terms of the provision of goods or services, but also in terms of hiring and retaining
Bill of Rights of both the American and Philippine Constitutions, for strict scrutiny to apply there must be a competent personnel; and (3) the GOCC or GFI are or were experiencing difficulties filling up plantilla
violation of a Constitutional right other than the right to equal protection of the laws. To hold otherwise would positions with competent personnel and/or retaining these personnel. The need for and the scope of exemption
be absurd as any invocation of a violation of the equal protection clause would automatically result in the necessarily varies with the particular circumstances of each institution, and the corresponding variance in the
application of Strict Scrutiny. benefits received by the employees is merely incidental.
Same; Same; The main opinion fails to show that financial need is an inherently suspect trait.—The Same; Same; The fact that certain persons have some attributes in common does not automatically
main opinion however seeks to justify the application of Strict Scrutiny on the theory that the rank and file make them members of the same class with respect to a legislative classification.—There can be no doubt that
employees of the BSP constitute a suspect class “considering that majority (if not all) of the rank and file the employees of the BSP share a common attribute with the employees of the LBP, SSS, GSIS and DBP in
employees consist of people whose status and rank in life are less and limited, especially in terms of job that all are employees of GOCCs performing fiduciary functions. It may also be reasonable to assume that BSP
marketability, it is they—and not the officers—who have the real economic and financial need for the employees with SG 19 and below perform functions analogous to those carried out by employees of the other
adjustment.” The ponencia concludes that since the challenged proviso operates on the basis of the salary GOCCs with the corresponding salary grades. Nonetheless, these similarities alone are not sufficient to support
grade or office-employee status a distinction based on economic class and status is created. With all due the conclusion that rank-and-file employees of the BSP may be lumped together with similar employees of the
respect, the main opinion fails to show that financial need is an inherently suspect trait. The claim that the rank other GOCCs for purposes of compensation, position classification and qualifications standards. The fact that
and file employees of the BSP are an economically disadvantaged group is unsupported by the facts on record. certain persons have some attributes in common does not automatically make them members of the same class
Moreover, as priorly discussed, classifications based on financial need have been characterized by the U.S. with respect to a legislative classification.
Supreme Court as not suspect. Instead, the American Court has resorted to the Rational Basis Test. Same; Judicial Review; Judicial Legislation; Considering that the record fails to show (1) that the
statutory provision in question affects either a fundamental right or a suspect class, and, more importantly, (2)
that the classification contained therein was completely bereft of any possible rational and real basis, it would promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure
appear that judicial restraint is not merely preferred but is in fact mandatory, lest this Court stray from its economic stability of all the competent elements of society, through the maintenance of a proper economic and
function of adjudication and trespass into the realm of legislation.—While the main opinion acknowledges the social equilibrium in the interrelations of the members of
propriety of judicial restraint “under most circumstances” when deciding questions of constitutionality, in 338
recognition of the “broad discretion given to Congress in exercising its legislative power,” it 3 SUPREME COURT REPORTS ANNOTATED
336
38
3 SUPREME COURT REPORTS ANNOTATED
36 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
the community, constitutionally, through the adoption of measures legally justifiable, or extra-
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas constitutionally, through the exercise of powers underlying the existence of all governments on the time-
nevertheless advocates active intervention with respect to the exemption of the BSP rank and file honored principle of salus populi est suprema lex.(Emphasis and italics supplied)
employees from the Compensation Classification System of the Salary Standardization Law. Considering,
however, that the record fails to show (1) that the statutory provision in question affects either a fundamental CHICO-NAZARIO, J., Concurring Opinion:
right or a suspect class, and, more importantly, (2) that the classification contained therein was completely
bereft of any possible rational and real basis, it would appear that judicial restraint is not merely preferred but
is in fact mandatory, lest this Court stray from its function of adjudication and trespass into the realm of Equal Protection; If BSP needs an exemption from R.A. No. 6758 for key positions in order that it may
legislation. To be sure, inasmuch as exemption from the Salary Standardization Law requires a factually hire the best and brightest economists, accountants, lawyers and other technical and professional people, the
grounded policy determination by the legislature that such exemption is necessary and desirable for a exemption must not begin only in SG 20—under the circumstances, the cut-off point, the great divide, between
government agency or GOCC to accomplish its purpose, the appropriate remedy of petitioner is with Congress SG 19 and 20 is entirely arbitrary as it does not have a reasonable or rational foundation.—Classification in
and not with the courts. As the branch of government entrusted with the plenary power to make and amend law is the grouping of persons/objects because they agree with one another in certain particulars and differ
laws, it is well within the powers of Congress to grant exceptions to, or to amend where necessary, the Salary from others in those same particulars. In the instant case, however, SG 20 and up do not differ from SG 19 and
Standardization Law, where the public good so requires. At the same time, in line with its duty to determine down in terms of technical and professional expertise needed as the entire range of positions all “require
the proper allocation of powers between the several departments, this Court is naturally hesitant to intrude too intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor’s degree
readily into the domain of another co-equal branch of government where the absence of reason and the vice of or higher courses.” Consequently, if BSP needs an exemption from Rep. Act No. 6758 for key positions in
arbitrariness are not clearly and unmistakably established. order that it may hire the best and brightest economists, accountants, lawyers and other technical and
Same; Same; Same; For the Supreme Court to intervene now, when no intervention is called for, professional people, the exemption must not begin only in SG 20. Under the circumstances, the cut-off point,
would be to prematurely curtail the public debate on the issue of compensation of the employees of the the great divide, between SG 19 and 20 is entirely arbitrary as it does not have a reasonable or rational
GOCCs and GFIs, and effectively substitute this Court’s policy judgments for those of the legislature, with foundation. This conclusion finds support in no less than the records of the congressional deliberations, the
whom the “power of the purse” is constitutionally lodged.—Whether any of the foregoing measures will bicameral conference committee having pegged the cut-off period at SG 20 despite previous discussions in the
actually be implemented by the Congress still remains to be seen. However, what is important is that Congress Senate that the “executive group” is “probably” SG 23 and above.
is actively reviewing the policies concerning GOCCs and GFIs with respect to the Salary Standardization Law.
Hence, for this Court to intervene now, when no intervention is called for, would be to prematurely curtail the SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
public debate on the issue of compensation of the employees of the GOCCs and GFIs, and effectively
substitute this Court’s policy judgments for those of the legislature, with whom the “power of the purse” is
constitutionally lodged. Such would not only constitute an improper exercise of the Court’s power of judicial, The facts are stated in the opinion of the Court.
review, but may Edgardo G. Pena for petitioner.
337 The Solicitor General for respondents.
339
VOL. 446, DECEMBER 15, 2004 337
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Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
also effectively stunt the growth and maturity of the nation as a political body as well. Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Same; Same; Same; Surely to grant the rank and file of the BSP exemption solely for the reason that
other GOCC or GFI employees have been exempted, without regard for the reasons which impelled the PUNO, J.:
legislature to provide for those exemptions, would be to crystallize into our law what Justice Holmes
sardonically described as “merely idealizing envy.”—How then are the aims of social justice served by
removing the BSP rank and file personnel from the ambit of the Salary Standardization Law? In the Can a provision of law, initially valid, become subsequentlyunconstitutional, on the ground that
alternative, what other public purpose would be served by ordering such an exemption? Surely to grant the its continued operation would violate the equal protection of the law? We hold that with the
rank and file of the BSP exemption solely for the reason that other GOCC or GFI employees have been passage of the subsequent laws amending the charter of seven (7) other governmental financial
exempted, without regard for the reasons which impelled the legislature to provide for those exemptions, institutions (GFIs), the continued operation of the last proviso of Section 15(c), Article II of
would be to crystallize into our law what Justice Holmes sardonically described as “merely idealizing envy.” Republic Act (R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-and-file
Same; Social Justice; Certainly, social justice is more than picking and choosing lines from Philippine employees of the Bangko Sentral ng Pilipinas(BSP).
and foreign instruments, statutes and jurisprudence, like ripe cherries, in an effort to justify preferential
treatment of a favored group.—Certainly, social justice is more than picking and choosing lines from I. The Case
Philippine and foreign instruments, statutes and jurisprudence, like ripe cherries, in an effort to justify First the facts.
preferential treatment of a favored group. In the immortal words of Justice Laurel in Calalang v. Williams: The On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old
petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept Central Bank of the Philippines, and created a new BSP.
regarding the promotion of social justice to insure the well-being and economic security of all the people. The
On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central
promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any
given group.Social justice is “neither communism, nor despotism, nor atomism, nor anarchy,” but the Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the
humanization of laws and the equalization of social and economic forces by the State so that justice in its Executive Secretary of the Office of the President, to restrain respondents from further
rational and objectively secular conception may at least be approximated. Social justice means the
implementing the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is 3. e.the assailed proviso has caused the demoralization among the BSP rank-and-file and
unconstitutional. resulted in the gross disparity between their compensation and that of the BSP
Article II, Section 15(c) of R.A. No. 7653 provides: officers’. 7
Section 15. Exercise of Authority.—In the exercise of its authority, the Monetary Board shall:
x x x x x x x x x
(c) establish a human resource management system which shall govern the selection, hiring, appointment, In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and
transfer, promotion, or dismissal of all personnel. Such system shall aim to establish violates the equal protection clause of the Constitution. Petitioner also stresses: (a) that R.A. No.
8
340 7653 has a separability clause, which will allow the declaration of the unconstitutionality of
340 SUPREME COURT REPORTS ANNOTATED the proviso in question without affecting the other provisions; and (b) the urgency and propriety of
the petition, as some 2,994 BSP rank-and-file employees have been prejudiced since 1994 when
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
the proviso was implemented. Petitioner concludes that: (1) since the inequitable proviso has no
professionalism and excellence at all levels of the Bangko Sentralin accordance with sound principles of
management.
force and effect of law, respondents’ implementation of such amounts to lack of jurisdiction; and
A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s (2) it has no appeal nor any other plain, speedy
_______________
approval, shall be instituted as an integral component of the Bangko Sentral’shuman resource development
program: Provided, That the Monetary Board shall make its own system conform as closely as possible with
the principles provided for under Republic Act No. 6758 [Salary Standardization Act]. Provided, i.e., (1) make the salary of the BSP personnel competitive to attract highly competent personnel; (2) establish
3
however, That compensation and wage structure of employees whose positions fall under salary grade 19 professionalism and excellence at all levels in the BSP; and (3) ensure the administrative autonomy of the BSP as the central
monetary authority.
and below shall be in accordance with the rates prescribed under Republic Act No. 6758. [emphasis Rollo, pp. 8-10.
4
supplied] Id., pp. 10-12, quoting Former Senator Maceda, Record of the Senate, First Regular Session, March 15 to June 10, 1993,
5
The thrust of petitioner’s challenge is that the above provisomakes an unconstitutional Vol. IV, No. 86, p. 1087.
cut between two classes of employees in the BSP, viz.: (1) the BSP officers or those exempted Id., pp. 12-14.
6
Id., p. 14.
from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-
7
Id., pp. 2-5.
8
file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non- 342
exempt class). It is contended that this classification is “a classic case of class legislation,”
342 SUPREME COURT REPORTS ANNOTATED
allegedly not based on substantial distinctions which make real differences, but solely on the SG
of the BSP personnel’s position. Petitioner also claims that it is not germane to the purposes of Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish and adequate remedy in the ordinary course except through this petition for prohibition, which this
professionalism and excellence at all levels in the BSP. Petitioner offers the following sub-set of
1
Court should take cognizance of, considering the transcendental importance of the legal issue
arguments: involved. 9
Respondent BSP, in its comment, contends that the provision does not violate the equal
10
protection clause and can stand the constitutional test, provided it is construed in harmony with
1. a.the legislative history of R.A. No. 7653 shows that the questioned proviso does not
other provisions of the same law, such as “fiscal and administrative autonomy of BSP,” and the
appear in the original and amended versions of House Bill No. 7037, nor in the original mandate of the Monetary Board to “establish professionalism and excellence at all levels in
version of Senate Bill No. 1235; 2
accordance with sound principles of management.”
2. b.subjecting the compensation of the BSP rank-and-file employees to the rate prescribed The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity
by the SSL actually defeats the of the provision. Quite simplistically, he argues that the classification is based on actual and real
differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish
_______________ professionalism and excellence within the BSP subject to prevailing laws and policies of the
national government. 11
Rollo, p. 7.
1
Id., p. 9.
2 II. Issue
341 Thus, the sole—albeit significant—issue to be resolved in this case is whether the last paragraph
VOL. 446, DECEMBER 15, 2004 341 of Section 15(c), Article II of R.A. No. 7653, runs afoul of the constitutional mandate that “No
person shall be. . . denied the equal protection of the laws.” 12
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas _______________
purpose of the law of establishing professionalism and excellence at all levels in the
3
BSP; (emphasis supplied)
4 Id., pp. 14-15.
9
Id., pp. 62-75.
10
Id., pp. 76-90.
11
1987 Constitution, Art. III, § 1.
1. c.the assailed proviso was the product of amendments introduced during the deliberation 12
343
of Senate Bill No. 1235, without showing its relevance to the objectives of the law, and
even admitted by one senator as discriminatory against low-salaried employees of the VOL. 446, DECEMBER 15, 2004 343
BSP;5
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
2. d.GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; III. Ruling
thus within the class of rank-and-file personnel of government financial institutions
(GFIs), the BSP rankand-file are also discriminated upon; and
6
1. A.UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION, SECTION class may be treated and regulated differently from another. The classification must also be
17
15(c), ARTICLE II OF R.A. NO. 7653 IS VALID. germane to the purpose of the law and must apply to all those belonging to the same class. 18
_______________
Jurisprudential standards for equal protection challenges indubitably show that the classification Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310,
15
created by the questioned proviso, on its face and in its operation, bears no constitutional 79744, and 79777, 175 SCRA 343 (July 14, 1989). See Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20,
infirmities. 1999).
It is settled in constitutional law that the “equal protection” clause does not prevent the Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (May 31, 1957), citing 2 Cooley, Constitutional Limitations, pp. 824-
16
825.
Legislature from establishing classes of individuals or objects upon which different rules shall Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278 (January 20, 1999); Dumlao v. Commission on
17
operate—so long as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope Elections, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); and Himagan v. People, G.R. No. 113811, 237 SCRA
Workers’ Union, and reiterated in a long line of cases:
13 14 538 (October 7, 1994). See also JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA
_______________ 319, 331-332 (August 5, 1996); The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas Employment
Agency, G.R. No. 114714, 243 SCRA 666, 677 (April 21, 1995); Ceniza v. Commission on Elections, No. L-52304, 95 SCRA
763, 772 (January 28, 1980); Vera v. Cuevas, Nos. L-33693-94, 90 SCRA 379(May 31, 1979); and Tolentino v. Secretary of
No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
13
Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 and 115931, 235 SCRA 630 (August
Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No. L-27113, 61
14
25, 1994).
SCRA 93, 110-111 (November 19, 1974); Anucension v. National Labor Union, No. L-26097, 80 SCRA 350, 372-373 Dumlao v. Commission on Elections, No. L-52245, 95 SCRA 392, 405 (January 22, 1980), citing Peralta v.
18
(November 29, 1977); Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86 SCRA 270, 275 (November 10, 1978); Dumlao Commission on Elections, No. L-47771, No. L-47803, No. L-47816, No. L-47767, No. L-47791 and No. L-47827, 82 SCRA
v. Commission on Elections, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Ceniza v. Commission on Elections, G.R. 30 (March 11, 1978); Rafael v. Embroidery and Apparel Control and Inspection Board, No. L-19978, 21 SCRA
No. L-52304, 95 SCRA 763, 772-773 (January 28, 1980); Himagan v. People, G.R. No. 113811, 237 SCRA 538 (October 7, 336 (September 29, 1967); and Ichong, v. Hernandez, No. L-7995, 101 Phil. 1155 (May 31, 1957). See also JMM Promotion
1994); The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas Employment Agency, G.R. No. and Management, Inc. v. Court of Appeals, G.R. No. 120095, 260 SCRA 319 (August 5, 1996); Philippine Judges Association
114714, 243 SCRA 666, 677 (April 21, 1995); JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993); and Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, 86
120095, 260 SCRA 319, 331–332 (August 5, 1996); and Tiu v. Court of Appeals, G.R. No. 127410, 301 SCRA 278, 288-289 SCRA 270, 275 (November 10, 1978).
(January 20, 1999). See also Ichong v. Hernandez,No. L-7995, 101 Phil. 1155 (May 31, 1957); Vera v. Cuevas, Nos. L-33693- 346
94, 90 SCRA 379, 388 (May 31, 1979); and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544,
115754, 115781, 115852, 115873, and 115931, 235 SCRA 630, 684 (August 25, 1994). 346 SUPREME COURT REPORTS ANNOTATED
344
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
344 SUPREME COURT REPORTS ANNOTATED In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas and above) from the SSL was intended to address the BSP’s lack of competitiveness in terms of
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all attracting competent officers and executives. It was not intended to discriminate against the rank-
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of rank-and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis
statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the and is not palpably, purely, and entirely arbitrary in the legislative sense. 19
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not
That the provision was a product of amendments introduced during the deliberation of the
require that things which are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation Senate Bill does not detract from its validity. As early as 1947 and reiterated in subsequent
which is limited either in the object to which it is directed or by the territory within which it is to operate. cases, this Court has subscribed to the conclusiveness of an enrolled bill to refuse invalidating a
20
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as provision of law, on the ground that the bill from which it originated contained no such provision
in the other departments of knowledge or practice, is the grouping of things in speculation or practice because and was merely inserted by the bicameral conference committee of both Houses.
they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be
idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no resolved in favor of the constitutionality of a statute. An act of the legislature, approved by the
21
manner determines the matter of constitutionality. All that is required of a valid classification is that it be executive, is presumed to be within constitutional limitations. To justify the nullification of a law,
22
reasonable, which means that the classification should be based on substantial distinctions which make for real
there must
differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions _______________
only; and that it must apply equally to each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not
People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947).
19
palpably arbitrary. See Mabanag v. Lopez Vito, No. L-1123, 78 Phil. 1 (March 5, 1947); Casco Philippine Chemical Co., Inc. v.
20
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its Gimenez, No. L-17931, 7 SCRA 347(February 28, 1963); Morales v. Subido, No. L-29658, 27 SCRA 131(February 27, 1969);
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the and Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
classification be based on scientific or marked differences of things or in their relation. Neither is it necessary People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
21
that the classification be made with mathematical nicety. Hence, legislative classification may in many cases Id., citing U.S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health, 24 Phil. 250, 276 (February 4,
22
properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from 1913); and U.S. v. Joson,No. 7019, 26 Phil. 1 (October 29, 1913).
recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. ( citations 347
omitted) VOL. 446, DECEMBER 15, 2004 347
345
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
VOL. 446, DECEMBER 15, 2004 345
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. 23
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Congress is allowed a wide leeway in providing for a valid classification. The equal protection
15
1. B.THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS—EXEMPTING ALL
clause is not infringed by legislation which applies only to those persons falling within a specified OTHER RANK-AND-FILE EMPLOYEES OF GFIs FROM THE SSL—RENDERS
class. If the groupings are characterized by substantial distinctions that make real differences, one
16
THE CONTINUED APPLICATION OF THE CHALLENGED PROVISION A business, industry and agriculture. Thus, the law was set aside because its continued operation
VIOLATION OF THE EQUAL PROTECTION CLAUSE. would be grossly discriminatory and lead to the oppression of the creditors. The landmark ruling
states: 31
The question now to be determined is, is the period of eight (8) years which Republic Act No. 342 grants to
While R.A. No. 7653 started as a valid measure well within the legislature’s power, we hold that
debtors of a monetary obligation contracted before the last global war and who is a war sufferer with a claim
the enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all duly approved by the Philippine War Damage Commission reasonable under the present circumstances?
validity out of the challenged proviso. It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations who
1. The concept of relative constitutionality. suffered from the ravages of the last war and who filed a claim for their losses with the Philippine War
Damage Commission. It is therein provided that said obligation shall not be due and demandable for a period
The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of
of eight (8) years from and after settlement of the claim filed by the debtor with said Com-
its provisions with applicable provisions of the Constitution, since the statute may be _______________
constitutionally valid as applied to one set of facts and invalid in its application to another. 24
A statute valid at one time may become void at another time because of altered 30
On the constitutionality of Republic Act No. 342, Section 2 provides that all debts and other monetary obligations contracted before
December 8, 1941, any provision in the contract creating the same or in any subsequent agreement affecting such obligation to the contrary
circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its
25
notwithstanding, shall not be due and demandable for a period of eight (8) years from and after settlement of the war damage claim of the debtor by
validity, even though affirmed by a former adjudication, is the Philippine War Damage Commission; and Section 3 of said Act provides that should the provision of Section 2 be declared void and
_______________ unenforceable, then as regards the obligation affected thereby, the provisions of Executive Order No. 25 dated November 18, 1944, as amended by
Executive Order No. 32, dated March 10, 1945, relative to debt moratorium, shall continue to be in force and effect, any contract affecting the same
to the contrary notwithstanding, until subsequently repealed or amended by a legislative enactment. It thus clearly appears in said Act that the
Dumlao v. Commission on Elections, No. L-52245, 95 SCRA 392, 404 (January 22, 1980).
23 nullification of its provisions will have the effect of reviving the previous moratorium orders issued by the President of the Philippines.
Medill v. State, 477 N.W.2d 703 (Minn. 1991) (followed with reservations by, In re Cook, 138 B.R. 943 [Bankr. D.
24
31
Rutter v. Esteban, G.R. No. L-3708, 93 Phil. 68 (May 18, 1953).
Minn. 1992]). 350
Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949 (1935); Atlantic Coast Line R. Co. v.
25
Ivey, 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941); Louisville & N. R. Co. v. Faulkner, 3 G.R. No. L-29646 07 S.W.2d 350 SUPREME COURT REPORTS ANNOTATED
196 (Ky. 1957); and Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517 (1954).
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
348
mission. The purpose of the law is to afford to prewar debtors an opportunity to rehabilitate themselves by
348 SUPREME COURT REPORTS ANNOTATED giving them a reasonable time within which to pay their prewar debts so as to prevent them from being
victimized by their creditors. While it is admitted in said law that since liberation conditions have gradually
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas returned to normal, this is not so with regard to those who have suffered the ravages of war and so it was
open to inquiry and investigation in the light of changed conditions. 26
therein declared as a policy that as to them the debt moratorium should be continued in force (Section 1).
Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon, where the 27
But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of
Court of Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of
placed the plaintiff's property in a residential district, although it was located in the center of a the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period
business area. Later amendments to the ordinance then prohibited the use of the property except granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language
means that the creditors would have to observe a vigil of at least twelve (12) years before they could effect a
for parking and storage of automobiles, and service station within a parking area. The Court found
liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not
the ordinance to constitute an invasion of property rights which was contrary to constitutional due oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works
process. It ruled: injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection
While the common council has the unquestioned right to enact zoning laws respecting the use of property in becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under
accordance with a well-considered and comprehensive plan designed to promote public health, safety and the law, the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes
general welfare, such power is subject to the constitutional limitation that it may not be exerted arbitrarily or in the United States.
unreasonably and this is so whenever the zoning ordinance precludes the use of the property for any purpose x x x x x x x x x
for which it is reasonably adapted. By the same token, an ordinance valid when adopted will nevertheless In the face of the foregoing observations, and consistent with what we believe to be as the only course
be stricken down as invalid when, at a later time, its operation under changed conditions proves dictated by justice, fairness and righteousness, we feel that the only way open to us under the present
confiscatory such, for instance, as when the greater part of its value is destroyed, for which the courts will circumstances is to declare that the continued operation and enforcement of Republic Act No. 342 at the
afford relief in an appropriate case. (citations omitted, emphasis supplied)
28
present time is unreasonable and oppressive, and should not be prolonged a minute longer, and,
In the Philippine setting, this Court declared the continued enforcement of a valid law as therefore, the same should be declared null and void and without effect. (emphasis supplied, citations
unconstitutional as a consequence of significant changes in circumstances. Rutter v. omitted)
Esteban upheld the constitutionality of the moratorium law—its enactment and operation being a
29 351
valid exercise by VOL. 446, DECEMBER 15, 2004 351
_______________
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992).
2. Applicability of the equal protection clause.
26
307 N.Y. 493, 121 N.E.2d 517 (1954).
27
Id.
28 In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey is 32
No. L-3708, 93 Phil. 68 (May 18, 1953).
29
illuminating. The Supreme Court of Florida ruled against the continued application of statutes
349 authorizing the recovery of double damages plus attorney’s fees against railroad companies, for
VOL. 446, DECEMBER 15, 2004 349 animals killed on unfenced railroad right of way without proof of negligence. Competitive motor
carriers, though creating greater hazards, were not subjected to similar liability because they
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
were not yet in existence when the statutes were enacted. The Court ruled that the statutes became
the State of its police power —but also ruled that the continued enforcement of the otherwise valid
30
invalid as denying “equal protection of the law,” in view of changed conditions since their
law would be unreasonable and oppressive. It noted the subsequent changes in the country’s enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner, the Court of Appeals of Kentucky
33
coverage of the SSL. Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-
37
declared unconstitutional a provision of a statute which imposed a duty upon a railroad company file are also discriminated upon.
of proving that it was free from negligence in the killing or injury of cattle by its engine or Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress
cars. This, notwithstanding that the constitutionality of the statute, enacted in 1893, had been also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other
previously sustained.Ruled the Court: GFIs, from 1995 to 2004, viz.:
The constitutionality of such legislation was sustained because it applied to all similar corporations and had for
its object the safety of persons on a train and the protection of property…. Of course, there were no
automobiles in those days. The subsequentinauguration and development of transportation by motor vehicles 1. 1.R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
on the public highways by common carriers of freight and passengers created even greater risks to the safety of 2. 2.R.A. No. 8282 (1997) for Social Security System (SSS);
occupants of the vehicles and of danger of injury and death of domestic animals. Yet, under the law the 3. 3.R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation,
operators of that mode of competitive transportation are not subject to the same extraordinary legal (SBGFC);
responsibility for killing such animals on the public roads as are railroad companies for killing them on their
private rights of way. _______________
_______________
People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937). Parenthetically, this doctrine was first enunciated in the
36
148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941).
32
1886 case of Yick Wo v. Hopkins (118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220), wherein the U.S. Supreme Court, speaking
307 S.W.2d 196 (Ky. 1957).
33
through Justice Matthews, declared: “. . . Though the law itself be fair on its face and impartial in appearances, yet, if it is
352 applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
352 SUPREME COURT REPORTS ANNOTATED discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the Constitution.”
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Rollo, pp. 12-14.
37
The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 354
405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, “A statute valid when enacted may become invalid by change in 354 SUPREME COURT REPORTS ANNOTATED
the conditions to which it is applied.The police power is subject to the constitutional limitation that it may not
be exerted arbitrarily or unreasonably.” A number of prior opinions of that court are cited in support of the Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
statement. The State of Florida for many years had a statute, F.S.A. § 356.01 et seq. imposing extraordinary
and special duties upon railroad companies, among which was that a railroad company was liable for double
damages and an attorney’s fee for killing livestock by a train without the owner having to prove any act of
1. 4.R.A. No. 8291 (1997) for Government Service Insurance System (GSIS);
negligence on the part of the carrier in the operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it 2. 5.R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP);
was held that the changed conditions brought about by motor vehicle transportation rendered the statute 3. 6.R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC); and 38
unconstitutional since if a common carrier by motor vehicle had killed the same animal, the owner would have 4. 7.R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).
been required to prove negligence in the operation of its equipment. Said the court, “This certainly is not equal
protection of the law.” (emphasis supplied)
34
Echoes of these rulings resonate in our case law, viz.: It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs
[C]ourts are not confined to the language of the statute under challenge in determining whether that share this common proviso: a blanket exemption of all their employees from the coverage of the
statute has any discriminatory effect. A statute nondiscriminatory on its face may be grossly SSL, expressly or impliedly, as illustrated below:
discriminatory in its operation. Though the law itself be fair on its face and impartial in appearance, yet, if it
is applied and administered by public authority with an evil eye and unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial 1. 1.LBP (R.A. No. 7907)
of equal justice is still within the prohibition of the Constitution. (emphasis supplied, citations omitted)
35
[W]e see no difference between a law which denies equal protection and a law which permits of such Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows:
denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and Section 90. Personnel.—
illegal discrimination, it is within the constitu- x x x x x x x x x
_______________ All positions in the Bank shall be governed by a compensation, position classification system and qualification standards
approved by the Bank’s Board of Directors based on a comprehensive job analysis and audit of actual duties and
34
Id. responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and
35
People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001). shall be subject to periodic review by the Board no more than once every two (2) years without prejudice to yearly merit
353 reviews or increases based on productivity and profitability. The Bank shall therefore be exempt from existing laws, rules
and regulations on compensation, position classification and qualification standards. It shall however endeavor to make
VOL. 446, DECEMBER 15, 2004 353 its system conform as closely as possible with the principles under Republic Act No. 6758. (emphasis supplied)
_______________
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
tional prohibition….. In other words, statutes may be adjudged unconstitutional because of their effect in
Formerly the Home Insurance and Guaranty Corporation (HIGC).
38
operation…. If a law has the effect of denying the equal protection of the law it is unconstitutional. 355
…. (emphasis supplied, citations omitted)
36
VOL. 446, DECEMBER 15, 2004 355
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763 + 9302 = consequential
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
unconstitutionality of challenged proviso.
x x x x x x x x x
According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also
violative of the equal protection clause because after it was enacted, the charters of the GSIS, LBP,
DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted from the 1. 2.SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section 3(c)]: 1. 6.HGC (R.A. No. 8763)
x x x x x x x x x
(c) The Commission, upon the recommendation of the SSS President, shall appoint an actuary and such other personnel as may
[be] deemed necessary; fix their reasonable compensation, allowances and other benefits; prescribe their duties and establish Section 9. Powers, Functions and Duties of the Board of Directors.—The Board shall have the following
such methods and procedures as may be necessary to insure the efficient, honest and economical administration of the powers, functions and duties:
provisions and purposes of this Act: Provided, however, That the personnel of the SSS below the rank of Vice President shall x x x x x x x x x
be appointed by the SSS President: Provided, further, That the personnel appointed by the SSS President, except those below (e) To create offices or positions necessary for the efficient management, operation and administration of the
the rank of assistant manager, shall be subject to the confirmation by the Commission; Provided further, That the personnel of Corporation: Provided, That all positions in the Home Guaranty Corporation (HGC) shall be governed by a compensation and
the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations: Provided, position classification system and qualifications standards approved by the Corporation’s Board of Directors based on a
finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and Republic Act No. comprehensive job analysis and audit of actual duties and responsibilities: Provided, further, That the compensation plan shall
7430. (emphasis supplied) be comparable with the prevailing compensation plans in the private sector and which shall be exempt from Republic Act No.
6758, otherwise known as the Salary Standardization Law, and from other laws, rules and regulations on salaries and
compensations; and to establish a Provident Fund and determine the Corporation’s and the employee’s contributions to the
1. 3.SBGFC (R.A. No. 8289) Fund; (emphasis supplied)
x x x x x x x x x
Section 8. [Amending R.A. No. 6977, Section 11]:
x x x x x x x x x 1. 7.PDIC (R.A. No. 9302)
The Small Business Guarantee and Finance Corporation shall:
x x x x x x x x x
(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation Circular No. 10, series of Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read:
1989 issued by the Department of Budget and Management, the Board of Directors of SBGFC shall have the authority to x x x x x x x x x
extend to the employees and personnel thereof the allowance and fringe benefits similar to those extended to and 3.
currently enjoyed by the employees and personnel of other government financial institutions. (emphases supplied) x x x x x x x x x
356 A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be
instituted as an integral component of the Corporation’s human resource development program: Provided, That all positions in
356 SUPREME COURT REPORTS ANNOTATED the Corporation shall be governed by a compensation, position
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas 358
358 SUPREME COURT REPORTS ANNOTATED
1. 4.GSIS (R.A. No. 8291) Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
classification system and qualification standards approved by the Board based on a comprehensive job analysis and audit of
Section 1. [Amending Section 43(d)]. actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans of
other government financial institutions and shall be subject to review by the Board no more than once every two (2) years
x x x x x x x x x without prejudice to yearly merit reviews or increases based on productivity and profitability. The Corporation shall
Sec. 43. Powers and Functions of the Board of Trustees.—The Board of Trustees shall have the following therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification
powers and functions: standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act
x x x x x x x x x No. 6758, as amended. (emphases supplied)
(d) upon the recommendation of the President and General Manager, to approve the GSIS’ organizational and administrative Thus, eleven years after the amendment of the BSP charter, the rank-and-file of seven other GFIs
structures and staffing pattern, and to establish, fix, review, revise and adjust the appropriate compensation package for the
officers and employees of the GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as may be
were granted the exemption that was specifically denied to the rank-and-file of the BSP. And as if
necessary or proper for the effective management, operation and administration of the GSIS, which shall be exempt from to add insult to petitioner’s injury, even the Securities and Exchange Commission (SEC) was
Republic Act No. 6758, otherwise known as the Salary Standardization Law and Republic Act No. 7430, otherwise known as granted the same blanket exemption from the SSL in 2000! 39
the Attrition Law. (emphasis supplied) _______________
x x x x x x x x x
R.A. No. 8799 (2000), Section 7.2 provides: All positions of the Commission shall be governed by a compensation and
39
1. 5.DBP (R.A. No. 8523) position classification systems and qualification standards approved by the Commission based on a comprehensive job
analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing
compensation plan in the Bangko Sentral ng Pilipinas and other government financial institutions and shall be subject to
Section 6. [Amending E.O. No. 81, Section 13]: periodic review by the Commission no more than once every two (2) years without prejudice to yearly merit reviews or
Section 13. Other Officers and Employees.—The Board of Directors shall provide for an organization and staff of officers and increases based on productivity and efficiency. The Commission shall, therefore, be exempt from laws, rules, and regulations
employees of the Bank and upon recommendation of the President of the Bank, fix their remunerations and other emoluments. on compensation, position classification and qualification standards. The Commission shall, however, endeavor to make its
All positions in the Bank shall be governed by the compensation, position classification system and qualification standards system conform as closely as possible with the principles under the Compensation and Position Classification Act of 1989
approved by the Board of Directors based on a comprehensive job analysis of actual duties and responsibilities. The (Republic Act No. 6758, as amended).
compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to 359
periodic review by the Board of Directors once every two (2) years, without prejudice to yearly merit or increases based on the
Bank’s productivity and profitability. The Bank shall, therefore, be exempt from existing laws, rules, and regulations on
VOL. 446, DECEMBER 15, 2004 359
compensation, position classification and qualification standards. The Bank shall however, endeavor to make its system Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
conform as closely as possible
357 The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its
classification between the rank-and-file and the officers of the BSP, found reasonable because
VOL. 446, DECEMBER 15, 2004 357 there were substantial distinctions that made real differences between the two classes.
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas The above-mentioned subsequent enactments, however, constitute significant changes in
with the principles under Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended). circumstance that considerably alter the reasonability of the continued operation of the last
(emphasis supplied) proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more
serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification—albeit
made indirectly as a consequence of the passage of eight other laws—between the rank-and-file of differences in duties and responsibilities, and qualification requirements of the positions. P.D. No.
the BSP and the seven other GFIs. The classification must not only be reasonable, but must also 985 was passed to address disparities in pay among similar or comparable positions which had
apply equally to all members of the class. The proviso may be fair on its face and impartial in given rise to dissension among government employees. But even then, GFIs and government-
appearance but it cannot be grossly discriminatory in its operation, so as practically to make owned and/or controlled corporations (GOCCs) were already identified as a distinct class among
unjust distinctions between persons who are without differences. 40
government employees. Thus, Section 2 also provided, “[t]hat notwithstanding a standardized
Stated differently, the second level of inquiry deals with the following questions: Given that salary system established for all employees, additional financial incentives may be established by
Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the government corporation and financial institutions for their employees to be supported fully from
exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the their corporate funds and for such technical positions as may be approved by the President in
fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress’ critical government agencies.” 42
power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b)
the inequity manifested itself, not instantly through a single overt act, but gradually and provides that one of the principles governing the Compensation and Position Classification System
progressively, through seven separate acts of Congress? Is the right to equal protection of the law of the Government is that: “[b]asic compensation for all personnel in the government and
bounded in time and space that: (a) the right can only be invoked against a classification made government-owned or controlled corporations and financial institutions
directly and deliberately, as opposed to a discrimination that arises indirectly, or _______________
_______________
People v. Vera, No. 45685, 65 Phil. 56 (November 16, 1937).
41
People v. Dela Piedra, G.R. No. 121777, 350 SCRA 163 (January 24, 2001).
40 P.D. No. 985 (August 22, 1976).
42
360 362
360 SUPREME COURT REPORTS ANNOTATED 362 SUPREME COURT REPORTS ANNOTATED
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
as a consequence of several other acts; and (b) is the legal analysis confined to determining the shall generally be comparable with those in the private sector doing comparable work, and must be
validity within the parameters of the statute or ordinance (where the inclusion or exclusion is in accordance with prevailing laws on minimum wages.”
articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof, among Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and
several similar enactments made over a period of time? Position Classification System of the SSL, but rates of pay under the SSL were determined on the
43
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere basis of, among others, prevailing rates in the private sector for comparable work. Notably, the
assertion that each exemption (granted to the seven other GFIs) rests “on a policy determination by Compensation and Position Classification System was to be governed by the following principles:
the legislature.” All legislative enactments necessarily rest on a policy determination—even those (a) just and equitable wages, with the ratio of compensation between pay distinctions maintained
that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand at equitable levels; and (b) basic compensation generally comparable with the private sector, in
44
to sustain the validity of a statute, then no due process and equal protection challenges would ever accordance with prevailing laws on minimum wages. Also, the Department of Budget and
45
prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by Management was directed to use, as guide for preparing the Index of Occupational Services, the
the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution. Benchmark Position Schedule, and the following factors: 46
In fine, the “policy determination” argument may support the inequality of treatment between
the rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment 1. (1)the education and experience required to perform the duties and responsibilities of the
between BSP rank-and-file and other GFIs’ who are similarly situated. It fails to appreciate that positions;
what is at issue in the second level of scrutiny is not the declared policy of each law per se, but the
oppressive results of Congress’ inconsistent and unequal policy towards the BSP rank-and-file and _______________
those of the seven other GFIs. At bottom, the second challenge to the constitutionality of Section
15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational discriminatory R.A. No. 6758, Section 2, the policy of which is to “provide equal pay for substantially equal work and to base
43
policy adopted by Congress in its treatment of persons similarly situated. In the field of equal differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions.”
protection, the guarantee that “no person shall be … denied the equal protection of the laws” Section 3(a) provides that “All government personnel shall be paid just and equitable wages; and while pay distinctions
44
must necessarily exist in keeping with work distinctions, the ratio of compensation for those occupying higher ranks to those at
includes the prohibition against enacting laws that allow invidious discrimination, directly or indi- lower ranks should be maintained at equitable levels giving due consideration to higher percentages of increases to lower level
361 positions and lower percentage increases to higher level positions.”
VOL. 446, DECEMBER 15, 2004 361 Section 3(b) states that “Basic compensation for all personnel in the government, and government-owned or controlled
45
corporations (GOCCs) and financial institutions (GFIs) shall generally be comparable with those in the private sector doing
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas comparable work, and must be in accordance with prevailing laws on minimum wages.”
Id., Section 9.
46
rectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it 363
is unconstitutional. 41
It is against this standard that the disparate treatment of the BSP rank-and-file from the other VOL. 446, DECEMBER 15, 2004 363
GFIs cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
there exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other
rank-and-file of the seven GFIs. On the contrary, our legal history shows that GFIs have long
1. (2)the nature and complexity of the work to be performed;
been recognized as comprising one distinct class, separate from other governmental entities.
2. (3)the kind of supervision received;
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to
3. (4)mental and/or physical strain required in the completion of the work;
provide equal pay for substantially equal work, and (2) to base differences in pay upon substantive
4. (5)nature and extent of internal and external relationships;
5. (6)kind of supervision exercised;
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
6. (7)decision-making responsibility;
BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these
7. (8)responsibility for accuracy of records and reports;
institutions to be exempted from the SSL. True, the SSL-exemption of the BSP and the seven GFIs
8. (9)accountability for funds, properties and equipment; and
was granted in the amended charters of each GFI, enacted separately and over a period of time.
9. (10)hardship, hazard and personal risk involved in the job.
But it bears emphasis that, while each GFI has a mandate different and distinct from that of
another, the deliberations show that the raison d’être of the SSL-exemption was inextricably
The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role
20. they play in the economy; (2) the necessity of hiring and retaining qualified and effective
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package
aspects pertaining to compensation and position classification, in consonance with Section 5, of these GFIs is not competitive, and fall substantially below industry standards. Considering
Article IX-B of the 1997 Constitution. 47
further that (a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent
Then came the enactment of the amended charter of the BSP, implicitly exempting the exemptions of other GFIs did not distinguish between the officers and the rank-and-file; it is patent
Monetary Board from the SSL by giving it express authority to determine and institute its own that the classification made between the BSP rank-and-file and those of the other seven GFIs was
compensation and wage structure. However, employees whose positions fall under SG 19 and inadvertent, and NOT intended, i.e., it was not based on any substantial distinction vis-à-vis the
below were specifically limited to the rates prescribed under the SSL. particular circumstances of each GFI. Moreover, the exemption granted to two GFIs makes
Subsequent amendments to the charters of other GFIs followed. Significantly, each express reference to allowance and fringe benefits similar to those extended to and currently
government financial institution (GFI) was not only expressly authorized to determine and enjoyed by the employees and personnel of other GFIs, underscoring that GFIs are a particular
52
institute its own compensation and wage structure, but also explicitly exempted—without class within the realm of government entities.
distinction as to salary grade or position—all employees of the GFI from the SSL. It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP—
_______________
made manifest and glaring with each and every consequential grant of blanket exemption from the
SSL to the other GFIs—that cannot be rationalized or justified. Even more so, when the SEC—
Section 5 of the 1987 Constitution provides: “The Congress shall provide for the standardization of compensation of
which is not a GFI—was given leave to have a compensation plan that “shall be comparable with
47
government officials, including those in government-owned or controlled corporations with original charters, taking into
account the nature of the responsibilities pertaining to, and the qualifications required for their positions.” the prevailing compensation
364 _______________
364 SUPREME COURT REPORTS ANNOTATED
R.A. No. 8289 [SBGFC], Section 8; R.A. No. 9302 [PDIC], Section 2.
52
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas 366
It has been proffered that legislative deliberations justify the grant or withdrawal of exemption 366 SUPREME COURT REPORTS ANNOTATED
from the SSL, based on the perceived need “to fulfill the mandate of the institution concerned
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2)
the GOCC or GFI is in direct competition with their [sic] counterparts in the private sector, not plan in the [BSP] and other [GFIs],” then granted a blanket exemption from the SSL, and its rank-
53
only in terms of the provisions of goods or services, but also in terms of hiring and retaining and-file endowed a more preferred treatment than the rank-and-file of the BSP.
competent personnel; and (3) the GOCC or GFI are or were [sic] experiencing difficulties filling The violation to the equal protection clause becomes even more pronounced when we are
up plantilla positions with competent personnel and/or retaining these personnel. The need for the faced with this undeniable truth: that if Congress had enacted a law for the sole purpose of
scope of exemption necessarily varies with the particular circumstances of each institution, and exempting the eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file
the corresponding variance in the benefits received by the employees is merely incidental.” employees would have been devoid of any substantial or material basis. It bears no moment,
The fragility of this argument is manifest. First, the BSP is the central monetary therefore, that the unlawful discrimination was not a direct result arising from one law. “ Nemo
authority, and the banker of the government and all its political subdivisions. It has the sole
48 49
potest facere per alium quod non potest facere per directum.” No one is allowed to do indirectly
power and authority to issue currency; provide policy directions in the areas of money, banking,
50
what he is prohibited to do directly.
and credit; and supervise banks and regulate finance companies and non-bank financial institutions It has also been proffered that “similarities alone are not sufficient to support the conclusion
performing quasi-banking functions, including the exempted GFIs. Hence, the argument that the
51
that rank-and-file employees of the BSP may be lumped together with similar employees of the
rank-and-file employees of the seven GFIs were exempted because of the importance of their other GOCCs for purposes of compensation, position classification and qualification standards.
institution’s mandate cannot stand any more than an empty sack can stand. The fact that certain persons have some attributes in common does not automatically make them
Second, it is certainly misleading to say that “the need for the scope of exemption necessarily members of the same class with respect to a legislative classification.” Cited is the ruling
varies with the particular circumstances of each institution.” Nowhere in the deliberations is there in Johnson v. Robinson: “this finding of similarity ignores that a common characteristic shared by
54
a cogent basis for the exclusion of the BSP rank-and-file from the exemption which was granted to beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other
the rank-and-file of the other GFIs and the SEC. As point in fact, the characteristics peculiar to only one group rationally explain the statute’s different treatment of the
_______________ two groups.”
The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the
R.A. No. 7653, Sections 1 and 3.
48 classification as there were quantitative and qualitative distinctions, expressly recognized by
Id., Sections 110 and 113.
49
Congress, which formed a rational basis for the classification limiting educational benefits to
R.A. No. 7653, Section 50.
50
military service veterans as a means of helping them readjust to civilian life. The Court listed the
Id., Sections 1 and 3.
51
365 peculiar characteristics as follows:
_______________
VOL. 446, DECEMBER 15, 2004 365
R.A. No. 8799 (2000), Section 7.2.
53
_______________
415 U.S. 361 (1974).
54
367 G.R. No. 146494; 434 SCRA 441 (July 14, 2004).
57
VOL. 446, DECEMBER 15, 2004 367 Constitution, Article VIII, Section 1.
58
369
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
VOL. 446, DECEMBER 15, 2004 369
First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian
service. A conscientious objector performing alternative service is obligated to work for two years. Service in Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
the Armed Forces, on the other hand, involves a six-year commitment . . . excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to
x x x x x x x x x correct. As held in the United Kingdom case of Hooper v. Secretary of State for Work and
59
Second, the disruptions suffered by military veterans and alternative service performers are qualitatively
different. Military veterans suffer a far greater loss of personal freedom during their service careers. Uprooted
Pensions, once the State has chosen to confer benefits, “discrimination” contrary to law may
60
from civilian life, the military veteran becomes part of the military establishment, subject to its discipline and occur where favorable treatment already afforded to one group is refused to another, even though
potentially hazardous duty. Congress was acutely aware of the peculiar disabilities caused by military service, the State is under no obligation to provide that favorable treatment. 61
in consequence of which military servicemen have a special need for readjustment benefits . . . (citations
55 The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven
omitted) GFIs definitely bears the unmistakable badge of invidious discrimination—no one can, with
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no candor and fairness, deny the discriminatory character of the subsequent blanket and total
characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption exemption of the seven other GFIs from the SSL when such was withheld from the BSP. Alikes
which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting are being treated as unalikes without any rational basis.
one). The distinction made by the law is not only superficial, but also arbitrary. It is not based on
56
Again, it must be emphasized that the equal protection clause does not demand absolute
substantial distinctions that make real differences between the BSP rank-and-file and the seven equality but it requires that all persons shall be treated alike, under like circumstances and
other GFIs. conditions both as to privileges conferred and liabilities enforced. Favoritism and undue
Moreover, the issue in this case is not—as the dissenting opinion of Mme. Justice Carpio- preference cannot be allowed. For the principle is that equal protection and security shall be
Morales would put it—whether “being an employee of a GOCC or GFI is reasonable and _______________
sufficient basis for exemption” from R.A. No. 6758. It is Congress itself that distinguished the
GFIs from other government agencies, not once but eight times, through the enactment of R.A. See Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703, 713-715 (November 11, 1993).
59
[2002] EWHC 191 (Admin).
Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws may have created a
60
Id. The significance of international human rights instruments in the European context should not be underestimated.
61
“preferred sub-class within government employees,” but the present In Hooper for example, the case was brought on the alleged denial of a right guaranteed by the ECHR, given domestic effect in
_______________ the U.K. through its Human Rights Act 1998 (HRA), and the ECHR, as one of the contracting parties. Also, in Wilson v.
United Kingdom, (30668/96) (2002) 35 E.H.R.R. 20 (ECHR), the European Court of Human Rights took into account the
Id.
55
requirements of ILO Conventions Nos. 87 and 98, and of the European Social Charter of 1961, in ruling that the United
Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993).
56
Kingdom had breached the applicants’ freedom of association. See Aileen McColgan, Principles of Equality and Protection
368 from Discrimination, 2 E.H.R.L.R. 157 (2003).
370
368 SUPREME COURT REPORTS ANNOTATED
370 SUPREME COURT REPORTS ANNOTATED
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
challenge is not directed at the wisdom of these laws. Rather, it is a legal conundrum involving the
given to every person under circumstances which, if not identical, are analogous. If law be looked
exercise of legislative power, the validity of which must be measured not only by looking at the
upon in terms of burden or charges, those that fall within a class should be treated in the same
specific exercise in and by itself(R.A. No. 7653), but also as to the legal effects brought about by
fashion; whatever restrictions cast on some in the group is equally binding on the rest.
seven separate exercises—albeit indirectly and without intent.
62
In light of the lack of real and substantial distinctions that would justify the unequal treatment
Thus, even if petitioner had not alleged “a comparable change in the factual milieu as regards
between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the
the compensation, position classification and qualification standards of the employees of the BSP
seven subsequent charters has rendered the continued application of the
(whether of the executive level or of the rank-and-file) since the enactment of the new Central
challenged proviso anathema to the equal protection of the law, and the same should be declared
Bank Act” is of no moment. In GSIS v. Montesclaros, this Court resolved the issue of
as an outlaw.
57
constitutionality notwithstanding that claimant had manifested that she was no longer interested in
pursuing the case, and even when the constitutionality of the said provision was not squarely IV. Equal Protection Under International Lens
raised as an issue, because the issue involved not only the claimant but also others similarly In our jurisdiction, the standard and analysis of equal protection challenges in the main have
situated and whose claims GSIS would also deny based on the challenged proviso. The Court held followed the “rational basis” test, coupled with a deferential attitude to legislative
that social justice and public interest demanded the resolution of the constitutionality of classifications and a reluctance to invalidate a law unless there is a showing of a clear and
63
the proviso. And so it is with the challenged proviso in the case at bar. unequivocal breach of the Constitution. 64
It bears stressing that the exemption from the SSL is a “privilege” fully within the legislative _______________
prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other
J.M. Tuason and Co., Inc. v. Land Tenure Administration, No. L-21064, 31 SCRA 413, 435 (February 18, 1970).
GFIs and continued denial to the BSP rank-and-file employees breached the latter’s right to equal
62
See Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310,
63
protection. In other words, while the granting of a privilege per se is a matter of policy exclusively 79744, and 79777; 175 SCRA 343 (July 14, 1989).
within the domain and prerogative of Congress, the validity or legality of the exercise of this People v. Vera, supra, citing U.S. v. Ten Yu, 24 Phil. 1, 10 (December 28, 1912); Case v. Board of Health and Heiser,
64
prerogative is subject to judicial review. So when the distinction made is superficial, and not
58
supra; and U.S. v. Joson, supra. See Peralta v. Commission on Elections, No. L-47771, No. L-47803, No. L-47816, No. L-
47767, No. L-47791 and No. L-47826, 82 SCRA 30(March 11, 1978), citing Cooper v. Telfair, 4 Dall. 14; DODD, CASES ON
based on substantial distinctions that make real differences between those included and CONSTITUTIONAL LAW 56 (3rd ed. 1942).
371 protection. A number of justices sought formulations that would blur the sharp distinctions of the two-tiered
approach or that would narrow the gap between strict scrutiny and deferential re-
VOL. 446, DECEMBER 15, 2004 371
373
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas VOL. 446, DECEMBER 15, 2004 373
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
1. A.Equal Protection view. The most elaborate attack came from Justice Marshall, whose frequently stated position was developed
in the United States most elaborately in his dissent in the Rodriguez case: 66
The Court apparently seeks to establish [that] equal protection cases fall into one of two neat categories which dictate the
appropriate standard of review—strict scrutiny or mere rationality. But this (sic) Court’s [decisions] defy such easy
In contrast, jurisprudence in the U.S. has gone beyond the static “rational basis” test. Professor categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in
Gunther highlights the development in equal protection jurisprudential analysis, to wit: 65
reviewing discrimination allegedly violative of the equal protection clause. This spectrum clearly comprehends variations in
Traditionally, equal protection supported only minimal judicial intervention in most contexts. Ordinarily, the the degree of care with which Court will scrutinize particular classification, depending, I believe, on the constitutional and
command of equal protection was only that government must not impose differences in treatment “except upon societal importance of the interests adversely affected and the recognized invidiousness of the basis upon which the particular
classification is drawn.
some reasonable differentiation fairly related to the object of regulation.” The old variety of equal protection
scrutiny focused solely on the means used by the legislature: it insisted merely that the classification in the Justice Marshall’s “sliding scale” approach describes many of the modern decisions, although it is a
statute reasonably relates to the legislative purpose. Unlike substantive due process, equal protection scrutiny formulation that the majority refused to embrace. But the Burger Court’s results indicate at least two
was not typically concerned with identifying “fundamental values” and restraining legislative ends. And significant changes in equal protection law: First, invocation of the “old” equal protection formula no longer
usually the rational classification requirement was readily satisfied: the courts did not demand a tight fit signals, as it did with the Warren Court, an extreme deference to legislative classifications and a virtually
between classification and purpose; perfect congruence between means and ends was not required. automatic validation of challenged statutes. Instead, several cases, even while voicing the minimal
x x x x x x x x x “rationality” “hands-off” standards of the old equal protection, proceed to find the statute
[From marginal intervention to major cutting edge: The Warren Court’s “new equal protection” and the unconstitutional. Second, in some areas the modern Court has put forth standards for equal protection review
two-tier approach.] that, while clearly more intensive than the deference of the “old” equal protection, are less demanding than the
From its traditional modest role, equal protection burgeoned into a major intervention tool during the strictness of the “new” equal protection. Sex discrimination is the best established example of
Warren era, especially in the 1960s. The Warren Court did not abandon the deferential ingredients of the old an “intermediate” level of review.Thus, in one case, the Court said that “classifications by gender must
equal protection: in most areas of economic and social legislation, the demands imposed by equal protection serve important governmental objectives and must be substantially related to achievement of those
remained as minimal as ever . . . But the Court launched an equal protection revolution by finding large new objectives.” That standard is “intermediate” with respect to both ends and means: where ends must be
areas for strict rather than deferential scrutiny. A sharply differentiated two-tier approach evolved by the late “compelling” to survive strict scrutiny and merely “legitimate” under the “old” mode, “important” objectives
1960s: in addition to the deferential “old” equal protection, a “new” equal protection, connoting strict are required here; and where means must be “necessary” under the
_______________
scrutiny, arose . . . The intensive review associated with the new equal protection imposed two demands—a
demand not only as to means but also one as to ends. 66
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
_______________
374
65
GERALD GUNTHER, CONSTITUTIONAL LAW 586-589 (11th ed. 1985). 374 SUPREME COURT REPORTS ANNOTATED
372
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
372 SUPREME COURT REPORTS ANNOTATED “new” equal protection, and merely “rationally related” under the “old” equal protection, they must be
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas “substantially related” to survive the “intermediate” level of review. (emphasis supplied, citations omitted)
Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose
than the rough and ready flexibility traditionally tolerated by the old equal protection: means had to be shown 1. B.Equal Protection
“necessary” to achieve statutory ends, not merely “reasonably related” ones. Moreover, equal protection in Europe
became a source of ends scrutiny as well: legislation in the areas of the new equal protection had to be justified
by “compelling” state interests, not merely the wide spectrum of “legitimate” state ends.
The Warren Court identified the areas appropriate for strict scrutiny by searching for two The United Kingdom and other members of the European Community have also gone forward in
characteristics: the presence of a “suspect” classification; or an impact on “fundamental” rights or interests. In discriminatory legislation and jurisprudence. Within the United Kingdom domestic law, the most
the category of “suspect classifications,” the Warren Court’s major contribution was to intensify the strict extensive list of protected grounds can be found in Article 14 of the European Convention on
scrutiny in the traditionally interventionist area of racial classifications. But other cases also suggested that Human Rights (ECHR). It prohibits discrimination on grounds such as “sex, race, colour,
there might be more other suspect categories as well: illegitimacy and wealth for example. But it was the
language, religion, political or other opinion, national or social origin, association with a national
‘fundamental interests” ingredient of the new equal protection that proved particularly dynamic, open-ended,
and amorphous . . . . [Other fundamental interests included voting, criminal appeals, and the right of interstate minority, property, birth or other status.” This list is illustrative and not
travel . . . .] exhaustive. Discrimination on the basis of race, sex and religion is regarded as grounds that
x x x x x x x x x require strict scrutiny. A further indication that certain forms of discrimination are regarded
The Burger Court and Equal Protection. as particularly suspect under the Covenant can be gleaned from Article 4, which, while allowing
The Burger Court was reluctant to expand the scope of the new equal protection, although its best states to derogate from certain Covenant articles in times of national emergency, prohibits
established ingredient retains vitality. There was also mounting discontent with the rigid two-tier formulations derogation by measures that discriminate solely on the grounds of “race, colour, language, religion
of the Warren Court’s equal protection doctrine. It was prepared to use the clause as an interventionist tool or social origin.” 67
without resorting to the strict language of the new equal protection . . . . [Among the fundamental interests
Moreover, the European Court of Human Rights has developed a test of justification which
identified during this time were voting and access to the ballot, while “suspect” classifications included sex,
alienage and illegitimacy.] varies with the ground of discrimination. In the Belgian Linguistics case the European Court set
68
x x x x x x x x x the standard of justification at a low level: discrimination would contravene the Convention only if
Even while the two-tier scheme has often been adhered to in form, there has also been an increasingly it had no
noticeable resistance to the sharp difference between deferential “old” and interventionist “new” equal _______________
See Gay Moon, Complying with Its International Human Rights Obligations: The United Kingdom and Article 26 of the
67 “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall
International Covenant on Civil and Political Rights, 3 E.H.R.L.R. 283-307 (2003). prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
(No. 2) (A/6) 1 E.H.R.R. 252 (1979-80) (ECHR).
68
Article 5(b) of CERD requires States to protect individuals from (racially discriminatory) violence “whether inflicted by
77
375
government officials or by any individual group or institution.”
VOL. 446, DECEMBER 15, 2004 375 377
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas VOL. 446, DECEMBER 15, 2004 377
legitimate aim, or there was no reasonable relationship of proportionality between the means Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
employed and the aim sought to be realised. But over the years, the European Court has
69
Women (CEDAW); and the Convention on the Rights of the Child (CRC).
developed a hierarchy of grounds covered by Article 14 of the ECHR, a much higher level of In the broader international context, equality is also enshrined in regional instruments such as
justification being required in respect of those regarded as “suspect” (sex, race, nationality, the American Convention on Human Rights; the African Charter on Human and People’s
78
illegitimacy, or sexual orientation) than of others. Thus, in Abdulaziz, the European Court 70
Rights; the European Convention on Human Rights; the European Social Charter of 1961 and
79 80
declared that: revised Social Charter of 1996; and the European Union Charter of Rights (of particular
. . . [t]he advancement of the equality of the sexes is today a major goal in the member States of the Council of importance to European states). Even the Council of the League of Arab States has adopted the
Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on
Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of
the ground of sex could be regarded as compatible with the Convention.
the League.
And in Gaygusuz v. Austria, the European Court held that “very weighty reasons would have to
81
71
_______________
be put forward before the Court could regard a difference of treatment based exclusively on the
ground of nationality as compatible with the Convention.” The European Court will then permit
72
78
Article 1 of the American Conventions on Human Rights provides that:
States a very much narrower margin of appreciation in relation to discrimination on grounds of “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
sex, race, etc., in the application of the Convention rights than it will in relation to distinctions political or other opinion, national or social origin, economic status, birth, or any other social condition; . . .”
drawn by states between, for example, large and small landowners. 73
Article 26 of the ICCPR is echoed in its broad proscription of discrimination by Article 3 of the African Charter which
79
_______________ provides that:
The European Court has also taken an even more restricted approach to Article 14, asking only whether the treatment at
69
1. “1.Every individual shall be equal before the law.
issue had a justified aim in view or whether the authorities pursued “other and ill-intentioned designs.” National Union of 2. 2.Every individual shall be entitled to equal protection of the law.”
Belgian Police v. Belgium, 1 E.H.R.R. 578 (1979-80); and Swedish Engine Drivers’ Union v. Sweden 1 E.H.R.R. 617 (1979-
80).
Abdulaziz v. United Kingdom, (A/94) 7 E.H.R.R. 471 (1985) (ECHR).
70 80
Article 14 of the European Conventions on Human Rights provides that:
23 E.H.R.R. 364 (1997).
71 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race,
Id.
72 colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
73 See Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003); and Tufyal
81
376 Choudhury, Interpreting the Right to Equality under Article 26 of the Inter-
378
376 SUPREME COURT REPORTS ANNOTATED
378 SUPREME COURT REPORTS ANNOTATED
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
The equality provisions in these instruments do not merely function as traditional “first
1. C.Equality under generation” rights, commonly viewed as concerned only with constraining rather than requiring
International Law State action. Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection
against discrimination” while Articles 1 and 14 of the American and European Conventions oblige
The principle of equality has long been recognized under international law. Article 1 of the States Parties “to ensure . . . the full and free exercise of [the rights guaranteed] . . . without any
Universal Declaration of Human Rights proclaims that all human beings are born free and equal discrimination” and to “secure without discrimination” the enjoyment of the rights
in dignity and rights. Non-discrimination, together with equality before the law and equal guaranteed. These provisions impose a measure of positive obligation on States Parties to take
82
protection of the law without any discrimination, constitutes basic principles in the protection of steps to eradicate discrimination.
human rights. 74 In the employment field, basic detailed minimum standards ensuring equality and prevention
Most, if not all, international human rights instrumentsinclude some prohibition on of discrimination, are laid
discrimination and/or provisions about equality. The general international provisions pertinent to
75
_______________
discrimination and/or equality are the International Covenant on Civil and Political Rights
national Covenant on Civil and Political Rights, 1 E.H.R.L.R. 24-52 (2003).
(ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the
76
Also, Articles 2 and 3 of the ICCPR require that Contracting States agree to “respect and to ensure to all individuals
82
International Convention on the Elimination of all Forms of Racial Discrimination (CERD); the 77
within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind,
Convention on the Elimination of all Forms of Discrimination against such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,”
_______________ and (Article 3) “to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the
present may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Other
examples include: Article 2 of CEDAW, which require States Parties to the Convention not only to “embody the principle of
Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003). See Tufyal
74
the equality of men and women in their national constitutions or other appropriate legislation” but also “to ensure, through law
Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1 and other appropriate means, the practical realization of this principle”; and Article 5(b) of CERD requires States to protect
E.H.R.L.R. 24-52 (2003). individuals from (racially discriminatory) violence “whether inflicted by government officials or by any individual group or
Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
75
institution.” See also Articles 2 and 3 CSECR, and Article 2 of the African Charter, which is similar to Article 2 of the ICCPR.
Article 26 of the ICCPR provides that:
76
Aileen McColgan, Principles of Equality and Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
379 to the matters that may be provided for by legislation. Thus it does not, for example, require any state to enact
legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s
VOL. 446, DECEMBER 15, 2004 379
sovereign power, then such legislation must comply with Article 26 of the Covenant. 89
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Breaches of the right to equal protection occur directly or indirectly. A classification may be
down in the ICESCR and in a very large number of Conventions administered by the International
83 struck down if it has the purpose or effect of violating the right to equal protection. International
Labour Organisation, a United Nations body. Additionally, many of the other international and
84 law recognizes that discrimination may occur indirectly, as the Human Rights Committee took 90
regional human rights instruments have specific provisions relating to employment. 85 into account the definitions of discrimination adopted by CERD and CEDAW in declaring that:
_______________ . . . “discrimination” as used in the [ICCPR] should be understood to imply any distinction, exclusion,
restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or
83
Article 7 of the ICESCR provides the right: other opinion, national or social origin,property, birth or other status, and which has the purpose or effect of
“. . . to the enjoyment of just and favourable conditions of work . . . in particular . . . fair wages and equal remuneration for work of equal value nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights
without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for and freedoms. (emphasis supplied)
91
equal work [and] . . . equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations
other than those of seniority and competence.” _______________
See Convention Nos. 100 of 1951, 103 of 1952, 111 of 1958, 118 of 1962 and 156 of 1981 which deal respectively with
84
equal pay for men and women; maternity rights; discrimination in employment and occupation; equality of treatment in social S.W.M. Broeks v. Netherlands (172/1984), paragraph 12.4.
89
security; and workers with family responsibilities. Convention No. 100 has been ratified by no less than 159 countries and Human Rights Committee, General Comment No. 18 (1989).
90
Convention No. 111 by 156 (these being two of the eight fundamental Conventions the ratification of which is all but Id. In the Belgian Linguistics case, (No. 2) (A/6) (1979-80) 1 E.H.R.R. 252 (ECHR), the European Court of Human
91
compulsory). Conventions Nos. 103, 118 and 156 have been ratified by 40, 38 and 34 countries, respectively. Rights referred to the “aims and effects” of the measure challenged under Article14 of the European Convention, implying that
For example, Articles 11, 12 and 13 of CEDAW require the taking of “all appropriate measures” to eliminate
85
indirect as well as direct discrimination could be contrary to the provision. And in Thlimmenos v. Greece, 31 E.H.R.R. 15
discrimination against women in the fields of employment, health care, and other areas of economic life including the right to (2001), the European Court ruled that discrimination contrary to the European Convention had occurred when a man who had
benefits and financial services. Article 15 of the African Charter provides a right for “every individual” to “equal pay for equal been criminalised because of his refusal (as a Jehovah’s Witness and, therefore, a pacifist) to wear a military uniform during
work,” which, like Article 7 of the ICESCR, applies whether an individual is employed by the state or by a private body. The compulsory military service, was subsequently refused access to the chartered accountancy profession because of a rule which
Council of Europe’s Revised Social Charter provides for the “right to equal opportunities and equal treatment in matters of barred those with criminal convictions from being chartered. According to the Court:
employment and occupation without discrimination on the grounds of sex” and to the protection of workers with family “[We have] so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights
responsibilities. The Social Charter of the Council of Europe also incorporates a commitment on the part of Contracting States guaranteed under the Convention is violated when States treat differently
to “recognise the right of men and women workers to equal pay for work of equal value” as well as that of children, young 382
persons and women to protection in employment (the latter group in connection
380 382 SUPREME COURT REPORTS ANNOTATED
380 SUPREME COURT REPORTS ANNOTATED Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion
The United Nations Human Rights Committee has also gone beyond the earlier tendency to view of unconstitutionality by subsequent operation, are in cadence and in consonance with the
the prohibition against discrimination (Article 26) as confined to the ICCPR progressive trend of other jurisdictions and in international law. There should be no hesitation in
rights. In Broeks and Zwaan-de Vries, the issue before the Committee was whether
86 87 88
using the equal protection clause as a major cutting edge to eliminate every conceivable irrational
discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope discrimination in our society. Indeed, the social justice imperatives in the Constitution, coupled
of Article 26. The Dutch government submitted that discrimination in social security benefit with the special status and protection afforded to labor, compel this approach. 92
_______________
provision was not within the scope of Article 26, as the right was contained in the ICESCR and not
the ICCPR. They accepted that Article 26 could go beyond the rights contained in the Covenant to persons in analogous situations without providing an objective and reasonable justification . . . However, the Court
other civil and political rights, such as discrimination in the field of taxation, but contended that considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated
Article 26 did not extend to the social, economic, and cultural rights contained in ICESCR. The against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and
Committee rejected this argument. In its view, Article 26 applied to rights beyond the Covenant reasonable justification fail to treat differently persons whose situations are significantly different.”
See also Jordan v. United Kingdom (App. No. 24746/94), para. 154. Aileen McColgan, Principles of Equality and
including the rights in other international treaties such as the right to social security found in Protection from Discrimination, 2 E.H.R.L.R. 157 (2003).
ICESCR: The 1987 Constitutional provisions pertinent to social justice and the protection granted to Labor are:
92
Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any PREAMBLE:
obligation with respect
_______________ We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that
shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity
the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and
with pregnancy and childbirth), and rights for migrant workers. Article 5 CERD does not merely require Contracting States to eliminate race promulgate this Constitution.
discrimination in their own practices but also obliges them to prohibit race discrimination “in all its forms and to guarantee the right of everyone, ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES: PRINCIPLES
without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of economic, social and SECTION 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free
cultural rights,” in particular, employment rights including rights to “just and favourable conditions of work”, protection against unemployment, the people from poverty through policies that provide adequate social services, promote
“just and favourable remuneration” and to form and join trade unions. See Aileen McColgan, Principles of Equality and Protection from
383
Discrimination, 2 E.H.R.L.R. 157 (2003).
Tufyal Choudhury, Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights, 1
VOL. 446, DECEMBER 15, 2004 383
86
E.H.R.L.R. 24-52 (2003).
87
SWM Broeks v. the Netherlands (172/1984).
88
F.H. Zwaan-de Vries v. the Netherlands (182/1984). Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
381 Apropos the special protection afforded to labor under our
_______________
VOL. 446, DECEMBER 15, 2004 381
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas full employment, a rising standard of living, and an improved quality of life for all.
SECTION 10. The State shall promote social justice in all phases of national development.
SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
SECTION 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
ARTICLE III: BILL OF RIGHTS and shall enforce their mutual compliance therewith to foster industrial peace.
SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises
to reasonable returns on investments, and to expansion and growth.
protection of the laws. 93
International School Alliance of Educators v. Quisumbing, G.R. No. 128845, 333 SCRA 13 (June 1, 2000).
386
ARTICLE IX: CONSTITUTIONAL COMMISSIONS
B. THE CIVIL SERVICE COMMISSION 386 SUPREME COURT REPORTS ANNOTATED
SECTION 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the physical workplace—the factory, the office or the field—but include as well the manner by which employers
qualifications required for their positions. treat their employees.
ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY
SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase The Constitution also directs the State to promote “equality of employment opportunities for all.”
in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the Similarly, the Labor Code provides that the State shall “ensure equal work opportunities regardless of sex, race
quality of life for all, especially the underprivileged. or creed.” It would be an affront to both the spirit and letter of these provisions if the State, in spite of its
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and
However, the State shall discriminatory terms and conditions of employment.
384 x x x x x x x x x
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof,
384 SUPREME COURT REPORTS ANNOTATED
provides:
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions
of work, which ensure, in particular:
Constitution and international law, we held in Interna- a. Remuneration which provides all workers, as a minimum, with:
_______________ i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
protect Filipino enterprises against unfair foreign competition and trade practices. x x x x x x x x x
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of
enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.
SECTION 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and “equal pay for equal work.” Persons who work with substantially equal qualifications, skill, effort and
subject to criminal and civil sanctions, as may be provided by law. responsibility, under similar conditions, should be paid similar salaries. (citations omitted)
ARTICLE XIII: SOCIAL JUSTICE AND HUMAN RIGHTS
SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to
Congress retains its wide discretion in providing for a valid classification, and its policies should
human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power be accorded recognition and respect by the courts of justice except when they run afoul of the
for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
Constitution. The deference stops where the classification violates a fundamental right, or
94
prejudices persons
_______________
LABOR
SECTION 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and
See Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310,
94
equality of employment opportunities for all. 79744, and 79777, 175 SCRA 343 (July 14, 1989).
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, 387
including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. VOL. 446, DECEMBER 15, 2004 387
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in
settling disputes, including conciliation, Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
385
accorded special protection by the Constitution. When these violations arise, this Court must
VOL. 446, DECEMBER 15, 2004 385 discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and
more exacting adherence to constitutional limitations. Rational basis should not suffice.
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
Admittedly, the view that prejudice to persons accorded special protection by the Constitution
tional School Alliance of Educators v. Quisumbing:
requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
93
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws
reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction.
exhorts Congress to “give highest priority to the enactment of measures that protect and enhance the right of At best, they are persuasive and have been used to support many of our decisions. We should not 95
all people to human dignity, reduce social, economic, and political inequalities.” The very broad Article 19 of place undue and fawning reliance upon them and regard them as indispensable mental crutches
the Civil Code requires every person, “in the exercise of his rights and in the performance of his duties, [to] act without which we cannot come to our own decisions through the employment of our own
with justice, give everyone his due, and observe honesty and good faith.” endowments. We live in a different ambience and must decide our own problems in the light of
International law, which springs from general principles of law, likewise proscribes discrimination. our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always
General principles of law include principles of equity, i.e., the general principles of fairness and justice, based with our own concept of law and justice. Our laws must be construed in accordance with the
96
on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on
intention of our own lawmakers and such intent may be deduced from the language of each law
Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning and the context of other local legislation related thereto. More importantly, they must be construed
Discrimination in Respect of Employment and Occupation—all embody the general principle against to serve our own public interest which is the be-all and the end-all of all our laws. And it need not
discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has be stressed that our public interest is distinct and different from others. 97
incorporated this principle as part of its national laws. In the 2003 case of Francisco v. House of Representatives, this Court has stated that:
In the workplace, where the relations between capital and labor are often skewed in favor of capital, “[A]merican jurisprudence and authorities, much less the American Constitution, are of dubious
inequality and discrimination by the employer are all the more reprehensible. application for these are no longer controlling within
The Constitution specifically provides that labor is entitled to “humane conditions of work.” These _______________
conditions are not restricted to the
_______________
Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130(April 9, 2003).
95
Sanders v. Veridiano II, No. L-46930, 162 SCRA 88 (June 10, 1988).
96 390 SUPREME COURT REPORTS ANNOTATED
Republic v. MERALCO, G.R. Nos. 141314 and 141369, 401 SCRA 130(April 9, 2003).
97
388 Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
But if the challenge to the statute is premised on the denial of a fundamental right, or the
388 SUPREME COURT REPORTS ANNOTATED perpetuation of prejudice against persons favored by the Constitution with special protection,
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas judicial scrutiny ought to be more strict. A weak and watered down view would call for the
our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and
concerned....[I]n resolving constitutional disputes, [this Court] should not be beguiled by foreign the rights it enshrines. This is true whether the actor committing the unconstitutional act is a
jurisprudence some of which are hardly applicable because they have been dictated by different private person or the government itself or one of its instrumentalities. Oppressive acts will be
constitutional settings and needs.” Indeed, although the Philippine Constitution can trace its
98 struck down regardless of the character or nature of the actor. 106
origins to that of the United States, their paths of development have long since diverged. 99
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or
Further, the quest for a better and more “equal” world calls for the use of equal protection as a not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the contested act, not its wisdom.
tool of effective judicial intervention. Otherwise, said qualifications, conditions or limitations—particularly those prescribed or imposed by the
Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims
Constitution—would be set at naught. What is more, the judicial inquiry into such issue and the settlement
“equality” as an ideal precisely in protest against crushing inequities in Philippine society. The command to
thereof are the main functions of courts of justice under the Presidential form of government adopted in our
promote social justice in Article II, Section 10, in “all phases of national development,” further explicated in
1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We
Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality . . .
have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable
[T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort
obligation—made particularly more exacting and peremptory by our oath, as members of the highest Court of
towards achieving a reasonable measure of equality.
the land, to support and defend the Constitution—to settle it. This explains why, in Miller v. Johnson, it was
100
Our present Constitution has gone further in guaranteeing vital social and economic rights to held that courts have a “duty, rather than a power”, to determine whether another branch of the government has
marginalized groups of society, including labor. Under the policy of social justice, the law bends
101
“kept within constitutional limits.” Not satisfied with this postulate, the court went farther and stressed that, if
over backward to accommodate the interests of the working class on the humane justification that the Constitution provides how it may be amended—as it is in our 1935 Constitution—“then, unless the manner
those with less privilege in life should have more in law. And the obli-
102
is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid.” In fact,
_______________ this very Court—speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law,
as well as one of the highly
_______________
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 415 SCRA 44 (November 10, 2003).
98
Id.
99
JOAQUIN G. BERNAS, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 160 (2003).
100 106
Belarmino v. Employees’ Compensation Commission, G.R. No. 90204, 185 SCRA 304 (May 11, 1990).
Globe-Mackay Cable and Radio Corp. v. National Labor Relations Commission, G.R. No. 82511, 206 SCRA
101
391
701 (March 3, 1992).
Uy v. Commission on Audit, G.R. No. 130685, 328 SCRA 607 (March 21, 2000).
102 VOL. 446, DECEMBER 15, 2004 391
389
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas
VOL. 446, DECEMBER 15, 2004 389 respected and foremost leaders of the Convention that drafted the 1935 Constitution—declared, as early as July
15, 1936, that “(i)n times of social disquietude or political excitement, the great landmarks of the Constitution
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the
gation to afford protection to labor is incumbent not only on the legislative and executive branches only constitutional organ which can be called upon to determine the proper allocation of powers between the
but also on the judiciary to translate this pledge into a living reality. Social justice calls for the
103
several departments” of the government. (citations omitted; emphasis supplied)
107
humanization of laws and the equalization of social and economic forces by the State so that In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-
justice in its rational and objectively secular conception may at least be approximated. 104
employee status. It is akin to a distinction based on economic class and status,with the higher
V. A Final Word grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP
Finally, concerns have been raised as to the propriety of a ruling voiding the challenged provision. now receive higher compensation packages that are competitive with the industry, while the
It has been proffered that the remedy of petitioner is not with this Court, but with Congress, which poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are
alone has the power to erase any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL
the exemption of the BSP rank-and-file from the SSL has supposedly been filed. while employees higher in rank possessing higher and better education and opportunities for career
Under most circumstances, the Court will exercise judicial restraint in deciding questions of advancement—are given higher compensation packages to entice them to stay. Considering that
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative majority, if not all, the rank-and-file employees consist of people whose status and rank in life are
power. Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion less and limited, especially in terms of job marketability, it is they—and not the officers - who
would be given deferential treatment. 105
have the real economic and financial need for the adjustment. This is in accord with the policy of
_______________ the Constitution “to free the people from poverty, provide adequate social services, extend to them
a decent standard of living, and improve the quality of life for all.” Any act of Congress that runs
108
Ibid.
103 counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass
Calalang vs. Williams, No. 47800, 70 Phil. 726 (December 2, 1940).
104
muster.
See Dumlao v. Commission on Elections, No. L-52245, 95 SCRA 392, 404 (January 22, 1980); Peralta v. Commission
To be sure, the BSP rank-and-file employees merit greater concern from this Court. They
105
on Elec-tions, Nos. L-47771, L-47803, L-47816, L-47767, L-47791, and L-47827, 82 SCRA 30(March 11, 1978); Felwa v.
Salas, No. L-26511, 18 SCRA 606 (October 29, 1966); Rafael v. Embroidery and Apparel Control and Inspection Board,No. represent the more impotent
L-19978, 21 SCRA 336, (September 29, 1967); People v. Carlos, No. L-239, 78 Phil. 535 (June 30, 1947); and Ichong v. _______________
Hernandez, No. L-7995, 101 Phil. 1155 (May 31, 1957).
390
107
Javellana v. The Executive Secretary, No. L-36142, L-36164, L-36165, L-36236 and L-36283, 50 SCRA 30 (March 31, IN VIEW WHEREOF, we hold that the continued operation and implementation of the
1973).
1987 Constitution, Article II, Section 9.
108
last proviso of Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.
392 Davide, Jr. (C.J.), Quisumbing, Ynares-Santiago,Sandoval-Gutierrez, Austria-
Martinez, Azcuna, Tinga and Chico-Nazario, JJ., concur.
392 SUPREME COURT REPORTS ANNOTATED
Panganiban and Carpio, JJ., See Dissenting Opinion.
Central Bank Employees Association, Inc. vs. Bangko Sentral ng Pilipinas Corona and Callejo, Sr., JJ., On Leave.
rank-and-file government employees who, unlike employees in the private sector, have no specific Carpio-Morales, J., Pls. see my dissenting opinion.
right to organize as a collective bargaining unit and negotiate for better terms and conditions of Garcia, J., Concur with dissenting opinion of J.Carpio.
employment, nor the power to hold a strike to protest unfair labor practices. Not only are they Notes.—So much for the authorities. For the nonce we would prefer to forget them entirely,
impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653 and here in the Philippines, being in the agreeable state of breaking new ground, would rather
effectively isolated them from the other GFI rank-and-file in compensation. These BSP rank-and- desire our decision to rest on a strong foundation of reason and justice than on a weak one of blind
file employees represent the politically powerless and they should not be compelled to seek a adherence to tradition and precedent. (Villaflor vs. Summers, 41 Phil. 62 [1920])
political solution to their unequal and iniquitous treatment. Indeed, they have waited for many Under the policy of social justice, the law bends over backward to accommodate the interests
years for the legislature to act. They cannot be asked to wait some more for discrimination cannot of the working class on the humane justification that those with less privilege in life should have
be given any waiting time. Unless the equal protection clause of the Constitution is a mere more in law. Rightly, we have stressed that social justice legislation, to be truly meaningful and
platitude, it is the Court’s duty to save them from reasonless discrimination. rewarding to our workers, must not be hampered in its application by longwinded arbitration and
litigation. Rights must be asserted and benefits received with the least inconvenience. ( Uy vs.
Commission on Audit, 328 SCRA 607 [2000]
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its
VOL. 227, NOVEMBER 11, 1993 703 final form were not distributed among the members of each House. Both the enrolled bill and the legislative
Philippine Judges Association vs. Prado journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2) of the
Constitution. We are bound by such official assurances from a coordinate department of the government, to
G.R. No. 105371. November 11, 1993. *
which we owe, at the very least, a becoming courtesy.
THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P. Same; Equal Protection Clause; Equal protection simply requires that all persons or things similarly
ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati situated should be treated alike, both as to rights conferred and responsibilities imposed.—The equal
and Pasay, Metro Manila ALFREDO C. FLORES, and Chairman of the Committee on Legal Aid, protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the
JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch 85, QUEZON requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III, Sec.
1, of the Constitution to provide for a more specific guaranty against any form of undue favoritism or hostility
CITY and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the NATIONAL
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if
CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES, composed of the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down
the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President, REINATO is the equal protection clause. According to a long line of decisions, equal protection simply requires that all
QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL JUDGES persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities
LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by themselves imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some
and in behalf of all the Judges of the Regional Trial and Shari’a Courts, Metropolitan Trial Courts and unjustly discriminate against others. The equal protection clause does not require the universal application
and Municipal Courts throughout the Country, petitioners, vs. HON. PETE PRADO, in his of the laws on all persons or things without distinction. This might in fact sometimes result in unequal
capacity as Secretary of the Department of Transportation and Communications, JORGE V. protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among
SARMIENTO, in his capacity as Postmaster General, and the PHILIPPINE POSTAL CORP.,
equals as determined according to a valid classification. By classification is meant the grouping of persons or
respondents. things similar to each other in certain particulars and different from all others in these same particulars.
Constitutional Law; Doctrine of separation of powers; Under the doctrine of separation of powers, the
Court may not inquire beyond the certification of the approval of a bill from the presiding officers of
Congress.—Under the doctrine of separation of powers, the Court may not inquire beyond the certification of ORIGINAL PETITION to declare the unconstitutionally of Republic Act No. 7354.
the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez laid
down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be entered The facts are stated in the opinion of the Court.
in the journals like the yeas and nays on the final reading of the bill.) The journals are themselves also binding 705
on the Supreme Court, as we held in the old (but still valid) case of U.S. vs. Pons, where we explained the
reason thus: To inquire into the veracity of the journals of the Philippine legislature when they are, as we have VOL. 227, NOVEMBER 11, 1993 705
said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine Judges Association vs. Prado
Philippine Government was brought into existence, to invade a coordinate and indepen-
_______________
CRUZ, J.:
EN BANC.
*
704
7 SUPREME COURT REPORTS ANNOTATED
04
Philippine Judges Association vs. Prado
dent department of the Government, and to interfere with the legitimate powers and functions of the
Legislature. Applying these principles, we shall decline to look into the petitioners’ charges that an amendment
The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the 1. a)to enable the economical and speedy transfer of mail and other postal matters, from sender to
petitioners that this hallmark of republicanism is impaired by the statute and circular they are here addressee, with full recognition of their privacy or confidentiality;
challenging. The Supreme Court is itself affected by these measures and is thus an interested party 2. b)to promote international interchange, cooperation and understanding through the unhampered
flow or exchange of postal matters between nations;
that should ordinarily not also be a judge at the same time. Under our system of government,
however, it cannot inhibit itself and must rule upon the challenge, because no other office has the
authority to do so. We shall therefore act upon this matter not with officiousness but in the _______________
discharge of an unavoidable duty and, as always, with detachment and fairness.
Cooley, Constitutional Limitations, 8th Ed., pp. 295-296; State v. Dolan, 14 L.R.A. 1259; State v. Doherty, 29 Pac. 855.
The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the
1
707
Philippine Postal Corporation through its Circular No. 92-28. These measures withdraw the
franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the VOL. 227, NOVEMBER 11, 1993 707
Metropolitan Trial Courts, the Municipal Trial Courts, and the Land Registration Commission and Philippine Judges Association vs. Prado
its Registers of Deeds, along with certain other government offices.
The petitioners are members of the lower courts who feel that their official functions as judges
will be prejudiced by the abovenamed measures. The National Land Registration Authority has 1. c)to cause or effect a wide range of postal services to cater to different users and
taken common cause with them insofar as its own activities, such as the sending of requisite changing needs, including but not limited to, philately, transfer of monies and
notices in registration cases, affect judicial proceedings. On its motion, it has been allowed to valuables, and the like;
intervene. 2. d)to ensure that sufficient revenues are generated by and within the industry to finance
The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title the overall cost of providing the varied range of postal delivery and messengerial
embraces more than one subject and does not express its purposes; (2) it did not pass the required services as well as the expansion and continuous upgrading of services standards by
readings in both Houses of Congress and printed copies of the bill in its final form were not the same.
distributed among the members before its passage; and (3) it is discriminatory and encroaches on
the independence of the Judiciary. Sec. 35 of R.A. No. 7354, which is the principal target of the petition reads as follows:
We approach these issues with one important principle in mind, to wit, the presumption of the SEC. 35. Repealing Clause.—All acts, decrees, orders, executive orders, instructions, rules and regulations or
constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive, parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.
every statute is supposed to have first been carefully studied and determined to be constitutional All franking privileges authorized by law are hereby repealed, except those provided for under
before it was finally enacted. Hence, unless it is clearly shown that it is constitution- Commonwealth Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087 and 5059. The Corporation may
706 continue the franking privilege under Circular No. 35 dated October 24, 1977 and that of the Vice-President,
under such arrangements and conditions as may obviate abuse or unauthorized use thereof.
706 SUPREME COURT REPORTS ANNOTATED The petitioners’ contention is untenable. We do not agree that the title of the challenged act
Philippine Judges Association vs. Prado violates the Constitution.
ally flawed, that attack against its validity must be rejected and the law itself upheld. To doubt is The title of the bill is not required to be an index to the body of the act, or to be
to sustain. comprehensive as to cover every single detail of the measure. It has been held that if the title fairly
indicates the general subject, and reasonably covers all the provisions of the act, and is not
calculated to mislead the legislature or the people, there is sufficient compliance with the
I
constitutional requirement. 2
To require every end and means necessary for the accomplishment of the general objectives of
We consider first the objection based on Article VI, Sec. 26(1), of the Constitution providing that the statute to be expressed in its title would not only be unreasonable but would actually render
“Every bill passed by the Congress shall embrace only one subject which shall be expressed in the legislation impossible. As has been correctly explained:
3
title thereof.” The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as
The purposes of this rule are: (1) to prevent hodge-podge or “log-rolling” legislation; (2) to expressed in the title, and
prevent surprise or fraud upon the legislature by means of provisions in bills of which the title _______________
gives no intimation, and which might therefore be overlooked and carelessly and unintentionally
Public Service Co. v. Recktenwald, 8 A.L.R. 466.
adopted; and (3) to fairly apprise the people, through such publication of legislative proceedings as
2
3
Cooley, Constitutional Limitations, 8th Ed., p. 297.
is usually made, of the subject of legislation that is being considered, in order that they may have 708
opportunity of being heard thereon, by petition or otherwise, if they shall so desire. 1
708 SUPREME COURT REPORTS ANNOTATED
It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the
franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its Philippine Judges Association vs. Prado
purposes. adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to
R.A. No. 7354 is entitled “An Act Creating the Philippine Postal Corporation, Defining its create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its
Powers, Functions and Responsibilities, Providing for Regulation of the Industry and for Other infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the
subject as expressed in the title, it is unnecessary that they should also have special mention in the title
Purposes Connected Therewith.”
(Southern Pac. Co. v. Bartine, 170 Fed. 725).
The objectives of the law are enumerated in Section 3, which provides:
This is particularly true of the repealing clause, on which Cooley writes: “The repeal of a statute
The State shall pursue the following objectives of a nationwide postal system:
on a given subject is properly connected with the subject matter of a new statute on the same
subject; and therefore a repealing section in the new statute is valid, notwithstanding that the title
is silent on the subject. It would be difficult to conceive of a matter more germane to an act and to
the object to be accomplished thereby than the repeal of previous legislations connected the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification
therewith.” 4
by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of
The reason is that where a statute repeals a former law, such repeal is the effect and not the Representatives as having been duly passed by both Houses of Congress. It was then presented to
subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly and approved by President Corazon C. Aquino on April 3, 1992.
expressed in its title. As observed in one case, if the title of an act embraces only one subject, we
5 6
Under the doctrine of separation of powers, the Court may not inquire beyond the certification
apprehend it was never claimed that every other act which it repeals or alters by implication must of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
be mentioned in the title of the new act. Any such rule would be neither within the reason of the Gimenez laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in
7
Constitution, nor practicable. matters that have to be entered in the journals like the yeas and nays on the final reading of the
We are convinced that the withdrawal of the franking privilege from some agencies is bill.) The journals are themselves also binding on the Supreme Court, as we held in the old (but
8
germane to the accomplishment of the principal objective of R.A. No. 7354, which is the creation still valid) case of U.S. vs. Pons, where we explained the reason thus:
9
of a more efficient and effective postal service system. Our ruling is that, by virtue of its nature as To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear
a repealing clause, Section 35 did not have to be expressly included in the title of the said law. and explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine
Government was brought into existence, to invade a coordinate and independent department of the
Government, and to interfere with the legitimate powers and functions of the Legislature.
II Applying these principles, we shall decline to look into the petitioners’ charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies
The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking thereof in its final form were not distributed among the members of each House. Both the enrolled
privilege from the petitioners bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
_______________
Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming
Ibid, p. 302.
4
Southern Pac. Co. v. Bartine, 170 Fed. 737.
5
courtesy.
City of Winona v. School District, 41 N.W. 539.
6
_______________
709
7 SCRA 347.
7
VOL. 227, NOVEMBER 11, 1993 709 Mabanag v. Lopez Vito, 78 Phil. 1.
8
34 Phil. 729.
9
Philippine Judges Association vs. Prado
711
and this Court under E.O. 207, PD 1882 and PD 26 was not included in the original version of
Senate Bill No. 720 or of House Bill No. 4200. As this paragraph appeared only in the Conference VOL. 227, NOVEMBER 11, 1993 711
Committee Report, its addition violates Articles VI, Sec. 26(2) of the Constitution, reading as Philippine Judges Association vs. Prado
follows:
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and
printed copies thereof in its final form have been distributed to its Members three days before its passage,
III
except when the President certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall The third and most serious challenge of the petitioners is based on the equal protection clause.
be taken immediately thereafter, and the yeas and nays entered in the Journal. It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that privilege from the Judiciary, it retains the same for the President of the Philippines; the Vice-
amendment to any bill when the House and the Senate shall have differences thereon may be President of the Philippines; Senators and Members of the House of Representatives; the
settled by a conference committee of both chambers. They stress that Sec 35 was never a subject Commission on Elections; former Presidents of the Philippines; widows of former Presidents of
of any disagreement between both Houses and so the second paragraph could not have been the Philippines; the National Census and Statistics Office; and the general public in the filing of
validly added as an amendment. complaints against public offices or officers. 10
These arguments are unacceptable. The respondents counter that there is no discrimination because the law is based on a valid
While it is true that a conference committee is the mechanism for compromising differences classification in accordance with the equal protection clause. In fact, the franking privilege has
between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader been withdrawn not only from the Judiciary but also the Office of Adult Education; the Institute of
function is described thus: National Language; the Telecommunications Office, the Philippine Deposit Insurance
A conference committee may deal generally with the subject matter or it may be limited to resolving the Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed
precise differences between the two houses. Even where the conference committee is not by rule limited in its Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the
jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into
Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the
the conference bill. But occasionally a conference committee produces unexpected results, results beyond its
mandate. These excursions occur even where the rules impose strict limitations on conference committee Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of
jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law Disabled Persons. 11
and Process: In A Nutshell, 1986 Ed., p. 81). The equal protection of the laws is embraced in the concept of due process, as every unfair
It is a matter of record that the Conference Committee Report on the bill in question was returned discrimination offends the requirements of justice and fair play. It has nonetheless been embodied
to and duly approved by both in a separate clause in Article III, Sec. 1, of the Constitution to provide for a more specific
710 guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in
710 SUPREME COURT REPORTS ANNOTATED general may be challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal
Philippine Judges Association vs. Prado protection clause.
According to a long line of decisions, equal protection simply P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose
_______________ functions include the service of judicial processes, such as the intervenor, the Department of
Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming from the
Rollo, pp. 8-9.
10
Judiciary amounted to P73,574,864.00 and those coming from the petitioners reached the total
Ibid., pp. 209-210.
amount of P60,991,431.00. The respondents’ conclusion is that because of this considerable
11
712
volume of mail from the Judiciary, the franking privilege must be withdrawn from it.
712 SUPREME COURT REPORTS ANNOTATED The argument is self-defeating. The respondents are in effect saying that the franking privilege
Philippine Judges Association vs. Prado should be extended only to those who do not need it very much, if at all, (like the widows of
requires that all persons or things similarly situated should be treated alike, both as to rights former Presidents) but not to those who need it badly (especially the courts of justice). It is like
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated
12
saying that a person may be allowed cosmetic surgery although it is not really necessary but not an
differently, so as to give undue favor to some and unjustly discriminate against others. operation that can save his life.
The equal protection clause does not require the universal application of the laws on all If the problem of the respondents is the loss of revenues from the franking privilege, the
persons or things without distinction. This might in fact sometimes result in unequal protection, as remedy, it seems to us, is to withdraw
714
where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit
the morals of the youth but violate the liberty of adults. What the clause requires is equality among 714 SUPREME COURT REPORTS ANNOTATED
equals as determined according to a valid classification. By classification is meant the grouping of
Philippine Judges Association vs. Prado
persons or things similar to each other in certain particulars and different from all others in these
it altogether from all agencies of the government, including those who do not need it. The problem
same particulars. 13
is not solved by retaining it for some and withdrawing it from others, especially where there is no
What is the reason for the grant of the franking privilege in the first place? Is the franking
substantial distinction between those favored, which may or may not need it at all, and the
privilege extended to the President of the Philippines or the Commission on Elections or to former
Judiciary, which definitely needs it. The problem is not solved by violating the Constitution.
Presidents of the Philippines purely as a courtesy from the lawmaking body? Is it offered because
In lumping the Judiciary with the other offices from which the franking privilege has been
of the importance or status of the grantee or because of its need for the privilege? Or have the
withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong. If
grantees been chosen pell-mell, as it were without any basis at all for the selection?
it recognizes the need of the President of the Philippines and the members of Congress for the
We reject outright the last conjecture as there is no doubt that the statute as a whole was
franking privilege, there is no reason why it should not recognize a similar and in fact greater need
carefully deliberated upon by the political departments before it was finally enacted. There is
on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of the
reason to suspect, however, that not enough care (or attention) was given to its repealing clause,
franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we fail to
resulting in the unwitting withdrawal of the franking privilege from the Judiciary.
understand why the Supreme Court should be similarly treated as that Committee. And while we
We also do not believe that the basis of the classification was mere courtesy, for it is
may concede the need of the National Census and Statistics Office for the franking privilege, we
unimaginable that the political departments would have intended this serious slight to the Judiciary
are intrigued that a similar if not greater need is not recognized in the courts of justice.
as the third of the major and equal departments of the government. The same observations are
(On second thought, there does not seem to be any justifiable need for withdrawing the
made if the importance or status of
_______________ privilege from the Armed Forces of the Philippines Ladies Steering Committee, which, like former
Presidents of the Philippines or their widows, does not send as much frank mails as the Judiciary.)
Ichong v. Hernandez, 101 Phil. 1155; Sison v. Ancheta, 130 SCRA 654; Association of Small Landowners in the
12
It is worth observing that the Philippine Postal Corporation, as a government-controlled
Philippines v. Secretary of Agrarian Reform, 175 SCRA 375. corporation, was created and is expected to operate for the purpose of promoting the public
International Harvester Co. v. Missouri, 234 US 199.
13
service. While it may have been established primarily for private gain, it cannot excuse itself from
713
performing certain functions for the benefit of the public in exchange for the franchise extended to
VOL. 227, NOVEMBER 11, 1993 713 it by the government and the many advantages it enjoys under its charter, like exemption from
taxes, customs and tariff duties. Among the services it should be prepared to extend is the free
14
Philippine Judges Association vs. Prado
carriage of mail for certain offices of the government that need the franking privilege in the
the grantee was the criterion used for the extension of the franking privilege, which is enjoyed by
discharge of their own public functions.
the National Census and Statistics Office and even some private individuals but not the courts of _______________
justice.
In our view, the only acceptable reason for the grant of the franking privilege was the Sec. 14 of RA No. 7354.
14
perceived need of the grantee for the accommodation, which would justify a waiver of substantial 715
revenue by the Corporation in the interest of providing for a smoother flow of communication
VOL. 227, NOVEMBER 11, 1993 715
between the government and the people.
Assuming that basis, we cannot understand why, of all the departments of the government, it Philippine Judges Association vs. Prado
is the Judiciary that has been denied the franking privilege. There is no question that if there is any We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos,
major branch of the government that needs the privilege, it is the Judicial Department, as the 55% of which is supplied by the Government, and that it derives substantial revenues from the
respondents themselves point out. Curiously, the respondents would justify the distinction on the sources enumerated in Section 10, on top of the tax exemptions it enjoys. It is not likely that the
basis precisely of this need and, on this basis, deny the Judiciary the franking privilege while retention of the franking privilege by the Judiciary will cripple the Corporation.
extending it to others less deserving. At this time when the Judiciary is being faulted for the delay in the administration of justice,
In their Comment, the respondents point out that available data from the Postal Service Office the withdrawal from it of the franking privilege can only further deepen this serious problem. The
show that from January 1988 to June 1992, the total volume of frank mails amounted to volume of judicial mail, as emphasized by the respondents themselves, should stress the
dependence of the courts of justice on the postal service for communicating with lawyers and discrimination through the exercise of our ultimate power in our own favor. This is inevitable.
litigants as part of the judicial process. The Judiciary has the lowest appropriation in the national Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we
budget compared to the Legislative and Executive Departments; of the P309 billion budgeted for are prepared to accept. As judges, we cannot even debate with our detractors. We can only decide
1993, only .84%, or less than 1%, is allotted to the Judiciary. It should not be hard to imagine the the cases before us as the law imposes on us the duty to be fair and our own conscience gives us
increased difficulties of our courts if they have to affix a purchased stamp to every process they the light to be right.
send in the discharge of their judicial functions. ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is
We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a declared UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the
valid exercise of discretion by the Legislature under the police power. On the contrary, we find its franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the
repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of Municipal Trial Courts, the Municipal Circuit Trial Courts, and the National Land Registration
the laws guaranteed for all persons or things similarly situated. The distinction made by the law is Authority and its Registers of Deeds to all of which offices the said privilege shall be
superficial. It is not based on substantial distinctions that make real differences between the RESTORED. The temporary restraining order dated June 2, 1992, is made permanent.
Judiciary and the grantees of the franking privilege. SO ORDERED.
This is not a question of wisdom or power into which the Judiciary may not intrude. It is a Narvasa (C.J.), Feliciano, Padilla, Bidin, Regalado, Davide,
matter of arbitrariness that this Court has the duty and power to correct. Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur.
Bellosillo, J., On leave.
IV Petition partially granted; Sec. 35 of RA No. 7354 declared unconstitutional.
Note.—The “equal protection” clause does not preclude classification of individuals who may
In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and be accorded different treatment under the law as long as the classification is not unreasonable
that it was not passed in accordance with the prescribed procedure. However, we annul Section 35 arbitrary (Basco vs. Philippine Amusements & Gaming Corporation, 197 SCRA 52).
of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person shall “be
deprived of the equal protection of the laws.” ——o0o——
716
717
716 SUPREME COURT REPORTS ANNOTATED
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
Philippine Judges Association vs. Prado
We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While
ruling against the discrimination in this case, we may ourselves be accused of similar
laws is more apparent than real. Properly related, the power and the guarantees are supposed to
[No. L-7995. May 31, 1957] coexist. The balancing is the essence, or the indispensable means for the" attainment of legitimate
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and aspirations of any democratic society. There can be no absolute power, whoever exercises it, for
partnerships adversely affected by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and
Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents. anarchy. So the State can deprive persons of life, liberty or property, provided there is due process
1156 of law; and persons may be classified into classes and groups, provided everyone is given the
1156 PHILIPPINE REPORTS ANNOTATED equal protection of the law. The test or standard, as always, is reason. The police power
legislation must be firmly grounded on public interest and welfare, and a reasonable relation must
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento exist between purposes and means. And if disctinction or classification has been made, there must
be a reasonable basis for said distinction.
1. 1.CONSTITUTIONAL LAW; POLICE POWER; NATURE AND SCOPE.—Police power is far-
reaching in scope, and it is almost impossible to limit its sweep. It derives its existence from the 1. 4.ID.; EQUAL PROTECTION OF THE LAW CLAUSE; WHEN NOT DEEMED INFRINGED
very existence of the State itself, and does not need to be expressed or defined in its scope. It is BY LEGISLATION.—The equal protection of the law clause is against undue favor and
said to be co-extensive with self-protection and survival, and as such it is the most positive and individual or class privilege, as well as hostile discrimination or the oppression of inequality.
active of all governmental processes, the most essential, insistent and illimitable. Especially is it
so under a modern democratic framework where the demands of society and of nations have 1157
multiplied to almost unimaginable proportions; the field and scope of police power has become
almost boundless, just as the fields of public interest and public welfare have become almost all- VOL. 101, MAY 81, 1957 1157
embracing and have transcended human foresight. Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
1. 2.ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE
1. It is not intended to prohibit legislation, which is limited either in the object to which it is directed
CONSTITUTION; UNIVERSALITY OF APPLICATION.—The constitutional guarantees in
or by territory within which it is to operate. It does not demand absolute equality among residents;
Section I, Article III, of the Constitution, which embody the essence of individual liberty and
it merely requires that all persons shall be treated alike, under like circumstances and conditions
freedom in democracies, are not limited to citizens alone but are admittedly universal in their
both as to privileges conferred and liabilities enforced. The equal protection clause is not
application, without regard to any differences of race, of color, or of nationality (Yiek
infringed by legislation which applies only to those persons falling within a specified class, if it
Wo vs. Hopkins, 30 L. ed., 220, 226).
applies alike to all persons within such class, and reasonable grounds exist for making a
distinction between those who fall within such class and those who do not (2 Cooley,
1. 3.ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR PROPERTY; TEST OR STANDARD.— Constitutional Limitations, 824-825).
The conflict between police power and the guarantees of due process and equal protection of the
1. 5.ID. ; ID. ; LEGISLATIVE POWER TO MAKE DISTINCTION AND CLASSIFICATION 1. 11.ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF LEGISLATIVE DISCRETION NOT
AMONG PERSONS; CITIZENSHIP AS GROUND FOR CLASSIFICATION.—The power of SUBJECT TO JUDICIAL REVIEW.—The exercise of legislative discretion is not subject to
the legislature to make distinctions and classifications among persons is not curtailed or denied by judicial review. The Court will not inquire into the motives of the Legislature, nor pass upon
the equal protection of the laws clause. The legislative power admits of a wide scope of general matters of legislative judgment. The Legislature is primarily the judge of the necessity of
discretion, and a law can be violative of the constitutional limitation only when the classification an enactment or of any of its provisions, and every presumption is in favor of its validity, and
is without reasonable basis. Citizenship is a legal and valid ground for classification. though the Court may hold views inconsistent with the wisdom of the law, it may not annul the
legislation if not palpably in excess of the legislative power.
1. 6.ID.; ID.; NATIONALIZATION OF RETAIL TRADE; CLASSIFICATION IN REPUBLIC ACT
No. 1180 ACTUAL, REAL AND REASONABLE.—The classification in the law of retail traders 1. 12.ID.; TITLES OF BILLS; PROHIBITION AGAINST DUPLICITY; PRESENCE OF
into nationals and aliens is actual, real and reasonable. All persons of one class are treated alike, DUPLICITY NOT SHOWN IN TlTLE OR PROVISIONS OF REPUBLIC ACT No. 1180.—
and it cannot be said that the classification is patently unreasonable and unfounded. Hence, it is What Section 21(1) of Article VI of the Constitution prohibits is duplicity, that is, if its title
the duty of this Court to declare that the legislature acted within its legitimate prerogative and it completely fails to apprise the legislators or the public of the nature.
cannot declare that the act transcends the limits of equal protection established by the
Constitution. 1159
VOL. 101, MAY 31, 1957 1159
1. 7.ID. ; ID. ; ID. ; ID. ; TEST OF REASONABLENESS.—The law in question is deemed
absolutely necessary to bring about the desired legislative objective, i.e., to free the national Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
economy from alien control and dominance. It is not necessarily unreasonable because it affects
private rights and privileges (II Am. Jur., pp. 1080-1081). The test of reasonableness of a law is
the appropriateness or adequacy under all circumstances of the means adopted to carry out its 1. scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707,
purpose into effect. Judged by this test, the disputed legislation, which is not merely reasonable p. 297). A cursory consideration of the title and the provisions of the bill fails to show the
but actually necessary, must be considered not to have infringed the constitutional limitation of presence of duplicity. It is true that the term "regulate" does not and may not readily and at first
reasonableness. glance convey the idea of "nationalization" and "prohibition", which terms express the two main
purposes and objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term "regulation".
1. 8.ID.; ID.; ID.; ID.; ID.; REPUBLIC ACT No. 1180 TOLERANT AND REASONABLE.—A
cursory study of the provisions of the law
1. 13.ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE OF BILL.—The general rule is for
the use of general terms in the title of a bill; the title need not be an index to the entire contents of
1158 the law (I Sutherland, Statutory Construction, Sec. 4803, p. 345). The above rule was followed
115 PHILIPPINE REPORTS ANNOTATED when the title of the Act in question adopted the more general term "regulate" instead of
"nationalize" or "prohibit".
8
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento 1. 14.ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL DIRECTIVE REGARDING SUBJECT
OF A BILL.—One purpose of the constitutional directive that the subject of a bill should be
embraced in its title is to apprise the legislators of the purposes, the nature and scope of its
1. immediately reveals how tolerant and reasonable the Legislature has been. The law is made provisions, and prevent the enactment into law of matters which have not received the notice,
prospective and recognizes the right and privilege of those already engaged in the occupation to action and study of the legislators or of the public. In case at bar it cannot be claimed that the
continue therein during the rest of their lives; and similar recognition of the right to continue is legislators have not been apprised of the nature of the law, especially the nationalization and
accorded associations of aliens. The right or privilege is denied only to persons upon conviction prohibition provisions. The legislators took active interest in the discussion of the law, and a great
of certain offenses. many of the persons affected by the prohibition in the law conducted a campaign against its
approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever
1. 9.ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE ASPIRATIONS OF A PEOPLE NOT existed.
BEYOND THE LIMITS OF LEGISLATIVE AUTHORITY.—If political independence is a
legitimate aspiration of a people, then economic independence is none of less legitimate. Freedom 1. 15.ID.; INTERNATIONAL TREATIES AND OBLIGATIONS NOT VIOLATED BY REPUBLIC
and liberty are not real and positive, if the people are subject to the economic control and ACT No. 1180; TREATIES SUBJECT TO QUALIFICATION OR AMENDMENT BY
domination of others, especially if not of their own race or country. The removal and eradication SUBSEQUENT LAW.—The law does not violate international treaties and obligations. The
of the shackles of foreign economic control and domination is one of the noblest motives that a United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of
national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it their subjects (Jans Kelsen, The Law of the United Nations, 1951 ed., pp. 29-32), and the
about can infringe the constitutional limitation of due process. The attainment of a legitimate Declaration of Human Rights contains nothing more than a mere recommendation, or a common
aspiration of a people can never be beyond the limits of legislative authority. standard of achievement for all peoples and all nations. The Treaty of Amity between the
Republic of the Philippines and the Republic of China of April 18, 1947 guarantees equality of
1. 10.ID.; ID.; ID.; NATIONALISTIC TENDENCY MANIFESTED IN THE CONSTITUTION.— treatment to the Chinese nationals "upon the same terms as the nationals of any other
Nationalistic tendency is manifested in various provisions of the Constitution. The nationalization
of the retail trade is only a continuance of the nationalistic protective policy laid down as a 1160
primary objective of the Constitution, It cannot therefore be said that a law imbued with the same
purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid 116 PHILIPPINE REPORTS ANNOTATED
or unconstitutional. 0
Ichong, etc. et al. vs. Hernandez, etc., and Sarmiento
1. country". But the nationals of China are not discriminated against because nationals of all other 1162
countries, except those of the United States, who are granted special rights by the Constitution,
1162 PHILIPPINE REPORTS ANNOTATED
are all prohibited from engaging in the retail trade. But even supposing that the law infringes
upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
law (U.S. vs.Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope and liabilities and their offices and principal offices of juridical entities; and (7) a provision
of the police power of the State (Palston vs. Pennsylvania 58 L. ed., 539).
allowing the heirs of aliens now engaged in the retail business who die, to continue such business
for a period of six months for purposes of liquidation.
ORIGINAL ACTION in the Supreme Court. Injunction and Mandamus.
III. Grounds upon which petition is based—Answer thereto
The facts are stated in the opinion of the Court.
Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and
Ozaeta, Lichauco & Picazo and Sycip, Quisumbing, Salazar & Associates for petitioner.
partnerships adversely affected by the provisions of Republic Act No. 1180, brought this action to
Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Secretary of Finance.
Finance and all other persons acting under him, particularly city and municipal treasurers, from
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
Treasurer.
denies to alien residents the equal protection of the laws and deprives them of their liberty and
Dionisio Reyes as Amicus Curiae.
property without due process of law; (2) the subject of the Act is not expressed or comprehended
Marcial G. Mendiola as Amicus Curiae.
in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the
Emiliano R. Navarro as Amicus Curiae.
Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business
thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
LABRADOR, J.: entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII
and Section 8 of Article XIV of the Constitution.
I. The case and the issue, in general In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act
This Court has before it the delicate task of passing upon the validity and constitutionality of a was passed in the valid exercise of the police power of the State, which exercise is authorized in
legislative enactment, fundamental and far-reaching in significance. The enactment poses the Constitution in the interest of national economic survival; (2) the Act has only one subject
questions of due process, police power and equal protection of the laws. It also poses an important embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
issue of fact, that is whether the conditions which the disputed law purports to remedy really or hereditary succession, only the form is affected but the value of the property is not impaired, and
actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the the institution of inheritance is only of statutory origin.
1163
law purports to protect citizen and country from the alien retailer. Through it, and within the field
of economy it regulates, Congress attempts VOL. 101, MAY 31, 1957 1163
1161
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
VOL. 101, MAY 31, 1957 1161
IV. Preliminary consideration of legal principles involved
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
a. The police power.—
to translate national aspirations for economic independence and national security, rooted in the
There is no question that the Act was approved in the exercise of the police power, but petitioner
drive and urge for national survival and welfare, into a concrete and tangible measures designed to
claims that its exercise in this instance is attended by a violation of the constitutional requirements
free the national retailer from the competing dominance of the alien, so that the country and the
of due process and equal protection of the laws. But before proceeding to the consideration and
nation may be free from a supposed economic dependence and bondage. Do the facts and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and f
circumstances justify the enactment?
undamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
II. Pertinent provisions of Republic Act No. 1180 between police power and the guarantees of due process and equal protection of the laws. What is
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it the .scope of police power, and how are the due process and equal protection clauses related to it?
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against What is the province and power of the legislature, and what is the function and duty of the courts?
persons, not citizens of the Philippines, and against associations, partnerships, or corporations the These consideration must be clearly and correctly understood that their application to the f acts of
capital of which are not wholly owned by citizens of the Philippines, from engaging directly or the case may be brought forth with clarity and the issue accordingly resolved.
indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually It has been said that police power is so far-reaching in scope, that it has become almost
engaged in said business on May 15, 1954, who are allowed to continue to engage therein, unless impossible to limit its sweep. As it derives its existence from the very existence of the State itself,
their licenses are forfeited in accordance with the law, until their death or voluntary retirement in it does not need to be expressed or defined in its scope; it is said to be co-extensive with
case of natural persons, and for ten years after the approval of the Act or until the expiration of selfprotection and survival, and as such it is the most positive and active of all governmental
term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical processes, the most essential, insistent and illimitable. Especially is it so under a modern
entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail democratic framework where the demands of society and of nations have multiplied to almost
business) for violation of the laws on nationalization, economic control weights and measures and unimaginable proportions; the field and scope of police power has become almost boundless, just
labor and other laws relating to trade, commerce and industry; (5) a prohibition against the as the fields of public interest and public welfare have become almost all-embracing and have
establishment or opening by aliens actually engaged in the retail business of additional stores or transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of
branches of retail business, (6) a provision requiring aliens actually engaged in the retail business public interest and welfare in this constantly changing and progressive world, so we cannot delimit
to present for registration with the proper authorities a verified statement concerning their beforehand the extent or scope
businesses, giving, among other matters, the nature of the business, their assets 1164
1164 PHILIPPINE REPORTS ANNOTATED 1166 PHILIPPINE REPORTS ANNOTATED
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
of police power by which and through which the State seeks to attain or achieve public interest or constitutional repository of police power and exercises the prerogative of determining the policy of
welfare. So it is that Constitutions do not define the scope or extent of the police power of the the State, is by force of circumstances primarily the judge of necessity, adequacy or
State; what they do is to set f orth the limitations thereof. The most important of these are the due reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the
process clause and the equal protection clause. measures adopted to implement the public policy or to achieve public interest. On the other hand,
b. Limitations on police power.— courts, although zealous guardians of individual liberty and right, have nevertheless evinced a
The basic limitations of due process and equal protection are found in the following provisions of reluctance to interfere with the exercise of the legislative prerogative. They have done so early
our Constitution: where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative
"SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor shall prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never
any person be denied the equal protection of the laws." (Article III, Phil. Constitution) inquire into the wisdom of the law.
These constitutional guarantees which embody the essence of individual liberty and freedom in V. Economic problems sought to be remedied
democracies, are not limited to citizens alone but are admittedly universal in their application, With the above considerations in mind, we will now proceed to delve directly into the issue
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
ed. 220, 226.) no question that it falls within the legitimate scope of legislative power.. But it goes further and
c. The equal protection clause.— prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
The equal protection of the law clause is against undue favor and individual or class privilege, as complex because its subject is a common, trade or occupation, as old as society itself, which from
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit time immemorial has always been open to residents, irrespective of race, color or citizenship.
legislation, which is limited either in the object to which it is directed or by territory within which a. Importance of retail trade in the economy of the nation.—
it is to operate. It does not demand absolute equality among residents; it merely requires that all In a primitive economy where families produce all that they consume and consume all that they
persons shall be treated alike, under like circumstances and conditionsboth as to privileges produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
conferred and liabilities enforced. The equal protection clause is not infringed by legislation which communities producing more than what they consume and needing an infinite number of things
applies only to those persons falling within a specified class, if it applies alike to all persons within they do not produce, the dealer comes into existence.
such class, and reasonable grounds exists for making a distinction between those who fall within 1167
such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
VOL. 101, MAY 31, 1957 1167
1165
VOL. 101, MAY 31, 1957 1165 Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento
As villages develop into big communities and specialization in production begins, the dealer's
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento importance is enhanced. Under modern conditions and standards of living, in which man's needs
d. The due process clause.— have multiplied and diversified to unlimited extents and proportions, the retailer comes as essential
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the as the producer, because thru him the infinite variety of articles, goods and commodities needed
police power. Is there public interest, a public purpose; is public welf are involved? Is the Act for daily life are placed within the easy reach of consumers. Retail dealers perform the functions of
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, capillaries in the human body, thru which all the needed food and supplies are ministered to
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter members of the communities comprising the nation.
involved; or has there not been a capricious use of the legislative power? Can the aims conceived There cannot be any question about the importance of the retailer in the life of the community.
be achieved by the means used, or is it not merely an unjustified interference with private interest? He ministers to the resident's daily needs, food in all its increasing forms, and the various little
These are the questions that we ask when the due process test is applied. gadgets and things needed for home and daily life. He provides his customers around his store
The conflict, therefore, between police power and the guarantees of due process and equal with the rice or corn, the fish, the salt, the vinegar, the ,spices needed for the daily cooking. He has
protection of the laws is more apparent than real. Properly related; the power and the guarantees cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a
for the attainment of legitimate aspirations of any democratic society. There can be no absolute department store or a supermarket is so much a part of day-to-day existence.
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for b. The alien retailer's traits.—
that would mean license and anarchy. So the State can deprive persons of life, liberty and property, The alien retailer must have started plying his trade in this country in the bigger centers of
provided there is due process of law; and persons may be classified into classes and groups, population (Time there was when he was unknown in provincial towns and villages). Slowly but
provided everyone is given the equal protection of the law. The test or standard, as always, is gradually he invaded towns and villages; now he predominates in the cities and big centers of
reason, The police power legislation must be firmly grounded on public interest and welfare, and a population. He even pioneers in far away nooks where the beginnings of community life appear,
reasonable relation must exist between purposes and means. And if distinction and classification ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
has been made, there must be a reasonable basis for said distinction. the towns. It is an undeniable fact that in many communities the alien has replaced the native
e. Legislative discretion not subject to judicial review.— retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
Now, in this matter of equitable balancing, what is the proper place and role of the courts ? It must slave.
not be overlooked, in the first place, that the legislature, which is the 1168
1166 1168 PHILIPPINE REPORTS ANNOTATED
Ichong, etc., et al. vs. Hernandez, etc., and Sarmiento Chinese 12,087 93,155,459 29.38 294, 894, 227
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred Others 422 10,514,675 3.32 9,995,402
and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets
and forgives. The community takes no note of him, as he appears to be harmless and extremely 1949:
useful. Filipino 113,659 213, 451, 60.89 462, 532, 901
c. Alleged alien control and dominance.— 602
There is a general f eeling on the part of the public, which appears to be true to f act, about the
Chinese 16,248 125,223,336 35.72 392, 414, 875
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In Others 486 12,056,365 3.39 10,078,364
big cities and centers of population he has acquired not only predominance, but apparent control 1951:
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
Filipino 119,352 224, 053, 61.09 466, 058, 052
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Accfa, his control over principal 620
foods and products would easily become full and complete. Chinese 17,429 134,325,303 36.60 404, 481, 384
Petitioner denies that there is alien predominance and control in the retail trade. In one breath
it is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law Others 347 8,614,025 2.31 7,645,327
is merely the result of racialism and pure and unabashed nationalism. Alienage, it is said, is not an AVERAGE
element of control; also so many unmanageable factors in the retail business make control
ASSETS AND GROSS SALES PER ESTABLISHMENT
virtually impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence of the legislature Year and Retailer's Nationality Item
and beyond our prerogative to pass upon and decide. (Pesos) Assets (Pesos)
The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and 1941:
control of the retail trade already Filipino 1,878
1169
Chinese 7,707
VOL. 101, MAY 31, 1957 1169
Others 24,415
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento 1170
filled the minds of our leaders with fears and misgivings, and the year of the enactment of the 1170 PHILIPPINE REPORTS ANNOTATED
nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-
increasing dominance and control by the alien of the retail trade, as witness the following tables; Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Assets 1947:
Year and Retailer's Nationality No.- Pesos Percent Pesos Filipino 1,878 2,516
Establishments Distribution Chinese 7,707 14,934
1941: Others ....24,749 13,919
Filipino 106,671 200, 323, 55.82 174, 181, 924 1948: (Census)
138 Filipino 1,878 1,111
Chinese 15,356 118,348,692 32.98 148,813,239 Chinese 7,707 24,398
Others 1,646 40,187,090 11.20 13,630,239 Others 24,916 23,686
1947: 1949:
Filipino 111,107 208, 658, 65.05 279, 583, 333 Filipino 1,878 4,069
946 Chinese 7,707 24,152
Chinese 13,774 106,156,218 33.56 205, 701, 134 Others 24,807 20,737
Others 354 8,761,260 .49 4,927,168 1951:
1948: (Census) Filipino 1,877 3,905
Filipino 113,631 213, 342, 67.30 467, 161, 667 Chinese 7,707 33,207
264 Others 24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: and control; so our newspapers, which have editorially pointed out not only to control but to alien
1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by
of Answer.) official statistics, and felt by all the sections and groups that compose the Filipino community.
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small. e. Dangers of alien control and dominance in retail.
The above figures reveal that in percentage distribution of assets and of gross sales, alien But the dangers arising from alien participation in the retail trade does not seem to lie in the
participation has steadily increased during the years. It is true, of course, that Filipinos have the predominance alone; there is a prevailing feeling that such predominance may truly endanger the
edge in the number of retailers, but aliens more than make up for the numerical gap through their national interest. With ample capital, unity of purpose and action and thorough organization, alien
assets and gross sales which average between six and seven times those of the very many Filipino retailers and merchants can act in such complete unison and concert on such vital matters as the
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys fixing of prices, the determination of the amount of goods or articles to be made available in the
and sells six to seven times more, and gains much more. The same official report, pointing out to market, and even the choice of the goods or articles they would or would not patronize or
the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers distribute, that fears of dislocation of the national economy and of the complete subservience of
were largely engaged in minor retailer enterprises. As observed by respondents, the native national retailers and of the consuming public are not entirely unfounded. Nationals, producers
1173
investment is
1171 VOL. 101, MAY 31, 1957 1173
VOL. 101, MAY 31, 1957 1171 Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento and consumers alike, can be placed completely at their mercy. This is easily illustrated. Suppose
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and an article of daily use is desired to be prescribed by the aliens, because the producer or importer
supply, does not offer them sufficient profits, or because a new competing article offers bigger profits for
its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it
d. Alien control and threat, subject of apprehension in Constitutional Convention.— from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
It is this domination and control, which we believe has been sufficiently shown to exist, that is the prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of trade is
legislature's target in the enactment of the disputed nationalization law. If they did not exist as a thus curtailed and free enterprise correspondingly suppressed.
fact the sweeping remedy of nationalization would never have been adopted. The framers of our We can even go farther than theoretical illustrations to show the pernicious influences of alien
Constitution also believed in the existence of this alien dominance and control when they domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
approved a resolution categorically declaring among other things, that "it is the sense of the within judicial notice, which courts of justice may not properly overlook or ignore in the interests
Convention that the public interest requires the nationalization of the retail trade; * * *." (II of truth and justice, that there exists a general feeling on the part of the public that alien
Aruego, The Framing of the Philippine Constitution, 662663, quoted on page 67 of Petitioner.) participation in the retail trade has been attended by a pernicious and intolerable practices, the
That was twentytwo years ago; and the events since then have not been either pleasant or mention of a few of which would suffice for our purposes; that at some time or other they have
comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the cornered the market of essential commodities, like corn and rice, creating artificial scarcities to
patrimony clause of the Preamble opines that the fathers of our Constitution were merely justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to
translating the general preoccupation of Filipinos "of the dangers from alien interests that had the inconvenience and prejudice of the consuming public, so much so that the Government has had
already brought under their control the commercial and other economic activities of the country" to establish the National Rice and Corn Corporation to save the public from their continuous
(Sinco, Phil. Political Law, 10th ed., p, 114); and analyzing the concern of the members of the hoarding practices and tendencies; that they have violated price control laws, especially on foods
constitutional convention for the economic life of the citizens, in connection with the nationalistic and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No.
provisions of the Constitution, he says: 1168), authorizing their immediate and automatic deportation for price control convictions; that
"But there has been a general feeling that alien dominance over the economic life of the country is not
they have secret combinations among themselves to control prices, cheating the operation of the
desirable and that if such a situation should remain, political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the law of supply and demand;
1174
national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant.
Under such conditions, the government as the instrumentality of the national will, has to step in and assume the 1174 PHILIPPINE REPORTS ANNOTATED
initiative, if not the leadership, in the struggle for the
1172 Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
that they have connived to boycott honest merchants and traders who would not cater or yield to
1172 PHILIPPINE REPORTS ANNOTATED
their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento public to have evaded tax laws, smuggled goods and money into and out of the land, violated
economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom. import and export prohibitions, control laws and the like, in derision and contempt of lawful
Thus * * * it (the Constitution) envisages an organized movement for the protection of the nation not only authority. It is also believed that they have engaged in corrupting public officials with fabulous
against the possibilities of armed invasion but also against its economic subjugation by alien interests in the bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of
economic field." (Phil. Political Law by Sinco, 10th ed., p. 476.)
fact appeals to unscrupulous aliens have been made both by the Government and by their own
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
existence of many of the above practices.
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
The circumstances above set forth create well founded fears that worse things may come in
1, approved on July 18, 1953, of the Fifth National Convention of Filipino Businessmen, and a
the future. The present dominance of the alien retailer, especially in the big centers of population,
similar resolution, approved on March 20, 1954, of the Second National Convention of
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
Manufacturers and Producers. The man in the street also believes, and fears, alien predominance
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
commodities in the communities and big centers of population. They owe no allegiance or loyalty actual and real, furnish sufficient grounds for legislative classification of retail traders into
to the State, and the State cannot rely upon them in times of crisis or emergency. While the nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this
national holds his life, his person and his property subject to the needs of his country, the alien we answer, that this is the prerogative of the law-making power. Since the Court finds that the
may even become the potential enemy of the State. classification is actual, real and reasonable, and all persons of one class are treated alike, and as it
f. Law enacted in interest of national economic survival and security.— cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law declare that the legislature acted within its legitimate prerogative and it cannot declare that the act
is not the product of racial hostility, prejudice or discrimination, but the expression of the transcends the limit of equal protection established by the Constitution.
1177
legitimate desire and determina-
1175 VOL. 101, MAY 31, 1957 1177
VOL. 101, MAY 31, 1957 1175 Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento Broadly speaking, the power of the legislature to make distinctions and classifications among
tion of the people, thru their authorized representatives, to free the nation from the economic persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The admits of a wide scope of discretion, and a law can be violative of the constitutional limitation
law is clearly in the interest of the public, nay of the national security itself, and indisputably falls only when the classification is without reasonable basis. In addition to the authorities we have
within the scope of police power, thru which and by which the State insures its existence and earlier cited, we can also refer to the case of Lindsley vs.Natural Carbonic Gas Co. (1911), 55 L.
security and the supreme welfare of its citizens. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law
sought to be voided as contrary thereto:
VI. The Equal Protection Limitation "* * *. 1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to
a.Objections to alien participation in retail trade.— classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard,
and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A
The next question that now poses solution is, Does the law deny the equal protection of the laws? classification having some reasonable basis does not offend against that clause merely because it is not made
As pointed out above, the mere fact of alienage is the root and cause of the distinction between the with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in
alien and the national as a trader. The alien resident owes allegiance to the country of his birth or such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the
his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the
and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis,
naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily but is essentially arbitrary.'"
stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino c. Authorities recognizing citizenship as basis for classification.—
customers as would prevent him from taking advantage of their weakness and exploiting them. The question as to whether or not citizenship is a legal and valid ground for classification has
The faster he makes his pile, the earlier can the alien go back to his beloved country and his already been affirmatively decided in this jurisdiction as well as in various courts in the United
beloved kin and countrymen. The experience of the country is that the alien retailer has shown States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
such utter disregard for his customers and the people on whom he makes his profit, that it has been 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
found necessary to adopt the legislation, radical as it may seem. ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
Another objection to the alien retailer in this country is that he never really makes a genuine Philippine Islands or the United States, thus denying the right to aliens, it was held that the
contribution to national income and wealth. He undoubtedly contributes to general distribution, Philippine Legislature did not violate the equal pro-
but the gains and profits he makes are not invested in industries that would help the 1178
1176
1178 PHILIPPINE REPORTS ANNOTATED
1176 PHILIPPINE REPORTS ANNOTATED
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento tection clause of the Philippine Bill of Rights. The Legislature in enacting the law had as ultimate
country's economy and increase national wealth. The alien's interest in this country being merely purpose the encouragement of Philippine shipbuilding and the safety for these Islands from foreign
transient and temporary, it would indeed be ill-advised to continue entrusting the very important interlopers. We held that this was a valid exercise of the police power, and all presumptions are in
function of retail distribution to his hands. favor of its constitutionality. In substance, we held that the limitation of domestic ownership of
The practices resorted to by aliens in the control of distribution, as already pointed out above, vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal
their secret manipulations of stocks of commodities and prices, their utter disregard of the welfare protection of the law and due process of law clauses of the Philippine Bill of Rights. In rendering
of their customers and of the ultimate happiness of the people of the nation of which they are mere said decision we quoted with approval the concurring opinion of Justice Johnson in the case
guests, which practices, manipulations and disregard do not attend the exercise of the trade by the of Gibbons vs. Ogden, 9 Wheat., I, as follows:
nationals, show the existence of real and actual, positive and fundamental differences between an " 'Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
alien and a national which fully justify the legislative classification adopted in the retail trade houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms
measure. These differences are certainly a valid reason for the State to prefer the national over the part of an extensive system, the object of which is to encourage American shipping, and place them on an
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a
reason or ground for a legitimate distinction can be found between one and the other. monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an American character,
b. Difference in alien aims and purposes sufficient basis for distinction.— that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to
confer on her American privileges, as contradistinguished from foreign; and to preserve the Government from
fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as there was no reason for the classification .and the tax was an arbitrary deduction from the daily
frauds upon the revenue in the trade coastwise, that this whole system is projected.'" wage of an employee.
The rule in general is as follows:
"Aliens are under no special constitutional protection which forbids a classification otherwise justified simply d. Authorities contra explained.—
because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree It is true that some decisions of the Federal court and of the State courts in the United States hold
of protection for aliens as a class than for similar classes of American citizens. Broadly speaking, the that the distinction between aliens and citizens is not a valid
difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise 1181
of police power." (2 Am. Jur. 468-469.) VOL. 101, MAY 81, 1957 1181
1179
VOL. 101, MAY 31, 1957 1179 Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
ground for classification. But in these decisions the laws declared invalid were found to be either
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hostility, and there was no question of public interest involved or pursued. In Yu Cong
hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared Eng vs.Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a
his intention, to become a citizen of the United States, was held valid, for the following reason: It Philippine law making unlawful the keeping of books of account in any language other than
may seem wise to the legislature to limit the business of those who are supposed to have regard for English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if
the welfare, good order and happiness of the community, and the court cannot question this Chinese were driven out of business there would be no other system of distribution, and (2) that
judgment and conclusion. In Bloomfield vs. State, 99 N.E. 309 (Ohio, 1912), a statute which the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found be advised of their business and to direct its conduct. The real reason for the decision, therefore, is
not to be the result of race hatred, or inhospitality, or a deliberate purpose to discriminate, but was the court's belief that no public benefit would be derived from the operation of the law and on the
based on the belief that an alien cannot be sufficiently acquainted with 'our institutions and our life other hand it would deprive Chinese of something indispensable for carrying on their business.
as to enable him to appreciate the relation of this particular business to our entire social f abric", In Yick Wo vs. Hopkins, 30 L. ed. 220 (1885) an ordinance conferring power on officials to
and was not, theref ore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U.S. 392, 71 L. ed. withhold consent in the operation of laundries both as to persons and place, was declared invalid,
1115 (1926), the U. S. Supreme Court had under consideration an ordinance of the city of but the court said that the power granted was arbitrary, that there was no reason for the
Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that discrimination which attended the administration and implementation of the law, and that the
plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
and allegiance may not bear in some instances such a relation to a legitimate object of legislation prohibiting aliens to engage as hawkers and peddlers was declared void, because the
as to be made the basis of permitted classification, and that it could not state that the legislation is discrimination bore no reasonable and just relation to the act in respect to which the classification
clearly wrong; and that latitude must be allowed for the legislative appraisement of local was proposed.
conditions and for the legislative choice of methods for controlling an apprehended evil. The case The case at bar is radically different, and the facts make them so. As we already have said,
of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. aliens do not naturally possess the sympathetic consideration and regard for customers with whom
In Asakura, vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawnbroking was they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in
considered as having tendencies injuring public interest, and limiting it to citizens is within the so far as it enhances their profit,
scope of police power. A similar statute denying 1182
1180
1182 PHILIPPINE REPORTS ANNOTATED
1180 PHILIPPINE REPORTS ANNOTATED
Ichong etc.. et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento nor the loyalty and allegiance which the national owes to the land. These limitations on the
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L. R. A., 1915 P. qualifications of aliens have been shown on many occasions and instances, especially in times of
151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle,
said that aliens are judicially known to have different interests, knowledge, attitude, psychology 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and
and loyalty, hence the prohibition of issuance of licenses to them for the business of pawnbroker, the national, thus:
pool, billiard, card room, dance hall, is not an infringement of constitutional rights. "* * *. It may be judicially known, however, that aliens coming into this country are without the intimate
In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain
prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and
court's finding that the exercise of the business by the aliens does not in any way affect the morals, reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of
the health, or even the convenience of the community. In Takahashi vs. Fish and Game governmental environment and control have been engendered and formed under entirely different regimes and
political systems, have not the same inspiration for the public weal, nor are they as well disposed toward the
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial United States, as those who by citizenship, are a part of the government itself. Further enlargement, is
fishing licenses to persons ineligible to citizenship was held void, because the law conflicts with unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the
Federal power over immigration, and because there is no public interest in the mere claim of Legislature was without plausible reason for making the classification, and therefore appropriate
ownership of the waters and the fish in them, so there was no adequate justification for the discrimination against aliens as it relates to the subject of legislation. * * *."
discrimination. It further added that the law was the outgrowth of antagonism toward persons of
VII The Due Process of Law Limitation
Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been
treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 a. Reasonability, the test of the limitation; determination by legislature decisive.—
(Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born We now come to due process as a limitation on the exercise of the police power. It has been stated
unnaturalized male persons over 21 years of age, was declared void because the court found that by the highest authority in the United States that:
"* * * And the guaranty of due process, as has often been held, demands only that the law shall not be legislative objective, i.e., to free national economy from alien control and do minance. It is not
unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-
the subject sought to be attained. * * *." 1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
* * * * * * *
circumstances of the means adopted to carry out its purpose into effect (Id.)Judged by this test,
"So far as the requirement of due process is concerned and in the absence of other constitutional
restriction a state is free to adopt whatever economic policy may reasonably be deemed to promote public disputed legislation, which is
1185
welfare, and to enforce that policy by legislation adapted
1183 VOL. 101, MAY 31, 1957 1185
VOL. 101, MAY 31, 1957 1183 Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento not merely reasonable but actually necessary, must be considered not to have infringed the
to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the constitutional limitation of reasonableness.
legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative The necessity of the law in question is explained in the explanatory note that accompanied the
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial bill, which later was enacted into law:
determination to that effect renders a court functus officio. * * *." (Nebbia vs. New York, 78 L. ed. 940, 950, "This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the
957.) Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of
Another authority states the principle thus: our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our
"* * *. Too much significance cannot be given to the word 'reasonable' in considering the scope of the free institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our
police power in a constitutional sense, for the test used to determine the constitutionality of the means own destiny. All aspects of our life, even our national security, will be at the mercy of other people.
employed by the legislature is to inquire whether the restrictions it imposes on rights secured to individuals by "In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not
the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. * * *." citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of
* * * * * * * persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our
"* * *. A statute to be within this power must also be reasonable in its operation upon the persons whom it national life and endanger our national security it respects existing rights.
affects, must not be for the annoyance of a particular class, and must not be unduly oppressive." (11 Am. Jur. "The approval of this bill is 'necessary for our national survival."
Sec. 302, pp. 1074-1075.) If political independence is a legitimate aspiration of a people, then economic independence is
In the case of Lawton vs. Steele, 38 L. ed. 385, 388, it was also held: none the less legitimate. Freedom and liberty are not real and positive if the people are subject to
"* * *. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the the economic control and domination of others, especially if not of their own race or country. The
interests of the public generally, as distinguished from those of a particular class, require such interference; and
removal and eradication of the shackles of foreign economic control and domination, is one of the
second, that the means are reasonably necessary for the accomplishment of the purpose, and -not unduly
oppressive upon individuals. * * *." noblest motives that a national legislature may pursue. It is impossible to conceive that legislation
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of that seeks to bring it about can infringe the constitutional limitation of due process. The attainment
constitutionality: of a legitimate aspiration of a people can never be beyond the limits of legislative authority.
"In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.—
the operation of a business, is or is not constitutional, one of the first questions to be considered by the court is The framers of the Constitution could not have intended to impose the constitutional restrictions of
whether the power as exercised has a sufficient foundation in reason in connection with the matter involved, or due
is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the health, safety, 1186
morals, comfort, and general welfare of the public."
1184 1186 PHILIPPINE REPORTS ANNOTATED
1184 PHILIPPINE REPORTS ANNOTATED Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
lchong etc., et al. vs. Hernandez, etc., and Sarmiento process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given
b. Petitioner's argument considered.— to the legislature full authority and power to enact legislation that would promote the supreme
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges happiness of the people, their freedom and liberty. On the precise issue now before us, they
long ago recognized as essential to the orderly pursuit of happiness by free men; that it is a gainful expressly made their voice clear; they adopted a resolution expressing their belief that the
and honest occupation and therefore beyond the power of the legislature to prohibit and penalize. legislation in question is within the scope of the legislative power. Thus they declared in their
This argument overlooks fact and reality and rests on an incorrect assumption and premise, i.e., Resolution:
that in this country where the occupation is engaged in by petitioner, it has been so engaged by " That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it
him, by the alien, in an honest creditable and unimpeachable manner, without harm or injury to the abstains from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits
Legislature has found, as we have also found and indicated, that the privilege has been so grossly to Filipino and American citizens the privilege to engage in the retail trade.'" (II Aruego, The Framing of the
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now Philippine Constitution, 662-663, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's It would do well to refer to the nationalistic tendency manifested in various provisions of the
economy endangering the national security in times of crisis and emergency. Constitution. Thus in the preamble, a principal objective is the conservation of the patrimony of
The real question at issue, therefore, is not that posed by petitioner, which overlooks and the nation and as corollary thereto the provision limiting to citizens of the Philippines the
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV,
trade unreasonable, arbitrary and capricious, taking into account the illegitimate and pernicious it is provided that "no franchise, certificate, or any other form of authorization for the operation of
form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the a public utility shall be granted except to citizens of the Philippines." The nationalization of the
answer is clear. The law in question is deemed absolutely necessary to bring about the desired retail trade is only a continuance of the nationalistic protective policy laid down as a primary
objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit which terms express the two main purposes and objectives of the law. But "regulate" is a broader
underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional term than either prohibition or nationalization. Both of these have always been included within the
? term regulation.
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the 1189
approval VOL. 101, MAY 31, 1957 1189
1187
lchong etc., et al. vs. Hernandez, etc., and Sarmiento
VOL. 101, MAY 31, 1957 1187
"Under the title of an act to 'regulate', the sale of intoxicating liquors, the Legislature may prohibit the sale of
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento intoxicating liquors." (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
of the radical measure is, therefore, fully justified. It would have been recreant to its duties "Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be
stated in the title, the title To regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of
towards the country and its people would it view the sorry plight of the nationals with
an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public matters being properly included within the subject of regulating the sale." (Williams vs. State, 48 Ind. 306,
interest and national survival. As the repository of the sovereign power of legislation, the 308, quoted in p. 42 of Answer.)
Legislature was in duty bound to face the problem and meet, through adequate measures, the "The word 'regulate' is of broad import, and necessarily implies some degree of restraint and prohibition
danger and threat that alien domination of retail trade poses to national economy. of acts usually done in connection with the thing to be regulated. While word regulate' does not ordinarily
convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in
d. Provisions of law not unreasonable.— delegating police power in connection with a thing the best or only efficacious regulation of which involves
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the suppression." (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
Legislature has been. The law is made prospective and recognizes the right and privilege of those The general rule is for the use of general terms in the title of a bill; it has also been said that the
already engaged in the occupation to continue therein during the rest of their lives; and similar title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
recognition of the right to continue is accorded associations of aliens. The right or privilege is Sec. 4803, p. 345.) The above rule was followed when the title of the Act in question adopted the
denied to those only upon conviction of certain offenses. In the deliberations of the Court on this more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also
case, attention was called to the fact that the privilege should not have been denied to children and contains other rules for the regulation of the retail trade, which may not be included in the terms
heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
and purposes. Besides, the exercise of legislative discretion is not subject to judicial review. It is "prohibit", there would have been many provisions not f alling within the scope of the title which
well settled that the Court will not inquire into the motives of the Legislature, nor pass upon would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
general matters of legislative judgment. The Legislature is primarily the judge of the necessity of principle governing the drafting of statutes, under which a simple or general term should be
an enactment or of any of its provisions, and every presumption is in favor of its validity, and adopted in the title, which would include all other provisions found in the body of the Act.
though the Court may hold views inconsistent with the wisdom of the law, it may not annul the One purpose of the constitutional directive that the subject of a bill should be embraced in its
legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent
a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and the enactment into law of matters
we find 1190
1188
1190 PHILIPPINE REPORTS ANNOTATED
1188 PHILIPPINE REPORTS ANNOTATED
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento which have not received the notice, action and study of the legislators or of the public. In the case
he provisions are not unreasonable. These principles also answer various other arguments raised at bar it cannot be claimed that the legislators have not been apprised of the nature of the law,
against the law, some of which are: that the law does not promote general welfare; that thousands especially the nationalization and prohibition provisions. The legislators took active interest in the
of aliens would be thrown out of employment; that prices will increase because of the elimination discussion of the law, and a great many of the persons affected by the prohibition in the law
of competition; that there is no need for the legislation; that adequate replacement is conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for
problematical; that there may be general breakdown; that there would be repercussions from declaring the law invalid ever existed. The objection must therefore, be overruled.
foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law
which lies solely within the legislative prerogative; they do not import invalidity. IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of
VIII. Alleged defect in the title of the law the Charter of the United Nations and of the Declaration of Human Rights adopted by the United
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title Nations General Assembly. We find no merit in the above contention. The United Nations Charter
thereof is misleading or deceptive, as it conceals the real purpose of the bill, which is to imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans
nationalize the retail business and prohibit aliens from engaging therein. The constitutional Kelsen, The Law of the United Nations, 1951 ed. pp. 2932), and the Declaration of Human Rights
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads: contains nothing more than a mere recommendation, or a common standard of achievement for all
"No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the
title of the bill."
Declaration of Human Rights can be inferred from the fact that members of the United Nations
What the above provision prohibits is duplicity, that is, if its title completely fails to apprise the
Organization, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and
legislators or the public of the nature, scope and consequences of the law or its operation (I
in most nations of the world laws against foreigners engaged in domestic trade are adopted.
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
The Treaty of Amity between the Republic of the Philippines and the Republic of China of
provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does
April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees
not and may not readily and at first glance convey the idea of "nationalization" and "prohibition",
is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other owned by citizens of the Philippines, and aliens, who are not and have not been engaged in the
country." But the nationals of China are not dis- retail business. I am, however, unable to persuade myself that it does not violate said clauses
1191 insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who
VOL. 101, MAY 31, 1957 1191 are and have
1193
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
VOL. 101, MAY 31, 1957 1193
criminated against because nationals of all other countries, except those of the United States, who
are granted special rights by the Constitution, are all prohibited f rom engaging in the retail trade. Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
But even supposing that the law infringes upon the said treaty, the treaty is always subject to heretofore been engaged in said business. When they did engage in the retail business there was no
qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the prohibition on or against them to engage in it. They assumed and believed in good faith they were
same may never curtail or restrict the scope of the police power of the State entitled to engage in the business. The Act allows aliens to continue in business until their death or
(Palston vs. Pennsylvania, 58 L. ed. 539.) voluntary retirement f rom the business or forfeiture of their license; and corporations, associations
X. Conclusion or partnerships, the capital of which is not wholly owned by citizens of the Philippines to continue
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or
real actual threat and danger to national economy posed by alien dominance and control of the until the expiry of the term of the existence of the association or partnership or corporation,
retail business and free citizens and country from such dominance and control; that the enactment whichever event comes first. The prohibition on corporations, the capital of which is not wholly
clearly falls within the scope of the police power of the State, thru which and by which it protects owned by citizens of the Philippines, to engage in the retail business for a period of more than ten
its own personality and insures its security and future; that the law does not violate the equal years from the date of the approval of the Act or beyond the term of their corporate existence,
protection clause of the Constitution because sufficient grounds exist for the distinction between whichever event comes first, is valid and lawful, because the continuance of the existence of such
alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, corporations is subject to whatever the Congress may impose reasonably upon them by subsequent
because the law is prospective in operation and recognizes the privilege of aliens already engaged legislation. But the prohibition to engage in the retail business by associations and partnerships, the
1
in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law capital of which is not wholly owned by citizens of the Philippines, after ten years from the date of
to carry out its objectives appear to us to be plainly evident—as a matter of f act it seems not only the approval of the Act, even bef ore the end of the term of their existence as agreed upon by the
appropriate but actually necessary—and that in any case such matter falls within the prerogative of associates and partners, and by alien heirs to whom the retail business is transmitted by the death
the Legislature, with whose power and discretion the Judicial department of the Government may of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from of their property without due process of law. To my mind, the ten-year period from the date of the
no duplicity and has not misled the legislators or the segment of the population affected; and that it approval of the Act or until the expiration of the term of the existence of the association and
cannot be said to be void for supposed conflict with treaty obligations because no treaty has partnership, whichever event comes first, and the sixmonth period granted to alien heirs of a
actually been en- deceased alien,
________________
1192
1192 PHILIPPINE REPORTS ANNOTATED Section 76, Act No. 1459.
1
1194
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
tered into on the subject and the police power may not be curtailed or surrendered by any treaty or 1194 PHILIPPINE REPORTS ANNOTATED
any other conventional agreement. Ichong etc., et al. vs. Hernandez, etc,, and Sarmiento
Some members of the Court are of the opinion that the radical effects of the law could have his executor or administrator, to liquidate the business, do not cure the defect of the law, because
been made less harsh in its impact on the aliens. Thus it is stated that more time should have been the effect of the prohibition is to compel them to sell or dispose of their business. The price
given in the law for the liquidation of existing businesses when the time comes for them to close. obtainable at such forced sale of the business would be inadequate to reimburse and compensate
Our legal duty, however, is merely to determine if the law falls within the scope of legislative the associates or partners of the association or partnership, and the alien heirs of a deceased alien,
authority and does not transcend the limitations of due process and equal protection guaranteed in engaged in the retail business for the capital invested in it. The stock of merchandise bought and
the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; sold at retail does not alone constitute the business. The goodwill that the association, partnership
they are beyond our power and jurisdiction. and the alien had built up during a long period of effort, patience and perseverance forms part of
The petition is hereby denied, with costs against petitioner. such business. The constitutional provisions that no person shall be deprived of his property
Parás, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepción, Reyes, J. B. without due process of law and that no person shall be denied the equal protection of the
1
L., Endencia, and Felix, JJ.,concur. laws would have no meaning as applied to associations or partnerships and alien heirs of an alien
2
engaged in the retail business if they were to be compelled to sell or dispose of their business
PADILLA, J., concurring and dissenting: within ten years from the date of the approval of the Act and before the end of the term of the
existence of the associations and partnerships as agreed upon by the associates and partners and
I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an Act within six months after the death of their predecessorin-interest.
passed by the Congress and duly approved by the President of the Republic. But the rule does not The authors of the Constitution were vigilant, caref ul and zealous in the safeguard of the
preclude courts from inquiring and determining whether the Act offends against a provision or ownership of private agricultural lands which together with the lands of the public domain
provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and
law and the equal protection of the laws clauses of the Constitution does not infringe upon them, prudent to deprive aliens and their heirs of such lands, 3
insofar as it affects associations, partnerships or corporations, the capital of which is not wholly
For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels even before the expiry of the term of their existence as agreed upon by the associates and partners
associations and partnerships referred to therein to wind up their retail business within ten years and section 3 of the Act, insofar as it compels the alien heirs of a deceased alien engaged in the
from the date of the approval of the Act retail business in his lifetime, his executor or administrator, to liquidate the business, are invalid,
________________ for they violate the due process of law and the equal protection of the laws clauses of the
Constitution.
Section 1(1), Article III, of the Constitution.
1
Petition denied.
Ibid.
2
Section 5, Article XIII, of the Constitution.
3
1195 —————
VOL. 101, MAY 81. 1957 1195
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
Ichong etc., et al. vs. Hernandez, etc., and Sarmiento
53 SUPREME COURT REPORTS ANNOTATED 5 SUPREME COURT REPORTS ANNOTATED
Victoriano vs. Elizalde Rope Workers’ Union 6
No. L-25246. September 12, 1974. * Victoriano vs. Elizalde Rope Workers’ Union
BENJAMIN VICTORIANO, plaintiff-appellee, vs.ELIZALDE ROPE WORKERS’ UNION and therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if any person
ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE WORKERS’ UNION, regardless of his religious beliefs, wishes to be employed or to keep his employment, he mustbecome a
defendant-appellant. member of the collective bargaining union. Hence, the right of said employee not to join the labor union is
Constitutional law; Construction and integration; There is a presumption of constitutionality in curtailed and withdrawn.
statutes.—All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging Same; Same; Same; Same; Exception to closed-shop agreement provided for employees prohibited by
unconstitutionally, must prove its invalidity beyond a their religion from joining any union.—To that all-embracing coverage of the closed shop arrangement,
________________ Republic Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act
the following proviso: “but such agreement shall not cover members of any religious sects which prohibit
EN BANC.
* affiliation of their members in any such labor organization”. Republic Act No. 3350 merely excludes ipso
55 jure from the application and coverage of the closed shop agreement the employees belonging to any religious
sects which prohibit affiliation of their members with any labor organization. What the exception provides,
VOL. 59, SEPTEMBER 12, 1974 5
therefore, is that members of said religious sects cannot be compelled or coerced to join labor unions even
5 when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement,
members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground
Victoriano vs, Elizalde Rope Workers’ Union that they are not members of the collective bargaining union.
reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any Same; Impairment of contracts; Prohibition against impairment of contracts is not absolute.—
reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate It should not be over looked that the prohibition to impair the obligation of contracts is not absolute and
all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; unqualified. The prohibition is not to be read with literal exactness like a mathematical formula, for it prohibits
and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be unreasonable impairment only. In spite of the constitutional prohibition, the State continues to possess
adopted. authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding said interests
Same; Right to form or join associations; An employee has the right to join or not join a labor union.— may modify or abrogate contracts already in effect. For not only are existing laws read into contracts in order
What the Constitution and the Industrial Peace Act recognize and guarantee is the “right” to form or join to fix the obligations as between the parties, but the reservation of essential attributes of sovereign power is
associations. Notwithstanding the different theories propounded by the different schools of jurisprudence also read into contracts as a postulate pf the legal order. All contracts made with reference to any matter that is
regarding the nature and contents of a “right”, it can be safely said that whatever theory one subscribes to, a subject to regulation under the police power must be understood as made in reference to the possible exercise
right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of legal of that power. Otherwise, important and valuable reforms may be precluded by the simple device of entering
restraint, whereby an employee may act for himself without being prevented by law; and second, power, into contracts for the purpose of doing that which otherwise may be prohibited.
whereby an employee may, as he pleases, join or refrain from joining an association. It is, therefore, the Same; Same; Test for determining whether statute violates the impairment-of-contract clause.—In
employee who should decide for himself whether he should join or not an association; and should he choose to order to determine whether
join, he himself makes up his mind as to which association he would join; and even after he has joined, he still 57
retains the liberty and the power to leave and cancel his membership with said organization at any time. It is
VOL. 59, SEPTEMBER 12, 1974 5
clear, therefore, that the right to join a union includes the right to abstain from joining any union.
Same; Same; Labor laws; Unfair labor practice; Right to refrain from joining labor union limited by 7
the Industrial Peace Act.—The right to refrain from joining labor organizations recognized by Section 3 of the
Industrial Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is Victoriano vs. Elizalde Rope Workers’ Union
withdrawal by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue legislation unconstitutionally impairs contract obligations, no unchanging yardstick, applicable at all
of which the employer may employ only members of the collective bargaining union, and the employees must times and under all circumstances, by which the validity of each statute may be measured or determined, has
continue to be members of the union for the duration of the contract in order to keep their jobs. Thus Section 4 been fashioned, but every case must be determined upon its own circumstances. Legislation impairing the
(a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides that although it obligation of contracts can be sustained when it is enacted for the promotion of the general good of the people,
would be an unfair labor practice for an employer “to discriminate in regard to hire or tenure of employment or and when the means adopted to secure that end are reasonable. Both the end sought and the means adopted
any term or condition of employment to encourage or discourage membership in any labor organization” the must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with the
employer is, however, not precluded “from making an agreement with a labor organization to require as a constitutional limitation of that power.
condition of employment membership therein, if such labor organization is the representative of the Same; Same; Republic Act 3350 providing for exemption from closed shop agreements does not
employees.” By virtue, violate the impairment-of-contract clause of the constitution.—What then was the purpose sought to be
56 achieved by Republic Act No. 3350? Its purpose was to insure freedom of belief and religion, and to promote
the general welfare by preventing discrimination against those members of religious sects which prohibit their imaginary or whimsical, distinction. The classification introduced by said Act is also germane to its purpose.
members from joining labor unions, confirming thereby their natural, statutory and constitutional right to work, The purpose of the law is precisely to avoid those who cannot, because of their religious belief, join labor
the fruits of which work are usually the only means whereby they can maintain their own life and the life of unions, from being deprived of their right to work and from being dismissed from their work because of union
their dependents. It cannot be gainsaid that said purpose is legitimate. The questioned Act also provides shop security agreements.
protection to members of said religious sects against two aggregates of group strength from which the Same; Social justice; Republic Act 3350 does not violate the concept of social justice contained in the
individual needs protection. The individual employee, at various times in his working life, is confronted by two Constitution.—Appellant’s further contention that Republic Act No. 3350 violates the constitutional provision
aggregates of power—collective labor, directed by a union, and collective capital, directed by management. on social justice is also baseless. Social justice is intended to promote the welfare of all the people. Republic
The union, an institution developed to organize labor into a collective force and thus protect the individual Act No. 3350 promotes that welfare insofar as it looks after the welfare of those who, because of their religious
employee from the power of collective capital, is, paradoxically, both the champion of employee rights, and a belief, cannot join labor unions; the Act prevents their being deprived of work and of the means of livelihood.
new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third In determining whether any particular measure is for public advantage, it is not necessary that the entire state
aggregate of group strength from which the individual also needs protection—the collective bargaining be directly benefited—it is sufficient that a portion of the state be benefited thereby.
relationship. It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose— Same; Construction and interpretation; Statute is not unconstitutional merely because it is not proper,
exempting the members of said religious sects from coverage of union security agreements—is reasonable. necessary or denimble.—Appellant contends that the amendment introduced by Republic Act No. 3350 is not
Same; Same; Religious freedom; Freedom of religion takes precedence over the right against the called for—in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been held that
impairment of contracts.—Itmay not be amiss to point out here that the free exercise of religious profession or a statute which is not necessary is not, for that reason, unconstitutional; that in determining the constitutional
belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The validity of legislation, the courts are unconcerned with issues as to the necessity for the enactment of the
Supreme Court of the United States has also declared on several occasions that the rights in the First legislation in question. Courts do inquire into the wisdom of laws. Moreover, legislatures, being chosen by the
Amendment, which include freedom of religion, people, are presumed to understand and correctly appreciate the needs of the people, and it may change the
58 laws accordingly.
5 SUPREME COURT REPORTS ANNOTATED Labor law; Labor dispute; Attorney’s fees; Case at bar, labor union liable for attorney’s fees.—That
there was a labor dispute in the instant case cannot be disputed, for appellant sought the discharge of
8 respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question
involving tenure of employment is included in the term “labor dispute”. The discharge or the act of seeking it
Victoriano vs. Elizalde Rope Workers Union
‘
is the labor dispute itself. It being the labor
enjoy a preferred position in the constitutional system. Religious freedom, although not unlimited, is a 60
fundamental personal right and liberty, and has a preferred position in the hierarchy of values. Contractual
rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an 6 SUPREME COURT REPORTS ANNOTATED
immediate and grave danger to the security and welfare of the community that infringement of religious 0
freedom may be justified, and only to the smallest extent necessary to avoid the danger.
Same; Same; Same; Republic Act 3350 does not advance or diminish the interest of any particular Victoriano vs. Elizalde Rope Workers’ Union
religion.—The primary effects of the exemption from closed shop agreements in favor of members of religious dispute itself, that very same act of the Union in asking the employer to dismiss Appellee cannot be “an
sects that prohibit their members from affiliating with a labor organization, is the protection of said employees act done x x x in furtherance of an industrial dispute”. The mere fact that appellant is a labor union does not
against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on necessarily mean that all its acts are in furtherance of an industrial dispute. Neither does Article 2208 of the
their religious beliefs; and by’ eliminating to a certain extent economic insecurity due to unemployment, which Civil Code, invoked by the Union, serve as its shield. The article provides that attorney’s fees and expenses of
is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes the litigation may be awarded “when the defendant’s act or omission has compelled the plaintiff x x x to incur
well-being of society. It is our view that the exemption from the effects of closed shop agreement does not expenses to protect his interest”; and “in any other case where the court deems it just and equitable that
directly advance, or diminish, the interests of any particular religion. Although the exemption may benefit attorney’s fees and expenses of litigation should be recovered”. In the instant case, it cannot be gainsaid that
those who are members of religious sects that prohibit their members from joining labor unions, the benefit appellant Union’s act in demanding Appellee’s dismissal caused Appellee to incur expenses to prevent his
upon the religious sects is merely incidental and indirect. The “establishment clause” (of religion) does not ban being dismissed from his job.
regulation on conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some
or all religions. The free exercise clause of the Constitution has been interpreted to require that religious Fernando, J.: Concurring
exercise be preferentially aided.
Same; Same; Same; Republic Act 3350 does not require religious test for the exercise of civil or
political right—The Act does not require as a qualification, or condition, for joining any lawful association Constitutional law; Religious freedom; Religious freedom stressed.—Religious freedom is identified
membership in any particular religion or in any religious sect; neither does the Act require affiliation with a with the liberty every individual possesses to worship or not a Supreme Being, and if a devotee of any sect, to
religious sect that prohibits its members from joining a labor union as a condition or qualification for any act in accordance with its creed. This is constitutionally safeguarded, according to Justice Laurel, that
withdrawing from a labor union. Joining or withdrawing from a labor union requires a positive act. Republic “profession of faith to an active power that binds and elevates man to his Creator * * *.” The choice of what a
Act No. 3350 only exempts members with such religious affiliation from the coverage of closed shop man wishes to believe in is his and his alone. That is a domain left untouched, where intrusion is not allowed, a
agreements. So, under this Act, a religious objector is not required to do a positive act—to exercise the right to citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills reigns
join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. supreme. The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of rational
Same; Equal protection of the law; Republic Act 3350 does not violate the equal protection of the law foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It suffices
clause of the constitution.—We that for him such a concept holds undisputed sway. That is a recognition of man’s freedom. That for him is one
59 of the ways of self-realization. It would be to disregard the dignity that attaches to every human being to
deprive him of such an attribute. The “fixed star on our constitutional constellation,” to borrow the felicitous
VOL. 59, SEPTEMBER 12, 1974 5 phrase of Justice Jackson, is that no official, not excluding the highest, has it in his power to prescribe what
9 shall be orthodox in matters of conscience—or to mundane affairs, for that matter.
Same; Same; Limitations on religious freedom cited.—One may believe in most anything, however
Victoriano vs. Elizalde Rope Workers’ Union strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of
believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies orthodoxy or doctrinal standards. There was this qualification though: “But between the freedom of belief and
employees and workers, as to the effect and coverage of union shop security agreements, into those who by the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief
reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose religion clashes with the established
does not prohibit membership in labor unions. The classification rests on real or substantial, not merely 61
VOL. 59, SEPTEMBER 12, 1974 6
Company in turn notified Appellee and his counsel that unless the Appellee could achieve a
satisfactory arrangement with the Union, the Company would be constrained to dismiss him from
1 the service. This prompted Appellee to file an action for injunction, docketed as Civil Case No.
Victoriano vs. Elizalde Rope Workers’ Union 58894 in the Court of First Instance of Manila to enjoin the Company and the Union from
institutions of society and with the law, then the former must yield, and give way to the latter. The dismissing Appellee. In its answer, the Union invoked the “union security clause” of the collective
1
Government steps in and either restrains said exercise or even prosecutes the one exercising it.” bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended that
Same; Same; Republic Act 3350 does not diminish protection to labor.—There is, however, the the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9
question of whether such an exception possesses an implication that lessens the effectiveness of state efforts to (d) and (e). Upon the facts agreed upon by the parties during the
2
protect labor, likewise, as noted, constitutionally ordained. Such a view, on the surface, may not be lacking in ________________
plausibility, but upon closer analysis, it cannot stand scrutiny. Thought must be given to the freedom of
association, likewise an aspect of intellectual liberty. For the late Professor Howe, a constitutionalist and in his Record on Appeal, pages 2-7.
1
lifetime the biographer of the great Holmes, it even partakes of the political theory of pluralistic sovereignty. Record on Appeal, pages 14-17.
2
So great is the respect for the autonomy accorded voluntary societies. Such a right implies at the very least that 63
one can determine for himself whether or not he should join or refrain from joining a labor organization, an
VOL. 59, SEPTEMBER 12, 1974 63
institutional device for promoting the welfare of the working man. A closed shop, on the other hand, is
inherently coercive. That is why, as is unmistakably reflected in our decisions, the latest of which is Guijarno Victoriano vs. Elizalde Rope Workers’ Union
v. Court of Industrial Relations, it is far from being a favorite of the law. For a statutory provision then to pre-trial conference, the Court a quo rendered its decision on August 26,1965, the dispositive
further curtail its operation, is precisely to follow the dictates of sound public policy.
portion of which reads:
“IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope Factory, Inc.
APPEAL from a decision of the Court of First Instance of Manila. from dismissing the plaintiff from his present employment and sentencing the defendant Elizalde Rope
Workers’ Union to pay the plaintiff P500 for attorney’s fees and the costs of this action.”
3
The facts are stated in the opinion of the Court. From this decision, the Union appealed directly to this Court on purely questions of law, assigning
Salonga, Ordoñez, Yap, Sicat & Associates for plaintiff-appellee. the following errors:
Cipriano Cid & Associates for defendant-appellant.
1. “I.That the lower court erred when it did not rule that Republic Act No. 3350 is
ZALDIVAR, J.,: unconstitutional.
2. “II.That the lower court erred when it sentenced appellant herein to pay plaintiff the sum
Appeal to this Court on purely questions of law from the decision of the Court of First Instance of of P500 as attorney’s fees and the cost thereof.”
Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow: Benjamin Victoriano (hereinafter In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented,
referred to as Appellee), a member of the religious sect known as the “Iglesia ni Cristo”, had been firstly, that the Act infringes on the fundamental right to form lawful associations; that “the very
in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958. phraseology of said Republic Act 3350, that membership in a labor organization is banned to all
As such employee, he was a member of the Elizalde Rope Workers’ Union (hereinafter referred to those belonging to such religious sect prohibiting affiliation with any labor organization” , 4
as Union) which had with the “prohibits all the members of a given religious sect from joining any labor union if such sect
62 prohibits affiliations of their members thereto” ; and, consequently, deprives said members of their
5
62 SUPREME COURT REPORTS ANNOTATED constitutional right to form or join lawful associations or organizations guaranteed by the Bill of
Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6
Victoriano vs. Elizalde Rope Workers’ Union
Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing
Company a collective bargaining agreement containing a closed shop provision which reads as
the obligation of contracts in that, while the Union is obliged to comply with its collective
follows:
bargaining agreement containing a “closed shop provision,” the Act relieves the employer from its
“Membership in the Union shall be required as a condition of employment for all permanent employees
workers covered by this Agreement.” reciprocal obligation of cooperating in the maintenance of union membership as a condition of
The collective bargaining agreement expired on March 3, 1964 but was renewed the following employment; and that said Act, furthermore,
________________
day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by
Record on Appeal, pages 27-35.
3
Republic Act No. 3350, the employer was not precluded “from making an agreement with a labor Quoted from Brief for Appellant, page 3.
4
organization to require as a condition of employment membership therein, if such labor Quoted from Brief for Appellant, page 2.
5
organization is the representative of the employees.” On June 18, 1961, however, Republic Act Brief for Appellant, pages 2-3.
6
64
No. 3350 was enacted, introducing an amendment to paragraph (4) subsection (a) of section 4 of
Republic Act No. 875, as follows: xxx “but such agreement shall not cover members of any 64 SUPREME COURT REPORTS ANNOTATED
religious sects which prohibit affiliation of their members in any such labor organization”. Victoriano vs. Elizalde Rope Workers’ Union
Being a member of a religious sect that prohibits the affiliation of its members with any labor
impairs the Union’s rights as it deprives the union of dues from members who, under the Act, are
organization, Appellee presented his resignation to appellant Union in 1962, and when no action
relieved from the obligation to continue as such members. 7
was taken thereon, he reiterated his resignation on September 3, 1974. Thereupon, the Union
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those
wrote a formal letter to the Company asking the latter to separate Appellee from the service in
religious sects which ban their members from joining labor unions, in violation of Article III,
view of the fact that he was resigning from the Union as a member. The management of the
Section 1 (7) of the 1935 Constitution; and while said Act unduly protects certain religious sects, it Brief for Appellant, pages 9-11.
13
Brief for Plaintiff-Appellee, pages 6-8.
leaves no rights or protection to labor organizations.
14
Brief for Plaintiff-Appellee, pages 8-11.
15
Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that Brief for Plaintiff-Appellee, pages 11-28.
16
“no religious test shall be required for the exercise of a civil right,” in that the laborer’s exercise of Brief for Plaintiff-Appellee, pages 28-32.
17
his civil right to join associations for purposes not contrary to law has to be determined under the Brief for Plaintiff-Appellee, pages 32-36.
18
66
Act by his affiliation with a religious sect; that conversely, if a worker has to sever his religious
connection with a sect that prohibits membership in a labor organization in order to be able to join 66 SUPREME COURT REPORTS ANNOTATED
a labor organization, said Act would violate religious freedom. 9
Victoriano vs. Elizalde Rope Workers’ Union
Fifthly, the Union contended that Republic Act No. 3350, violates the “equal protection of error, it is necessary to premise that there are some thoroughly established principles which must
laws” clause of the Constitution, it being a discriminatory legislation, inasmuch as by exempting be followed in all cases where questions of constitutionality as obtains in the instant case are
from the operation of closed shop agreement the members of the “Iglesia ni Cristo”, it has granted involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute,
said members undue advantages over their fellow workers, for while the Act exempts them from alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may
union obligation and liability, it nevertheless entitles them at the same time to the enjoyment of all work hardship does not render it unconstitutional; that if any reasonable basis may be conceived
concessions, benefits and other emoluments that the union might secure from the employer. 10
which supports the statute, it will be upheld, and the challenger must negate all possible bases; that
Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a
regarding the promotion of social justice. 11
liberal interpretation of the constitution in favor of the constitutionality of legislation should be
Appellant Union, furthermore, asserted that a “closed shop provision” in a collective adopted. 19
bargaining agreement cannot be considered violative of religious freedom, as to call for the 1. Appellant Union’s contention that Republic Act No. 3350 prohibits and bans the members
amendment introduced by Republic Act No. 3350; and that 12
of such religious sects that forbid affiliation of their members with labor unions from joining labor
________________
unions appears nowhere in the wording of Republic Act No. 3350; neither can the same be
Brief for Appellant, pages 3-5.
7
deduced by necessary implication therefrom. It is not surprising, therefore, that appellant, having
Brief for Appellant, pages 5-6.
8 thus misread the Act, committed the error of contending that said Act is obnoxious to the
Brief for Appellant, page 6.
9
constitutional provision on freedom of association.
Brief for Appellant, pages 7-8.
10
Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1
Brief for Appellant, pages 8-9.
11
Appellant cites in support thereof Otten v. Baltimore & Or., et
12
(6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution
65 of 1973, provide that the right to form associations or societies for purposes not contrary to law
VOL. 59, SEPTEMBER 12, 1974 65
shall not be abridged. Section 3 of Republic Act No. 875 provides that employees shall have the
right to self-organization and to form, join of assist labor organizations of their own choosing for
Victoriano vs. Elizalde Rope Workers’ Union the purpose of collective bargaining and to engage in concerted activities for the purpose of
unless Republic Act No. 3350 is declared unconstitutional, trade unionism in this country would collective bargaining and other mutual aid or protection. What the Constitution and the Industrial
be wiped out as employers would prefer to hire or employ members of the Iglesia ni Cristo in Peace Act recognize and guarantee is the “right” to form or join associations. Notwithstanding the
order to do away with labor organizations. 13
different theories propounded by the different schools of jurisprudence regarding the nature and
Appellee, assailing appellant’s arguments, contended that Republic Act No. 3350 does not contents of a “right”, it can be safely said that whatever theory one subscribes to, a right
violate the right to form lawful associations, for the right to join associations includes the right not comprehends at least two broad notions, namely: first, liberty
to join or to resign from a labor organization, if one’s conscience does not allow his membership ________________
therein, and the Act has given substance to such right by prohibiting the compulsion of workers to
join labor organizations; that said Act does not impair the obligation of contracts for said law
14 Danner v. Hass, 194 N.W. 2d 534, 539; Spurbeck v. Statton, 106 N.W. 2d, 660, 663.
19
67
formed part of, and was incorporated into, the terms of the closed shop agreement; that the Act
15
does not violate the establishment of religion clause or separation of Church and State, for VOL. 59, SEPTEMBER 12, 1974 67
Congress, in enacting said law, merely accommodated the religious needs of those workers whose
Victoriano vs. Elizalde Rope Workers Union
‘
religion prohibits its members from joining labor unions, and balanced the collective rights of
or freedom, Le., the absence of legal restraint, whereby an employee may act for himself without
organized labor with the constitutional right of an individual to freely exercise his chosen religion;
being prevented by law; and second, power, whereby an employee may, as he pleases, join or
that the constitutional right to the free exercise of one’s religion has primacy and preference over
refrain from joining an association. It is, therefore, the employee who should decide for himself
union security measures which are merely contractual ; that said Act does not violate the
16
whether he should join or not an association; and should he choose to join, he himself makes up
constitutional provision of equal protection, for the classification of workers under the Act
his mind as to which association he would join; and even after he has joined, he still retains the
depending on their religious tenets is based on substantial distinction, is germane to the purpose of
liberty and the power to leave and cancel his membership with said organization at any time. It is
the law, and applies to all the members of a given class; that said Act, finally, does not violate the
20
17
clear, therefore, that the right to join a union includes the right to abstain from joining any
social justice policy of the Constitution, for said Act was enacted precisely to equalize
union. Inasmuch as what both the Constitution and the Industrial Peace Act have recognized, and
employment opportunities for all citizens in the midst of the diversities of their religious beliefs.
21
18
guaranteed to the employee, is the “right” to join associations of his choice, it would be absurd to
I. Before We proceed to the discussion of the first assigned al., 205 F 2d 58, and Wicks v.
say that the law also imposes, in the same breath, upon the employee the duty to join associations.
Southern Pacific Co., D.C. Cal., 121 F. Supp. 454; Jenson v. Union Pacific R. Co., et al., 121F.
The law does not enjoin an employee to sign up with any association.
Supp. 454.
________________ The right to refrain from joining labor organizations recognized by Section 3 of the Industrial
Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is
withdrawn by operation of law, where a labor union and an employer have agreed on a closed
shop, by virtue of which the employer may employ only members of the collective bargaining contractual obligation it had with the Union of employing only Union members in permanent
union, and the employees must continue to be members of the union for the duration of the positions. It cannot be denied, therefore, that there was indeed an impairment of said union
contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its security clause.
amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice According to Black, any statute which introduces a change into the express terms of the
for an employer “to discriminate in regard to hire or tenure of employment or any term or contract, or its legal construction, or its validity, or its discharge, or the remedy for its
condition of employment to encourage or discourage membership in any labor organization” the enforcement, impairs the contract. The extent of the change is not material. It is not a question of
employer is, however, not precluded “from making an agreement with a labor organization to degree or manner or cause, but of encroaching in any respect on its obligation or dispensing with
require as a condition of employment membership therein, if such labor organization is the any part of its force. There is an impairment of the contract if either party is absolved by law from
representative of the employees”. By virtue, therefore, of a closed shop agreement, before the its performance. Impairment has also been predicated on laws which, without destroying
22
enactment of contracts, derogate from substantial contractual rights. 23
________________ It should not be overlooked, however, that the prohibition to impair the obligation of contracts
is not absolute and unqualified. The prohibition is general, affording a broad outline and requiring
Pagkakaisa Samahang Manggagawa ng San Miguel Brewery vs. Enriquez, et al., 108 Phil., 1010, 1019.
20
construction to fill in the details. The prohibition is not to be read with literal exactness like a
Abo, et al. vs. PHILAME (KG) Employees Union, et al., L-19912, January 30, 1965,13 SCRA 120,123, quoting
mathematical formula, for it prohibits unreasonable impairment only. In spite of the constitutional
21
Rothenberg, Labor Relations.
24
68 prohibition, the State continues to possess authority to safeguard the vital interests of its people.
Legislation appropriate to safeguarding said interests may modify or abrogate contracts already in
68 SUPREME COURT REPORTS ANNOTATED
effect. For not only are existing laws read into contracts in
25
Victoriano vs. Elizalde Rope Workers’ Union ________________
Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or
to keep his employment, he must become a member of the collective bargaining union. Hence, the Black’s Constitutional Law, 2nd ed., page 607.
22
Home Building & Loan Association vs. Blaisdell, 290 U.S. 398, 78 L Ed 413,425.
23
right of said employee not to join the labor union is curtailed and withdrawn. Re People (Title & Mort. Guar. Co.) 264 N.Y. 69, 190 N.E., 153, 96 ALR 297,304.
24
To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 Stephenson v. Binford, 287 U.S. 251, 176, 77 L. ed. 288, 301, 53
25
introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the 70
following proviso: “but such agreement shall not cover members of any religious sects which 70 SUPREME COURT REPORTS ANNOTATED
prohibit affiliation of their members in any such labor organization”. Republic Act No. 3350
merely excludes ipso jure from the application and coverage of the closed shop agreement the Victoriano vs. Elizalde Rope Workers Union
‘
employees belonging to any religious sects which prohibit affiliation of their members with any order to fix the obligations as between the parties, but the reservation of essential attributes of
labor organization. What the exception provides, therefore, is that members of said religious sects sovereign power is also read into contracts as a postulate of the legal order. All contracts made
cannot be compelled or coerced to join labor unions even when said unions have closed shop with reference to any matter that is subject to regulation under the police power must be
agreements with the employers; that in spite of any closed shop agreement, members of said understood as made in reference to the possible exercise of that power. Otherwise, important and
26
religious sects cannot be refused employment or dismissed from their jobs on the sole ground that valuable reforms may be precluded by the simple device of entering into contracts for the purpose
they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, of doing that which otherwise may be prohibited. The policy of protecting contracts against
far from infringing the constitutional provision on freedom of association, upholds and reinforces impairment presupposes the maintenance of a government by virtue of which contractual relations
it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still are worthwhile—a government which retains adequate authority to secure the peace and good
leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. order of society. The contract clause of the Constitution must, therefore, be not only in harmony
If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with, but also in subordination to, in appropriate instances, the reserved power of the state to
with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse safeguard the vital interests of the people. It follows that not all legislations, which have the effect
to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them of impairing a contract, are obnoxious to the constitutional prohibition as to impairment, and a
from joining; and neither may the employer or labor union compel them to join. Republic Act No. statute passed in the legitimate exercise of police power, although it incidentally destroys existing
3350, therefore, does not violate the constitutional provision on freedom of association. contract rights, must be upheld by the courts. This has special application to contracts regulating
2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation relations between capital and labor which are not merely contractual, and said labor contracts, for
of its contract, specifically, the “union security clause” embodied in its Collective Bargaining being impressed with public interest, must yield to the common good. 27
Agreement with the Company, by virtue of which “membership in the union was required as a In several occasions this Court declared that the prohibition against impairing the obligations
condition for employment for all permanent employees workers”. This agreement was already in of contracts has no application to statutes relating to public subjects within the domain of the
existence at the time Republic Act general legislative powers of the state involving public welfare. Thus, this Court also held that the
28
69 Blue Sunday Law was not an infringement of the obligation of a contract that required the
employer to furnish work on Sundays to his employees, the law having been enacted to secure the
VOL. 59, SEPTEMBER 12, 1974 69
well-being and happiness of the laboring class, and
Victoriano vs. Elizalde Rope Workers Union
‘ ________________
No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to have been
incorporated into the agreement. But by reason of this amendment, Appellee, as well as others S.Ct. 181,87A.L.R.721.
16 Am. Jur. 2d, pages 584-585.
similarly situated, could no longer be dismissed from his job even if he should cease to be a
26
27
Art. 1700, Civil Code of the Philippines.
member, or disaffiliate from the Union, and the Company could continue employing him 28
Ilusorio, et al. vs. Court of Agrarian Relations, et al., L-20344, May 16,1966,17 SCRA 25, 29; Ongsiako v. Gamboa, et
notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a change into the al, 86 Phil, 50, 54-55.
express terms of the union security clause; the Company was partly absolved by law from the 71
VOL. 59, SEPTEMBER 12, 1974 71
and grave danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary to avoid the danger.
Victoriano vs. Elizalde Rope Workers’ Union ________________
being, furthermore, a legitimate exercise of the police power. 29
In order to determine whether legislation unconstitutionally impairs contract obligations, no “Individual Rights in Industrial Self-Government—A ‘State Action‘ Analysis”, Northwestern University Law
31
Review, Vol. 63; No. 1, March-April, 1968, page 4.
unchanging yardstick, applicable at all times and under all circumstances, by which the validity of Congressional Record of the House, Vol. IV, Part II, April 11 to May 18, 1961, pages 3300-3301.
32
each statute may be measured or determined, has been fashioned,, but every case must be Jones vs. Opelika, 316 U.S. 584, 86 L. ed. 1691, 62 S. Ct. 717; Follet vs. McCormick, 321 U.S. 158, 88 L ed 938, 64 S.
33
determined upon its own circumstances. Legislation impairing the obligation of contracts can be Ct. 717.
sustained when it is enacted for the promotion of the general good of the people, and when the Schneider v. Irgington, 308 U.S. 147, 161, 84 L. ed. 155, 164, 60 S. Ct. 146.
34
73
means adopted to secure that end are reasonable. Both the end sought and the means adopted must
be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with VOL. 59, SEPTEMBER 12, 1974 73
the constitutional limitation of that power. 30
Victoriano vs. Elizalde Rope Workers’ Union
What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was 3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant
to insure freedom of belief and religion, and to promote the general welfare by preventing Union averred that said Act discriminates in favor of members of said religious sects in violation
discrimination against those members of religious sects which prohibit their members from joining of Section 1 (7) of Article III of the 1935 Constitution, and which is now Section 8 of Article IV of
labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits the 1973 Constitution, which provides:
of which work are usually the only means whereby they can maintain their own life and the life of “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the
their dependents. It cannot be gainsaid that said purpose is legitimate. free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall
The questioned Act also provides protection to members of said religious sects against two forever be allowed. No religious test shall be required for the exercise of civil or political rights.”
aggregates of group strength from which the individual needs protection. The individual The constitutional provision into only prohibits legislation for the support of any religious tenets
employee, at various times in his working life, is confronted by two aggregates of power— or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
collective labor, directed by a union, and collective capital, directed by management. The union, creed or the practice of any form of worship, but also assures the free exercise of one’s chosen
35
an institution developed to organize labor into a collective force and thus protect the individual form of religion within limits of utmost amplitude. It has been said that the religion clauses of the
employee from the power of collective capital, is, paradoxically, both the champion of employee Constitution are all designed to protect the broadest possible liberty of conscience, to allow each
rights, and a new source of their frustration. Moreover, when the Union interacts with man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought
management, it produces yet a third aggregate of group strength from which the individual also to live, consistent with the liberty of others and with the common good. Any legislation whose36
needs protection—the effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously
________________ between the religions, is invalid, even though the burden may be characterized as being only
indirect. But if the stage regulates conduct by enacting, within its power, a general law which has
37
Asia Bed Factory vs. National Bed and Kapok Industries Workers’ Union, 100 Phil., 837, 840. for its purpose and effect to advance the state’s secular goals, the statute is valid despite its indirect
29
Re People (Title & Mort. Guar. Co.), 264 N.Y. 69, 190 N.E. 153, 96 ALR 297, 304.
30
72 burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. 38
72 SUPREME COURT REPORTS ANNOTATED In Aglipay v. Ruiz , this Court had occasion to state that the
39
Victoriano vs. Elizalde Rope Workers’ Union ________________
collective bargaining relationship. 31
U.S. v. Ballard, 322 U.S. 78,88 L. ed. 1148,1153.
The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to
35
William A. Carroll, “The Constitution, the Supreme Court, and Religion”, The American Political Science Review, LXI:
36
House Bill No. 5859, which later became Republic Act No. 3350, as follows: 657-674, page 663, Sept., 1967.
“It would be unthinkable indeed to refuse employing a person who, on account of his religious beliefs and Sherbert v. Verner, 374 U.S. 398,10 L.ed. 2d 965, 83 S. Ct. 1970.
37
convictions, cannot accept membership in a labor organization although he possesses all the qualifications for Braunfeld v. Brown, 366 US 599, 6 L ed. 2d. 563, 81 S. Ct. 1144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
38
the job. This is tantamount to punishing such person for believing in a doctrine he has a right under the law to 449.
believe in. The law would not allow discrimination to flourish to the detriment of those whose religion discards 64 Phil. 201,209-210.
39
74
membership in any labor organization. Likewise, the law would not commend the deprivation of their right to
work and pursue a modest means of livelihood, without in any manner violating their religious faith and/or 74 SUPREME COURT REPORTS ANNOTATED
belief.” 32
It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose— Victoriano vs. Elizalde Rope Workers’ Union
exempting the members of said religious sects from coverage of union security agreements—is government should not be precluded from pursuing valid objectives secular in character even if the
reasonable. incidental result would be favorable to a religion or sect. It has likewise been held that the statute,
It may not be amiss to point out here that the free exercise of religious profession or belief is in order to withstand the strictures of constitutional prohibition, must have a secular legislative
superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The purpose and a primary effect that neither advances nor inhibits religion. Assessed by these criteria,
40
Supreme Court of the United States has also declared on several occasions that the rights in the Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the “no-
First Amendment, which include freedom of religion, enjoy a preferred position in the establishment” (of religion) clause of the Constitution.
constitutional system. Religious freedom, although not unlimited, is a fundamental personal right
33
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or
and liberty, and has a preferred position in the hierarchy of values. Contractual rights, therefore,
34
religious or holy and eternal. It was intended to serve the secular purpose of advancing the
must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate constitutional right to the free exercise of religion, by averting that certain persons be refused
work, or be dismissed from work, or be dispossessed of their right to work and of being impeded
to pursue a modest means of livelihood, by reason of union security agreements. To help its It would not be amiss to state, regarding this matter, that to compel persons to join and remain
citizens to find gainful employment whereby they can make a living to support themselves and members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather
their families is a valid objective of the state. In fact, the state is enjoined, in the 1935 than help, labor unions. Congress has seen it fit to exempt religious objectors lest their resistance
Constitution, to afford protection to labor, and regulate the relations between labor and capital and spread to other workers, for religious objections have contagious potentialities more than political
industry. More so now in the 1973 Constitution where it is mandated that “the State shall afford
41
and philosophic objections.
protection to labor, promote full employment and equality in employment, ensure equal work Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to
opportunities regardless of sex, race or creed and regulate the relation between workers and a labor union—assuming that such unity and loyalty can be attained through coercion—is not a
employers.” 42
goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot
48
The primary effects of the exemption from closed shop agreements in favor of members of be promoted by prohibited means.
religious sects that prohibit their members from affiliating with a labor organization, is the 4. Appellants’ fourth contention, that Republic Act No. 3350 violates the constitutional
protection of said employees against the aggregate force of the collective bargaining agreement, prohibition against requiring a religious test for the exercise of a civil right or a political right, is
and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain not well taken. The Act does not require as a qualification, or condition, for joining any lawful
extent economic insecurity due to unemployment, which is a serious menace to the health, morals, association membership in any particular religion or in any religious sect; neither does the Act
and welfare of the people of the State, the Act also promotes the well-being of society. It is our require affiliation with a religious sect that prohibits its members from joining a labor union as a
view that the exemption from the effects of condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor
________________ union requires a positive act. Republic Act No. 3350 only exempts members with such religious
affiliation from the coverage of closed shop agreements. So, under this Act, a religious objector is
Board of Education v. Allen, 392 US 236, 20 L. ed. 2d, 1060, 88 S. Ct. 1923.
40
not required to do a positive act—to exercise the right to join or to resign from the union. He is
Art. XIV, Section 6, 1935 Constitution of the Philippines.
exempted ipso jure without need of any positive act on his part. A conscientious religious objector
41
Article II, Section 9, 1973 Constitution.
42
75 need not perform a positive act or exercise the right of resigning from the labor union—he is
exempted from the coverage of any closed shop agreement that a labor union may have entered
VOL. 59, SEPTEMBER 12, 1974 75
into. How then can there be a religious test required for the exercise of a right when no right need
Victoriano vs. Elizalde Rope Workers’ Union be exercised?
closed shop agreement does not directly advance, or diminish, the interests of any particular ________________
religion. Although the exemption may benefit those who are members of religious sects that
prohibit their members from joining labor unions, the benefit upon the religious sects is merely 47
Diamond Auto Sales Inc. v. Erbe, 105 N.W. 2d 650, 652; Spurbeck v. Statton, 106 N.W. 2d 660, 663; Danner v.
Hass 134 N.W. 2d 534, 539. ‘
incidental and indirect. The “establishment clause” (of religion) does not ban regulation on 48
Cf. Meyer v. Nebraska, 262 U.S. 390, 67 L. ed. 1042,1046.
conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some 77
or all religions. The free exercise clause of the Constitution has been interpreted to require that
43
VOL. 59, SEPTEMBER 12, 1974 77
religious exercise be preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit Victoriano vs. Elizalde Rope Workers’ Union
of the constitutional provision. It acted merely to relieve the exercise of religion, by certain We have said that it was within the police power of the State to enact Republic Act No. 3350, and
persons, of a burden that is imposed by union security agreements. It was Congress itself that that its purpose was legal and in consonance with the Constitution. It is never an illegal evasion of
imposed that burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, a constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by
Congress, if it so deems advisable, could take away the same burden. It is certain that not every discovering or following a legal way to do it. 49
conscience can be accommodated by all the laws of the land; but when general laws conflict with 5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory
scrupples of conscience, exemptions ought to be granted unless some “compelling state interest” legislation, inasmuch as it grants to the members of certain religious sects undue advantages over
intervenes. In the instant case, We see no such compelling state interest to withhold exemption.
45
other workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids the
Appellant bewails that while Republic Act No. 3350 protects members of certain religious denial to any person of the equal protection of the laws. 50
sects, it leaves no right to, and is silent as to the protection of, labor organizations. The purpose of The guaranty of equal protection of the laws is not a guaranty of equality in the application of
Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor unions are the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
amply provided for in Republic Act No. 875 and the new Labor Code. As to the lamented silence constitutional prohibition against inequality, that every man, woman and child should be affected
of the Act regarding the rights and protection of labor unions, suffice it to say, first, that the alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
validity of a statute is determined by its provisions, not by its silence ; and, 46
persons merely as such, but on persons according to the circumstances surrounding them. It
________________ guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
43
McGowan v. Maryland, 366 U.S. 420, 422, 6 L. ed. 2d 393, 408, 81 S. Ct. 1101. not forbid discrimination as to things that are different. It does not prohibit legislation which is
51
Alan Schwartz, “No Imposition of Religion: The Establishment Clause Value”, Yale Law Journal, 1968 Vol. 77, page
limited either in the object to which it is directed or by the territory within which it is to operate.
44
692.
Sherbert v. Verner, 374 U.S. 398, 10 L. ed. 2d 965, 970, 83 S. Ct. 1790.
45 The equal protection of the laws clause of the Constitution allows classification. Classification
People ex rel. Ryan v. Sempek, 147 N.E. 2d 295, 298.
46
in law, as in the other departments of knowledge or practice, is the grouping of things in
76 speculation or practice because they agree with one another in certain particulars. A law is not
76 SUPREME COURT REPORTS ANNOTATED invalid because of simple inequality. The very idea of classification is that of inequality, so that it
52
goes without saying that the mere fact of inequality in no manner determines the matter of
Victoriano vs. Elizalde Rope Workers’ Union ________________
second, the fact that the law may work hardship does not render it unconstitutional. 47
Book v. State Office Bldg. Commission, 149 N.E. 2d 273, 278.
49
to their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted
Now Section 1, Article IV, 1973 Constitution.
cheerfully even the most painful and excruciating pains. Because of differences in religious
50
16 Am Jur. 2d, page 850.
51
International Harvester Co. v. Missouri, 234 U.S. 199, 58 L. ed. 1276, 1282.
52 beliefs, the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war,
78 generated to a large extent by members of sects who were intolerant of other religious beliefs. The
78 SUPREME COURT REPORTS ANNOTATED classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The purpose of the
Victoriano vs. Elizalde Rope Workers’ Union law is precisely to avoid those who cannot, because of their religious belief, join labor unions,
constitutionality. All that is required of a valid classification is that it be reasonable, which means
53
from being deprived of their right to work and from being dismissed from their work because of
that the classification should be based on substantial distinctions which make for real differences; union shop security agreements.
that it must be germane to the purpose of the law; that it must not be limited to existing conditions ________________
only; and that it must apply equally to each member of the class. This Court has held that the
54
standard is satisfied if the classification or distinction is based on a reasonable foundation or Charles Dubray, Introductory Philosophy, 1923, page 132.
60
rational basis and is not palpably arbitrary. 55
80
In the exercise of its power to make classifications for the purpose of enacting laws over 80 SUPREME COURT REPORTS ANNOTATED
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is
56
Victoriano vs. Elizalde Rope Workers’ Union
not necessary that the classification be based on scientific or marked differences of things or in
their relation. Neither is it necessary that the classification be made with mathematical
57
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the
nicety. Hence legislative classification may in many cases properly rest on narrow
58
time of its enactment. The law does not provide that it is to be effective for a certain period of time
distinctions, for the equal protection guaranty does not preclude the legislature from recognizing
59
only. It is intended to apply for all times as long as the conditions to which the law is applicable
degrees of evil or harm, and legislation is addressed to evils as they may appear. exist. As long as there are closed shop agreements between an employer and a labor union, and
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act there are employees who are prohibited by their religion from affiliating with labor unions, their
classifies employees and workers, as to the effect and coverage of union shop security agreements, exemption from the coverage of said agreements continues.
into those who by reason of their religious beliefs and convictions cannot sign up with a labor Finally, the Act applies equally to all members of said religious sects; this is evident from its
union, and those whose religion does not prohibit membership in labor unions. The classification provision.
rests on real or substantial, not merely imaginary or whimsical, distinctions. There is such real The fact that the law grants a privilege to members of said religious sects cannot by itself
distinction in the beliefs, feelings and sentiments of employees. Employees do not believe in the render the Act unconstitutional, for as We have adverted to, the Act only restores to them their
same religious faith and different religions differ in their dogmas and cannons. freedom of association which closed shop agreements have taken away, and puts them in the same
________________ plane as the other workers who are not prohibited by their religion from joining labor unions. The
circumstance, that the other employees, because they are differently situated, are not granted the
Atchison, T.S.F.R. Co. v. Missouri, 234 U.S. 199, 58 L ed 1276 1282.
53 same privilege, does not render the law unconstitutional, for every classification allowed by the
People v. Vera, 65 Phil. 56,126.
54
Constitution by its nature involves inequality.
People v. Carlos, 78 Phil. 535, 542, citing 16 C.J.S. 997.
55
The mere fact that the legislative classification may result in actual inequality is not violative
16 Am. Jur. 2d, page 862.
56
Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L ed 1155, 1182.
57
of the right to equal protection, for every classification of persons or things for regulation by law
Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 81 L.ed.1193, 1200.
58 produces inequality in some degree, but the law is not thereby rendered invalid. A classification
German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 58 L. ed. 1011 1024.
59
otherwise reasonable does not offend the constitution simply because in practice it results in some
79
inequality. Anent this matter, it has been said that whenever it is apparent from the scope of the
61
VOL. 59, SEPTEMBER 12, 1974 79 law that its object is for the benefit of the public and the means by which the benefit is to be
obtained are of public character, the law will be upheld even though incidental advantage may
Victoriano vs. Elizalde Rope Workers’ Union
occur to individuals beyond those enjoyed by the general public. 62
Religious beliefs, manifestations and practices, though they are found in all places, and in all
6. Appellant’s further contention that Republic Act No. 3350 violates the constitutional
times, take so many varied forms as to be almost beyond imagination. There are many views that
provision on social justice is also baseless. Social justice is intended to promote the welfare
comprise the broad spectrum of religious beliefs among the people. There are diverse manners in ________________
which beliefs, equally paramount in the lives of their possessors, may be articulated. Today the
country is far more heterogenous in religion than before, differences in religion do exist, and these Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 81 L. ed. 1193, 1200.
61
differences are important and should not be ignored. State v. Stinson Canning Co., 211 A. 2d 553, 555.
62
Even from the phychological point of view, the classification is based on real and important 81
differences. Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for they VOL. 59, SEPTEMBER 12, 1974 81
carry with them practical consequences and are the motives of certain rules of human conduct and
the justification of certain acts. Religious sentiment makes a man view things and events in their
60
Victoriano vs. Elizalde Rope Workers’ Union
relation to his God. It gives to human life its distinctive character, its tone, its happiness, or of all the people. Republic Act No. 3350 promotes that welfare insofar as it looks after the welfare
63
unhappiness, its enjoyment or irksomeness. Usually, a strong and passionate desire is involved in a of those who, because of their religious belief, cannot join labor unions; the Act prevents their
religious belief. To certain persons, no single factor of their experience is more important to them being deprived of work and of the means of livelihood. In determining whether any particular
than their religion, or their not having any religion. Because of differences in religious belief and measure is for public advantage, it is not necessary that the entire state be directly benefited—it is
sentiments, a very poor person may consider himself better than the rich, and the man who even sufficient that a portion of the state be benefited thereby.
lacks the necessities of life may be more cheerful than the one who has all possible luxuries. Due Social justice also means the adoption by the Government of measures calculated to insure
economic stability of all component elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the members of the community. Republic 64
Victoriano vs. Elizalde Rope Workers’ Union
Act No. 3350 insures economic stability to the members of a religious sect, like the Iglesia ni
bargaining contract with the Company; that said order also contravenes Article 2208 of the Civil
Cristo, who are also component elements of society, for it insures security in their employment,
Code; that, furthermore, Appellee was never actually dismissed by the defendant Company and
notwithstanding their failure to join a labor union having a closed shop agreement with the
did not therefore suffer any damage at all.
employer. The Act also advances the proper economic and social equilibrium between labor
72
In refuting appellant Union’s arguments, Appellee claimed that in the instant case there was
unions and employees who cannot join labor unions, for it exempts the latter from the compelling
really no industrial dispute involved in the attempt to compel Appellee to maintain its membership
necessity of joining labor unions that have closed shop agreements, and equalizes, in so far as
in the union under pain of dismissal, and that the Union, by its act, inflicted intentional harm on
opportunity to work is concerned, those whose religion prohibits membership in labor unions with
Appellee; that since Appellee was compelled to institute an action to protect his right to work,
those whose religion does not prohibit said membership. Social justice does not imply social
appellant could legally be ordered to pay attorney’s fees under Articles 1704 and 2208 of the Civil
equality, because social inequality will always exist as long as social relations depend on personal
Code.
or subjective proclivities. Social justice does not require legal equality because legal equality,
73
The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by
being a relative term, is necessarily premised on differentiations based on personal or natural
appellant provides that:
conditions. Social justice guarantees equality of opportunity , and this is precisely what Republic
65 66
“No suit, action or other proceedings shall be maintainable in any court against a labor organization or any
Act No. 3350 proposes to accomplish—it gives laborers, irrespective of their religious scrupples, officer or member thereof for any act done by or on behalf of such organization in furtherance of an industrial
equal opportunity for work. dispute to which it is a party, on the ground only that such act induces some other person to break a contract of
7. As its last ground, appellant contends that the employment or that it is in restraint of trade or interferes with the trade, business or employment of some other
________________ person or with the right of some other person to dispose of his capital or labor.” (Emphasis supplied)
That there was a labor dispute in the instant case cannot be disputed for appellant sought the
Calalang v. Williams, 70 Phil. 726, 734.
63
discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of
Ibid.
Republic Act No. 875 a question involving tenure of employment is included in the term “labor
64
Speech delivered by Jose P. Laurel before the Constitutional Convention on November 19,1934, In Malcolm and
65
Laurel, Philippine Constitutional Law, page 534. dispute”. The discharge or the act of seeking it is the labor dispute itself. It being the labor dispute
74
Guido v. Rural Progress Administration, 84 Phil. 847, 852.
66
itself, that very same act of the Union in asking the employer to dismiss Appellee cannot be “an
82 act done xxx in furtherance of an industrial dispute”. The mere fact that appellant is a labor union
82 SUPREME COURT REPORTS ANNOTATED does not necessarily mean that all its acts are in furtherance of an industrial dispute. Appellant 75
Union, therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not
Victoriano vs. Elizalde Rope Workers’Union
intertwined with
amendment introduced by Republic Act No. 3350 is not called for—in other words, the Act is not ________________
proper, necessary or desirable. Anent this matter, it has been held that a statute which is not
necessary is not, for that reason, unconstitutional; that in determining the constitutional validity of Brief for Appellant, pages 12-14.
72
legislation, the courts are unconcerned with issues as to the necessity for the enactment of the Brief for Plaintiff-Appellee, pages 48-49.
73
legislation in question. Courts do inquire into the wisdom of laws. Moreover, legislatures, being
67 68
Seno v. Mendoza, L-20565, Nov. 29,1967,21 SCRA 1124, 1129.
74
Abo v. PHILAME (kg) Employees and Workers Union, L-19912, January 30, 1965, 13 SCRA 120, 124.
75
chosen by the people, are presumed to understand and correctly appreciate the needs of the people, 84
and it may change the laws accordingly. The fear is entertained by appellant that unless the Act is
69
declared unconstitutional, employers will prefer employing members of religious sects that 84 SUPREME COURT REPORTS ANNOTATED
prohibit their members from joining labor unions, and thus be a fatal blow to unionism. We do not Victoriano vs. Elizalde Rope Workers’ Union
agree. The threat to unionism will depend on the number of employees who are members of the any unfair labor practice case existing at the time when Appellee filed his complaint before the
religious sects that control the demands of the labor market. But there is really no occasion now to lower court.
go further and anticipate problems We cannot judge with the material now before Us. At any rate, Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The
the validity of a statute is to be determined from its general purpose and its efficacy to accomplish article provides that attorney’s fees and expenses of litigation may be awarded “when the
the end desired, not from its effects on a particular case. The essential basis for the exercise of
70
defendant’s act or omission has compelled the plaintiff x x x to incur expenses to protect his
power, and not a mere incidental result arising from its exertion, is the criterion by which the interest’) and “in any other case where the court deems it just and equitable that attorney’s fees
validity of a statute is to be measured. 71
and expenses of litigation should be recovered”. In the instant case, it cannot be gainsaid that
II. We now pass on the second assignment of error, in support of which the Union argued that appellant Union’s act in demanding Appellee’s dismissal caused Appellee to incur expenses to
the decision of the trial court ordering the Union to pay P500 for attorney’s fees directly prevent his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of
contravenes Section 24 of Republic Act No. 875, for the instant action involves an industrial Court, shall be allowed as a matter of course to the prevailing party.
dispute wherein the Union was a party, and said Union merely acted in the exercise of its rights WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of
under the union shop provision of its existing collective the Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with
________________
costs against appellant Union.
It is so ordered.
16 Am Jur. 2d. page 378.
Makalintal C.J., Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz
67
Province of Pangasinan v. Hon. Secretary of Public Works, et al, L-27861, October 31, 1969, 30 SCRA 134.
68
Arizona Copper Co. v. Hammer, 250 U.S. 400, 63 L. ed. 1058, 1066.
69 Palma and Aquino, JJ., concur.
Sanitation Dist. v. Campbell, 249 SW 2d 767, 770; City of Rochester v. Gutberlett, 211 NW 309,105 NE 548, 550.
70
Fernando, J., concurs fully and submits a brief separate opinion.
Hammond Packing Co. v. Arkansas, 212 U.S. 322, 53 L. ed. 530, 545.
71
Fernandez, J., did not take part because he was co-author, when he was a Senator, of
83
Rep. Act No. 3350.
VOL. 59, SEPTEMBER 12, 1974 83
FERNANDO, J., concurring: accordance with a statute was found free from the constitutional objection on the part of a
7
religious sect, the Jehovah’s Witnesses, whose members alleged that their participation would be
The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of
constitutional infirmities imputed to it was demonstrated in a manner well-nigh conclusive in the Education v. Barnette, the American Supreme Court reached a contrary conclusion. Justice
8
learned, scholarly, and comprehensive opinion so typical of the efforts of the ponente, Justice Jackson’s eloquent opinion is, for this writer, highly persuasive. Thus: “The case is made difficult
Zaldivar. Like the rest of my brethren, I concur fully. Considering moreover, the detailed attention not because the principles of its decision are obscure but because the flag involved is our own.
paid to each and every objection raised as to its validity and the clarity and persuasiveness with Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be
which it was shown to be devoid of support in authoritative doctrines, it would appear that the last intellectually and spiritually diverse or even contrary will disintegrate the social organization. To
word has been written on this particular subject. Nonetheless, I deem it proper to submit this brief believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous
expression of my views on instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions
85 to free minds. We can have intellectual individualism and the rich cultural diversities that we owe
VOL. 59, SEPTEMBER 12, 1974 85
to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When
they are so harmless to others or to the State as those we
Victoriano vs. Elizalde Rope Workers’ Union ________________
the transcendent character of religious freedom and its primacy even as against the claims of
1
protection to labor, also one of the fundamental principles of the Constitution.
2 106 Phil. 2 (1959).
4
Ibid, 9-10.
1. Religious freedom is identified with the liberty every individual possesses to worship or not
5
Ibid, 10.
6
a Supreme Being, and if a devotee of any sect, to act in accordance with its creed. Thus is Republic Act No. 1265 (1955).
7
constitutionally safeguarded, according to Justice Laurel, that “profession of faith to an active 319 US 624 (1943). Minersville School District v. Gobitis, 310 US 586(1940) was thus overruled.
8
power that binds and elevates man to his Creator .” The choice of what a man wishes to believe
*** 3
87
in is his and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to VOL. 59, SEPTEMBER 12, 1974 87
which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills
Victoriano vs. Elizalde Rope Workers’ Union
reigns supreme. The doctrine to which he pays fealty may for some be unsupported by evidence,
devoid of rational foundation. No matter. There is no requirement as to its conformity to what has deal with here, the price is not too great. But freedom to differ is not limited to things that do not
found acceptance. It suffices that for him such a concept holds undisputed sway. That is a matter much. That would be a mere shadow of freedom. The test of its substance is the right to
recognition of man’s freedom. That for him is one of the ways of self-realization. It would be to differ as to things that touch the heart of the existing order.” There is moreover this ringing
9
disregard the dignity that attaches to every human being to deprive him of such an attribute. The affirmation by Chief Justice Hughes of the primacy of religious freedom in the forum of
“fixed star on our constitutional constellation,” to borrow the felicitous phrase of Justice Jackson, conscience even as against the command of the State itself: “Much has been said of the paramount
is that no official, not excluding the highest, has it in his power to prescribe what shall be orthodox duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of
in matters of conscience—or to mundane affairs, for that matter. duty to God. Undoubtedly that duty to the state exists within the domain of power, for government
________________ may enforce obedience to laws regardless of scruples. When one’s belief collides with the power
of the state, the latter is supreme within its sphere and submission or punishment follows. But, in
1
Article IV, Section 8 of the Constitution provides: “No law shall be made respecting an establishment of religion, or the forum of conscience, duty to a moral power higher than the state has always been maintained.
prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without The reservation of that supreme obligation, as a matter of principle, would unquestionably be
discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise
of civil or political rights.” There is thus a reiteration of such freedom as found in Article III, Section 1, par. 7 of the 1935
made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a
Constitution. relation to God involving duties superior to those arising from any human relation.” The 10
2
Article II, Section 9 of the Constitution provides: “The State shall afford protection to labor, promote full employment American Chief Justice spoke in dissent, it is true, but with him in agreement were three of the
and equality in employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate the relations foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.
between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work. The State may provide for compulsory arbitration.” The above is 2. As I view Justice Zaldivar’s opinion in that light, my concurrence, as set forth earlier, is
an expanded version of what is found in Article XIV, Section 6 of the 1935 Constitution. wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a message
3
Aglipay v. Ruiz, 64 Phil. 201,206 (1937). that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase Cardozo, a
86 fundamental principle that drowns all weaker sounds. The labored effort to cast doubt on the
86 SUPREME COURT REPORTS ANNOTATED validity of the statutory provision in question is far from persuasive. It is attended by futility. It is
not for this Court, as I conceive of the judicial function, to restrict the scope of a preferred
Victoriano vs. Elizalde Rope Workers Union ‘
freedom.
Gerona v. Secretary of Education speaks similarly. In the language of its ponente, Justice
4
3. There is, however, the question of whether such an exception possesses an implication that
Montemayor: “The realm of belief and creed is infinite and limitless bounded only by one’s lessens the effectiveness of state efforts to protect labor, likewise, as noted, constitutionally
imagination and thought. So is the freedom of belief, including religious belief, limitless and ordained. Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis,
without bounds. One may believe in most anything, however strange, bizarre and unreasonable the it
same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal ________________
standards.” There was this qualification though: “But between the freedom of belief and the
5
exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious Ibid, 641-642.
9
belief clashes with the established institutions of society and with the law, then the former must United States v. Macintosh, 283 US 605,633-634 (1931).
10
yield and give way to the latter. The Government steps in and either restrains said exercise or even 88
prosecutes the one exercising it.” It was on that basis that the daily compulsory flag ceremony in
6
88 SUPREME COURT REPORTS ANNOTATED
Marine Officers Guild, L-20667, Oct. 29, 1965, 15 SCRA 174; Rizal Labor Union v. Rizal Cement Co., Inc., L-19779, July
Victoriano vs. Elizalde Rope Workers’ Union 30, 1966, 17 SCRA 857.
cannot stand scrutiny. Thought must be given to the freedom of association, likewise an aspect of 89
intellectual liberty. For the late Professor Howe, a constitutionalist and in his lifetime the VOL. 59, SEPTEMBER 12, 1974 89
biographer of the great Holmes, it even partakes of the political theory of pluralistic sovereignty.
So great is the respect for the autonomy accorded voluntary societies. Such a right implies at the
11
Visayan Stevedore & Transportation Company vs.Workmen’s Compensation Commission
very least that one can determine for himself whether or not he should join or refrain from joining dismiss them, said stipulation, ‘cannot be extended to old workers. San Carlos Milling Co., Inc.
a labor organization, an institutional device for promoting the welfare of the working man. A vs. Court of Industrial Relations, L-15453 & L-15723, March 17, 1961, 1 SCRA 734.
closed shop, on the other hand, is inherently coercive. That is why, as is unmistakably reflected in Union shop with closed shop provisions should be strictly construed against the existence of
our decisions, the latest of which is Guijarno v. Court of Industrial Relations, it is far from being a
12
union shop.
favorite of the law. For a statutory provision then to further curtail its operation, is precisely to The employer, in separating some of its employees from the service because of their refusal to
follow the dictates of sound public policy. disaffiliate from a labor union and join one which had a collective bargaining agreement with it,
The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of acted in good faith because the view then prevailing in the light of American jurisprudence, but
constitutional tradition. That, for me, is the channel to follow. which no longer holds water, was that a closed-shop agreement applied not only to persons to be
Appeal dismissed, and decision affirmed. hired but also to those already in the service who were members of another union. Findlay Miller
Notes.—Effects of Closed-Shop Agreements.—Where the union shop agreement requires new Timber Co. vs. Philippine Land-Air-Sea Labor Union, L-18217 & L-18222, Sept. 29, 1962, 6
employees to join the union and it provides that, should they later resign or be expelled from the SCRA 227.
contracting union, the company would immediately The provision in the closed-shop agreement to the effect that the watchmen agency shall hire
________________ no other watchmen but members of the Union during the duration of the agreement cannot operate
retroactively so as to compel those already employed to join the union favored by the closed-shop
Cf. Howe, Political Theory and the Nature of Liberty, 67 Harvard Law Review, 91, 94 (1953). He was reflecting on the
11
provision. United States Lines Co. vs. Associated Watchmen and Security Union, L-15508, June
radiations to which Kedroff v. St. Nicholas Cathedral, 344 US 94 (1952) and Barrows v. Jackson, 346 US 249 (1953) might 29, 1963, 8 SCRA 326.
give rise to.
L-28791, August 27, 1973, 52 SCRA 307. Cf. Confederated Sons of Labor v. Anakan Lumber Co., 107 Phil.
12
915 (1960); Freeman Shirt Manufacturing Co., Inc. v. Court of Industrial Relations, L-16561, Jan. 28, 1961, 1 SCRA ——o0o——
353; Findlay Millar Timber Co. v. Phil. Land-Air-Sea Labor Union, L-18217, Sept. 29,1962, 6 SCRA 227; Kapisanan Ng Mga
Manggagawa Ng Alak v. Hamilton Distillery Company, L-18112, Oct. 30, 1962, 6 SCRA 367; United States Lines Co. v.
Associated Watchmen & Security Union, L-15508, June 29, 1963, 8 SCRA 326; National Brewery & Allied Industries Labor © Copyright 2018 Central Book Supply, Inc. All rights reserved.
Union of the Phil. v. San Miguel Brewery, Inc., L-18170, Aug. 31, 1963, 8 SCRA 805; Phil. Steam Navigation Co. v. Phil.
raised merely by a taxpayer who is not affected by said prohibition.—In the case of petitioners Igot and
392 SUPREME COURT REPORTS ANNOTATED Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for
Dumlao vs. COMELEC Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of
disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them
No. L-52245. January 22, 1980. *
has been alleged to have been adversely affected by the operation of the statutory provisions they assail as
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., unconstitutional. Their is a generalized grievance. They have no personal nor substantial interest at stake. In
petitioners, vs. COMMISSION ON ELECTIONS, respondent. the absence of any litigable interest, they can claim no locus standi in seeking judicial redress.
Supreme Court; Judicial review; Election Code; Supreme Court cannot rule upon the constitutionality Same; Same; Same; Same.—However, the statutory provisions questioned in this case, namely, sec. 7,
of Batas Pambansa Blg. 52 disqualifying a retired elective official from running for the same post where no BP Blg. 51, and sections 4, 1, and 6, BP Blg. 52, do not directly involve the disbursement of public funds.
petition to disqualify the petitioner has yet been filed and the COMELEC has not yet given an adverse ruling While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition
against him.—Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas do said petitioners allege that their tax money is “being extracted and spent in violation of specific
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the constitutional protections against abuses of legislative power” (Flast v. Cohen, 392 U.S., 83 [1960]), or that
Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works,
not been adversely affected by the application of that provision. No petition seeking Dumlao’s disqualification 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners
has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this seek to restrain respondent from wasting public funds through the enforcement of an invalid or
Court is being asked to review on Certiorari. This is a question posed in the abstract, a hypothetical issue, and unconstitutional law.
in effect, a petition for an advisory opinion from this Court to be “rendered without the benefit of a detailed Constitutional Law; The provision of the Election Code disqualifying retirees from running for the
factual record.” Petitioner Dumlao’s case is same elective post from which they retired is valid.—But, in the case of a 65-year old elective local official,
_____________ who has retired from a provincial, city, or municipal office, there is reason to disqualify him from running for
the same office from which he had retired, as provided for in the challenged provision. The need for new blood
EN BANC
*
assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically
393 significant is that the retired employee has already declared himself tired and unavailable for the same
VOL. 95, JANUARY 22, 1980 393 government work, but, which, by
394
Dumlao vs. COMELEC 3 SUPREME COURT REPORTS ANNOTATED
clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in
Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII- 94
C, of the Constitution.
Same; Same; Same; The Supreme Court will not rule on constitutionality of a provision of the Election Dumlao vs. COMELEC
Code disqualifying from running for a public office persons found disloyal to the State where said issue is
virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will
neither result from the application of the challenged provision. Just as that provision does not deny equal Dumlao vs. COMELEC
protection, neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly
situated are similarly treated. Teehankee, J., separate opinion:
Same; The provision of the Election Code that the filing of charges for the commission of crimes
before a civil or military court shall be prima facie evidence of the commission of an act of disloyalty to the
Constitutional Law; Election Code; to ban a retired local elective official to run as a candidate for the
State is void as it condemns a person before he is finally heard .—Explicit is the constitutional provision that,
same post is arbitrary and unreasonable.—To specially and peculiarly ban a 65-year old previously retired
in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
elective local official from running for the sameelective office (of governor, in this case) previously held by
enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation,
him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not
according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because
constitutional presumption of innocence, as a candidate is disqualified from running for public office on the
the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but
ground alone that charges have been filed against him before a civil or military tribunal. It condemns before
petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are
one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person
retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an
convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them
arbitrary discrimination against petitioner who has cause to complain that “the aforesaid provision was
would be ineligible to run for public office. A person disqualified to run for public office on the ground that
concocted and designed precisely to frustrate any bid of herein petitioner to make a political comeback as
charges have been filed against him is virtually placed in the same category as a person already convicted of a
governor of Nueva Vizcaya—(since no other case of a former governor similarly barred by virtue of said
crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold
provision can ever be cited). Is there not here, therefore, a gross denial of the cardinal constitutional guarantee
office during the term of the sentence (Art. 44, Revised Penal Code).
that equal protection and security shall be given under the law to every person; under analogous if not identical
Same; Same.—And although the filing of charges is considered as but prima facie evidence, and
circumstances?
therefore, may be rebutted, yet, there is “clear and present danger” that because of the proximity of the
Same; Same; Same.—The classification is patently arbitrary and unreasonable and is not based on
elections, time constraints will prevent one charged with acts of disloyalty from offering contrary to overcome
substantial distinctions which make for real differences that would justify the special disqualification of
the prima facie evidence against him.
petitioner, which, it is claimed, “is based on a presumption that elective local officials who have retired and are
Same; Same.—Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the
of advanced age cannot discharge the functions of the office they seek as those who are differently situated.”
Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings
Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has “young or new
between two government bodies, to the extreme detriment of a person charged, will thereby be avoided.
blood” does not mean that he would be more efficient, effective and competent than a mature 65-year old like
Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a
petitioner who has had experience on the job and who was observed at the hearing to appear to be most
judicial determination.
physically fit. Suffice it to cite the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
395
Gen. Carlos P. Romulo, who was elected at 80 as a member of the Interim Batasan Pambansa and who has just
VOL. 95, JANUARY 22, 1980 395 this month completed 81 years of age and has been hailed by the President himself as “the best foreign minister
of the Republic has ever had.”
Dumlao vs. COMELEC 397
VOL. 95, JANUARY 22, 1980 397
Fernando, C.J., concurring:
Dumlao vs. COMELEC
Constitutional Law; The Court cannot pass on the motives of the legislative body in passing a statute. Same; Mere filing of subversion charges cannot be a basis for disqualifying a person to run for public
—It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at office.—I concur with the majority’s declaration of invalidity of the portion of the second paragraph of section
will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection,
or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima
enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and
McCray v. United States: “The decisions of this Court [Supreme Court of the United States] from the disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona
beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors
power on the assumption that a wrongful purpose of motive has caused the power to be exerted.” a dangerous and devastating weapon of cutting off any candidate who may not be to their liking through the
Same; If, however, the provision in question denies equal protection, then a plea for nullification filing of last-hour charges against him.
should be accorded a sympathetic response.—If, however, the provision in question is susceptible to the
reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a Barredo, J., concurring:
sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence.
The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as Constitutional Law; Section 9, Art. XII of the Constitution, is more expansive than the equal protection
the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative clause.—I concur. But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1)
determination of what disqualifications to impose. Art XII is more expensive than the equal protection clause.
Same; The provision of the Election Code that disqualifies a person to run as a candidate if a charge
of disloyalty to the State is filed against him is, moreover, tainted with arbitrariness .—That brings us to the
assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as Abad Santos, J., concurring:
subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after
preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification Constitutional Law; A judgment of conviction to disqualify for public elective office should be final
of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its and unappealable.—I concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of
being annulled. That conclusion is well-founded. Such being the case, I am in full agreement I would add that Batas Pambansa Blg. 52 should be one which is final and unappealable.
such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause.
396
Aquino, J., concurring and dissenting:
396 SUPREME COURT REPORTS ANNOTATED
Constitutional Law; Par. 2, Section 4 of Batas Pambansa 52 which was declared void in the majority the filing of charges for the commission of such crimes before a civil court or military tribunal after
opinion, is valid.—I concur in the result as to paragraph 1 of the dispositive part of the decision. I dissent as to preliminary investigation shall be prima facie evidence of such fact.
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to “x x x x (Batas Pambansa Blg. 52) (Paragraphing and italics supplied).
certain presumption in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. “Section 1. Election of certain Local Officials—x x x The election shall be held on January 30, 1980.”
See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856. (Batas Pambansa. Blg. 52)
398 “Section 6. Election and Campaign Period—The election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall
398 SUPREME COURT REPORTS ANNOTATED
commence on December 29, 1979 and terminate on January 28, 1980.” (ibid.)
Dumlao vs. COMELEC In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas
ORIGINAL ACTION in the Supreme Court. Prohibition with preliminary injunction. Pambansa Blg. 53, on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution,
which provides
400
The facts are stated in the opinion of the Court.
Raul M. Gonzales for petitioners 400 SUPREME COURT REPORTS ANNOTATED
Office of the Solicitor General for respondent. Dumlao vs. COMELEC
that a “bona fide candidate for any public office shall be free from any form of harassment and
MELENCIO-HERRERA, J.: discrimination.”
The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs.
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by COMELEC et als.(G.R. No. L-52232) where the issue has been squarely raised.
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin Petitioners then pray that the statutory provisions they have challenged be declared null and
respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas void for being violative of the Constitution.
Pambansa Blg. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, 1. I.The procedural aspect
who has filed his certificate of candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a
member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and
of San Miguel, Iloilo. actions. Petitioner Dumlao’s interest is alien to that of petitioners Igot and Salapantan. Petitioner
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the
Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the latter join Dumlao in his. They, respectively, contest completely different statutory provisions.
Constitution. Said Section 4 provides: Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of
“Sec. 4. Special Disqualification—In addition to violation of section 10 of Art. XII-C of the Constitution and petitioners Igot and Salapantan is more in the nature of a taxpayer’s suit. Although petitioners
disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the plead time constraints as the reason of their joint Petition, it would have required only a modicum
elective officials enumerated in section 1 hereof. more of effort for petitioner Dumlao, on one hand, and peti turners Igot and Salapantan, on the
Any retired elective provincial, city or municipal official who has received payment of the retirement other, to have filed separate suits, in the interest of orderly procedure.
benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of For another, there are standards that have to be followed in the exercise of the function of
the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and
from which he has retired.” (Paragraphing and italics supplied)
399
substantial by the party raising the constitutional question; (3) the plea that the function he
exercised at the earliest opportunity; and (4) the necessity that the constitutional question be
VOL. 95, JANUARY 22, 1980 399 passed upon in order to decide the case (People vs. Vera, 65 Phil. 56 [1937]).
Dumlao vs. COMELEC It may be conceded that the third requisite has been complied with, which is, that the parties
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that have raised the issue of constitutionality early enough in their pleadings.
401
the classification provided therein is based on “purely arbitrary grounds and, therefore, class
legislation.” VOL. 95, JANUARY 22, 1980 401
For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory
Dumlao vs. COMELEC
provisions:
“Sec. 7. Term of Office—Unless sooner removed for cause, all local elective officials hereinabove mentioned
This Petition, however, has fallen far short of the other three criteria.
shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980.”
xxxx “Batas Pambansa Blg. 51) 1. A.Actual case and controversy.
“Sec. 4. x x x x x
“Any person who has committed any act of disloyalty to the State, including acts amounting to
subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the It is basic that the power of judicial review is limited to the determination of actual cases and
offices covered by this Act, or to participate in any partisan political activity therein: controversies.
provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
of such fact and Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by
the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. However, the statutory provisions questioned in this case, namely, see. 7, BP Blg. 51, and sections
Yet, Dumlao has not been adversely affected by the application of that provision. No petition 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While,
seeking Dumlao’s disqualification has been filed before the COMELEC. There is no ruling of that concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a Petition do said petitioners allege that their tax money is “being extracted and spent in violation of
question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion specific constitutional protections against abuses of legislative power” (Flast v. Cohen, 392 U.S.,
from this Court to be “rendered without the benefit of a detailed factual record.” Petitioner 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual
Dumlao’s case is clearly within the primary jurisdiction (see concurring Opinion of now Chief vs. Secretary of Public Works, 110 Phil. 331[1960]), or that public money is being deflected to any
Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: through the enforcement of an invalid or unconstitutional law. (Philippine Constitution
“Section 2. The Commission on Elections shall have the following power and functions: Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs.
Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer’s suit, per se, is no
1. 1)x x x assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677[1972]),
2. 2)Be the sole judge of all contests relating to the elections, returns and qualifications of all speaking through our present Chief Justice, this Court is vested with discretion as to whether or
members of the National Assembly and elective provincial and city officials.” (Italics supplied) not a taxpayer’s suit should be entertained.
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: 1. C.Unavoidability of constitutional question.
“Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from his receipt of a copy thereof.”
402 Again upon the authority of People vs. Vera, “it is a wellsettled rule that the constitutionality of an
act of the legislature will not be determined by the courts unless that question is properly raised
402 SUPREME COURT REPORTS ANNOTATED
and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of
Dumlao vs. COMELEC constitutionality must be the very lis mota presented.”
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
“appropriate case” for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
1. B.Proper party.
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is
The long-standing rule has been that “the person who impugns the validity of a statute must have a 404
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury
404 SUPREME COURT REPORTS ANNOTATED
as a result of its enforcement” (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Dumlao vs. COMELEC
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that absent, and procedural regularity would require that this suit be dismissed.
neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified
from being candidates for local elective positions. Neither one of them has been alleged to have 1. II.The substantive viewpoint.
been adversely affected by the operation of the statutory provisions they assail as unconstitutional.
Theirs is a generalized grievance. They have no personal nor substantial interest at stake. In the
absence of any litigate interest, they can claim no locus standi in seeking judicial redress. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer’s suit, and being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481[1970]); and
Secretary of Public Works (110 Phil. 331 [1960], thus: in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
“x x x it is well settled that the validity of a statute may be contested only by one who will sustain a direct having been penned by our present Chief Justice. The reasons which have impelled us are the
injury in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of taxpayers, paramount public interest involved and the proximity of the elections which will be held only a
laws providing for the disbursement of public funds, upon the theory that ‘the expenditure of public funds, by few days hence.
an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of Petitioner Dumlao’s contention that section 4 of BP Blg. 52 is discriminatory against him
such funds,’ which may be enjoined at the request of a taxpayer.” personally is belied by the fact that several petitions for the disqualification of other candidates for
In the same vein, it has been held: local positions based on the challenged provision have already been filed with the COMELEC (as
“In the determination of the degree of interest essential to give the requisite standing to attack the listed in p. 15, respondent’s Comment). This tellingly overthrows Dumlao’s contention of
constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers
intentional or purposeful discrimination.
have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may,
therefore, ques- The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is
403 neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one class
VOL. 95, JANUARY 22, 1960 403
can be treated and regulated differently from another class. For purposes of public service,
Dumlao vs. COMELEC employees 65 years of age, have been validly classified differently from younger employees.
tion the constitutionality of statutes requiring expenditure of public moneys.” (Philippine Constitution Employees attaining that age are subject to compulsory retirement, while those of younger ages
Association, Inc., et als. vs. Gimenez, et als., 15 SCRA 479 [1965]). are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates aside a statute as constitutionally defective “except in a clear case.” (People vs. Vera, supra). We
should not be more than 65 years of age at the time they assume office, if applicable to everyone, are constrained to hold that this is one such clear case.
might or might not be a reasonable classification although, as the Solicitor General has intimated, Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
a good policy of the law would be to promote the emergency of younger blood in our political presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
elective echelons. On the other hand, it might and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
405 fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
VOL. 95, JANUARY 22, 1980 405 constitutional presumption of innocence, as a candidate is
407
Dumlao vs. COMELEC
VOL. 95, JANUARY 22, 1980 407
be that persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a Dumlao vs. COMELEC
reasonable disqualification for elective local officials. For one thing, there can also be retirees disqualified from running for public office on the ground alone that charges have been filed
from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate
aged 65, for a 65year old retiree could be a good local official just like one, aged 65, who is not a effect, except as to the degree of proof, no distinction is made between a person convicted of acts
retiree. of disloyalty and one against whom charges have been filed for such acts, as both of them would
But, in the case of a 65-year old elective local official, who has retired from a provincial, city be ineligible to run for public office. A person disqualified to run for public office on the ground
or municipal office, there is reason to disqualify him from running for the same office from which that charges have been filed against him is virtually placed in the same category as a person
he had retired, as provided for in the challenged provision. The need for new blood assumes already convicted of a crime with the penalty of arresto, which carries with it the accessory
relevance. The tiredness of the retiree for government work is present, and what is emphatically penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised
significant is that the retired employee has already declared himself tired and unavailable for the Penal Code).
same government work, but, which, by virtue of a change of mind, he would like to assume again. And although the filing of charges is considered as but prima facie evidence, and therefore,
It is for this very reason that inequality will neither result from the application of the challenged may be rebutted, yet, there is “clear and present danger” that because of the proximity of the
provision. Just as that provision does not deny equal protection, neither does it permit of such elections, time constraints will prevent one charged with acts of disloyalty from offering contrary
denial (see People vs. Vera, 65 Phil. 56[1933]). Persons similarly situated are similarly treated. proof to overcome the prima facie evidence against him.
In fine, it bears reiteration that the equal protection clause does not forbid all legal Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the
classification. What is proscribes is a classification which is arbitrary and unreasonable. That Courts rather than before an administrative body such as the COMELEC. A highly possible
constitutional guarantee is not violated by a reasonable classification based upon substantial conflict of findings between two government bodies, to the extreme detriment of a person charged,
distinctions, where the classification is germane to the purpose of the law and applies to all those will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not
belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 be allowed to be substituted for a judicial determination.
SCRA 606 [1968]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA Being infected with constitutional infirmity, a partial declaration of nullity of only that
336[1967]; Inchong, etc., et al. vs. Hernandez, 101 Phil. 1155[1957]). The purpose of the law is to objectionable portion is mandated. It is separable from the first portion of the second paragraph of
allow the emergence of younger blood in local governments. The classification in question being section 4 of Batas Pambansa Blg. 52 which can stand by itself.
pursuant to that purpose, it cannot be considered invalid “even if at times, it may be WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby
406 declared valid. Said paragraph reads:
406 SUPREME COURT REPORTS ANNOTATED “SEC. 4. Special disqualification.—In addition to violation of Section 10 of Article XII(C) of the Constitution
and disqualifications mentioned in existing laws which are hereby declared as disqualifica-
Dumlao vs. COMELEC 408
susceptible to the objection that it is marred by theoretical inconsistencies” (Chief Justice 408 SUPREME COURT REPORTS ANNOTATED
Fernando, The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the Dumlao vs. COMELEC
questioned provision. Well accepted is the rule that to justify the nulification of a law, there must tions for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or
municipal official, who has received payment of the retirement benefits to which he is entitled under the law
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts
and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be
are practically unanimous in the pronouncement that laws shall not be declared invalid unless the elected, shall not be qualified to run for the same elective local office from which he has retired.”
conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that
55 [1978], citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, “x x x the filing of charges for the commission of such crimes before a civil court or military
56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who tribunal after preliminary investigation shall be prima facie evidence of such fact”, is hereby
desires to become a candidate for office provided they are reasonable, as in this case. declared null and void, for being violative of the constitutional presumption of innocence
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section guaranteed to an accused.
4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in SO ORDERED.
two parts. The first provides: Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero, JJ., concur.
“a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact x x x
Fernando, C.J., concurs and submits a brief separate opinion.
x”
Barredo, J., concur. But as regards the matter of equal protection, I reiterate my view for
The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
Peralta that Sec. 9(1) Art. XII is more expensive than the equal protection clause.
presumption of validity that attaches to a challenged statute, of the well-settled principle that “all
Aquino, J., concur in the result as to paragraph 1 of the dispositive part of the decision. I
reasonable doubts should be resolved in favor of constitutionality,” and that Courts will not set
dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is
valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended 1. 1.The challenge to the provision in question is predicated on what was referred to as “a
by Republic Act No. 4885. See U.S. v. Luling; 34 Phil. 725 and People v. Mingoa, 92 Phil. 856. known fact in the province of Nueva Vizcaya that the aforesaid provision was
Abad Santos, J., concur but wish to add that a judgment of conviction as provided in concocted and designed precisely to frustrate any bid of herein petitioner to make a
Sec. 4, par. 2 of Batas Pambansa Blg. 52 should be one which is final and unappealable. political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law
De Castro, J., abstain as far as petitioner Dumlao is concerned. is so peculiarly attuned to discriminate against herein petitioner because every
condition imposed as disqualification grounds are known to be possessed by him
Fernando, C J., concurring. because he was a former elective provincial official who has received his retirement
benefits, he desires to run for the same elective office and at the commencement of the
It is particularly gratifying that the reiteration in the ablywritten and scholarly opinion of the term of office to which he now seeks to be elected, he shall have reached 65 years of
Court, penned by Justice age.” Clearly then, the plea for invalidating such provision is the motive attributed to
4
409 the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional
VOL. 95, JANUARY 22, 1980 409 infirmity fatal in character. The weakness of the petition is thus apparent. No decision
of this Tribunal can be cited in support of such a proposition. It would be to extend
Dumlao vs. COMELEC unduly the concept of judicial review if a court can roam far and wide and range at will
Melencio-Herrera, of the standard that must be met before the power of judicial review may be over the variety and diversity of the reasons, the promptings that may lead a legislator
availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases to cast his vote for or against a proposed legislation. It is not what in
of Angara v. Electoral Commission and People v. Vera, did not constitute an obstacle to this
1 2
Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least,
_____________
that counsel of private parties in not a few cases in the recent past had shown less than full
awareness of the doctrines, procedural in character, that call for application whenever the exercise Petition, 3-4.
4
of this awesome and delicate responsibility of adjudging the validity of a statute or presidential 411
decree is invoked. While this Court cannot be accused of being bound by the fetters of judicial
3
VOL. 95, JANUARY 22, 1980 411
timidity, it remains true that no cavalier disregard of tried and tested concepts should be given
encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies Dumlao vs. COMELEC
deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate
rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the
reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. 1. spired the introduction of a bill but the effect thereof if duly enacted that is decisive.
There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of That would be the test for its validity or lack of it. There is this relevant excerpt from
this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to McCray v. United States: “The decisions of this Court [Supreme Court of the United
5
be complied with to justify a pronouncement on constitutional issues. Where there is exuberance States] from the beginning lend no support whatever to the assumption that the
in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and judiciary may restrain the exercise of lawful power on the assumption that a wrongful
proper that the voice of the Solicitor General should be heard in protest against such neglect of purpose of motive has caused the power to be exerted.” The late Chief Justice Warren,
6
rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the who penned the opinion in United States v. O’Brien, put the matter thus: “Inquiries
7
procedural principles are presented, this Court must rule. It would suffice if thereby the petition is into congressional motives or purposes are a hazardous matter. When the issue is
dismissed simply the interpretation of legislation, the Court will look to statements by legislators
_____________ for guidance as to the purpose of the legislature, because the benefit to sound decision-
making in this circumstance is thought sufficient to risk the possibility of misreading
63 Phil. 139 (1936).
1
Congress’ purpose. It is entirely a different matter when we are asked to void a statute
65 Phil. 56 (1937).
2
that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
Cf. Sanidad v. Commission on Elections, L-44640, October 12, 1976, 73 SCRA 333; De la Llana y. Connnission on
3
Elections, L47245, December 9, 1977, 80 SCRA 525; Hidalgo v. Marcos, L-47329, December 9, 1977, 80 SCRA 538; Peralta than a handful of Congressmen said about it. What motivates one legislator to make a
v. Commission on Elections, L-47771, March 11, 1978, 82 SCRA 30. speech about a statute is not necessarily what motivates scores of others to enact it, and
410 the stakes are sufficiently high for us to eschew guesswork. We decline to void
410 SUPREME COURT REPORTS ANNOTATED essentially on the ground that it is unwise legislation which Congress had the
undoubted power to enact and which could be reenacted in its exact form if the same
Dumlao vs. COMELEC or another legislator made a ‘wiser’ speech about it.” 8
for non-observance of the controlling doctrines. There are times, however, when the controversy is 2. 2.If, however, the provision in question is susceptible to the reproach that it amounts to a
of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional denial of equal protection, then his plea for nullification should be accorded a
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with sympathetic response. As the opinion of the Court makes clear, such imputation is not
the opinion of the Court. deserving of credence. The classification cannot be stigmatized as lacking in
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words rationality. It is germane to the subject. Age, as well as the fact of retirement and
may not be amiss on what for me is the proper approach to take as to the lack of power of this
Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner’s _____________
argument based on the equal protection guarantee, and on the fundamental concept of fairness of
which the due process clause is an embodiment, thus calling for the nullification of the 5
195 US 27 (1904).
disqualification of a candidate upon the mere filing of charges against him. 6
Ibid, 56.
391 US 367 (1968).
7
formality that may be dispensed with at will. Its disregard is a matter of serious
Ibid, 383-384.
concern. It is a constitutional safeguard of the highest order. It is a response to man’s
8
412
innate sense of justice.” As rightfully stressed in the opinion of the Court, the time
13
412 SUPREME COURT REPORTS ANNOTATED element may invariably preclude a full hearing on the charge against him and thus
Dumlao vs. COMELEC effectively negate the opportunity of an individual to present himself as a candidate. If,
as has been invariably the case, a prosecutor, whether in a civil court or in a military
tribunal, saddled as he is with so many complaints filed on his desk would give in to
1. the receipt of retirement benefits are factors that can enter into any legislative the all-too-human propensity to take the easy way out and to file charges, then a
determination of what disqualifications to impose. As was pointed out in J.M. Tuason candidate would be hard put to destroy the presumption. A sense of realism for me
and Co., Inc. v. Land Tenure Administration: “It suffices then that the laws operate
9
compels a declaration of nullity of a provision which on its face is patently offensive to
equally and uniformly on all persons under similar circumstances or that all persons the Constitution.
must be treated in the same manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and undue preference Hence my concurrence.
cannot be allowed. For the principle is that equal protection and security shall be given
to every person under circumstances, which if not identical, are analogous. If law be
Teehankee, J., separate opinion.
looked upon in terms of burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest.” It cannot be denied that others similarly fall under the same ban.
10
Fileos a separate opinion dissenting from the adverse ruling on Dumlao’s candidacy and declining
It was not directed at petitioner solely. The most that can be said is that he falls within to rule on the invalidity of the first part of Section 4 of the questioned Law; and con-
_____________
the proscribed class. The point was likewise raised as to why should national officials
be excluded in the above provision. The answer is simple. There is nothing to prevent Ibid, 439.
11
the legislative body from following a system of priorities. This it did under the L-26865-66, January 30, 1970, 31 SCRA 313.
12
challenged legislative provision. In its opinion, what called for such a measure is the Ibid, 318.
13
propensity of the local officials having reached the retirement age and having received 414
retirement benefits once again running for public office. Accordingly, the provision in 414 SUPREME COURT REPORTS ANNOTATED
question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co.,
Inc. finds relevance: “It was confronted with a situation that called for correction, and Dumlao vs. COMELEC
the legislation that was the result of its deliberation sought to apply the necessary curs with the pronouncement that the mere filing of charges shall be prima facie cause for
palliative. That it stopped short of possibly attaining the cure of other analogous ills disqualification is void.
certainly does not stigmatize its effort as a denial of equal protection. We have given
our sanction to the principle underlying the exercise of police power and taxation, but 1. I.I dissent from the majority’s dismissal of the petition insofar as it upholds the
certainly not excluding eminent domain, that ‘the legislature is not required by the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
Constitution to adhere to the policy of all “or none.” ’ Thus, to would impose a special disqualification on petitioner Patricio Dumlao from running for
the elective local office of governor of his home province of Nueva Vizcaya and would
_____________ in effect bar the electors of his province from electing him to said office in the January
30 elections, simply because he is a retired provincial governor of said province “who
L-21064, February 18, 1970, 31 SCRA 413.
9 has received payment of the retirement benefits to which he is entitled under the law
Ibid, 435.
10
and who shall have been 65 years of age at the commencement of the term of office to
413 which he seeks to be elected.”
VOL. 95, JANUARY 22, 1980 413
Dumlao vs. COMELEC To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not
1. reiterate, the invocation by petitioner of the equal protection clause is futile and similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
unavailing.”11
governor (because the disqualification is for the retiree of 65 to run for the same elective office
2. 3.That brings us to the assailed provision as to the sufficiency of the filing of charges for from which he retired) but petitioner is barred from doing so (although he may run for any other
the commission of such crimes as subversion, insurrection, rebellion or others of lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
similar nature before a civil court or military tribunal after preliminary investigation, governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
being a prima facie evidence of such fact and therefore justifying the disqualification who has cause to complain that “the aforesaid provision was concocted and designed precisely to
of a candidate. The opinion of the Court invoked the constitutional presumption of frustrate any bid of herein petitioner to make a political comeback as governor of Nueva Vizcaya 1
innocence as a basis for its being annulled. That conclusion is well-founded. Such —(since no other case of a former governor similarly barred by virtue of said provision can ever
being the case, I am in full agreement. I would add that such a provision is moreover be cited ). Is there not here, therefore, a gross denial of the cardinal constitutional guarantee that
2
tainted with arbitrariness and therefore is violative of the due process clause. Such a equal protection and security shall be given under the law to every person, under analogous if not
constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, is “not a mere
12
identical circumstances?
_____________ guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and
hostile discrimination and the oppression of inequality on the other. The questioned provision
Petition, at page 4.
1
should therefore at the least be declared invalid in its application insofar as it would disqualify
Respondent cites in its comment (at page 15) a handful of pending cases for disqualification of mayoral candidates.
petitioner from running for the office of governor of his province.
2
415
As aptly restated by the Chief Justice, “Persons similarly situated should be similarly treated.
VOL. 95, JANUARY 22, 1980 415 Where no valid distinction could be made as to the Relevant conditions that call for consideration,
Dumlao vs. COMELEC there should be none as to the privileges conferred and the liabilities imposed. There can be no
Respondent’s claim, as accepted by the majority, is that the purpose of the special disqualification undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
is “to infuse new blood in local governments” but the classification (that would bar 65-year old discrimination against persons in thus ruled out. For the principle is that equal protection and
417
retirees from running for the same elective local office) is not rational nor reasonable. It is not
germane nor relevant to the alleged purpose of “infusing new blood” because such “old blood” VOL. 95, JANUARY 22, 1980 417
retirees may continue in local governments since they are not disqualified at all to run for any
Dumlao vs. COMELEC
other local elective office such as from provincial governor, vice-governor, city, municipal or
security shall be given to every person under circumstances, which if not identical are analogous.
district mayor and vice-mayor to member of the Sangguniang Panlalawigan, Sangguniang
If law be looked upon in terms of burden or charges, those that full within a class should be treated
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.”
Furthermore, other 65-year olds who have likewise retired from the judiciary and other
4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article
branches of government are not in any manner disqualified to run for any local elective office, as
C, section 9(1) of the 1973 Constitution that “Bona fide candidates for any public office shall be
in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who
free from any form of harassment and discrimination.”
retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received 1. II.I concur with the majority’s declaration of invalidity of the portion of the second
payment of the retirement benefits to which they are entitled under the law (which amount to very paragraph of section 4 of Batas Pambansa Blg. 52 which would make the mere filing
little, compared to retirement benefits of other executive officials and members of the judiciary). If of charges of subversion, insurrection, rebellion or other similar crimes before a civil
they have not received such retirement benefits, they are not disqualified. Certainly, their court or military tribunal after preliminary investigation prima facie evidence of the
disqualification or non-disqualification and consequent classification as “old blood” or “new fact of commission of an act of disloyalty to the State on the part of the candidate and
blood” cannot hinge on such an irrelevant question of whether or not they have received their disqualify him from his candidacy. Such a provision could be the most insidious
retirement benefits. weapon to disqualify bona fide candidates who seem to be headed for election and
The classification is patently arbitrary and unreasonable and is not based on substantial places in the hands of the military and civil prosecutors a dangerous and devastating
distinctions which make for real differences that would justify the special disqualification of weapon of cutting off any candidate who may not be to their liking through the filing
petitioner, which, it is claimed, “is based on a presumption that elective local officials who have of last-hour charges against him.
retired and are of advanced age cannot discharge the functions of the office they seek as those who
are differently situated.” Such presumption
3
I also concur with the pronouncement made in the majority decision that in order that a judgment
_____________
of conviction may be deemed “is conclusive evidence” of the candidate’s disloyalty to the State
and of his disqualification from office, such judgment of conviction must be final and
Respondent’s Comment, at pages 12-13.
unappealable. This is so specifically provided in Section 22 of thfe 1978 Election
3
416
Code. Otherwise, the questioned provision would deny the bona fide
5
416 SUPREME COURT REPORTS ANNOTATED _____________
Dumlao vs. COMELEC
E.M. Fernando: The Bill of Rights, 2nd Ed., p. 100, cit. J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 31
4
is sheer conjecture. The mere fact that a candidate is less than 65 or has “young or new blood” SCRA 413 (1970).
does not mean that he would be more efficient, effective and competent than a mature 65year old “SEC. 22. Ineligibility of person found disloyal to the Government.—Any person found guilty in a final judgment or
5
like petitioner who has had experience on the job and who was observed at the hearing to appear order of a competent court or tribunal of any crime involving disloyalty to the duly constituted Government such as rebellion,
sedition, violations of the anti-subversion and firearms laws, and crimes against
to be most physically fit. Suffice it to cite the outstanding case of the incumbent ebullient Minister
418
of Foreign Affairs, Gen. Carlos P. Romulo, who was elected at 80 as a member of the Interim
Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by 418 SUPREME COURT REPORTS ANNOTATED
the President himself as “the best foreign minister the Republic has ever had.” Dumlao vs. COMELEC
Age has simply just never been a yardstick for qualification or disqualification. At the most, a candidate substantive due process and would be grossly violative of his constitutional right of
minimum age to hold public office has been required as a qualification to insure a modicum of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting
maturity now reduced to 21 years in the present batas), but no maximum age has ever been candidates for public office from any form of harassment and discrimination.
imposed as a disqualification for elective public office since the right and will of the people to
elect the candidate of their choice for any elective office, no matter his age, has always been ADDENDUM
recognized as supreme. When the case was voted upon a second time last January 21st, there appeared to be a majority in
The disqualification in question therefore is grossly violative of the equal protection clause favor of the declarations and pronouncements above referred to in the two preceding paragraphs,
which mandates that all persons subjected to legislation shall be treated alike, under like in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing,
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that
the action to nullify such second paragraph of section 4 of the Batas in question is premature and Discrimination which is based on substantial distinction and germane to the purposes of the
has not been properly submitted for adjudication under the strict procedural requirements. If this law is constitutional. (Imbong vs. COMELEC, 35 SCRA 28).
be the case, my above views, termed as concurrences, should be taken as dissents against the The term “any elections” used in Section 56 of the Revised Election Code as amended
majority action. includes election of delegates to the Constitutional Convention. (Gatchalian vs. COMELEC, 35
Notes.—The equal protection of the law clause of the Constitution allows classification. SCRA 435).
Classification in law, as in the other departments of knowledge or practice, is the grouping of All legislative acts and executive orders are not beyond the pole of judicial scrutiny. (Pacete
things because they agree with one another in certain particulars. (Anuncesion vs. National Labor vs. The Secretary of the Commission on Appointments, 40 SCRA 58).
Union, 80 SCRA 350). Classification will constitute no violation of the individual’s right to equal protection as long
The President cannot be compelled by mandamus to convene the Interim National Assembly. as it is not unreasonable, arbitrary or capricious. (Tan Ty vs. Land Tenure Administration, 35
(Hidalgo vs. Marcos, 80 SCRA 538). SCRA 250).
The requirement that evidence be presented to reverse the presumption of validity or What is required under the equal protection of law is the uniform operation of legal norms so
constitutionality may not be rigidly insisted when in civil liberty cases, the nullity of the statute, that all persons under similar circumstances would be accorded the same treatment both in
_____________ privileges conferred and liabilities imposed. (Gumabon vs. Director of Prisons, 37 SCRA 420).
The equal protection clause does not imply the same treatment to all; that it applies merely to
the national security shall not, unless restored to his full civil and political rights in accordance with law, be eligible and persons, things or transactions similarly or identically situated; and that it, consequently, permits a
his certificate of candidacy shall not be given due course not shall the votes cast in his favor be counted. In the event his final
conviction comes after his election, he shall antomatically cease in office.” (P.D. 1296, decreed February 7, 1978). classification of the object or subject of the law, provided the classification is reasonable or based
419 upon real or substantial distinctions, germane to the statutory object or purpose. (Central Bank vs.
Cloribel, 44 SCRA 307).
VOL. 95, JANUARY 22, 1980 419
Dumlao vs. COMELEC ——o0o——
executive order or ordinance is readily apparent and the threat to constitutional rights is present
and ominous. (Morfe vs. Mutuc, 22 SCRA 424). 420
In deciding the constitutionality of a statute alleged to be defectively titled, every presumption © Copyright 2018 Central Book Supply, Inc. All rights reserved.
favors the validity of the Act, as is true in cases presenting other constitutional issues, however
possible. (Mun. of Jose Panganiban vs. Shell Co. of the Philippines, Ltd., 17 SCRA 778).
G.R. No. 190582. April 8, 2010.* Same; Same; Same; Through the years, homosexual conduct, and perhaps homosexuals themselves,
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, have borne the brunt of societal disapproval.—We are not blind to the fact that, through the years, homosexual
petitioner, vs. COMMISSION ON ELECTIONS, respondent. conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult
Constitutional Law; Election Law; Party-List System; The enumeration of marginalized and under- to imagine the reasons behind this censure—religious beliefs, convictions about the preservation of marriage,
represented sectors is not exclusive.—As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle.
Commission on Elections, 359 SCRA 698 (2001), “the enumeration of marginalized and under-represented Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently,
sectors is not exclusive.” The crucial element is not whether a sector is specifically enumerated, but whether a therefore, these “generally accepted public morals” have not been convincingly transplanted into the realm of
particular organization complies with the requirements of the Constitution and RA 7941. law.
Same; Same; Same; Aside from Commission on Elections’ (COMELEC’s) moral objection and the Election Law; Party-List System; Civil Law; “Nuisance,” Defined.—Article 694 of the Civil Code
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang defines a nuisance as “any act, omission, establishment, condition of property, or anything else which shocks,
Ladlad is not qualified to register as a party-list organization under any of the requisites under Republic Act defies, or disregards decency or morality,” the remedies for which are a prosecution under the Revised Penal
No. 7941 or the guidelines in Ang Bagong Bayani.—We find that Ang Ladlad has sufficiently demonstrated its Code or any local ordinance, a civil action, or abatement without judicial proceedings.
compliance with the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and Same; Same; Evidence; A mere blanket invocation of public morals cannot replace the institution of
the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang civil or criminal proceedings and a judicial determination of liability or culpability.—A violation of Article
Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the 201 of the Revised Penal Code, requires proof beyond reasonable doubt to support a criminal conviction. It
guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
thereof. invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial
Same; Same; Same; It was grave violation of the non-establishment clause for the Commission on determination of liability or culpability.
Elections (COMELEC) to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.—Our Same; Same; Moral disapproval, without more, is not a sufficient governmental interest to justify
Constitution provides in Article III, Section 5 that “[n]o law shall be made respecting an establishment of exclusion of homosexuals from participation in the party-list system.—We hold that moral disapproval,
religion, or prohibiting the free exercise thereof.” At bottom, what our non-establishment clause calls for is without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation
“government neutrality in religious matters.” Clearly, “governmental reliance on religious justification is in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a
inconsis- statement of dislike and disapproval of
34
_______________
3 SUPREME COURT REPORTS ANNOTATED
* EN BANC.
33 4
VOL. 618, APRIL 8, 2010 33 Ang Ladlad LGBT Party vs. Commission on Elections
homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket
Ang Ladlad LGBT Party vs. Commission on Elections
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a
tent with this policy of neutrality.” We thus find that it was grave violation of the non-establishment class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. equal protection clause.
Constitutional Law; Election Law; Party-List System; Equal Protection Clause; Recent jurisprudence much less constitutional—terms, as it denied Ang Ladlad’s petition for registration as a sectoral party
has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, the Supreme Court principally on the ground that it “tolerates immorality which offends religious (i.e., Christian and
will uphold the classification as long as it bears a rational relationship to some legitimate government end.— Muslim) beliefs.” To be sure, the COMELEC’s ruling is completely antithetical to the fundamental rule that
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, “[t]he public morality expressed in the law is necessarily secular[,] for in our constitutional order, the religion
we will uphold the classification as long as it bears a rational relationship to some legitimate government end. clauses prohibit the state from establishing a religion, including the morality it sanctions.”
In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, 446 SCRA 299 (2004), we Same; Same; Same; View that the assailed resolutions of the Commission on Elections (COMELEC)
declared that “[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed are violative of the constitutional directive that no religious test shall be required for the exercise of civil or
the ‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a reluctance to political rights.—The assailed resolutions of the COMELEC are violative of the constitutional directive
invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.” that no religious test shall be required for the exercise of civil or political rights. Ang Ladlad’s right of
Same; Same; Same; Same; Law of general application should apply with equal force to Lesbian, Gay, political participation was unduly infringed when the COMELEC, swayed by the private biases and personal
Bisexual and Transgender (LGBTs), and they deserve to participate in the party-list system on the same basis prejudices of its constituent members, arrogated unto itself the role of a religious court or worse, a morality
as other marginalized and under-represented sectors.—From the standpoint of the political process, the police.
lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the Same; Same; Same; View that the Commission on Elections (COMELEC) capitalized on Ang
same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Ladlad’s definition of the term “sexual orientation,” as well as its citation of the number of Filipino men who
Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in have sex with men, as basis for the declaration that the party espouses and advocates sexual immorality; This
the party-list system on the same basis as other marginalized and under-represented sectors. position would deny homosexual and bixesual individuals a fundamental element of personal identity and a
Same; Same; Freedom of Expression; Freedom of expression constitutes one of the essential legitimate exercise of personal liberty.—The COMELEC capitalized on Ang Ladlad’s definition of the term
foundations of a democratic society, and this freedom applies not only to those that are favorably received but “sexual orientation,” as well as its citation of the number of Filipino men who have sex with men, as basis for
also to those that offend, shock or disturb.—Freedom of expression constitutes one of the essential foundations the declaration that the party espouses and advocates sexual immorality. This position, how-
of a democratic society, and this freedom applies not only to those that are favorably received but also to those 37
that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate VOL. 618, APRIL 8, 2010 37
35
VOL. 618, APRIL 8, 2010 35 Ang Ladlad LGBT Party vs. Commission on Elections
ever, would deny homosexual and bisexual individuals a fundamental element of personal
Ang Ladlad LGBT Party vs. Commission on Elections identity and a legitimate exercise of personal liberty. For, the “ability to [independently] define one’s
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose identity that is central to any concept of liberty” cannot truly be exercised in a vacuum; we all depend on the
its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no “emotional enrichment from close ties with others.”
better reason than promoting an approved message or discouraging a disfavored one. Same; Same; Same; View that at the heart of liberty is the right to define one’s own concept of
Same; Same; Same; Freedom of Association; Only if a political party incites violence or puts forward existence, of meaning, of the universe, and of the mystery of human life.—It has been said that freedom extends
policies that are incompatible with democracy does it fall outside the protection of the freedom of association beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief,
guarantee.—A political group should not be hindered solely because it seeks to publicly debate controversial expression, and certain intimate conduct. These matters, involving the most intimate and personal choices a
political issues in order to find solutions capable of satisfying everyone concerned. Only if a political party person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty
incites violence or puts forward policies that are incompatible with democracy does it fall outside the protected by the due process clause. At the heart of liberty is the right to define one’s own concept of
protection of the freedom of association guarantee. existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not
Same; Party-List System; Equal Protection Clause; The principle of non-discrimination requires that define the attributes of personhood were they formed under compulsion of the State.
laws of general application relating to elections be applied equally to all persons, regardless of sexual Same; Same; Same; View that a classification based on gender or sexual orientation is a quasi-suspect
orientation.—The principle of non-discrimination requires that laws of general application relating to elections classification, as to trigger a heightened level of review.—The ponencia of Mr. Justice Del Castillo refused to
be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not characterize homosexuals and bisexuals as a class in themselves for purposes of the equal protection clause.
specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Accordingly, it struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the
Rights Committee has opined that the reference to “sex” in Article 26 should be construed to include “sexual rational basis test, according to which government need only show that the challenged classification is
orientation.” Additionally, a variety of United Nations bodies have declared discrimination on the basis of rationally related to serving a legitimate state interest. I humbly submit, however, that a classification based on
sexual orientation to be prohibited under various international agreements. gender or sexual orientation is a quasi-suspect classification, as to trigger a heightened level of review.
Same; Same; Same; Yogyakarta Principles; Using even the most liberal of lenses, these Yogyakarta Same; Same; Same; View that gay persons are entitled to heightened constitutional protection despite
Principles, consisting of a declaration formulated by various international law professors, are—at best—de some recent political progress.—It would not be difficult to conclude that gay persons are entitled to
lege ferenda—and do not constitute binding obligations on the Philippines.—Using even the most liberal of heightened constitutional protection despite some recent political progress. The discrimination that they have
lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law suffered has been so pervasive and severe—even though their sexual orientation has no bearing at all on their
professors, are—at best—de lege ferenda—and do not constitute binding obligations on the Philippines. ability to contribute to or perform in
Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., 38
international law is full of principles that promote international cooperation, harmony, and respect for human 3 SUPREME COURT REPORTS ANNOTATED
36
8
3 SUPREME COURT REPORTS ANNOTATED
6 Ang Ladlad LGBT Party vs. Commission on Elections
society—that it is highly unlikely that legislative enactments alone will suffice to eliminate that
Ang Ladlad LGBT Party vs. Commission on Elections discrimination.
rights, most of which amount to no more than well-meaning desires, without the support of either State Same; Same; Same; View that any state action singling lesbians, gays, bisexuals and trans-genders out
practice or opinio juris. for disparate treatment is subject to heightened judicial scrutiny to ensure that it is not the product of
PUNO, C.J., Separate Concurring Opinion: historical prejudice and stereotyping.—It is therefore respectfully submitted that any state action singling
Constitutional Law; Election Law; Party-List System; View that the assailed Resolutions of the lesbians, gays, bisexuals and trans-genders out for disparate treatment is subject to heightened judicial scrutiny
Commission on Elections (COMELEC) run afoul of the non-establishment clause of the Constitution.—The to ensure that it is not the product of historical prejudice and stereotyping.
assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the non-establishment clause Same; Same; Same; View that the position that the Lesbian, Gay, Bisexual and Transgender (LGBT)
of the Constitution. There was cypher effort on the part of the COMELEC to couch its reasoning in legal— community cannot participate in the party-list system because it is not a “marginalized and underrepresented
sector” is belied by the Supreme Court ruling in Ang Bagong Bayani-OFW Labor Party vs. COMELEC, party-list participants is this: the parties, sectors or organizations “must represent the marginalized and
where the Court held that the enumeration of marginalized and underrepresented sectors is not exclusive.—It underrepresented groups identified in Section 5 of RA 7941.” For this reason, I submit the majority’s decision
has been suggested that the LGBT community cannot participate in the party-list system because it is not a is cryptic and wanting when it makes short shrift of the issue of whether petitioner is a marginalized and
“marginalized and underrepresented sector” enumerated either in the Constitution or Republic Act No. (RA) underrepresented sector in the following manner.
7941. However, this position is belied by our ruling in Ang Bagong Bayani-OFW Labor Party v. Same; Same; Same; View that marginalized sectors qualified to participate in the party-list system but
COMELEC, 359 SCRA 698 (2001), where we clearly held that the enumeration of marginalized and not mentioned in Section 5(2), Article VI are “such other sectors as may be provided by law” duly enacted by
underrepresented sectors in RA 7941 is not exclusive. Congress.—Marginalized sectors qualified to participate in the party-list system but not mentioned in Section
CORONA, J., Dissenting Opinion: 5(2), Article VI are “such other sectors as may be provided by law” duly enacted by Congress. It is also
Constitutional Law; Election Law; Party-List System; View that the party-list system is essentially a consistent with the basic canon of statutory construction, ejusdem generis, which requires that a general word
tool for the advancement of social justice with the fundamental purpose of affording opportunity to or phrase that follows an enumeration of particular and specific words of the same class, the general word or
marginalized and underrepresented sectors to participate in the shaping of public policy and the crafting of phrase should be construed to include, or to be restricted to persons, things or cases, akin to, resembling, or of
national laws.—The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the the same kind or class as those specifically mentioned.
advancement of social justice with the fundamental purpose of affording opportunity to marginalized and Same; Same; Same; View that even assuming that petitioner was able to show that the community of
underrepresented sectors to participate in the shaping of public policy and the crafting of national laws. It is lesbians, gays, bisexuals and transsexuals (LGBT) is underrepresented, it cannot be properly con-
premised on the proposition that the advancement of the interests of the marginalized sectors contributes to the 41
advancement of the common good and of our nation’s democratic ideals.39 VOL. 618, APRIL 8, 2010 41
VOL. 618, APRIL 8, 2010 39
Ang Ladlad LGBT Party vs. Commission on Elections
Ang Ladlad LGBT Party vs. Commission on Elections sidered as marginalized under the party-list system.—Even assuming that petitioner was able to show
Same; Same; Same; Congress; View that the Constitution left the matter of determining the groups or that the community of lesbians, gays, bisexuals and transsexuals (LGBT) is underrepresented, it cannot be
sectors that may qualify as “marginalized” to the hands of Congress.—The Constitution left the matter of properly considered as marginalized under the party-list system. First, petitioner is not included in the sectors
determining the groups or sectors that may qualify as “marginalized” to the hands of Congress. Pursuant to this mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Unless an overly strained
constitutional mandate, RA 7941 or the Party-List System Act was enacted in 1995. interpretation is resorted to, the LGBT sector cannot establish a close connection to any of the said sectors.
Same; Same; Same; View that the Supreme Court stressed that the party-list system is reserved only for Indeed, petitioner does not even try to show its link to any of the said sectors. Rather, it represents itself as an
those sectors marginalized and underrepresented in the past.—In Ang Bagong Bayani-OFW Labor Party, 359 altogether distinct sector with its own peculiar interests and agenda.
SCRA 698 (2001), the Court stressed that the party-list system is reserved only for those sectors marginalized Same; Same; Same; View that only sectors expressly or closely related to those sectors mentioned in
and underrepresented in the past (e.g., labor, peasant, fisherfolk, urban poor, indigenous cultural communities, Section 5 of Republic Act (RA) No. 7941 are qualified to participate in the party-list system.—In this instance,
elderly, handicapped, women, youth, veterans, overseas workers, professionals and even those in the Congress, in the exercise of its authority under Section 5(2), Article VI of the Constitution, enacted RA 7941.
underground movement who wish to come out and participate). They are those sectors traditionally and Sections 2, 3(d) and (5) of the said law instituted a policy when it enumerated certain sectors as qualified
historically marginalized and deprived of an opportunity to participate in the formulation of national policy marginalized and underrepresented sectors under the party-list system. Respect for that policy and fidelity to
although their sectoral interests are also traditionally and historically regarded as vital to the national the Court’s duty in our scheme of government require us to declare that only sectors expressly mentioned or
interest. closely related to those sectors mentioned in Section 5 of RA 7941 are qualified to participate in the party-list
Same; Same; Same; View that the concept of marginalized and underrepresented sectors under the system.
party-list scheme has been carefully refined by concrete examples involving sectors deemed to be significant in Same; Same; Same; View that until and unless Congress amends the law to include the Lesbian, Gay,
our legal tradition.—The concept of marginalized and underrepresented sectors under the party-list scheme Bisexual and Transgender (LGBTs) and other sectors in the party-list system, deference to Congress’
has been carefully refined by concrete examples involving sectors deemed to be significant in our legal determination on the matter is proper.—The Court is called upon to exercise judicial restraint in this case by
tradition. They are essentially sectors with a constitutional bond, that is, specific sectors subject of specific strictly adhering to, rather than expanding, legislative policy on the matter of marginalized sectors as expressed
provisions in the Constitution, namely, labor, peasant, urban poor, indigenous cultural communities, women, in the enumeration in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2, 3(d)
youth, veterans, fisherfolk, elderly, handicapped, overseas workers and professionals. and 5 of RA 7941 in the guise of interpretation. The Constitution expressly and exclusively vests the authority
Same; Same; Same; View that marginalized sectors should be given a say in governance through the to determine “such other [marginalized] sectors” qualified to participate in the party-list system to Congress.
party-list system, not simply because they desire to say something constructive but because they deserve to be Thus, until and unless Congress amends the law to include the LGBT and other sectors in the party-list system,
heard on account of their traditionally and historically decisive role in Philippine society .—The long-muffled deference to Congress’ determination on the matter is proper.
voices of marginalized sectors must be heard because their respective interests are intimately and Same; Same; Same; View that the party-list system was not designed as a tool to advocate tolerance
indispensably woven into the fabric of the na- and acceptance of any and all
40 42
4 SUPREME COURT REPORTS ANNOTATED 4 SUPREME COURT REPORTS ANNOTATED
0 2
Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad LGBT Party vs. Commission on Elections
tional democratic agenda. The social, economic and political aspects of discrimination and socially misunderstood sectors.—While bigotry, social stereotyping and other forms of discrimination
marginalization should not be divorced from the role of a particular sector or group in the advancement of the must be given no place in a truly just, democratic and libertarian society, the party-list system has a well-
collective goals of Philippine society as a whole. In other words, marginalized sectors should be given a say in defined purpose. The party-list system was not designed as a tool to advocate tolerance and acceptance of any
governance through the party-list system, not simply because they desire to say something constructive but and all socially misunderstood sectors. Rather, it is a platform for the realization of the aspirations of
because they deserve to be heard on account of their traditionally and historically decisive role in Philippine marginalized sectors whose interests are, by nature and history, also the nation’s but which interests have not
society. been sufficiently brought to public attention because of these sectors’ underrepresentation.
Same; Same; Same; View that the majority’s decision is cryptic and wanting when it makes short shrift Same; Same; Same; View that Congress was given by the Constitution full discretion to determine what
of the issue of whether petitioner is a marginalized and underrepresented sector .—The enumeration of sectors sectors may qualify as marginalized and underrepresented, the Court’s task is to respect that legislative
considered as marginalized and underrepresented in the fundamental law and in the implementing law (RA determination by strictly adhering to it.—Congress was given by the Constitution full discretion to determine
7941) cannot be without significance. To ignore them is to disregard the texts of the Constitution and of RA what sectors may qualify as marginalized and underrepresented. The Court’s task is to respect that legislative
7941. For, indeed, the very first of Ang Bagong Bayani-OFW Labor Party’s eight guidelines for screening determination by strictly adhering to it. If we effectively and unduly expand such congressional determination,
we will be dabbling in policy-making, an act of political will and not of judicial judgment.
ABAD, J., Separate Opinion: the vulnerable class like the women and the youth. Ang Ladladrepresents a narrow definition of its class
Constitutional Law; Election Law; Party-List System; View that the underlying policy of Republic Act (LGBTs) rather than a concrete and specific definition of a sub-group within the class (group of gay
No. 7941 or The Party-List System Act is to give the marginalized and underrepresented sectors of society an beauticians, for example). The people that Ang Ladlad seeks to represent have a national presence.
opportunity to take a direct part in enacting the laws of the land.—The underlying policy of R.A. 7941 or The SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
Party-List System Act is to give the marginalized and underrepresented sectors of society an opportunity to The facts are stated in the opinion of the Court.
take a direct part in enacting the laws of the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on F.D. Nicholas B. Pichay, Clara Rita A. Padilla and Ibarra M. Gutierrez for petitioner.
Elections (COMELEC), 359 SCRA 698 (2001), the Court laid down guidelines for accreditation, but these
R.A.V. Saguisag for intervenor Epifanio D. Salonga, Jr.
seem to leave the COMELEC like everyone else even more perplexed and dumbfounded about what
45
organizations, clubs, or associations can pass for sectoral parties with a right to claim a seat in the House of
Representatives. The Court can, in adjudicating this case, unravel some of the difficulties. VOL. 618, APRIL 8, 2010 45
Same; Same; Same; View that the Commission on Elections (COMELEC) erred when it denied Ang
Ladlad’s petition for sectoral party accreditation on religious and moral grounds—the COMELEC Ang Ladlad LGBT Party vs. Commission on Elections
43 DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow
VOL. 618, APRIL 8, 2010 43
of freedom. The test of its substance is the right to differ as to things that touch the heart of the
Ang Ladlad LGBT Party vs. Commission on Elections existing order.
has never applied these tests on regular candidates for Congress.—Here, I fully agree that the Justice Robert A. Jackson
COMELEC erred when it denied Ang Ladlad’s petition for sectoral party accreditation on religious and moral West Virginia State Board of
grounds. The COMELEC has never applied these tests on regular candidates for Congress. There is no reason Education v. Barnette
1
for it to apply them on Ang Ladlad. But the ponencia already amply and lucidly discussed this point. One unavoidable consequence of everyone having the freedom to choose is that others may
Same; Same; Same; View that a reading of Ang Bagong Bayani will show that, based on the Court’s make different choices—choices we would not make for ourselves, choices we may disapprove of,
reading, neither the Constitution nor Republic Act No. 7941 intends the excessively limited coverage that the even choices that may shock or offend or anger us. However, choices are not to be legally
Commission on Elections (COMELEC) now suggests.—The COMELEC’s proposition imposes an prohibited merely because they are different, and the right to disagree and debate about important
unwarranted restriction which is inconsistent with the purpose and spirit of the Constitution and the law. A questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is
reading of Ang Bagong Bayani will show that, based on the Court’s reading, neither the Constitution nor R.A.
built on genuine recognition of, and respect for, diversity and difference in opinion.
7941 intends the excessively limited coverage that the COMELEC now suggests. In fact, the Court said in that
case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not meant for all sectors of Since ancient times, society has grappled with deep disagreements about the definitions and
society, it was envisioned as a social justice tool for the marginalized and underrepresented in general. demands of morality. In many cases, where moral convictions are concerned, harmony among
Same; Same; Same; View that Congress did not provide a definition of the term “marginalized and those theoretically opposed is an insurmountable goal. Yet herein lies the paradox—philosophical
underrepresented.”—Congress did not provide a definition of the term “marginalized and underrepresented.” justifications about what is moral are indispensable and yet at the same time powerless to create
Nor did the Court dare provide one in its decision in Ang Bagong Bayani. It is possible, however, to get a sense agreement. This Court recognizes, however, that practical solutions are preferable to ideological
of what Congress intended in adopting such term. No doubt, Congress crafted that term—marginalized and stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This
underrepresented—from its reading of the concrete examples that the Constitution itself gives of groupings will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least,
that are entitled to accreditation. These examples are the labor, the peasant, the urban poor, the indigenous
civilly.
cultural minorities, the women, and the youth sectors. Fortunately, quite often ideas are best described by _______________
examples of what they are, which was what those who drafted the 1987 Constitution did, rather than by an
abstract description of them.
1 319 U.S. 624, 640-42 (1943).
Same; Same; Same; View that an interpretation that will allow concretely or specifically defined
46
groups to seek election as a separate party-list sector by itself will result in riot and redundancy in the mix of
sectoral parties grabbing seats in the House of Representatives.—An interpretation that will allow concretely 46 SUPREME COURT REPORTS ANNOTATED
or specifically defined
44 Ang Ladlad LGBT Party vs. Commission on Elections
4 SUPREME COURT REPORTS ANNOTATED
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a
4 writ of preliminary mandatory injunction, filed by Ang LadladLGBT Party (Ang Ladlad) against
Ang Ladlad LGBT Party vs. Commission on Elections the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 (the 2
groups to seek election as a separate party-list sector by itself will result in riot and redundancy in the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP No.
3
mix of sectoral parties grabbing seats in the House of Representatives. It will defeat altogether the objectives 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s
of the party-list system. If they can muster enough votes, the country may have a party-list of pedicab drivers refusal to accredit Ang Ladladas a party-list organization under Republic Act (RA) No. 7941,
and another of tricycle drivers. There will be an irrational apportionment of party-list seats in the legislature. otherwise known as the Party-List System Act. 4
Same; Same; Same; View that applying the universally accepted estimate that one out of every 10 Ang Ladlad is an organization composed of men and women who identify themselves as
persons is a Lesbian, Gay, Bisexual and Transgender (LGBTs) of a certain kind, the Filipino LGBTs should lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
now stand at about 8.7 million.—In this case, Ang Ladlad represents men and women who identify themselves
Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation
as lesbians, gays, bisexuals, or trans-gendered persons (LGBTs). Applying the universally accepted estimate
that one out of every 10 persons is an LGBT of a certain kind, the Filipino LGBTs should now stand at about was denied on the ground that the organization had no substantial membership base. On August
8.7 million. Despite this, however, they are by and large, subtly if not brutally, excluded from the mainstream, 17, 2009, Ang Ladlad again filed a Petition for registration with the COMELEC.
5
discriminated against, and persecuted. That the COMELEC denied Ang Ladlad’s petition on religious and Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
moral grounds is proof of this discrimination. under-represented sector that is particularly disadvantaged because of their sexual orientation and
Same; Same; Same; View that Ang Ladlad has amply proved that it meets the requirements for sectoral gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of
party accreditation—their members are in the vulnerable class like the women and the youth.—Ang
Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their members are in
negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act,
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong omission, establishment, business, condition of property, or anything else which x x x (3) shocks,
_______________ defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
2 Rollo, pp. 33-40. stipulations, clauses, terms and conditions as they may deem convenient, provided
49
3 Id., at pp. 41-74.
4 AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND VOL. 618, APRIL 8, 2010 49
APPROPRIATING FUNDS THEREFOR (1995).
5 Rollo, pp. 89-101. Ang Ladlad LGBT Party vs. Commission on Elections
47 they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the
VOL. 618, APRIL 8, 2010 47 Civil Code provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy’ are inexistent and void from the beginning.
Ang Ladlad LGBT Party vs. Commission on Elections Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
Bayani-OFW Labor Party v. Commission on Elections. Ang Ladlad laid out its national 6
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:
membership base consisting of individual members and organizational supporters, and outlined its Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.—The
platform of governance. 7 penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
Division) dismissed the Petition on moral grounds, stating that: 2. (a) The authors of obscene literature, published with their knowledge in any form; the
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual editors publishing such literature; and the owners/operators of the establishment selling the same;
and Transgender (LGBT) Community, thus: (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
x x x a marginalized and under-represented sector that is particularly disadvantaged because of immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or
their sexual orientation and gender identity. immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof,
and proceeded to define sexual orientation as that which: shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to
x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet
and intimate and sexual rela-
_______________
traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts.
6 412 Phil. 308; 359 SCRA 698 (2001).
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature
7 Ang Ladlad outlined its platform, viz.: which are offensive to morals.
As a party-list organization, Ang Ladlad is willing to research, introduce, and work for the passage into law of legislative measures under the Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
following platform of government:
a) introduction and support for an anti-discrimination bill that will ensure equal rights for LGBTs in employment and civil life;
for not being truthful when it said that it “or any of its nominees/party-list representatives have not violated or
b) support for LGBT-related and LGBT-friendly businesses that will contribute to the national economy; failed to comply with laws, rules, or regulations relating to the elections.”50
c) setting up of micro-finance and livelihood projects for poor and physically challenged LGBT Filipinos;
d) setting up of care centers that will take care of the medical, legal, pension, and other needs of old and abandoned LGBTs. These centers 50 SUPREME COURT REPORTS ANNOTATED
will be set up initially in the key cities of the country; and
e) introduction and support for bills seeking the repeal of laws used to harass and legitimize extortion against the LGBT community. Rollo, Ang Ladlad LGBT Party vs. Commission on Elections
p. 100.
48
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the
48 SUPREME COURT REPORTS ANNOTATED U.S.A. said in one article that “older practicing homosexuals are a threat to the youth.” As an agency of the
government, ours too is the State’s avowed duty under Section 13, Article II of the Constitution to protect our
Ang Ladlad LGBT Party vs. Commission on Elections youth from moral and spiritual degradation.” 8
tions with, individuals of a different gender, of the same gender, or more than one gender. When Ang Ladlad sought reconsideration, three commissioners voted to overturn the First
9
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote: Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
For this cause God gave them up into vile affections, for even their women did change the Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
natural use into that which is against nature: And likewise also the men, leaving the natural use of the (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
woman, burned in their lust one toward another; men with men working that which is unseemly, and Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First
receiving in themselves that recompense of their error which was meet. Assailed Resolution, stating that:
In the Koran, the hereunder verses are pertinent: I. The Spirit of Republic Act No. 7941
For ye practice your lusts on men in preference to women “ye are indeed a people transgressing Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
beyond bounds.” (7.81) “And we rained down on them a shower (of brimstone): Then see what was properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual
the end of those who indulged in sin and crime!” (7:84) “He said: “O my Lord! Help Thou me against orientations per se would benefit the nation as a whole.
people who do mischief” (29:30). Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
As correctly pointed out by the Law Department in its Comment dated October 2, 2008: congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute
6F: ‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex members of the House of Representatives.
with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom _______________
and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. 8 Id., at pp. 36-39. Citations omitted. Italics and underscoring in original text.
Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the 9 Id., at pp. 77-88.
51
requirement to be complied with for accreditation.
VOL. 618, APRIL 8, 2010 51 Ang Ladlad LGBT Party vs. Commission on Elections
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests are also the nation’s—only that
their interests have not been brought to the attention of the nation because of their under representation. Until
the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under the party-list system will
remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a “special class” of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and
that “nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal
equality of homosexual relations,” as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on LadladChristian or Muslim religious practices. Neither
is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being adopted
as moral parameters and precepts are generally accepted public morals. They are possibly religious-based,
but as a society, the Philippines cannot ignore its more than 500
52
52 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions
have sipped [sic] into society and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon “Those who shall publicly expound or
proclaim doctrines openly contrary to public morals.” It penalizes “immoral doctrines, obscene publications
and exhibition and indecent shows.” “Ang Ladlad” apparently falls under these legal provisions. This is clear
from its Petition’s paragraph 6F: “Consensual partnerships or relationships by gays and lesbians who are
already of age’ It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the
Civil Code defines “nuisance” as any act, omission x x x or anything else x x x which shocks, defies or
disregards decency or morality
x x x.” These are all unlawful.” 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang
Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for the
May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment
on behalf of COMELEC not later than 12:00 noon of January 11, 2010. Instead of filing a 11
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a
12
_______________
10 Id., at pp. 50-54. Emphasis and underscoring supplied.
11 Id., at p. 121.
12 Id., at pp. 129-132.
53
VOL. 618, APRIL 8, 2010 53
The COMELEC denied Ang Ladlad’s application for registration on the ground that the
Ang Ladlad LGBT Party vs. Commission on Elections
LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or
Comment in support of petitioner’s application. Thus, in order to give COMELEC the
13
related to any of the sectors in the enumeration. 55
opportunity to fully ventilate its position, we required it to file its own comment. The 14
COMELEC, through its Law Department, filed its Comment on February 2, 2010. 15 VOL. 618, APRIL 8, 2010 55
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on Ang Ladlad LGBT Party vs. Commission on Elections
January 12, 2010, effective immediately and continuing until further orders from this Court, Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16
proposition that only those sectors specifically enumerated in the law or related to said sectors
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. The 17
women, youth, veterans, overseas workers, and professionals) may be registered under the party-
CHR opined that the denial of Ang Ladlad’spetition on moral grounds violated the standards and list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the Elections, “the enumeration of marginalized and under-represented sectors is not exclusive.” The
20
International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted crucial element is not whether a sector is specifically enumerated, but whether a particular
the CHR’s motion to intervene. organization complies with the requirements of the Constitution and RA 7941.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene which motion
18
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
was granted on February 2, 2010. 19
alleged that it had nationwide existence through its members and affiliate organizations. The
The Parties’ Arguments COMELEC claims that upon verification by its field personnel, it was shown that “save for a few
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by isolated places in the country, petitioner does not exist in almost all provinces in the country.” 21
using religious dogma, violated the constitutional guarantees against the establishment of religion. _______________
Petitioner also claimed that the Assailed Resolutions
_______________ 20 Supra note 6.
21 It appears that on September 4, 2009, the Second Division directed the various COMELEC Regional Offices to verify
13 Id., at pp. 151-283. the existence, status, and capacity of petitioner. In its Comment, respondent submitted copies of various reports stating that
14 Id., at p. 284. ANG LADLAD LGBT or LADLAD LGBT did not exist in the following areas: Batangas (October 6, 2009); Romblon
15 Id., at pp. 301-596. (October 6, 2009); Palawan (October 16, 2009); Sorsogon (September 29, 2009); Cavite, Marinduque, Rizal (October 12,
16 Id., at p. 126. 2009); Basilan, Maguindanao, Lanao del Sur, Sulu, Tawi Tawi (October 19, 2009); Biliran, Leyte, Southern Leyte, Samar,
17 Id., at pp. 133-160. Eastern Samar, Northern Samar (October 19, 2009); Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate,
18 Id., at pp. 288-291. Sorsogon (October 25, 2009); Ilocos Sur, Ilocos Norte, La Union, Pangasinan (October 23, 2009); North Cotabato, Sarangani,
19 Id., at p. 296. South Cotabato, Sultan Kudarat (October 23, 2009); Aklan, Antique, Iloilo and Negros Occidental (October 25, 2009); Bohol,
54 Cebu, Siquijor (October 24, 2009); Negros Oriental (October 26, 2009); Cordillera Adminis-
56
54 SUPREME COURT REPORTS ANNOTATED
56 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
contravened its constitutional rights to privacy, freedom of speech and assembly, and equal Ang Ladlad LGBT Party vs. Commission on Elections
protection of laws, as well as constituted violations of the Philippines’ international obligations This argument that “petitioner made untruthful statements in its petition when it alleged its
against discrimination based on sexual orientation. national existence” is a new one; previously, the COMELEC claimed that petitioner was “not
The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in being truthful when it said that it or any of its nominees/party-list representatives have not violated
denying petitioner’s application for registration since there was no basis for COMELEC’s or failed to comply with laws, rules, or regulations relating to the elections.” Nowhere was this
allegations of immorality. It also opined that LGBTs have their own special interests and concerns ground for denial of petitioner’s accreditation mentioned or even alluded to in the Assailed
which should have been recognized by the COMELEC as a separate classification. However, Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s alleged
insofar as the purported violations of petitioner’s freedom of speech, expression, and assembly non-existence were already available to the COMELEC prior to the issuance of the First Assailed
were concerned, the OSG maintained that there had been no restrictions on these rights. Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and respondent’s theory, and a serious violation of petitioner’s right to procedural due process.
genuine national political agenda to benefit the nation and that the petition was validly dismissed Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors Ladlad’sinitial petition shows that it never claimed to exist in each province of the Philippines.
enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute
petition when it alleged its national existence contrary to actual verification reports by at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
COMELEC’s field personnel. members in its electronic discussion group. Ang Ladladalso represented itself to be “a national
22
LGBT umbrella organization with affiliates around the Philippines composed of the following
LGBT networks:”
Our Ruling _______________
We grant the petition. trative Region (October 30, 2009); Agusan del Norte, Agusan del Sur, Dinagat Islands, Surigao del Norte, Surigao del
Compliance with the Requirements Sur (October 26, 2009); Cagayan de Oro, Bukidnon, Camiguin, Misamis Oriental, Lanao del Norte (October 31, 2009);
of the Constitution and Republic Laguna (November 2, 2009); Occidental Mindoro, Oriental Mindoro (November 13, 2009); Quezon (November 24, 2009);
Davao City, Davao del Sur, Davao del Norte, Compostela Valley, Davao Oriental (November 19, 2009); Caloocan, Las Pinas,
Act No. 7941 Makati, Mandaluyong, Manila, Marikina, Muntinlupa, Navotas, Parañaque, Pasay, Pasig, Pateros, Quezon City, San Juan,
Taguig, Valenzuela (December 16, 2009). Rollo, pp. 323-596.
22 Id., at p. 96.
57 25 Estrada v. Escritor, 455 Phil. 411; 408 SCRA 1 (2003), citing Smith, S., “The Rise and Fall of Religious Freedom in
Constitutional Discourse,” 140 UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 149, 160 (1991).
VOL. 618, APRIL 8, 2010 57 59
Ang Ladlad LGBT Party vs. Commission on Elections VOL. 618, APRIL 8, 2010 59
€ Abra Gay Association
€ Aklan Butterfly Brigade (ABB) – Aklan Ang Ladlad LGBT Party vs. Commission on Elections
€ Albay Gay Association
€ Arts Center of Cabanatuan City – Nueva Ecija Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
€ Boys Legion – Metro Manila depend, instead, on whether the COMELEC is able to advance some justification for its rulings
€ Cagayan de Oro People Like Us (CDO PLUS)
€ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular
€ Cebu Pride – Cebu City purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: 26
€ Circle of Friends
€ Dipolog Gay Association – Zamboanga del Norte “x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
€ Gay, Bisexual, & Transgender Youth Association (GABAY) Mr. Justice Carpio holds. “Religious teachings as expressed in public debate may influence the civil public
€ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila order but public moral disputes may be resolved only on grounds articulable in secular terms.” Otherwise, if
€ Gay Men’s Support Group (GMSG) – Metro Manila
€ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte government relies upon religious beliefs in formulating public policies and morals, the resulting policies and
€ Iloilo City Gay Association – Iloilo City morals would require conformity to what some might regard as religious programs or agenda. The non-
€ Kabulig Writer’s Group – Camarines Sur believers would therefore be compelled to conform to a standard of conduct buttressed by a religious
€ Lesbian Advocates Philippines, Inc. (LEAP)
€ LUMINA – Baguio City belief, i.e., to a “compelled religion,” anathema to religious freedom. Likewise, if government based its actions
€ Marikina Gay Association – Metro Manila upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove
€ Metropolitan Community Church (MCC) – Metro Manila contrary religious or non-religious views that would not support the policy. As a result, government will not
€ Naga City Gay Association – Naga City
€ ONE BACARDI provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are
€ Order of St. Aelred (OSAe) – Metro Manila disapproved are second-class citizens.
€ PUP LAKAN In other words, government action, including its proscription of immorality as expressed in criminal law
€ RADAR PRIDEWEAR
€ Rainbow Rights Project (R-Rights), Inc. – Metro Manila like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
€ San Jose del Monte Gay Association – Bulacan “detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
€ Sining Kayumanggi Royal Family – Rizal society” and not because the conduct is proscribed by the beliefs of one religion or the other. Although
€ Society of Transexual Women of the Philippines (STRAP) – Metro Manila
€ Soul Jive – Antipolo, Rizal admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
€ The Link – Davao City deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
€ Tayabas Gay Association – Quezon might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
€ Women’s Bisexual Network – Metro Manila
€ Zamboanga Gay Association – Zamboanga City 23
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
_______________ uniform
_______________
23 Id., at pp. 96-97.
26 455 Phil. 411; 408 SCRA 1 (2003).
58
60
58 SUPREME COURT REPORTS ANNOTATED 60 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad LGBT Party vs. Commission on Elections
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or
it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification
COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City, which is to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
registered as Ang Ladlad’s principal place of business. influence of religion in society, however, the Philippine constitution’s religion clauses prescribe not a strict but
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
with the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could
and the belated allegation of non-existence, nowhere in the records has the respondent ever
allow for accommodation of morality based on religion, provided it does not offend compelling state
found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the interests.”27
requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC Public Morals as a Ground to Deny Ang
claims, lies in Ang Ladlad’s morality, or lack thereof. Ladlad’s Petition for Registration
Religion as the Basis for Refusal Respondent suggests that although the moral condemnation of homosexuality and homosexual
to Accept Ang Ladlad’s Petition conduct may be religion-based, it has long been transplanted into generally accepted public
for Registration morals. The COMELEC argues:
Our Constitution provides in Article III, Section 5 that “[n]o law shall be made respecting an “Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because
establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non- of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector
establishment clause calls for is “government neutrality in religious matters.” Clearly, 24
which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a
“governmental reliance on religious justification is inconsistent with this policy of bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without
neutrality.” We thus find that it was grave violation of the non-establishment clause for the
25 a set of moral precepts is in danger of losing its own existence.” 28
COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. We are not blind to the fact that, through the years, homosexual conduct, and perhaps
_______________ homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine
the reasons behind this censure—religious beliefs, convictions about the preservation of marriage,
24 BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY346 (2009). family, and
_______________ disapproval of homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC
27 Id., at pp. 588-589; pp. 180-182. targets homosexuals themselves as a class, not because of any particular
28 Rollo, p. 315. _______________
61
VOL. 618, APRIL 8, 2010 61 32 CIVIL CODE OF THE PHILIPPINES, Art. 699.
63
Ang Ladlad LGBT Party vs. Commission on Elections
procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. VOL. 618, APRIL 8, 2010 63
Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Ang Ladlad LGBT Party vs. Commission on Elections
Evidently, therefore, these “generally accepted public morals” have not been convincingly morally reprehensible act. It is this selective targeting that implicates our equal protection clause.
transplanted into the realm of law. 29
Equal Protection
The Assailed Resolutions have not identified any specific overt immoral act performed Despite the absolutism of Article III, Section 1 of our Constitution, which provides “nor shall
by Ang Ladlad. Even the OSG agrees that “there should have been a finding by the COMELEC any person be denied equal protection of the laws,” courts have never interpreted the provision as
that the group’s members have committed or are committing immoral acts.” The OSG argues: 30
an absolute prohibition on classification. “Equality,” said Aristotle, “consists in the same treatment
“x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more of similar persons.” The equal protection clause guarantees that no person or class of persons
33
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought
shall be deprived of the same protection of laws which is enjoyed by other persons or other classes
and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands
full of disqualification cases against both the “straights” and the gays.” Certainly this is not the intendment of in the same place and in like circumstances. 34
the law.” 31 Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets
Respondent has failed to explain what societal ills are sought to be prevented, or why special a suspect class, we will uphold the classification as long as it bears a rational relationship to some
protection is required for the youth. Neither has the COMELEC condescended to justify its legitimate government end. In Central
35
_______________
position that petitioner’s admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that the
_______________ 33 POLITICS VII. 14.
34 Abakada Guro Party v. Executive Secretary, G.R. No. 168056, September 1, 2005, 2005, 469 SCRA 1, 139.
35 IN BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY 139-140 (2009), Fr. Joaquin Bernas, S.J.
29 In Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007, 541 SCRA 12, citing Concerned Employee v. writes:
Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448, we ruled that immorality cannot be judged based on For determining the reasonableness of classification, later jurisprudence has developed three kinds of test[s] depending
personal bias, specifically those colored by particular mores. Nor should it be grounded on “cultural” values not convincingly on the subject matter involved. The most demanding is the strict scrutiny test which requires the government to show that the
demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. This
time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect [case] is used in cases involving classifications based on race, national origin, religion, alienage, denial of the right to vote,
behavior that may be frowned upon by the majority. interstate migration, access to courts, and other rights recognized as fundamental.
30 Rollo, pp. 178. Next is the intermediate or middle-tier scrutiny test which requires government to show that the challenged classification
31 Id., at pp. 179-180. serves an important state interest and that the classification is at least substantially related to serving that interest. This is
62 applied to suspect classifications like gender or illegitimacy.
64
62 SUPREME COURT REPORTS ANNOTATED
64 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
state is wholly without authority to regulate matters concerning morality, sexuality, and sexual Ang Ladlad LGBT Party vs. Commission on Elections
relations, and we recognize that the government will and should continue to restrict behavior Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, we declared that “[i]n our36
considered detrimental to society. Nonetheless, we cannot countenance advocates who, jurisdiction, the standard of analysis of equal protection challenges x x x have followed the
undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, ‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a
without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an Constitution.” 37
issue from our scrutiny. The COMELEC posits that the majority of the Philippine population considers homosexual
We also find the COMELEC’s reference to purported violations of our penal and civil laws conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as “any petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief.
act, omission, establishment, condition of property, or anything else which shocks, defies, or No law exists to criminalize homosexual behavior or expressions or parties about homosexual
disregards decency or morality,” the remedies for which are a prosecution under the Revised Penal behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it,
Code or any local ordinance, a civil action, or abatement without judicial proceedings. A 32 the asserted state interest here—that is, moral disapproval of an unpopular minority—is not a
violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond legitimate state interest that is sufficient to satisfy rational basis review under the equal protection
reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere clause. The COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot
allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate
replace the institution of civil or criminal proceedings and a judicial determination of liability or state interest other than disapproval of or dislike for a disfavored group.
culpability. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have
As such, we hold that moral disapproval, without more, is not a sufficient governmental the same interest in participating in the party-list system on the same basis as other political parties
interest to justify exclusion of homosexuals from participation in the party-list system. The denial similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general appli-
of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and _______________
The most liberal is the minimum or rational basis scrutiny according to which government need only show that the This position gains even more force if one considers that homosexual conduct is not illegal in
challenged classification is rationally related to serving a legitimate state interest. This is the traditional rationality test and it
applies to all subjects other than those listed above.
this country. It follows that both expressions concerning one’s homosexuality and the activity of
36 487 Phil. 531, 583; 446 SCRA 299, 370 (2004). forming a political association that supports LGBT individuals are protected as well.
37 Id., at p. 584; p. 370. See also Mid-States Freight Lines v. Bates, 111 N.Y.S. 2d 568. Other jurisdictions have gone so far as to categorically rule that even overwhelming public
65 perception that homosexual
VOL. 618, APRIL 8, 2010 65 67
Ang Ladlad LGBT Party vs. Commission on Elections VOL. 618, APRIL 8, 2010 67
cation should apply with equal force to LGBTs, and they deserve to participate in the party-list Ang Ladlad LGBT Party vs. Commission on Elections
system on the same basis as other marginalized and under-represented sectors. conduct violates public morality does not justify criminalizing same-sex conduct. European 41
It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from and United Nations judicial
heterosexuals insofar as the party-list system is concerned does not imply that any other law _______________
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves for 41 In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court first upheld the constitutionality of a Georgia
sodomy law that criminalized oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen
the purposes of the equal protection clause. We are not prepared to single out homosexuals as a
38
years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), holding that “Bowers was
separate class meriting special or differentiated treatment. We have not received sufficient not correct when it was decided, and it is not correct today.”
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself In Lawrence, the US Supreme Court has held that the liberty protected by the Constitution allows homosexual persons
has merely demanded that it be recognized under the same basis as all other groups similarly the right to choose to enter into intimate relationships, whether or not said relationships were entitled to formal or legal
recognition.
situated, and that the COMELEC made “an unwarranted and impermissible classification not Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has
justified by the circumstances of the case.” traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice;
Freedom of Expression and Association neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual
decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce
Under our system of laws, every group has the right to promote its agenda and attempt to offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this
persuade society of the validity of its position through normal democratic means. It is in the public 39
protection extends to intimate choices by unmarried as well as married persons.
square that deeply held convictions and differing opinions should be distilled and deliberated The present case does not involve minors. It does not involve persons who might be injured or coerced or who are
upon. As we held in Estrada v. Escritor: 40 situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does
_______________ not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a
homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or
38 The OSG argues that “[w]hile it is true that LGBTs are immutably males and females, and they are protected by the control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives
same Bill of Rights that applies to all citizens alike, it cannot be denied that as a sector, LGBTs have their own special interests them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that
and concerns.” Rollo, p. 183. there is a realm of personal liberty which the government may not enter.” The Texas statute furthers no legitimate state
39 Article III, Section 4 of the Constitution provides that “[n]o law shall be passed abridging the freedom of speech, of 68
expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of
grievances.” 68 SUPREME COURT REPORTS ANNOTATED
40 Supra note 26.
66 Ang Ladlad LGBT Party vs. Commission on Elections
decisions have ruled in favor of gay rights claimants on both
66 SUPREME COURT REPORTS ANNOTATED _______________
Ang Ladlad LGBT Party vs. Commission on Elections
“In a democracy, this common agreement on political and moral ideas is distilled in the public square. interest which can justify its intrusion into the personal and private life of the individual.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has In similar fashion, the European Court of Human Rights has ruled that the avowed state interest in protecting public
morals did not justify interference into private acts between homosexuals. In Norris v. Ireland, the European Court held that
access to the public square where people deliberate the order of their life together. Citizens are the bearers of
laws criminalizing same-sex sexual conduct violated the right to privacy enshrined in the European Convention.
opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the The Government are in effect saying that the Court is precluded from reviewing Ireland’s observance of its obligation not
public square. In this representative democracy, the state is prohibited from determining which convictions and to exceed what is necessary in a democratic society when the contested interference with an Article 8 (Art. 8) right is in the
moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the interests of the “protection of morals.” The Court cannot accept such an interpretation. x x x.
people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when x x x The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious
public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs reasons before interferences on the part of public authorities can be legitimate x x x.
and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of x x x Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by
the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it
adopting and accepting a constitution and the limits it specifies—including protection of religious freedom
is consenting adults alone who are involved. (Norris v. Ireland (judgment of October 26, 1988, Series A no. 142, pp. 20-21, §
“not only for a minority, however small—not only for a majority, however large—but for each of us”—the 46); Marangos v. Cyprus (application no. 31106/96, Commission’s report of 3 December 1997, unpublished)).
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride The United Nations Human Rights Committee came to a similar conclusion in Toonen v. Australia (Comm. No.
roughshod over the dissenting minorities.” 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/
Freedom of expression constitutes one of the essential foundations of a democratic society, 1992 [1994]), involving a complaint that Tasmanian laws criminalizing consensual sex between adult males violated the right
to privacy under Article 17 of the International Covenant on Civil and Political Rights. The Committee held:
and this freedom applies not only to those that are favorably received but also to those that offend, x x x it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’ x x x any
shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to 69
impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to VOL. 618, APRIL 8, 2010 69
interfere with speech for no better reason than promoting an approved message or discouraging a
disfavored one. Ang Ladlad LGBT Party vs. Commission on Elections
privacy and equality grounds, citing general privacy and equal protection provisions in foreign and 46 Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention) provides:
international texts. To the extent that there is much to learn from other jurisdictions that have
42
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the
reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign right to form and to join trade unions for the protection of his interests.
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are
influence on the Court’s analysis. necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent
In the area of freedom of expression, for instance, United States courts have ruled that existing the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the
free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the administration of the State. Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222,
prohibition of a particular expression of opinion, public institutions must show that their actions entered into force September 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on September 21,
1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively.
were caused by “something more than a mere desire to avoid the discomfort and unpleasantness * Note that while the state is not permitted to discriminate against homosexuals, private individuals cannot be compelled
that always accompany an unpopular viewpoint.” 43
to accept or condone homosexual conduct as a legitimate form of behavior. In Hurley v. Irish-American Gay, Lesbian and
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, Bisexual Group of Boston, Inc. (515 U.S. 557 [1995]), the US Supreme Court discussed whether anti-discrimination legislation
with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has operated to require the organizers of a private St. Patrick’s Day parade to include among the marchers an Irish-American gay,
lesbian, and bisexual group. The court held that private citizens organizing a public demonstration may not be compelled by
repeatedly stated that a political party may campaign for a the state to include groups that impart a message the organizers do not want to be included in their demonstration. The court
_______________ observed:
“[A] contingent marching behind the organization’s banner would at least bear witness to the fact that some
42 See Toonen v. Australia, (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people
CCPR/c/50/D/488/1992 (1994)); Dudgeon v. United Kingdom, 45 Eur. H.R. Rep. 52 (1981) (decision by the European Court of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals x x x. The parade’s
of Human Rights, construing the European Convention on Human Rights and Fundamental Freedoms); Norris v. Ireland, 13 organizers may not
Eur. Ct. H.R. 186 (1991); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993). See also, L. and V. v Austria (2003-I 29; (2003) 72
36 EHRR 55) and S.L. v Austria (2003-I 71; (2003) 37 EHRR 39), where the European Court considered that Austria’s
differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the 72 SUPREME COURT REPORTS ANNOTATED
part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the
Ang Ladlad LGBT Party vs. Commission on Elections
differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’.
43 See Fricke v. Lynch, 491 F. Supp. 381 (1980) and Gay Student Services v. Texas A&M University, 737 F. 2d 1317 We do not doubt that a number of our citizens may believe that homosexual conduct is
(1984). distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other
70 hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships
70 SUPREME COURT REPORTS ANNOTATED between individuals of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court is concerned, our
Ang Ladlad LGBT Party vs. Commission on Elections
democracy precludes using the religious or moral views of one part of the community to exclude
change in the law or the constitutional structures of a state if it uses legal and democratic from consideration the values of other members of the community.
means and the changes it proposes are consistent with democratic principles. The ECHR has Of course, none of this suggests the impending arrival of a golden age for gay rights litigants.
emphasized that political ideas that challenge the existing order and whose realization is advocated It well may be that this Decision will only serve to highlight the discrepancy between the rigid
by peaceful means must be afforded a proper opportunity of expression through the exercise of the constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do
right of association, even if such ideas may seem shocking or unacceptable to the authorities or the not suggest that
majority of the population. A political group should not be hindered solely because it seeks to
44
_______________
publicly debate controversial political issues in order to find solutions capable of satisfying
everyone concerned. Only if a political party incites violence or puts forward policies that are
45
believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians
incompatible or have some other reason for wishing to keep GLIB’s message out of the parade. But whatever the reason, it boils down to the
_______________ choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s
power to control.”
So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the Boy Scouts of
44 Case of the United Macedonian Organisation Ilinden and Others v. Bulgaria Application No. 5941/00; Judgment of America could not be compelled to accept a homosexual as a scoutmaster, because “the Boy Scouts believe that homosexual
January 20, 2006. Note that in Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, the conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a
ECHR unanimously ruled that the banning of an LGBT gay parade in Warsaw was a discriminatory violation of Article 14 of legitimate form of behavior.”
the ECHR, which provides: When an expressive organization is compelled to associate with a person whose views the group does not accept, the
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the
ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a persons linked with them. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both
national minority, property, birth or other status. to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”
It also found that banning LGBT parades violated the group’s freedom of assembly and association. Referring to the 73
hallmarks of a “democratic society,” the Court has attached particular importance to pluralism, tolerance and
broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a VOL. 618, APRIL 8, 2010 73
group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which
ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Ang Ladlad LGBT Party vs. Commission on Elections
45 Case of Freedom & Democracy Party (OZDEP) v. Turkey, Application No. 23885/94; Judgment of December 8, public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights
1999.
71 claims and we neither attempt nor expect to affect individual perceptions of homosexuality
through this Decision.
VOL. 618, APRIL 8, 2010 71 The OSG argues that since there has been neither prior restraint nor subsequent punishment
Ang Ladlad LGBT Party vs. Commission on Elections imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
with democracy does it fall outside the protection of the freedom of association guarantee. 46 associate, then there has been no restriction on their freedom of expression or association. The
OSG argues that:
_______________
“There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply 48 In Toonen v. Australia, supra note 42, the Human Rights Committee noted that “in its view the reference to ‘sex’ in
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to Articles 2, paragraph 2, and 26 is to be taken as including sexual orientation.”
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 49 The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General
Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic,
4, Article III of the Constitution. Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work) (Committee on Economic, Social and
xxxx Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take water) (Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11,
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to November 26, 2002) and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on Economic, Social
vote is a constitutionally-guaranteed right which cannot be limited. and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, August
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang 14, 2000), it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its orientation.
The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General
members to fully and equally participate in public life through engagement in the party list elections. Comment No. 4 of 2003, it stated that, “State parties have the obligation to ensure that all human beings below 18 enjoy all the
This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to
imposed by law. x x x” 47
‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate other status.” These grounds also cover [inter alia] sexual orientation.” (Committee on the Rights of the Child, General
in the party-list system, and—as advanced by the OSG itself—the moral objection offered by the Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, July 1, 2003,
CRC/GC/2003/4).
COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a number of occasions,
been criticized States for discrimination on the basis of sexual orientation. For example, it
_______________ 76
76 SUPREME COURT REPORTS ANNOTATED
47 Rollo, pp. 197-199.
74 Ang Ladlad LGBT Party vs. Commission on Elections
74 SUPREME COURT REPORTS ANNOTATED The UDHR provides:
Article 21.
Ang Ladlad LGBT Party vs. Commission on Elections (1) Everyone has the right to take part in the government of his country, directly or through freely
precluded, because of COMELEC’s action, from publicly expressing its views as a political party chosen representatives.
and participating on an equal basis in the political process with other equally-qualified party-list Likewise, the ICCPR states:
candidates, we find that there has, indeed, been a transgression of petitioner’s fundamental rights. Article 25
Non-Discrimination and International Law Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article
In an age that has seen international law evolve geometrically in scope and promise, 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
international human rights law, in particular, has grown dynamically in its attempt to bring about a (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
more just and humane world order. For individuals and groups struggling with inadequate suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
structural and governmental support, international human rights norms are particularly significant, (c) To have access, on general terms of equality, to public service in his country.
and should be effectively enforced in domestic legal systems so that such norms may become As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
actual, rather than ideal, standards of conduct. participation is elaborated by the Human Rights Committee in its General Comment No. 25
Our Decision today is fully in accord with our international obligations to protect and promote (Participation in Public Affairs and the Right to Vote) as follows:
human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates “1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
to the right to electoral participation, enunciated in the UDHR and the ICCPR. conduct of public affairs, the right to vote and to be elected and the right to have access to public service.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative
Article 26 and other measures as may be necessary to ensure that citizens have an effective
_______________
All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
also addressed the situation in Kyrgyzstan and recommended that, “lesbianism be reconceptualized as a sexual orientation and that penalties
effective protection against discrimination on any ground such as race, colour, sex, language, religion, political for its practice be abolished” (Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding
or other opinion, national or social origin, property, birth or other status. Kyrgyzstan, February 5, 1999, A/54/38 at par. 128).
In this context, the principle of non-discrimination requires that laws of general application 77
relating to elections be applied equally to all persons, regardless of sexual orientation. Although VOL. 618, APRIL 8, 2010 77
sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26
of the ICCPR, Ang Ladlad LGBT Party vs. Commission on Elections
75 opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the
consent of the people and in conformity with the principles of the Covenant.
VOL. 618, APRIL 8, 2010 75 xxxx
Ang Ladlad LGBT Party vs. Commission on Elections 15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election,
the ICCPR Human Rights Committee has opined that the reference to “sex” in Article 26 should such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise
be construed to include “sexual orientation.” Additionally, a variety of United Nations bodies
48
eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as
have declared discrimination on the basis of sexual orientation to be prohibited under various education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or
international agreements. 49
disadvantage of any kind because of that person’s candidacy. States parties should indicate and explain the
_______________ legislative provisions which exclude any group or category of persons from elective office.” 50
We stress, however, that although this Court stands willing to assume the responsibility of promote international cooperation, harmony, and respect for human rights, most of which amount
giving effect to the Philippines’ international law obligations, the blanket invocation of to no more than well-meaning desires, without the support of either State practice or opinio juris. 53
international law is not the panacea for all social ills. We refer now to the petitioner’s invocation
of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to _______________
Sexual Orientation and Gender Identity), which petitioner declares to reflect binding principles of
51
international law. d) Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the
_______________ person concerned;
e) Ensure that changes to identity documents will be recognized in all contexts where the identification or
disaggregation of persons by gender is required by law or policy;
50 General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to f) Undertake targeted programmes to provide social support for all persons experiencing gender transitioning or
public service (Art. 25) December 16, 1996. CCPR/C/21/Rev.1/Add.7. reassignment. (Emphasis ours)
51 The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation 53 See Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health, G.R. No. 173034, October
and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address 9, 2007, 535 SCRA 265, where we explained that “soft law” does not fall into any
documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) individuals. It contains 29 80
Principles adopted by human rights practitioners and experts, together with recommendations to governments, regional
intergovernmental institutions, civil society, and the United Nations. 80 SUPREME COURT REPORTS ANNOTATED
78
Ang Ladlad LGBT Party vs. Commission on Elections
78 SUPREME COURT REPORTS ANNOTATED As a final note, we cannot help but observe that the social issues presented by this case are
Ang Ladlad LGBT Party vs. Commission on Elections emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior.
that are obligatory on the Philippines. There are declarations and obligations outlined in said Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion,
Principles which are not reflective of the current state of international law, and do not find basis in and confident in the knowledge that our democracy is resilient enough to withstand vigorous
any of the sources of international law enumerated under Article 38(1) of the Statute of the debate.
International Court of Justice. Peti- 52 WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on
_______________ Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby
SET ASIDE. The Commission on Elections is directed to GRANT petitioner’s application for
52 One example is Principle 3 (The Right to Recognition Before the Law), which provides: party-list accreditation.
Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and SO ORDERED.
gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender
identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one Carpio, Velasco, Jr., Leonardo-De Castro, Bersamin, Villarama, Jr., Perez and Mendoza,
shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a JJ., concur.
requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such Puno (C.J.), See Separate Opinion.
to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress or
deny their sexual orientation or gender identity.
Corona, J., Please see Dissenting Opinion.
States shall: Carpio-Morales, J., I join J. Abad., concurring opinion.
a) Ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual Nachura, J., I join concurring opinion of J. Abad.
orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to Brion, J., I join dissent of J. Corona.
administer, own, acquire (including through inheritance), manage, enjoy and dispose of property;
b) Take all necessary legislative, administrative and other measures to fully respect and legally recognise each Peralta, J., I join the concurring opoinion of J.
person’s self-defined gender identity; Abad.
c) Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all Abad, J., I certify that J. Abad write a separate concurring opinion—Puno, C.J.
State-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports, electoral _______________
records and other documents — reflect the person’s profound self-defined gender identity;
79
of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of
VOL. 618, APRIL 8, 2010 79 Justice. It is, however, an expression of non-binding norms, principles, and practices that influence state behavior. Certain
declarations and resolutions of the UN General Assembly fall under this category.
Ang Ladlad LGBT Party vs. Commission on Elections 81
tioner has not undertaken any objective and rigorous analysis of these alleged principles of VOL. 618, APRIL 8, 2010 81
international law to ascertain their true status.
We also hasten to add that not everything that society—or a certain segment of society— Ang Ladlad LGBT Party vs. Commission on Elections
wants or demands is automatically a human right. This is not an arbitrary human intervention that SEPARATE CONCURRING OPINION
may be added to or subtracted from at will. It is unfortunate that much of what passes for human PUNO, C.J.:
rights today is a much broader context of needs that identifies many social desires as rights in I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C.
order to further claims that international law obliges states to sanction these innovations. This has Del Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some points
the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in that I deem significant.
“rights” language, then they are no longer controversial. FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration the non-establishment
formulated by various international law professors, are—at best—de lege ferenda—and do not clause of the Constitution. There was cypher effort on the part of the COMELEC to couch its
1
constitute binding obligations on the Philippines. Indeed, so much of contemporary international reasoning in legal—much less constitutional—terms, as it denied Ang Ladlad’s petition for
law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that registration as a sectoral party principally on the ground that it “tolerates immorality which
offends religious (i.e., Christian and Muslim ) beliefs.” To be sure, the COMELEC’s
2 3
_______________ The COMELEC attempts to disengage itself from this “excessive entanglement” with religion 8
by arguing thatwe “cannot ignore our strict religious upbringing, whether Christian or
1 Section 5, Article III of the 1987 Constitution states: “No law shall be made respecting an establishment of religion, or Muslim” since the “moral precepts espoused by [these] religions have slipped into society and …
9
prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political are now publicly accepted moral norms.” However, as correctly observed by Mr. Justice Del
10
rights.” Castillo, the Philippines has not seen fit to disparage homosexual conduct as to actually
2 The November 11, 2009 Resolution of the COMELEC cited the following passage from the Bible to support its criminalize it. Indeed, even if the State has legislated to this effect, the law is vulnerable to
holding: “For this cause God gave them up into vile affections: for even their women did change the natural use into that
which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward
constitutional attack on privacy grounds. These alleged “generally accepted public morals” have
11
another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was not, in reality, crossed over from the religious to the secular sphere.
meet.” (Romans 1:26-27) _______________
3 The November 11, 2009 Resolution of the COMELEC cited the following passages from the Koran to support its
holding: 6 Id.
� “For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds.” 7 Section 5, Article III of the 1987 Constitution.
(7:81) 8 Lemon v. Kurtzman, 403 U.S. 602 (1971).
� “And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin 9 COMELEC’s Comment, p. 13.
and crime!” (7.84) 10 Id.
82 11 See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472.
84
82 SUPREME COURT REPORTS ANNOTATED
84 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
ruling is completely antithetical to the fundamental rule that “[t]he public morality expressed in Ang Ladlad LGBT Party vs. Commission on Elections
the law is necessarily secular[,] for in our constitutional order, the religion clauses prohibit the Some people may find homosexuality and bisexuality deviant, odious, and offensive.
state from establishing a religion, including the morality it sanctions.” As we explained 4
Nevertheless, private discrimination, however unfounded, cannot be attributed or ascribed to the
in Estrada v. Escritor, the requirement of an articulable and discernible secular purpose is meant
5
State. Mr. Justice Kennedy, speaking for the United States (U.S.) Supreme Court in the landmark
to give flesh to the constitutional policy of full religious freedom for all, viz.: case of Lawrence v. Texas, opined: 12
“Religion also dictates “how we ought to live” for the nature of religion is not just to know, but often, to “It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries
act in accordance with man’s “views of his relations to His Creator.” But the Establishment Clause puts a there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been
negative bar against establishment of this morality arising from one religion or the other, and implies the shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.
affirmative “establishment” of a civil order for the resolution of public moral disputes. This agreement on a For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and
secular mechanism is the price of ending the “war of all sects against all”; the establishment of a secular moral principles to which they aspire and which thus determine the course of their lives. These considerations
public moral order is the social contract produced by religious truce. do not answer the question before us, however. The issue is whether the majority may use the power of the
Thus, when the law speaks of “immorality” in the Civil Service Law or “immoral” in the Code of State to enforce these views on the whole society through operation of the … law. “Our obligation is to define
Professional Responsibility for lawyers, or “public morals” in the Revised Penal Code, or “morals” in the New the liberty of all, not to mandate our own moral code.” 13
Civil Code, or “moral character” in the Constitution, the distinction between public and secular morality on the SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term “sexual
one hand, and religious morality, on the other, should be kept in mind. The morality referred to in the law is orientation,” as well as its citation of the number of Filipino men who have sex with men, as
14 15
public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. “Religious teachings as basis for the declaration that the party espouses and advocates sexual immorality. This position,
expressed in public debate may influence the civil public order but public moral disputes may be resolved only
however, would deny homosexual and bisexual individuals a fundamental element of
on grounds articulable in secular terms.” Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require conformity to what some might personal identity and a legitimate exercise of personal liberty.For, the “ability to [in-
_______________
regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a “compelled religion;” anathema to religious
_______________ 12 Id.
13 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
14 Ang Ladlad defined “sexual orientation” as a person’s capacity for profound emotional, affectional and sexual
� “He said: “O my Lord! Help Thou me against people who do mischief!” (29:30)
4 Estrada v. Escritor, 455 Phil. 411; 408 SCRA 1 (2003). attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one
5 Id. gender.” (italics supplied)
83 15 Paragraph 24 of Ang Ladlad’s Petition for Registration stated, in relevant part: “In 2007, Men Having Sex with Men
or MSMs in the Philippines were estimated at 670,000.”
VOL. 618, APRIL 8, 2010 83 85
Ang Ladlad LGBT Party vs. Commission on Elections VOL. 618, APRIL 8, 2010 85
freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse
that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support Ang Ladlad LGBT Party vs. Commission on Elections
the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it dependently] define one’s identity that is central to any concept of liberty” cannot truly be
appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom exercised in a vacuum; we all depend on the “emotional enrichment from close ties with
therefore requires that government be neutral in matters of religion; governmental reliance upon religious others.” As Mr. Justice Blackmun so eloquently said in his stinging dissent in Bowers v.
16
justification is inconsistent with this policy of neutrality.” (citations omitted and italics supplied)
6
Hardwick (overturned by the United States Supreme Court seventeen years later in Lawrence v.
17
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional Texas ):
18
directive that no religious test shall be required for the exercise of civil or political rights. Ang 7
“Only the most willful blindness could obscure the fact that sexual intimacy is “a sensitive, key
Ladlad’s right of political participation was unduly infringed when the COMELEC, swayed by the relationship of human existence, central to family life, community welfare, and the development of human
private biases and personal prejudices of its constituent members, arrogated unto itself the role of a personality[.]” The fact that individuals define themselves in a significant way through their intimate sexual
19
religious court or worse, a morality police. relationships with others suggests, in a Nation as diverse as ours, that there may be many “right” ways of
conducting those relationships, and that much of the richness of a relationship will come from the freedom an struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the rational
individual has to choose the form and nature of these intensely personal bonds. 20
basis test, according to which government need only show that the challenged classification is
In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom rationally related to serving a legitimate state interest.
to choose how to conduct their lives is acceptance of the fact that different individuals will make different
I humbly submit, however, that a classification based on gender or sexual orientation is
choices. For example, in holding that the clearly important state interest in public education should give way to
a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the a quasi-suspect classification, as to trigger a heightened level of review.
Court declared: “There can be no assumption that today’s majority is ‘right’ and the Amish and Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in
_______________ the main have followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and
16 Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, as cited in the Dissenting Opinion of Mr. Justice Blackmun in Bowers v. unequivocal breach of the Constitution. However, Central Bank Employees Association, Inc. v.
28
Hardwick, infra.
17 478 U.S. 186, 106 S.Ct. 2841. Bangko Sentral ng Pilipinas, carved out an exception to this general rule, such that prejudice to
29
18 Supra note 11. _______________
19 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973); See also Carey v. Population Services
International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).
20 See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 28 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583; 446 SCRA 299, 370
1038, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S., at 153, 93 S.Ct., at 726. (2004).
86 29 Id.
88
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Ang Ladlad LGBT Party vs. Commission on Elections
others like them are ‘wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests Ang Ladlad LGBT Party vs. Commission on Elections
of others is not to be condemned because it is different.” The Court claims that its decision today merely
21
persons accorded special protection by the Constitution requires stricter judicial scrutiny than mere
refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to rationality, viz.:
recognize is the fundamental interest all individuals have in controlling the nature of their intimate “Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded
associations with others.” (italics supplied) recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference
It has been said that freedom extends beyond spatial bounds. Liberty presumes an autonomy 22
stops where the classification violates a fundamental right, or prejudices persons accorded special protection
of self that includes freedom of thought, belief, expression, and certain intimate conduct. These 23
by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of
matters, involving the most intimate and personal choices a person may make in a lifetime, choices constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations.
central to personal dignity and autonomy, are central to the liberty protected by the due process Rational basis should not suffice.” (citations omitted and italics supplied)
clause. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of
24 Considering thus that labor enjoys such special and protected status under our fundamental
the universe, and of the mystery of human life. Beliefs about these matters could not define the
25 law, the Court ruled in favor of the Central Bank Employees Association, Inc. in this wise:
attributes of personhood were they formed under compulsion of the State. Lawrence v. Texas is 26 27 “While R.A. No. 7653 started as a valid measure well within the legislature’s power, we hold that the
again instructive: enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity out of
“To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the the challenged proviso.
claim the individual put forward, just as it would demean a married couple were it to be said marriage is xxxx
simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of
statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were
have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in also amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL. Thus,
the most private of places, the home. The statutes do seek to within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon.
_______________ Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also
undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to
21 Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 1537, 32 L.Ed.2d 15 (1972). 2004, viz.:
22 Lawrence v. Texas, supra note 11. xxxx
23 Id. It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this
24 Planned Parenthood of Southeastern Pa. v. Casey, supra note 13.
25 Id. common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or
26 Id. impliedly...89
27 Supra note 11.
87 VOL. 618, APRIL 8, 2010 89
VOL. 618, APRIL 8, 2010 87 Ang Ladlad LGBT Party vs. Commission on Elections
Ang Ladlad LGBT Party vs. Commission on Elections xxxx
The abovementioned subsequent enactments, however, constitute significant changes in circumstance that
control a personal relationship that, whether or not entitled to formal recognition in the law, is within the
considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of
liberty of persons to choose without being punished as criminals.
Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of
to the constitutionality of the classification—albeit made indirectly as a consequence of the passage of eight
the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It
other laws—between the rank-and-file of the BSP and the seven other GFIs. The classification must not only
suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their
be reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and
homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt
impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust
expression in intimate conduct with another person, the conduct can be but one element in a personal bond
distinctions between persons who are without differences.
that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make
Stated differently, the second level of inquiry deals with the following questions: Given that Congress
this choice.” (italics supplied)
chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-
THIRD. The ponencia of Mr. Justice Del Castillo refused to characterize homosexuals and file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the
bisexuals as a class in themselves for purposes of the equal protection clause. Accordingly, it
rank-and-file employees of the other GFIs? Is Congress’ power to classify so unbridled as to sanction unequal The Constitution specifically provides that labor is entitled to “humane conditions of work.”
and discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt These conditions are not restricted to the physical workplace—the factory, the office or the field—but
act, but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection include as well the manner by which employers treat their employees.
of the law bounded in time and space that: (a) the right can only be invoked against a classification made The Constitution also directs the State to promote “equality of employment opportunities for
directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several all.” Similarly, the Labor Code provides that the State shall “ensure equal work opportunities
other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute regardless of sex, race or creed.” It would be an affront to both the spirit and letter of these
or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the provisions if the State, in spite of its primordial obligation to promote and ensure equal employment
grouping, or the lack thereof, among several similar enactments made over a period of time? opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment.
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that xxx xxx xxx
each exemption (granted to the seven other GFIs) rests “on a policy determination by the legislature.” All Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7
legislative enactments necessarily rest on a policy determination—even those that have been declared to thereof, provides:
contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then The States Parties to the present Covenant recognize the right of everyone to the
no due process and equal protection challenges would ever prosper. There is nothing inherently enjoyment of just and [favorable] conditions of work, which ensure, in particular:92
90
92 SUPREME COURT REPORTS ANNOTATED
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Ang Ladlad LGBT Party vs. Commission on Elections
Ang Ladlad LGBT Party vs. Commission on Elections a. Remuneration which provides all workers, as a minimum, with:
sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the i. Fair wages and equal remuneration for work of equal value without distinction of
ramparts of protection of the Constitution. any kind, in particular women being guaranteed conditions of work not inferior to those
xxxx enjoyed by men, with equal pay for equal work;
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no xxx xxx xxx
characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction truism of “equal pay for equal work.” Persons who work with substantially equal qualifications, skill,
made by the law is not only superficial, but also arbitrary. It is not based on substantial distinctions that make effort and responsibility, under similar conditions, should be paid similar salaries.
real differences between the BSP rank-and-file and the seven other GFIs. x x x x
xxxx Under most circumstances, the Court will exercise judicial restraint in deciding questions of
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power.
definitely bears the unmistakable badge of invidious discrimination—no one can, with candor and fairness, Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion would be given
deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from deferential treatment.
the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis. But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of
xxxx prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be
Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty to strike
unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor
other jurisdictions and in international law. There should be no hesitation in using the equal protection clause committing the unconstitutional act is a private person or the government itself or one of its instrumentalities.
as a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the Oppressive acts will be struck down regardless of the character or nature of the actor.
social justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee
compel this approach. status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a
Apropos the special protection afforded to labor under our Constitution and international law, we held benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation
in International School Alliance of Educators v. Quisumbing: packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the
That public policy abhors inequality and discrimination is beyond contention. Our Constitution rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the
and laws reflect the policy against these evils. The Constitution in the Article on Social Justice and strictly regimented rates of the SSL while employees higher in rank—possessing higher and better education
Human Rights exhorts Congress to “give highest priority to the enactment of measures that protect and opportunities for career advancement—are given higher compensation packages to
and enhance the right of all people to human dignity, reduce social, 93
91
VOL. 618, APRIL 8, 2010 93
VOL. 618, APRIL 8, 2010 91
Ang Ladlad LGBT Party vs. Commission on Elections
Ang Ladlad LGBT Party vs. Commission on Elections entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose
economic, and political inequalities.” The very broad Article 19 of the Civil Code requires every status and rank in life are less and limited, especially in terms of job marketability, it is they—and not the
person, “in the exercise of his rights and in the performance of his duties, [to] act with justice, give officers—who have the real economic and financial need for the adjustment. This is in accord with the policy
everyone his due, and observe honesty and good faith.” of the Constitution “to free the people from poverty, provide adequate social services, extend to them a decent
International law, which springs from general principles of law, likewise proscribes standard of living, and improve the quality of life for all.” Any act of Congress that runs counter to this
discrimination. General principles of law include principles of equity, i.e., the general principles of constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.” (citations omitted
fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human and italics supplied)
Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Corollarily, American case law provides that a state action questioned on equal protection
Convention on the Elimination of All Forms of Racial Discrimination, the Convention against grounds is subject to one of three levels of judicial scrutiny. The level of review, on a sliding scale
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation—all embody the general principle against discrimination, the very
basis, varies with the type of classification utilized and the nature of the right affected. 30
antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this If a legislative classification disadvantages a “suspect class” or impinges upon the exercise of
principle as part of its national laws. a “fundamental right,” then the courts will employ strict scrutiny and the statute must fall unless
In the workplace, where the relations between capital and labor are often skewed in favor of the government can demonstrate that the classification has been precisely tailored to serve a
capital, inequality and discrimination by the employer are all the more reprehensible. compelling governmental interest. Over the years, the United States Supreme Court has
31
determined that suspect classes for equal protection purposes include classifications based on race, 40 Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Cornerstone Christian Schools v. University Interscholastic League,
563 F.3d 127, 243 Ed. Law Rep. 609 (5th Cir. 2009); Independent Charities of America, Inc. v. State of Minn., 82 F.3d 791
religion, alienage, national origin, and ancestry. The under-
32
(8th Cir. 1996); Bah v. City of Atlanta, 103 F.3d 964 (11th Cir. 1997).
_______________ 41 Varnum v. Brien, 763 N.W.2d 862 (2009) citing the following passage from Plyler v. Doe, 457 U.S. 202, 216, 102
S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982):
30 Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504. Several formulations might explain our treatment of certain classifications as “suspect.” Some classifications are more
31 16B Am. Jur. 2d Constitutional Law § 857, citing Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed. 2d 465 likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.
(1988); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794, 9 Ed. Law Rep. 23 Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each
(1983); Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997); Baker v. City of Ottumwa, 560 N.W.2d 578 (Iowa person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be
1997); Zempel v. Uninsured Employers’ Fund, 282 Mont. 424, 938 P.2d 658 (1997); Hovland v. City of Grand Forks, 1997 irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been
ND 95, 563 N.W.2d 384 (N.D. 1997). “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian po-
32 Murray v. State of Louisiana, 2010 WL 334537. See Burlington N. R.R. Co. v. Ford, 112 S.Ct. 2184, 2186 (1992) 96
(holding classification based on religion is a suspect classification); Graham v.
94 96 SUPREME COURT REPORTS ANNOTATED
94 SUPREME COURT REPORTS ANNOTATED Ang Ladlad LGBT Party vs. Commission on Elections
(1) The history of invidious discrimination against the class burdened by the
Ang Ladlad LGBT Party vs. Commission on Elections
legislation; 42
lying rationale of this theory is that where legislation affects discrete and insular minorities, the (2) Whether the characteristics that distinguish the class indicate a typical class
presumption of constitutionality fades because traditional political processes may have broken member’s ability to contribute to society; 43
down. In such a case, the State bears a heavy burden of justification, and the government action
33
_______________
will be closely scrutinized in light of its asserted purpose. 34
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to litical process.” The experience of our Nation has shown that prejudice may manifest itself in the treatment of some
recurring constitutional difficulties, or if a classification disadvantages a “quasi-suspect class,” it groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation
will be treated under intermediate or heightened review. To survive intermediate scrutiny, the law
35 imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of
“class or caste” treatment that the Fourteenth Amendment was designed to abolish.
must not only further an important governmental interest and be substantially related to that 42 See United States v. Virginia, 518 U.S. at 531-32, 116 S.Ct. at 2274-75, 135 L.Ed.2d at 750 (observing ‘long and
interest, but the justification for the classification must be genuine and must not depend on broad unfortunate history of sex discrimination” (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36
generalizations. Noteworthy, and of special interest to us in this case, quasi-suspect classes
36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91
L.Ed.2d 527, 533 (1986) (noting subject class had “not been subjected to discrimination”); City of Cleburne v. Cleburne
include classifications based on gender or illegitimacy. 37
Living Ctr., 473 U.S. 432 at 443, 105 S.Ct. at 3256, 87 L.Ed.2d at 332 (mentally retarded not victims of “continuing antipathy
_______________ or prejudice”); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976) (considering
“history of purposeful unequal treatment” (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278,
Richardson, 91 S.Ct. 1848, 1852 (1971) (holding classification based on alienage is a suspect classification); Loving v. 1294, 36 L.Ed.2d 16, 40 [1973]).
Virginia, 87 S.Ct. 1817, 1823 (1967) (holding classification based on race is a suspect classification); Oyama v. California, 68 43 See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain classifications merely “reflect
S.Ct. 269, 274-74 (1948) (holding classification based on national origin is a suspect classification); Hirabayashi v. U.S., 63 prejudice and antipathy”); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098
S.Ct. 1375 (1943) (holding classification based on ancestry is a suspect classification). (1982) (“Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic
notions.”); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525 (considering whether aged have “been subjected to
unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities”); Frontiero, 411 U.S. at 686,
33 Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).
93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) (“[T]he sex characteristic frequently bears no relation to
34 Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393 U.S. 385, 89 S. Ct.
ability to perform or contribute to society.”).
557, 21 L. Ed. 2d 616 (1969); McLaughlin v. State of Fla., 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964).
97
35 Supra note 31.
36 United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996). VOL. 618, APRIL 8, 2010 97
37 Murray v. State of Louisiana, supra note 32. See Mississippi University for Women v. Hogan, 102 S.Ct. 3331, 3336
(1982) (holding classifications based on gender calls for heightened standard of review); Trimble v. Gordon, 97 S.Ct. 1459, Ang Ladlad LGBT Party vs. Commission on Elections
1463 (1977) (holding illegitimacy is a quasi-suspect classification).
(3) Whether the distinguishing characteristic is “immutable” or beyond the class
95
members’ control; and 44
VOL. 618, APRIL 8, 2010 95 (4) The political power of the subject class. 45
Ang Ladlad LGBT Party vs. Commission on Elections These factors, it must be emphasized, are notconstitutive essential elements of a suspect or
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere quasi-suspect class, as to individually demand a certain weight. The U.S. Supreme Court has46
rationality. This is a relatively relaxed standard reflecting the Court’s awareness that the drawing
38 applied the four factors in a flexible manner; it has neither required, nor even discussed, every
of lines which creates distinctions is peculiarly a legislative task and an unavoidable one. The 39 factor in every case. Indeed, no single talisman can define those
47
_______________
presumption is in favor of the classification, of the reasonableness and fairness of state action, and
of legitimate grounds of distinction, if any such grounds exist, on which the State acted. 40
44 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives “do not exhibit obvious, immutable, or
Instead of adopting a rigid formula to determine whether certain legislative classifications distinguishing characteristics that define them as a discrete group”); Cleburne Living Ctr., 473 U.S. at 442, 105 S.Ct. at 3255-
warrant more demanding constitutional analysis, the United States Supreme Court has looked to 56, 87 L.Ed.2d at 322 (mentally retarded people are different from other classes of people, “immutably so, in relevant
four factors, thus:
41 respects”); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396, 72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have
_______________ “legal characteristic[s] over which children can have little control”); Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755,
2762, 49 L.Ed.2d 651, 660 (1976) (status of illegitimacy “is, like race or national origin, a characteristic determined by causes
not within the control of the illegitimate individual”); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591
38 Supra note 31. (Brennan, J., plurality opinion) (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the
39 Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513 accident of birth....”).
(1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); Costner v. U.S., 45 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household are “not a minority
720 F.2d 539 (8th Cir. 1983). or politically powerless”); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87 L.Ed.2d at 324 (refusing to find “that
the mentally retarded are politically powerless”); San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at (d) Effeminate youths and masculine young women are refused admission from (sic) certain
40 (considering whether minority and poor school children were “relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process”).
schools, are suspended or are automatically put on probation;
46 Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008). (e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual
47 Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466 U.S. 429, 433-34, 104 S.Ct. 1879, 1882-83, 80 orientation and gender identity is (sic) revealed;
L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 _______________
98
98 SUPREME COURT REPORTS ANNOTATED 52 Id.; Kerrigan v. Commissioner of Public Health, supra note 46.
53 Kerrigan v. Commissioner of Public Health, id.
Ang Ladlad LGBT Party vs. Commission on Elections 100
groups likely to be the target of classifications offensive to the equal protection clause and 100 SUPREME COURT REPORTS ANNOTATED
therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the
primary guide. 48 Ang Ladlad LGBT Party vs. Commission on Elections
In any event, the first two factors—history of intentional discrimination and relationship of (f) Consensual partnerships or relationships by gays and lesbians who are already of age, are
classifying characteristic to a person’s ability to contribute—have always been present when broken up by their parents or guardians using the [A]nti-kidnapping [L]aw;
heightened scrutiny has been applied. They have been critical to the analysis and could be
49 (g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to
considered as prerequisites to concluding a group is a suspect or quasi-suspect class. However, 50 “reform” them;
the last two factors—immutability of the characteristic and political powerlessness of the group— (h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to
are considered simply to supplement the analysis as a means to discern whether a need for cure them[,] despite the de-listing (sic) of homosexuality and lesbianism as a mental
heightened scrutiny exists. 51 disorder by the American Psychiatric Association;
(i) Transgenders, or individuals who were born mail (sic) but who self-identity as women
_______________ and dress as such, are denied entry or services in certain restaurants and establishments;
and
U.S. 1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning immutability requirement and (j) Several murders from the years 2003-3006 were committed against gay men, but were
scrutinizing classification of resident aliens closely despite aliens’ voluntary status as residents); Mathews, 427 U.S. at 505-06, not acknowledged by police as hate crimes or violent acts of bigotry.
96 S.Ct. at 2762-63, 49 L.Ed.2d at 660-61 (according heightened scrutiny to classifications based on illegitimacy despite
mutability and political power of illegitimates); Murgia, 427 U.S. at 313-14, 96 S.Ct. at 2567, 49 L.Ed.2d at 525 (omitting any 7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young
reference to immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at 1292, 36 L.Ed.2d at 38 (omitting any gay person in the Philippines, he was subjected to a variety of sexual abuse and violence,
reference to immutability); Frontiero, 411 U.S. at 685-88, 93 S.Ct. at 1770-71, 36 L.Ed.2d at 591-92 (Brennan, J., plurality including repeated rapes[,] which he could not report to [the] police [or speak of] to his own
opinion) (scrutinizing classification based on gender closely despite political power of women); Graham v. Richardson, 403
U.S. 365, 371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541-42 (1971) (foregoing analysis of immutability); see also Lyng,
parents.”
477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (referring to whether members of the class “exhibit obvious, immutable, Accordingly, this history of discrimination suggests that any legislative burden placed on
or distinguishing characteristics that define them as a discrete group”). lesbian and gay people as a class is “more likely than others to reflect deep-seated prejudice rather
48 Concurring and Dissenting Opinion of Mr. Justice Thurgood Marshall in Cleburne v. Cleburne Living Center, than legislative rationality in pursuit of some legitimate objective.” 54
Inc., infra.
49 Varnum v. Brien, supra note 41. A second relevant consideration is whether the character-in-issue is related to the person’s
50 Id. ability to contribute to society. Heightened scrutiny is applied when the classification bears no
55
51 Id. relationship to this ability; the existence of this factor indicates the classification is likely based on
99
irrelevant stereotypes and prejudice. Insofar as sexual orientation is
56
VOL. 618, APRIL 8, 2010 99 _______________
Ang Ladlad LGBT Party vs. Commission on Elections 54 Varnum v. Brien, supra note 41.
Guided by this framework, and considering further that classifications based on sex or gender 55 Id.
—albeit on a male/ 56 Id.
101
female, man/woman basis—have been previously held to trigger heightened scrutiny, I
respectfully submit that classification on the basis of sexual orientation (i.e., homosexuality and/or VOL. 618, APRIL 8, 2010 101
bisexuality) is a quasi-suspect classification that prompts intermediate review.
Ang Ladlad LGBT Party vs. Commission on Elections
The first consideration is whether homosexuals have suffered a history of purposeful unequal
concerned, it is gainful to repair to Kerrigan v. Commissioner of Public Health, viz.: 57
treatment because of their sexual orientation. One cannot, in good faith, dispute that gay and
52
“The defendants also concede that sexual orientation bears no relation to a person’s ability to participate
lesbian persons historically have been, and continue to be, the target of purposeful and pernicious in or contribute to society, a fact that many courts have acknowledged, as well. x x x If homosexuals were
discrimination due solely to their sexual orientation. Paragraphs 6 and 7 of Ang Ladlad’s Petition
53
afflicted with some sort of impediment to their ability to perform and to contribute to society, the entire
for Registration for party-list accreditation in fact state: phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist; their impediment would betray
“6. There have been documented cases of discrimination and violence perpetuated against their status. x x x In this critical respect, gay persons stand in stark contrast to other groups that have been
the LGBT Community, among which are: denied suspect or quasi-suspect class recognition, despite a history of discrimination, because the
(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them distinguishing characteristics of those groups adversely affect their ability or capacity to perform certain
conform to standard gender norms of behavior; functions or to discharge certain responsibilities in society. 58
Unlike the characteristics unique to those groups, however, “homosexuality bears no relation at all to [an]
(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, individual’s ability to contribute fully to society.” Indeed, because an individual’s homosexual orientation
59
so as] to “cure” them into becoming straight women; “implies no impairment in judgment, stability, reliability or general social or vocational capabilities”; the
60
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because observation of the United States Supreme Court that race, alienage and
of their identity; _______________
57 Supra note 46. Applying this standard, it would not be difficult to conclude that gay persons are entitled to
58 See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 442, 105 S.Ct. 3249 (for purposes of federal constitution, mental
retardation is not quasi-suspect classification because, inter alia, “it is undeniable ... that those who are mentally retarded have a reduced ability to heightened constitutional
cope with and function in the everyday world”); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 315, 96 S.Ct. 2562 (age is not suspect _______________
classification because, inter alia, “physical ability generally declines with age”); see also Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395,
115 L.Ed.2d 410 (1991) (“[i]t is an unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age”).
59 L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-33, p. 1616. 67 Id., citing Kerrigan v. Commissioner of Public Health, supra note 46.
60 Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991) (quoting 1985 Resolution of the American Psychological Association), 976 F.2d 623 68 Id., citing In re Marriage Cases, 183 P.3d at 442.
(10th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). 69 Id., citing Kerrigan v. Commissioner of Public Health, supra note 46.
102
70 Id.
102 SUPREME COURT REPORTS ANNOTATED 71 Kerrigan v. Commissioner of Public Health, supra note 46.
72 Varnum v. Brien, supra note 41, citing Kerrigan v. Commissioner of Public Health, supra note 46.
Ang Ladlad LGBT Party vs. Commission on Elections 73 Id.
national origin—all suspect classes entitled to the highest level of constitutional protection—“are so seldom 104
relevant to the achievement of any legitimate state interest that laws grounded in such considerations are 104 SUPREME COURT REPORTS ANNOTATED
deemed to reflect prejudice and antipathy” is no less applicable to gay persons.” (italics supplied)
61
Clearly, homosexual orientation is no more relevant to a person’s ability to perform and Ang Ladlad LGBT Party vs. Commission on Elections
contribute to society than is heterosexual orientation. 62 protection despite some recent political progress. The discrimination that they have suffered has
74
A third factor that courts have considered in determining whether the members of a class are been so pervasive and severe—even though their sexual orientation has no bearing at all on their
entitled to heightened protection for equal protection purposes is whether the attribute or ability to contribute to or perform in society—that it is highly unlikely that legislative enactments
characteristic that distinguishes them is immutable or otherwise beyond their control. Of course, 63 alone will suffice to eliminate that discrimination. Furthermore, insofar as the LGBT community
75
the characteristic that distinguishes gay persons from others and qualifies them for recognition as a plays a role in the political process, it is apparent that their numbers reflect their status as a small
distinct and discrete group is the characteristic that historically has resulted in their social and legal and insular minority. 76
ostracism, namely, their attraction to persons of the same sex. 64 It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals
Immutability is a factor in determining the appropriate level of scrutiny because the inability and trans-genders out for disparate treatment is subject to heightened judicial scrutiny to ensure
of a person to change a characteristic that is used to justify different treatment makes the that it is not the product of historical prejudice and stereotyping. 77
discrimination violative of the rather “ ‘basic concept of our system that legal burdens should bear In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate
some relationship to individual responsibility.’ ” However, the constitutional relevance of the
65 level of review. Regrettably, they betray no more than bigotry and intolerance; they raise the
immutability factor is not reserved to those instances in which the trait defining the burdened class inevitable inference that the disadvantage imposed is born of animosity toward the class of persons
is absolutely impossible to change. That is, the immutability prong of the suspectness inquiry
66 affected (that is, lesbian, gay, bisexual and trans-gendered individuals). In our constitutional
78
surely is satisfied when the system, status-based classification undertaken for its own sake cannot survive. 79
_______________ FOURTH. It has been suggested that the LGBT community cannot participate in the party-list
system because it is not a “marginalized and underrepresented sector” enumerated either in the
61 Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 440, 105 S.Ct. 3249. Constitution or Republic Act No. (RA)
80
62 Kerrigan v. Commissioner of Public Health, supra note 46. _______________
63 Id.
64 Id.
65 Varnum v. Brien, supra note 41. 74 Kerrigan v. Commissioner of Public Health, supra note 46.
66 Id. 75 Id.
103 76 Id.
77 Id.
VOL. 618, APRIL 8, 2010 103 78 Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620.
79 Id.
Ang Ladlad LGBT Party vs. Commission on Elections 80 Section 5(2), Article VI of the 1987 Constitution states, in relevant part:
identifying trait is “so central to a person’s identity that it would be abhorrent for government to SECTION 5. x x x x
105
penalize a person for refusing to change [it].” 67
Prescinding from these premises, it is not appropriate to require a person to repudiate or VOL. 618, APRIL 8, 2010 105
change his or her sexual orientation in order to avoid discriminatory treatment, because a person’s Ang Ladlad LGBT Party vs. Commission on Elections
sexual orientation is so integral an aspect of one’s identity. Consequently, because sexual 68
7941. However, this position is belied by our ruling in Ang Bagong Bayani-OFW Labor
81
orientation “may be altered [if at all] only at the expense of significant damage to the individual’s Party v. COMELEC, where we clearly held that the enumeration of marginalized and
82
sense of self,” classifications based thereon “are no less entitled to consideration as a suspect or underrepresented sectors in RA 7941 is not exclusive.
quasi-suspect class than any other group that has been deemed to exhibit an immutable I likewise see no logical or factual obstacle to classifying the members of the LGBT
characteristic.” Stated differently, sexual orientation is not the type of human trait that allows
69
community as marginalized and underrepresented, considering their long history (and indeed,
courts to relax their standard of review because the barrier is temporary or susceptible to self- ongoing narrative) of persecution, discrimination, and pathos. In my humble view,
help. 70
marginalization for purposes of party-list representation encompasses social marginalization
The final factor that bears consideration is whether the group is “a minority or politically as well. To hold otherwise is tantamount to trivializing socially marginalized groups as “mere
powerless.” However, the political powerlessness factor of the level-of-scrutiny inquiry does not
71
passive recipients
require a showing of absolute political powerlessness. Rather, the touchstone of the analysis
72
_______________
should be “whether the group lacks sufficient political strength to bring a prompt end to the
prejudice and discrimination through traditional political means.” 73
(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including
those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated
to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, selection or election from the labor, peasant, urban poor, indigenous cultural communities, women,
indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. youth, and such other sectors as may be provided by law, except the religious sector.” (emphasis supplied)
(italics supplied)
81 On the other hand, Section 5 of RA 7941 provides:
The Constitution left the matter of determining the groups or sectors that may qualify as
SECTION 5. Registration.—Any organized group of persons may register as a party, organization or coalition for “marginalized” to the hands of Congress. Pursuant to this constitutional mandate, RA 7941 or the
purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition Party-List System Act was enacted in 1995. The law provides:
verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral “Section 2. Declaration of policy.—The State shall promote proportional
party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or
program of government, list of officers, coalition agreement and other relevant information as the COMELEC may representation in the election of representatives to the House of Representatives through a party-
require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, list system of registered national, regional and sectoral parties or organizations or coalitions
elderly, handicapped, women, youth, veterans, overseas workers, and professionals. (italics supplied) thereof, which will enable Filipino citizens belonging to marginalized and under-represented
82 G.R. No. 147589, June 26, 2001, 359 SCRA 698.
106
sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit
106 SUPREME COURT REPORTS ANNOTATED the nation as
Ang Ladlad LGBT Party vs. Commission on Elections _______________
of the State’s benevolence” and denying them the right to “participate directly [in the mainstream
of representative democracy] in the enactment of laws designed to benefit them.” The party-list 83 1 Republic Act.
system could not have been conceptualized to perpetuate this injustice. 108
Accordingly, I vote to grant the petition. 108 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
DISSENTING OPINION
a whole, to become members of the House of Representatives. Towards this end, the State shall
develop and guarantee a full, free and open party system in order to attain the broadest possible
CORONA, J.: representation of party, sectoral or group interests in the House of Representatives by enhancing
Stripped of the complicated and contentious issues of morality and religion, I believe the basic their chances to compete for and win seats in the legislature, and shall provide the simplest scheme
issue here is simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of the possible.
Constitution and RA 7941, as a marginalized and underrepresented sector in the party-list system? x x x x x x x x x
The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the Section 5. Registration.—Any organized group of persons may register as a party,
respondent Commission on Elections as a political organization of a marginalized and organization or coalition for purposes of the party-list system by filing with the COMELEC not
underrepresented sector under the party-list system. Finding that petitioner is not a marginalized later than ninety (90) days before the election a petition verified by its president or secretary
sector under RA 7941, the Commission on Elections denied its petition. stating its desire to participate in the party-list system as a national, regional or sectoral party or
A System For Marginalized organization or a coalition of such parties or organizations, attaching thereto its constitution, by-
And Underrepresented Sectors laws, platform or program of government, list of officers, coalition agreement and other relevant
The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the information as the COMELEC may require: Provided, That the sectors shall include labor,
advancement of social justice with the fundamental purpose of affording opportunity to peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
marginalized and underrepresented sectors to participate in the shaping of public policy and the women, youth, veterans, overseas workers, and professionals.
crafting of national laws. It is premised on the proposition that the advancement of the interests of The COMELEC shall publish the petition in at least two (2) national newspapers of general
the marginalized sectors contributes to the advancement of the common good and of our nation’s circulation.
democratic ideals. The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15)
_______________
days from the date it was submitted for decision but in no case not later than sixty (60) days before
election.
1 Id.
107 Section 6. Refusal and/or Cancellation of Registration.—The COMELEC may, motu
propio or upon verified complaint of any interested party, refuse or cancel, after due notice and
VOL. 618, APRIL 8, 2010 107 hearing, the registration of any national, regional or sectoral party, organization or coalition on any
Ang Ladlad LGBT Party vs. Commission on Elections of the following grounds:
But who are the marginalized and underrepresented sectors for whom the party-list system (1) It is a religious sect or denomination, organization or association, organized for religious
was designed? purposes;
The Texts of the Constitution (2) It advocates violence or unlawful means to seek its goal;
And of RA 7941
1 (3) It is a foreign party or organization;
The resolution of a constitutional issue primarily requires that the text of the fundamental law (4) It is receiving support from any foreign government, foreign political party, foundation,
be consulted. Section 5(2), Article VI of the Constitution directs the course of our present inquiry. organization, whether directly or through any of its officers or members or indi-
It provides: 109
“SEC. 5. x x x VOL. 618, APRIL 8, 2010 109
(2) The party-list representatives shall constitute twenty per centum of the total number of
Representatives including those under the party-list. For three consecutive terms after the ratification of this Ang Ladlad LGBT Party vs. Commission on Elections
Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by rectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
Ang Ladlad LGBT Party vs. Commission on Elections
(7) It has ceased to exist for at least one (1) year; or
Where the language of the law is clear, it must be applied according to its express terms.
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least
The marginalized and underrepresented sectors to be represented under the party-list
two per centum (2%) of the votes cast under the party-list system in the two (2) preceding
system are enumerated in Section 5 of RA 7941, which states:
elections for the constituency in which it has registered. (emphasis supplied)
“SEC. 5. Registration.—Any organized group of persons may register as a party,
The Court’s Previous Pronouncements
organization or coalition for purposes of the party-list system by filing with the
As the oracle of the Constitution, this Court divined the intent of the party-list system and
COMELEC not later than ninety (90) days before the election a petition verified by its
defined its meaning in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections: 2
president or secretary stating its desire to participate in the party-list system as a national,
“That political parties may participate in the party-list elections does not mean, however,
regional or sectoral party or organization or a coalition of such parties or organizations,
that any political party—or any organization or group for that matter—may do so. The
attaching thereto its constitution, by-laws, platform or program of government, list of
requisite character of these parties or organizations must be consistent with the purpose of
officers, coalition agreement and other relevant information as the COMELEC may
the party-list system, as laid down in the Constitution and RA 7941. x x x
require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor,
The Marginalized and Underrepresented to Become Lawmakers Themselves
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by
workers, and professionals.”
means of the Filipino-style party-list system, which will “enable” the election to the House of
While the enumeration of marginalized and underrepresented sectors is not exclusive, it
Representatives of Filipino citizens,
demonstrates the clear intent of the law that not all sectors can be represented under the
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
party-list system. It is a fundamental principle of statutory construction that words employed in a
2. who lack well-defined constituencies; but
_______________ statute are interpreted in connection with, and their meaning is ascertained by reference to, the
words and the phrases with which they are associated or related. Thus, the meaning of a term in a
2 412 Phil. 308; 359 SCRA 698 (2001). statute may be limited, qualified or specialized by those in immediate association.
110 x x x x x x x x x
110 SUPREME COURT REPORTS ANNOTATED
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot
be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are
Ang Ladlad LGBT Party vs. Commission on Elections manifestly disparate; hence, the OSG’s position to treat them similarly defies reason and common
3. who could contribute to the formulation and enactment of appropriate legislation that sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the
will benefit the nation as a whole. Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-
The key words in this policy are “proportional representation,” “marginalized and list system as representatives of their respective sectors.
underrepresented,” and “lack [of] well-defined constituencies.” While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they
“Proportional representation” here does not refer to the number of people in a particular are neither marginalized nor under-112
district, because the party-list election is national in scope. Neither does it allude to numerical
112 SUPREME COURT REPORTS ANNOTATED
strength in a distressed or oppressed group. Rather, it refers to the representation of the
“marginalized and underrepresented” as exemplified by the enumeration in Section 5 of the Ang Ladlad LGBT Party vs. Commission on Elections
law; namely, “labor, peasant, fisherfolk, urban poor, indigenous cultural communities, represented, for the stark reality is that their economic clout engenders political power more
elderly, handicapped, women, youth, veterans, overseas workers, and professionals.” awesome than their numerical limitation. Traditionally, political power does not necessarily
However, it is not enough for the candidate to claim representation of the marginalized and emanate from the size of one’s constituency; indeed, it is likely to arise more directly from the
underrepresented, because representation is easy to claim and to feign. The party-list number and amount of one’s bank accounts.
organization or party must factually and truly represent the marginalized and It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority
underrepresented constituencies mentioned in Section 5.Concurrently, the persons nominated who wallow in poverty, destitution and infirmity. It was for them that the party-list system was
by the party-list candidate-organization must be “Filipino citizens belonging to marginalized and enacted—to give them not only genuine hope, but genuine power; to give them the opportunity to
underrepresented sectors, organizations and parties.” be elected and to represent the specific concerns of their constituencies; and simply to give them a
Finally, “lack of well-defined constituenc[y]” refers to the absence of a traditionally direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list
identifiable electoral group, like voters of a congressional district or territorial unit of government. system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites
Rather, it points again to those with disparate interests identified with the “marginalized or those marginalized and underrepresented in the past—the farm hands, the fisherfolk, the
underrepresented.” urban poor, even those in the underground movement—to come out and participate, as
In the end, the role of the Comelec is to see to it that only those Filipinos who are indeed many of them came out and participated during the last elections. The State cannot now
“marginalized and underrepresented” become members of Congress under the party-list disappoint and frustrate them by disabling and desecrating this social justice vehicle.
system, Filipino-style. x x x x x x x x x
The intent of the Constitution is clear: to give genuine power to the people, not only by giving Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats
more law to those who have less in life, but more so by enabling them to become veritable under the party-list system would not only dilute, but also prejudice the chance of the
lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, marginalized and underrepresented, contrary to the intention of the law to enhanceit. The party-
is likewise clear: “to enable Filipino citizens belonging to marginalized and underrepresented list system is a tool for the benefit of the underprivileged; the law could not have given the same
sectors, organizations and parties, x x x, to become members of the House of Representatives.” tool to others, to the prejudice of the intended beneficiaries.
111 This Court, therefore, cannot allow the party-list system to be sullied and prostituted by
VOL. 618, APRIL 8, 2010 111 those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be
snuffed out. The clear state policy must permeate every discussion of the qualification of political 8 Section 22, Article II; Section 5, Article XII.
9 Section 14, Article II; Section 14, Article XIII.
parties and other organizations under the party-list system.” (emphasis and underscoring supplied) 10 Section 13, Article II; Section 3(2), Article XV.
Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system 11 Section 7, Article XVI.
is reserved only for those sectors marginalized and underrepresented in the past (e.g., labor, 12Paragraph three of Section 2, Article XII, Section 7, Article XIII.
peasant, fisherfolk, urban poor, indigenous cultural 13 Section 11, Article XIII.
14 Sections 11 and 13 XIII.5
113
156Section 18, Article II; Section 3, Article XIII.
VOL. 618, APRIL 8, 2010 113 16 Section 14, Article XII.
115
Ang Ladlad LGBT Party vs. Commission on Elections
VOL. 618, APRIL 8, 2010 115
communities, elderly, handicapped, women, youth, veterans, overseas workers, professionals and
even those in the underground movement who wish to come out and participate). They are those Ang Ladlad LGBT Party vs. Commission on Elections
sectors traditionally and historically marginalized and deprived of an opportunity to participate The long-muffled voices of marginalized sectors must be heard because their respective
in the formulation of national policy although their sectoral interests are also traditionally and interests are intimately and indispensably woven into the fabric of the national democratic agenda.
historically regarded as vital to the national interest. That is why Section 2 of RA 7941 speaks The social, economic and political aspects of discrimination and marginalization should not be
of “marginalized and under-represented sectors, organizations and parties, and who lack well- divorced from the role of a particular sector or group in the advancement of the collective goals of
defined political constituencies but who could contribute to the formulation and enactment of Philippine society as a whole. In other words, marginalized sectors should be given a say in
appropriate legislation that will benefit the nation as a whole.” governance through the party-list system, not simply because they desire to say something
How should the matter of whether a particular sectoral interest is vital to national interest (and constructive but because they deserve to be heard on account of their traditionally and historically
therefore beneficial to the nation as a whole) be determined? Chief Justice Reynato S. Puno’s decisive role in Philippine society.
opinion in Barangay Association for National Advancement and Transparency (BANAT) v.
3
A Unifying Thread
Commission on Elections offers valuable insight:
4
Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its
“… Similarly, limiting the party-list system to the marginalized and excluding the major political parties from function as official interpreter of the Constitution, the Court should always bear in mind that
participating in the election of their representatives is aligned with the constitutional mandate to “reduce social, judicial prudence means that it is safer to construe the Constitution from what appears upon its
economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and face. 17
political power for the common good”; the right of the people and their organizations to effective and
With regard to the matter of what qualifies as marginalized and underrepresented sectors
reasonable participation at all levels of social, political, and economic decision-making; the right of women to
opportunities that will enhance their welfare and enable them to realize their full potential in the service of the under the party-list system, Section 5(2), Article VI of the Constitution mentions “the labor,
nation; the right of labor to participate in policy and decision-making processes affecting their rights and peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as
benefits in keeping with its role as a primary social may be provided by law, except the religious sector.” On the other hand, the law speaks of “labor,
_______________ peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals.” 18
3 The Chief Justice’s stance is the official stance of the Court on the matter because majority of the members of the Court sided with him on
the issue of disallowing major political parties from participating in the party-list elections, directly or indirectly.
Surely, the enumeration of sectors considered as marginalized and underrepresented in the
4 G.R. No. 179271, 21 April 2009, 586 SCRA 210, 258-259. fundamental law and in the implementing law (RA 7941) cannot be without significance. To
114 ignore them is to disregard the texts of the Constitution
114 SUPREME COURT REPORTS ANNOTATED _______________
Ang Ladlad LGBT Party vs. Commission on Elections 17 Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 22 February 1991, 194 SCRA 317, 337.
economic force; the right of teachers to professional advancement; the rights of indigenous cultural 18 See proviso of the first paragraph of Section 5, RA 7941.
communities to the consideration of their cultures, traditions and institutions in the formulation of national 116
plans and policies, and the indispensable role of the private sector in the national economy.”
116 SUPREME COURT REPORTS ANNOTATED
As such, the interests of marginalized sectors are by tradition and history vital to national
interest and therefore beneficial to the nation as a whole because the Constitution declares a Ang Ladlad LGBT Party vs. Commission on Elections
national policy recognizing the role of these sectors in the nation’s life. In other words, the concept and of RA 7941. For, indeed, the very first of Ang Bagong Bayani-OFW Labor Party’s eight
of marginalized and underrepresented sectors under the party-list scheme has been carefully guidelines for screening party-list participants is this: the parties, sectors or organizations “must
refined by concrete examples involving sectors deemed to be significant in our legal tradition. represent the marginalized and underrepresented groups identified in Section 5 of RA 7941.” 19
They are essentially sectors with a constitutional bond, that is, specific sectors subject of specific For this reason, I submit the majority’s decision is cryptic and wanting when it makes short
provisions in the Constitution, namely, labor, peasant, urban poor, indigenous cultural
5 6 7
shrift of the issue of whether petitioner is a marginalized and underrepresented sector in the
communities, women, youth, veterans, fisherfolk, elderly, handicapped, overseas
8 9 10 11 12 13 14
following manner:
workers and professionals.
15 16 “The crucial element is not whether a sector is specifically enumerated, but whether a particular
The premise is that the advancement of the interests of these important yet traditionally and organization complies with the requirements of the Constitution and RA 7941.”
historically marginalized sectors promotes the national interest. The Filipino people as a whole are The resolution of petitions for accreditation in the party-list system on a case-to-case basis not
benefited by the empowerment of these sectors. tethered to the enumeration of the Constitution and of RA 7941 invites the exercise of unbridled
_______________ discretion. Unless firmly anchored on the fundamental law and the implementing statute, the
party-list system will be a ship floating aimlessly in the ocean of uncertainty, easily tossed by
5 Section 18, Article II; Section 3, Article XIII. sudden waves of flux and tipped by shifting winds of change in societal attitudes towards certain
6 Section 21, Article II; Section 4, Article XIII. groups. Surely, the Constitution and RA 7941 did not envision such kind of a system.
7 Section 9, Article II; Section 10, Article XIII.
Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Hence, other sectors that may qualify as marginalized and underrepresented should have a close
Section 5 of RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party: connection to the sectors mentioned in the Constitution and in the law. In other words, the
“Proportional representation” here does not refer to the number of people in a particular district, because marginalized and underrepresented sectors qualified to participate in the party-list system refer
the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or only to the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
oppressed group. Rather, it refers to the representation of the “marginalized and underrepresented” as handicapped, women, youth, veterans, overseas workers, professionals and other related or
exemplified by the enumeration in Section 5 of the law; namely, “labor, peasant, fisherfolk, urban poor,
similar sectors.
indigenous cultural
_______________ This interpretation is faithful to and deeply rooted in the language of the fundamental law and
of its implementing statute. It is coherent with the mandate of the Constitution that marginalized
19 Supra note 2 at 342. sectors qualified to participate in the party-list system but not mentioned in Section 5(2), Article
117 VI are
VOL. 618, APRIL 8, 2010 117 119
Ang Ladlad LGBT Party vs. Commission on Elections VOL. 618, APRIL 8, 2010 119
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.” Ang Ladlad LGBT Party vs. Commission on Elections
However, it is not enough for the candidate to claim representation of the marginalized and “such other sectors as may be provided by law” duly enacted by Congress. It is also consistent
underrepresented, because representation is easy to claim and to feign. The party-list organization or party
must factually and truly represent the marginalized and underrepresented constituencies mentioned in
with the basic canon of statutory construction, ejusdem generis, which requires that a general word
Section 5. Concurrently, the persons nominated by the party-list candidate-organization must be “Filipino or phrase that follows an enumeration of particular and specific words of the same class, the
citizens belonging to marginalized and underrepresented sectors, organizations and parties.” general word or phrase should be construed to include, or to be restricted to persons, things or
x x x x x x x x x cases, akin to, resembling, or of the same kind or class as those specifically
The marginalized and underrepresented sectors to be represented under the party-list system mentioned. Moreover, it reins in the subjective elements of passion and prejudice that accompany
21
are enumerated in Section 5 of RA 7941, which states: discussions of issues with moral or religious implications as it avoids the need for complex
“SEC. 5. Registration.—Any organized group of persons may register as a party, organization balancing and undue policy-making.
or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety What is the unifying thread that runs through the marginalized and underrepresented sectors
(90) days before the election a petition verified by its president or secretary stating its desire to
participate in the party-list system as a national, regional or sectoral party or organization or a
under the party-list system? What are the family resemblances that would characterize them? 22
coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or Based on the language of the Constitution and of RA 7941 and considering the
program of government, list of officers, coalition agreement and other relevant information as the pronouncements of this Court in Ang Bagong Bayani-OFW Labor Party and BANAT, the
COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, following factors are significant:
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, (a) they must be among, or closely connected with or similar to, the sectors
and professionals.” mentioned in Section 5 of RA 7941;
While the enumeration of marginalized and underrepresented sectors is not exclusive, it (b) they must be sectors whose interests are traditionally and historically regarded as
demonstrates the clear intent of the law that not all sectors can be represented under the party-list vital to the national interest but they have long been relegated to the fringes
system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted _______________
in connection with, and their meaning is ascertained by reference to, the words and the phrases with which
they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or
21 Miranda v. Abaya, 370 Phil. 642, 658; 311 SCRA 617, 626 (1999).
specialized by those in immediate association.” (emphasis and underscoring supplied)
20
22 The notion of family resemblances (familienähnlichkeit) was introduced by the leading analytic philosopher,
_______________ Ludwig Wittgenstein, in his book Philosophical Investigations. As used in this opinion, however, family resemblances
specifically refer to the DNA, the basic component unit, that identifies a sector as a member of the family of marginalized and
20 Supra note 2. underrepresented sectors enumerated in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941.
118 120
118 SUPREME COURT REPORTS ANNOTATED 120 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad LGBT Party vs. Commission on Elections
More importantly, in defining the concept of a “sectoral party,” Section 3(d) of RA 7941 of society and deprived of an opportunity to participate in the formulation of national
limits “marginalized and underrepresented sectors” and expressly refers to the list in Section 5 policy;
thereof: (c) the vinculum that will establish the close connection with or similarity of sectors
“Section 3. Definition of Terms.—x x x to those expressly mentioned in Section 5 of RA 7941 is a constitutional provision
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors specifically recognizing the special significance of the said sectors (other than people’s
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of organizations, unless such people’s organizations represent sectors mentioned in Section 5
their sector, x x x.” (emphasis supplied) of RA 7941) to the advancement of the national interest and
23
Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its (d) while lacking in well-defined political constituencies, they must have regional or
charges of violation of non-establishment of religion, equal protection, free speech and free national presence to ensure that their interests and agenda will be beneficial not only to
association are all leveled at the assailed resolutions of the Commission on Elections.) Thus, their respective sectors but, more importantly, to the nation as a whole.
petitioner admits and accepts that its case must rise or fall based on the aforementioned provisions For Purposes of the Party-List System,
of RA 7941. Petitioner is Not a Marginalized Sector
Following the texts of the Constitution and of RA 7941, and in accordance with established
rules of statutory construction and the Court’s pronouncement in Ang Bagong Bayani-OFW Labor
Party, the meaning of “marginalized sectors” under the party list system is limited and qualified.
In this case, petitioner asserts that it is entitled to accreditation as a marginalized and Regardless of the personal beliefs and biases of its individual members, this Court can only
underrepresented sector under the party-list system. However, the Commission on Elections apply and interpret the Constitution and the laws. Its power is not to create policy but to recognize,
disagrees. review or reverse the policy crafted by the political departments if and when a proper case is
The majority reverses the Commission on Elections. While it focuses on the contentious brought before it. Otherwise, it will tread on the dangerous grounds of judicial legislation.
issues of morality, religion, equal protection, and freedom of expression and association, by In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the
granting the petition, the majority effectively rules that peti- Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it
_______________ enumerated certain sectors as qualified marginalized and underrepresented sectors under the party-
list system. Respect for that policy and fidelity to the Court’s duty in our scheme of government
23 The reason behind this exception is obvious. If all people’s organizations are automatically considered as require us to declare that only sectors expressly mentioned or closely related to those sectors
marginalized and underrepresented, then no sector or organization may be disqualified on the grounds of non-marginalization
and lack of underrepresentation. The Court’s guidelines in Ang Bagong Bayani-OFW Labor Party would have been mentioned in Section 5 of RA 7941 are qualified to participate in the party-list system. That is the
unnecessary after all and, worse, the constitutional requirement that the sectors qualified to participate in the party-list system tenor of the Court’s rulings in Ang Bagong Bayani-OFW Labor Party and BANAT.
be determined by law would have been merely superfluous and pointless. _______________
121
VOL. 618, APRIL 8, 2010 121 26Id.
123
Ang Ladlad LGBT Party vs. Commission on Elections
VOL. 618, APRIL 8, 2010 123
tioner is a qualified marginalized and underrepresented sector, thereby allowing its accreditation
and participation in the party-list system. Ang Ladlad LGBT Party vs. Commission on Elections
I disagree. As there is no strong reason for the Court to rule otherwise, stare decisis compels a similar
Even assuming that petitioner was able to show that the community of lesbians, gays, conclusion in this case.
bisexuals and transsexuals (LGBT) is underrepresented, it cannot be properly considered as The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather
marginalized under the party-list system. First, petitioner is not included in the sectors mentioned than expanding, legislative policy on the matter of marginalized sectors as expressed in the
in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Unless an overly strained enumeration in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2,
interpretation is resorted to, the LGBT sector cannot establish a close connection to any of the said 3(d) and 5 of RA 7941 in the guise of interpretation. The Constitution expressly and exclusively
sectors. Indeed, petitioner does not even try to show its link to any of the said sectors. Rather, it vests the authority to determine “such other [marginalized] sectors” qualified to participate in the
represents itself as an altogether distinct sector with its own peculiar interests and agenda. party-list system to Congress. Thus, until and unless Congress amends the law to include the
Second, petitioner’s interest as a sector, which is basically the legal recognition of its LGBT and other sectors in the party-list system, deference to Congress’ determination on the
members’ sexual orientation as a right, cannot be reasonably considered as an interest that is matter is proper.
traditionally and historically considered as vital to national interest. At best, petitioner may cite an A Final Word
emergent awareness of the implications of sexual orientation on the national human rights agenda. To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of
However, an emergent awareness is but a confirmation of lack of traditional and historical discriminatory and oppressive acts against its members. I am in no position to make that claim.
recognition. Moreover, even the majority admits that there is no “clear cut consensus favorable to
24 Nor do I claim that petitioner has no right to speak, to assemble or to access our political
gay rights claims.” 25 departments, particularly the legislature, to promote the interests of its constituency. Social
Third, petitioner is cut off from the common constitutional thread that runs through the perceptions of sexual and other moral issues may change over time, and every group has the right
marginalized and underrepresented sectors under the party-list system. It lacks the vinculum, a to persuade its fellow citizens that its view of such matters is the best. But persuading one’s
27
constitutional bond, a provision in the fundamental law that specifically recognizes the LGBT fellow citizens is one thing and insisting on a right to participate in the party-list system is
sector as specially significant to the national interest. This standard, implied in BANAT, is required something else. Considering the facts, the law and jurisprudence, petitioner cannot properly insist
to create the necessary link of a particu- on its entitlement to use the party-list system as a vehicle for advancing its social and political
_______________ agenda.
While bigotry, social stereotyping and other forms of discrimination must be given no place in
24 Lawrence v. Texas, 539 U.S. 558 (2003), (Scalia, J., dissenting). a truly just, democratic
25 Decision, p. 23. _______________
122
122 SUPREME COURT REPORTS ANNOTATED 27Lawrence v. Texas, supra note 29 (J. Scalia, dissenting).
124
Ang Ladlad LGBT Party vs. Commission on Elections
124 SUPREME COURT REPORTS ANNOTATED
lar sector to those sectors expressly mentioned in Section 5(2), Article VI of the Constitution and
Section 5 of RA 7941. Ang Ladlad LGBT Party vs. Commission on Elections
Finally, considering our history and tradition as a people, to consider the promotion of the and libertarian society, the party-list system has a well-defined purpose. The party-list system was
LGBT agenda and “gay rights” as a national policy as beneficial to the nation as a whole is not designed as a tool to advocate tolerance and acceptance of any and all socially misunderstood
debatable at best. Even the majority (aside from extensively invoking foreign practice and sectors. Rather, it is a platform for the realization of the aspirations of marginalized sectors whose
international conventions rather than Philippine laws) states: interests are, by nature and history, also the nation’s but which interests have not been sufficiently
“We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus favorable brought to public attention because of these sectors’ underrepresentation.
to gay rights claims….” 26
Congress was given by the Constitution full discretion to determine what sectors may qualify
This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which as marginalized and underrepresented. The Court’s task is to respect that legislative determination
are, without doubt, indisputable.
by strictly adhering to it. If we effectively and unduly expand such congressional determination, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth segments
we will be dabbling in policy-making, an act of political will and not of judicial judgment. of society. Section 5(2), Article VI of the 1987 Constitution provides:
Accordingly, I respectfully vote to dismiss the petition. “(2) The party-list representative shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
SEPARATE OPINION by law, by selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except the religious
ABAD, J.: sector.” (Underscoring supplied.)
I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Getting its bearing from the examples given above, the Congress provided in Section 2 of
Del Castillo because I arrived at the same conclusion following a different path. R.A. 7941 a broad standard for screening and identifying those who may qualify for the party-list
I also felt that the Court needs, in resolving the issues in this case, to say more about what the system. Thus:
Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to abate the “Sec. 2. Declaration of policy.—The State shall promote proportional representation in the
aggravations and confusion caused by the alarming overnight proliferation of sectoral parties. election of representatives to the House of Representatives through a party-list system of registered
The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well
and underrepresented sectors of society an opportunity to take a direct part in enacting the laws of
defined political constituencies but who could contribute to the formulation and enactment of
the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC), the 1
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Court Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
_______________ system or group interests in the House of Representatives by enhancing their chances to compete for and
win seats in the legislature, and shall provide the simplest scheme possible.” (Underscoring supplied.)
1 412 Phil. 308; 359 SCRA 698 (2001). 127
125
VOL. 618, APRIL 8, 2010 127
VOL. 618, APRIL 8, 2010 125
Ang Ladlad LGBT Party vs. Commission on Elections
Ang Ladlad LGBT Party vs. Commission on Elections The above speaks of “marginalized and underrepresented sectoral parties or organizations x x
laid down guidelines for accreditation, but these seem to leave the COMELEC like everyone else x lack well defined political constituencies x x x who could contribute to the formulation and
even more perplexed and dumbfounded about what organizations, clubs, or associations can pass enactment of appropriate legislation.” But, as the Court said in Ang Bagong Bayani, the whole
for sectoral parties with a right to claim a seat in the House of Representatives. The Court can, in thing boils down to ascertaining whether the party seeking accreditation belongs to the
adjudicating this case, unravel some of the difficulties. “marginalized and underrepresented.” 3
Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral Unfortunately, Congress did not provide a definition of the term “marginalized and
party accreditation on religious and moral grounds. The COMELEC has never applied these tests underrepresented.” Nor did the Court dare provide one in its decision in Ang Bagong Bayani. It is
on regular candidates for Congress. There is no reason for it to apply them on Ang Ladlad. But possible, however, to get a sense of what Congress intended in adopting such term. No doubt,
the ponencia already amply and lucidly discussed this point. Congress crafted that term—marginalized and underrepresented—from its reading of the concrete
What I am more concerned about is COMELEC’s claim in its comment on the petition that examples that the Constitution itself gives of groupings that are entitled to accreditation. These
the Ang Ladlad sectoral party was not marginalized and underrepresented since it is not among, or examples are the labor, the peasant, the urban poor, the indigenous cultural minorities, the women,
even associated with, the sectors specified in the Constitution and in R.A. 7941. Ang Ladlad, it
2
and the youth sectors. Fortunately, quite often ideas are best described by examples of what they
claims, did not qualify as a marginalized and underrepresented group of people like those are, which was what those who drafted the 1987 Constitution did, rather than by an abstract
representing labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, description of them.
handicapped, women, youth, veterans, overseas workers, and professionals. This is effectively the For Congress it was much like looking at a gathering of “a dog, a cat, a horse, an elephant, and
COMELEC’s frame of mind in adjudicating applications for accreditation. a tiger” and concluding that it is a gathering of “animals.” Here, it looked at the samples of
But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent qualified groups (labor, peasant, urban poor, indigenous cultural minorities, women, and youth)
with the purpose and spirit of the Constitution and the law. A reading of Ang Bagong Bayani will and found a common thread that passes through them all. Congress concluded that these groups
show that, based on the Court’s reading, neither the Constitution nor R.A. 7941 intends the belonged to the “marginalized and underrepresented.”
excessively limited coverage that the COMELEC now suggests. In fact, the Court said in that case So what is the meaning of the term “marginalized and underrepresented?” The examples given
that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not meant for all (labor, peasant, urban
sectors of society, it was envisioned as a social justice tool for the marginalized and _______________
underrepresented in general.
_______________ 3 “In the end, the role of the Comelec is to see to it that only those Filipinos who are “marginalized and
underrepresented” become members of Congress under the party-list system, Filipino style.” Ang Bagong Bayani-OFW Labor
2 Comment, pp. 2-6. Party v. Commission on Elections, supra note 1, at 334; p. 719.
126 128
126 SUPREME COURT REPORTS ANNOTATED 128 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad LGBT Party vs. Commission on Elections
As it happened, the only clue that the Constitution provides respecting the identity of the poor, indigenous cultural minorities, women, and youth) should be the starting point in any search
sectors that will make up the party-list system is found in the examples it gives, namely, the labor, for definition. Congress has added six others to this list: the fisherfolk, the elderly, the
handicapped, the veterans, the overseas workers, and the professionals. Thus, the pertinent portion
4
230 SUPREME COURT REPORTS ANNOTATED
of Section 5 of R.A. 7941 provides:
“Sec. 5. Registration.—x x x Provided, that the sector shall include labor, peasant, fisherfolk, Ang Ladlad LGBT Party vs. Commission on Elections
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the
workers, and professionals.” party-list system is the second, the narrow definition of the sector that the law regards as
If one were to analyze these Constitutional and statutory examples of qualified parties, it “marginalized and underrepresented.” The implication of this is that, if any of the sub-groupings
should be evident that they represent the working class (labor, peasant, fisherfolk, overseas (the carpenters, the security guards, the microchips factory workers, the barbers, the tricycle
workers), the service class(professionals), the economically deprived (urban poor), the social drivers in the example) within the sector desires to apply for accreditation as a party-list group, it
outcasts (indigenous cultural minorities), the vulnerable (women, youth) and the work must compete with other sub-groups for the seat allotted to the “labor sector” in the House of
impaired(elderly, handicapped, veterans). This analysis provides some understanding of who, in Representatives. This is the apparent intent of the Constitution and the law.
the eyes of Congress, are marginalized and underrepresented. An interpretation that will allow concretely or specifically defined groups to seek election as a
The parties of the marginalized and underrepresented should be more than just lobby or separate party-list sector by itself will result in riot and redundancy in the mix of sectoral parties
interest groups. They must have an authentic identity that goes beyond mere similarities in grabbing seats in the House of Representatives. It will defeat altogether the objectives of the party-
background or circumstances. It is not enough that their members belong to the same industry, list system. If they can muster enough votes, the country may have a party-list of pedicab drivers
speak the same dialect, have a common hobby or sport, or wish to promote public support for their and another of tricycle drivers. There will be an irrational apportionment of party-list seats in the
mutual interests. The group should be characterized by a shared advocacy for genuine issues legislature.
affecting basic human rights as these apply to their groups. This is in keeping with the statutory In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-
objective of sharing with them list system must state if they are to be considered as national, regional, or sectoral parties. Thus:
_______________
“Sec. 5. Registration.—Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90)
4 Section 5. Registration.—x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, days before the election a petition verified by its president or secretary stating its desire to participate in
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. the party-list system as a national, regional or sectoral party or organization or a coalition of such
129
parties or organizations, x x x.”
VOL. 618, APRIL 8, 2010 129 This provision, taken alongside with the territorial character of the sample sectors provided by
the Constitution and R.A. 7941, indicates that every sectoral party-list applicant
Ang Ladlad LGBT Party vs. Commission on Elections 131
seats in the House of Representatives so they can take part in enacting beneficial legislation.
It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide VOL. 618, APRIL 8, 2010 131
by examples a sense of what the qualified organizations should look like. As the Court Ang Ladlad LGBT Party vs. Commission on Elections
acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there are must have an inherently regional presence (indigenous cultural minorities) or a national
groups which are pushed to the margin because they advocate an extremist political ideology, such presence (all the rest).
as the extreme right and the extreme left of the political divide. They may be regarded, if the The people they represent are not bound up by the territorial borders of provinces, cities, or
evidence warrants, as qualified sectors. municipalities. A sectoral group representing the sugar plantation workers of Negros Occidental,
Further, to qualify, a party applying for accreditation must represent a narrow rather than a for example, will not qualify because it does not represent the inherently national character of the
specific definition of the class of people they seek to represent. For example, the Constitution uses labor sector.
the term “labor,” a narrower definition than the broad and more abstract term, “working class,” Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it
without slipping down to the more specific and concrete definition like “carpenters,” “security represents the marginalized and underrepresented. That is easy to do. The party must factually and
guards,” “microchips factory workers,” “barbers,” “tricycle drivers,” and similar sub-groupings in truly represent the marginalized and underrepresented. It must present to the COMELEC clear and
the “labor” group. See the other illustrations below. convincing evidence of its history, authenticity, advocacy, and magnitude of presence. The
Broad *Narrow Specifically Defined Groups COMELEC must reject those who put up building props overnight as in the movies to create an
illusion of sectoral presence so they can get through the door of Congress without running for a
Definition Definitio seat in a regular legislative district.
n In sum, to qualify for accreditation:
One, the applying party must show that it represents the “marginalized and underrepresented,”
Working Class Labor Carpenters, security guards, microchip factory workers, barbers, tricycle
exemplified by the working class, the service class, the economically deprived, the social outcasts,
drivers the vulnerable, the work impaired, or some such similar class of persons.
Economically Urban Informal settlers, the jobless, persons displaced by domestic Two, the applying party should be characterized by a shared advocacy for genuine issues
affecting basic human rights as these apply to the sector it represents.
Deprived Poor wars
Three, the applying party must share the cause of their sector, narrowly defined as shown
The Women Working women, battered women, victims of slavery above. If such party is a sub-group within that sector, it must compete with other sub-groups for
Vulnerable
the seat allocated to their sector.
Four, the members of the party seeking accreditation must have an inherent regional or
Work Handi- Deaf and dumb, the blind, people on wheelchairs national presence.132
Impaired Capped 132 SUPREME COURT REPORTS ANNOTATED
*The definition that the Constitution and R.A. 7941 use by their examples.230
5 http://www.aglbical.org/2STATS.htm.
Ang Ladlad LGBT Party vs. Commission on Elections 133
And five, except for matters the COMELEC can take judicial notice of, the party applying for
VOL. 618, APRIL 8, 2010 133
accreditation must prove its claims by clear and convincing evidence.
In this case, Ang Ladlad represents men and women who identify themselves as lesbians, Ang Ladlad LGBT Party vs. Commission on Elections
gays, bisexuals, or trans-gendered persons (LGBTs). Applying the universally accepted estimate leagues who have suffered in silence all these years. True, the party-list system is not necessarily a
that one out of every 10 persons is an LGBT of a certain kind, the Filipino LGBTs should now
5
tool for advocating tolerance or acceptance of their practices or beliefs. But it does promise them,
stand at about 8.7 million. Despite this, however, they are by and large, subtly if not brutally, as a marginalized and underrepresented group, the chance to have a direct involvement in crafting
excluded from the mainstream, discriminated against, and persecuted. That the COMELEC legislations that impact on their lives and existence. It is an opportunity for true and effective
denied Ang Ladlad’s petition on religious and moral grounds is proof of this discrimination. representation which is the very essence of our party-list system.
Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been For the above reasons, I vote to GRANT the petition.
documented. At home, effeminate or gay youths are subjected to physical abuse by parents or Petition granted, resolutions set aside.
guardians to make them conform to standard gender norms of behavior, while lesbian youths are Notes.—A classification can only be assailed if it is deemed invidious, that is, it is not based
raped to cure them of their perceived affliction. LGBTs are refused admission from certain on real or substantial differences. (Mirasol vs. Department of Public Works and Highways, 490
schools, or are suspended and put on probation. Meanwhile, in the workplace, they are denied SCRA 318 [2006])
promotions or benefits which are otherwise available to heterosexuals holding the same positions. While PDP-Laban and Bayan Muna both have members in Congress, the former, unlike the
There is bigotry for their group. latter, is not represented therein as a party-list organization, thus entitling Bayan Muna to
Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. participate in the legislative process in a way that cannot be said of PDP-Laban. (Senate of the
Their members are in the vulnerable class like the women and the youth. Ang Ladlad represents a Philippines vs. Ermita, 495 SCRA 170 [2006])
narrow definition of its class (LGBTs) rather than a concrete and specific definition of a sub-group Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating
within the class (group of gay beauticians, for example). The people that Ang Ladlad seeks to in the party-list system. (Barangay Association for National Advancement and Transparency
represent have a national presence. (BANAT) vs. Commission on Elections, 586 SCRA 210 [2009]).
The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, ——o0o——
sisters, friends, or col- © Copyright 2018 Central Book Supply, Inc. All rights reserved.
_______________
330 SUPREME COURT REPORTS ANNOTATED Tatad vs. Secretary of the Department of Energy
nificance to the people. In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, we
Tatad vs. Secretary of the Department of Energy
stressed: “x x x Objections to taxpayers’ suit for lack of sufficient personality, standing or interest are,
G.R. No. 124360. November 5, 1997. * however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in
FRANCISCO S. TATAD, petitioner, vs. THE SECRETARY OF THE DEPARTMENT OF keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of
ENERGY AND THE SECRETARY OF THE DEPARTMENT OF FINANCE, respondents. government have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken
G.R. No. 127867. November 5, 1997. *
cognizance of these petitions.”
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO TAÑADA, Same; Same; Same; Court holds that Section 5(b) providing for tariff differential is germane to the
FLAG HUMAN RIGHTS FOUNDATION, INC., FREEDOM FROM DEBT COALITION subject of R.A. No. 8180 which is the deregulation of the downstream oil industry.—In G.R. No. 124360 where
(FDC), SANLAKAS, petitioners, vs. HON. RUBEN TORRES in his capacity as the Executive petitioner is Senator Tatad, it is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the
Secretary, HON. FRANCISCO VIRAY, in his capacity as the Secretary of Energy, CALTEX provision of the Constitution requiring every law to have only one subject which should be expressed in its
title. We do not concur with this contention. As a policy, this Court has adopted a liberal construction of the
Philippines, Inc., PETRON Corporation and PILIPINAS SHELL Corporation, respondents. one title—one subject rule. We have consistently ruled that the title need not mirror, fully index or catalogue
Constitutional Law; Statutes; Courts; The courts, as guardians of the Constitution, have the inherent all contents and minute details of a law. A law having a single general subject indicated in the title may contain
authority to determine whether a statute enacted by the legislature transcends the limit imposed by the any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or
fundamental law.—Judicial power includes not only the duty of the courts to settle actual controversies foreign to the general subject, and may be considered in furtherance of such subject by providing for the
involving rights which are legally demandable and enforceable, but also the duty to determine whether or not method and means of carrying out the general subject. We hold that section 5(b) providing for tariff
there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch differential is germane to the subject of R.A. No. 8180 which is the deregulation of the downstream oil
or instrumentality of the government. The courts, as guardians of the Constitution, have the inherent authority industry. The section is supposed to sway prospective investors to put up refineries in our country and make
to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. them rely less on imported petroleum.
Where a statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act Same; Same; Same; Two accepted tests to determine whether or not there is a valid delegation of
as unconstitutional and void. legislative power.—“There are two accepted tests to determine whether or not there is a valid delegation of
Same; Same; Same; The Court has brightlined its liberal stance on a petitioner’s locus standi where legislative power, viz: the completeness test and the sufficient standard test. Under the first test, the law must
the petitioner is able to craft an issue of transcendental significance to the people.—The effort of respondents be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate
to question the locus standi of petitioners must also fall on barren ground. In language too lucid to be the only thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate
misunderstood, this Court has brightlined its liberal stance on a petitioner’s locus standi where the petitioner is guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the
able to craft an issue of transcendental sig-
_______________
delegation from running
332
EN BANC.
* 3 SUPREME COURT REPORTS ANNOTATED
331
32
VOL. 281, NOVEMBER 5, 1997 331
Constitutional Law; Statutes; Courts; Court has the duty, not just the power, to determine whether a
Tatad vs. Secretary of the Department of Energy law or a part thereof offends
riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who 334
is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.”
Same; Same; Same; Section 15 can hurdle both the completeness test and the sufficient standard test. 3 SUPREME COURT REPORTS ANNOTATED
—Given the groove of the Court’s rulings, the attempt of petitioners to strike down section 15 on the ground of 34
undue delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness test and the
sufficient standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that full Tatad vs. Secretary of the Department of Energy
deregulation will start at the end of March 1997, regardless of the occurrence of any event. Full deregulation at the Constitution and, if so, to annul and set aside.—Under the Constitution, this Court has—in
the end of March 1997 is mandatory and the Executive has no discretion to postpone it for any purported appropriate cases—the DUTY, not just the power, to determine whether a law or a part thereof offends the
reason. Thus, the law is complete on the question of the final date of full deregulation. Constitution and, if so, to annul and set aside. Because a serious challenge has been hurled against the validity
Same; Same; Same; Court holds that the Executive department failed to follow faithfully the standards of one such law, namely RA 8180—its criticality having been preliminary determined from the petition,
set by R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF fund.—But petitioners comments, reply and, most tellingly, the oral argument on September 30, 1997—this Court, in the exercise of
further posit the thesis that the Executive misapplied R.A. No. 8180 when it considered the depletion of the its mandated judicial discretion, issued the status quo order to prevent the continued enforcement and
OPSF fund as a factor in fully deregulating the downstream oil industry in February 1997. A perusal of Section implementation of a law that was prima facie found to be constitutionally infirm. Indeed, after careful final
15 of R.A. No. 8180 will readily reveal that it only enumerated two factors to be considered by the Department deliberation, said law is now ruled to be constitutionally defective thereby disabling respondent oil companies
of Energy and the Office of the President, viz.: (1) the time when the prices of crude oil and petroleum from exercising their erstwhile power, granted by such defective statute, to determine prices by themselves.
products in the world market are declining, and (2) the time when the exchange rate of the peso in relation to Same; Same; Same; Court has the prerogative to uphold the Constitution and to strike down and
the US dollar is stable. Section 15 did not mention the depletion of the OPSF fund as a factor to be given annul a law that contravenes the Charter.—Concededly, this Court has no power to pass upon the wisdom,
weight by the Executive before ordering full deregulation. On the contrary, the debates in Congress will show merits and propriety of the acts of its co-equal branches in government. However, it does have the prerogative
that some of our legislators wanted to impose as a pre-condition to deregulation a showing that the OPSF fund to uphold the Constitution and to strike down and annul a law that contravenes the Charter. From such duty
must not be in deficit. We therefore hold that the Executive department failed to follow faithfully the standards and prerogative, it shall never shirk or shy away.
set by R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF fund.
Same; Same; Same; Republic Act No. 8180 needs provisions to vouchsafe free and fair competition.— MELO, J., Dissenting Opinion
R.A. No. 8180 contains a separability clause. Section 23 provides that “if for any reason, any section or
provision of this Act is declared unconstitutional or invalid, such parts not affected thereby shall remain in full
force and effect.” This separability clause notwithstanding, we hold that the offending Constitutional Law; Statutes; Courts; The submissions of petitioners require a review of issues that
333 are in the nature of political questions, hence, clearly beyond the ambit of judicial inquiry.—The instant
petitions do not raise a justiciable controversy as the issues raised therein pertain to the wisdom and
VOL. 281, NOVEMBER 5, 1997 333 reasonableness of the provisions of the assailed law. The contentions made by petitioners, that the “imposition
Tatad vs. Secretary of the Department of Energy of different tariff rates on imported crude oil and imported refined petroleum products will not foster a truly
provisions of R.A. No. 8180 so permeate its essence that the entire law has to be struck down. The competitive market, nor will it level the playing fields” and that said imposition “does not deregulate the
provisions on tariff differential, inventory and predatory pricing are among the principal props of R.A. No. downstream oil industry, instead, it controls the oil industry, contrary to the avowed policy of the law,” are
8180. Congress could not have deregulated the downstream oil industry without these provisions. clearly policy matters which are within the province of the political departments of the government. These
Unfortunately, contrary to their intent, these provisions on tariff differential, inventory and predatory pricing submissions require a review of issues that are in the nature of political questions, hence, clearly beyond the
inhibit fair competition, encourage monopolistic power and interfere with the free interaction of market forces. ambit of judicial inquiry.
335
R.A. No. 8180 needs provisions to vouchsafe free and fair competition. The need for these vouchsafing
provisions cannot be overstated. Before deregulation,PETRON, SHELL and CALTEX had no real competitors VOL. 281, NOVEMBER 5, 1997 335
but did not have a free run of the market because government controls both the pricing and non-pricing aspects
of the oil industry. After deregulation, PETRON, SHELL and CALTEX remain unthreatened by real Tatad vs. Secretary of the Department of Energy
competition yet are no longer subject to control by government with respect to their pricing and non-pricing Same; Same; Same; Political questions are concerned with issues dependent upon the wisdom, not the
decisions. The aftermath of R.A. No. 8180 is a deregulated market where competition can be corrupted and legality, of a particular measure.—A political question refers to a question of policy or to issues which, under
where market forces can be manipulated by oligopolies. 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. Generally,
political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular
KAPUNAN, J., Separate Opinion measure.
Same; Same; Same; Actions; The existence of a constitutional issue in a case does not per se confer or
Constitutional Law; Statutes; Courts; The tariff differential between imported crude oil and refined clothe a legislator with locus standi to bring suit.—The petitioners do not have the necessary locus standi to
petroleum products defeats the purpose of the law and should thus be struck down.—Since the prospective oil file the instant consolidated petitions.Petitioners Lagman, Arroyo, Garcia, Tanada, and Tatad assail the
companies do not (as yet) have local refineries, they would have to import refined petroleum products, on constitutionality of the above-stated laws through the instant consolidated petitions in their capacity as
which a 7% tariff duty is imposed. On the other hand, the existing oil companies already have domestic members of Congress, and as taxpayers and concerned citizens. However, the existence of a constitutional
refineries and, therefore, only import crude oil which is taxed at a lower rate of 3%. Tariffs are part of the costs issue in a case does not per se confer or clothe a legislator with locus standi to bring suit. In Phil. Constitution
of production. Hence, this means that with the 4% tariff differential (which becomes an added cost) the Association (PHILCONSA) v. Enriquez (235 SCRA 506 [1994]), we held that members of Congress may
prospective players would have higher production costs compared to the existing oil companies and it is properly challenge the validity of an official act of any department of the government only upon showing that
precisely this factor which could seriously affect its decision to enter the market. Viewed in this light, the tariff the assailed official act affects or impairs their rights and prerogatives as legislators. In Kilosbayan, Inc., et al.
differential between imported crude oil and refined petroleum products becomes an obstacle to the entry of vs. Morato, et al. (246 SCRA 540 [1995]), this Court further clarified that “if the complaint is not grounded on
new players in the Philippine oil market. It defeats the purpose of the law and should thus be struck down. the impairment of the power of Congress, legislators do not have standing to question the validity of any law
or official action.”
Same; Same; Same; Same; Republic Act No. 8180 clearly does not violate or impair prerogatives,
PANGANIBAN, J., Concurring Opinion
powers, and rights of Congress, or the individual members thereof.—Republic Act No. 8180 clearly does not
violate or impair prerogatives, powers, and rights of Congress, or the individual members thereof, considering
that the assailed official act is the very act of Congress itself authorizing the full deregulation of the government, and the courts will resolve every presumption in favor of its validity. The courts will assume that
downstream oil industry. the validity of the statute was fully considered by the legislature when adopted. The wisdom or advisability of
Same; Same; Same; Same; Neither can petitioners sue as taxpayers or concerned citizens.—Neither a particular statute is not a question for the courts to determine. If a particular statute is within the
can petitioners sue as taxpayers or concerned citizens. A condition sine qua non for the institution of a constitutional power of the legislature to enact, it should be sustained whether the courts agree or not in the
taxpayer’s suit is an allegation that the assailed action is an unconstitutional exercise of the spending powers of wisdom of its enactment. This Court continues to recognize that in the determination of actual cases and
Congress or that it constitutes an illegal disbursement of public funds. The instant controversies, it must reflect the wisdom and justice of the people as expressed through their representatives in
336 the executive and legislative branches of government. Thus, the presumption is always in favor of
3 SUPREME COURT REPORTS ANNOTATED constitutionality for it is likewise always presumed that in the enactment of a law or the adoption of a policy it
is the people who speak through their representatives. This principle is one of
36 338
Tatad vs. Secretary of the Department of Energy 3 SUPREME COURT REPORTS ANNOTATED
consolidated petitions do not allege that the assailed provisions of the law amount to an illegal 38
disbursement of public money. Hence, petitioners cannot, even as taxpayers or concerned citizens, invoke this
Court’s power of judicial review. Tatad vs. Secretary of the Department of Energy
Same; Same; Same; Same; The interest of the person assailing the constitutionality of a statute must caution and circumspection in the exercise of the grave and delicate function of judicial review.
be direct and personal.—Further, petitioners, including Flag, FDC, and Sanlakas, can not be deemed proper
parties for lack of a particularized interest or elemental substantial injury necessary to confer on them locus PETITIONS to review the constitutionality of R.A. 8180.
standi. The interest of the person assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some The facts are stated in the opinion of the Court.
indefinite way. It must appear that the person complaining has been or is about to be denied some right or Sanidad, Abaya, Cortez, Te, Madrid, Viterbo & Tan Law Firm for petitioners.
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by Alfonso M. Cruz Law Offices for Enrique Garcia.
reason of the statute complained of. Petitioners have not established such kind of interest. Brillantes, Navarro, Jumamil, Arcilla, Escolin and Martinez Law Office for petitioner in
Same; Same; Section 5(b) of Republic Act No. 8180 is not violative of the “one title-one subject” rule G.R. 104360.
under Section 26(1), Article VI of the Constitution.—Section 5(b) of Republic Act No. 8180 is not violative of
Angara, Abello, Concepcion, Regala & Cruz for Caltex Philippines, Inc.
the “one title-one subject” rule under Section 26(1), Article VI of the Constitution. It is not required that a
provision of law be expressed in the title thereof as long as the provision in question is embraced within the
subject expressed in the title of the law. The “title of a bill does not have to be a catalogue of its contents and PUNO, J.:
will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title.”
(Association of Small Landowners in the Phils., Inc. vs. Sec. of Agrarian Reform, 175 SCRA 343 [1989]) An The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled “An Act
“act having a single general subject, indicated in the title, may contain any number of provisions, no matter
Deregulating the Downstream Oil Industry and For Other Purposes.” R.A. No. 8180 ends twenty 1
how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may
be considered in furtherance of such subject by providing for the method and means of carrying out the general six (26) years of government regulation of the downstream oil industry. Few cases carry a
object.” surpassing importance on the life of every Filipino as these petitions for the upswing and
Same; Same; Same; The conference committee can even include an amendment in the nature of a downswing of our economy materially depend on the oscillation of oil.
substitute so long as such amendment is germane to the subject of the bill before it.— As regards the power of First, the facts without the fat. Prior to 1971, there was no government agency regulating the
the Bicameral Conference Committee to include in its oil industry other than those dealing with ordinary commodities. Oil companies were free to enter
337
and exit the market without any government interference. There were four (4) refining companies
VOL. 281, NOVEMBER 5, 1997 337 (Shell, Caltex, Bataan Refining Company and Filoil Refining) and
_______________
Tatad vs. Secretary of the Department of Energy
report an entirely new provision that is neither found in the House bill or Senate bill, this Court already 1
Downstream oil industry refers to the business of importing, exporting, re-exporting, shipping, transporting, processing,
upheld such power in Tolentino vs. Sec. of Finance (235 SCRA 630 [1994]), where we ruled that the refining, storing, distributing, marketing, and/or selling crude oil, gasoline, diesel, liquefied petroleum gas, kerosene and other
conference committee can even include an amendment in the nature of a substitute so long as such amendment petroleum and crude oil products.
is germane to the subject of the bill before it. 339
VOL. 281, NOVEMBER 5, 1997 339
FRANCISCO, J., Dissenting Opinion
Tatad vs. Secretary of the Department of Energy
Constitutional Law; Statutes; Courts; Congress is not required to employ in the title of an enactment, six (6) petroleum marketing companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then
language of such precision as to mirror, fully index or catalogue all the contents and the minute details operating in the country. 2
therein.—The interpretation of “one subject-one title” rule, however, is never intended to impede or stifle In 1971, the country was driven to its knees by a crippling oil crisis. The government,
legislation. The requirement is to be given a practical rather than a technical construction and it would be realizing that petroleum and its products are vital to national security and that their continued
sufficient compliance if the title expresses the general subject and all the provisions of the enactment are supply at reasonable prices is essential to the general welfare, enacted the Oil Industry
germane and material to the general subject. Congress is not required to employ in the title of an enactment, Commission Act. It created the Oil Industry Commission(OIC) to regulate the business of
3
language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. importing, exporting, re-exporting, shipping, transporting, processing, refining, storing,
All that is required is that the title should not cover legislation incongruous in itself, and which by no fair
distributing, marketing and selling crude oil, gasoline, kerosene, gas and other refined petroleum
intendment can be considered as having a necessary or proper connection.
Same; Same; Same; If a particular statute is within the constitutional power of the legislature to enact, products. The OIC was vested with the power to fix the market prices of petroleum products, to
it should be sustained whether the courts agree or not in the wisdom of its enactment.—Perhaps it bears regulate the capacities of refineries, to license new refineries and to regulate the operations and
reiterating that the question of validity of every statute is first determined by the legislative department of the trade practices of the industry. 4
In addition to the creation of the OIC, the government saw the imperious need for a more
Tatad vs. Secretary of the Department of Energy
active role of Filipinos in the oil industry. Until the early seventies, the downstream oil industry
was controlled by multinational companies. All the oil refineries and marketing companies were
owned by foreigners whose economic interests did not always coincide with the interest of the 1. petroleum products is less than the peso costs computed using the reference foreign
Filipino. Crude oil was transported to the country by foreign-controlled tankers. Crude processing exchange rate as fixed by the Board of Energy. 7
was done locally by foreign-owned refineries and petroleum products were marketed through
foreign-owned retail outlets. On November 9, 1973, President Ferdinand E. Marcos boldly created
the Philippine National Oil Corporation (PNOC) to break the control by foreigners of our oil By 1985, only three (3) oil companies were operating in the country—Caltex, Shell and the
industry. PNOC engaged in the business of refining, marketing, shipping, transporting, and storing
5
government-owned PNOC.
petroleum. It acquired ownership of ESSO Philippines and Filoil to serve as its marketing arm. It In May, 1987, President Corazon C. Aquino signed Executive Order No. 172 creating
bought the the Energy Regulatory Board to regulate the business of importing, exporting, re-exporting,
____________________________ shipping, transporting, processing, refining, marketing and distributing energy resources “when
warranted and only when public necessity requires.” The Board had the following powers and
Paderanga & Paderanga, Jr., The Oil Industry in the Philip-pines, Philippine Economic Journal, No. 65, Vol. 27, pp. 27-
2 functions:
98 [1988].
Section 3, R.A. No. 6173.
3
Section 7, R.A. No. 6173.
4 1. 1.Fix and regulate the prices of petroleum products;
P.D. No. 334.
5
2. 2.Fix and regulate the rate schedule or prices of piped gas to be charged by duly
340 franchised gas companies which distribute gas by means of underground pipe system;
340 SUPREME COURT REPORTS ANNOTATED 3. 3.Fix and regulate the rates of pipeline concessionaires under the provisions of R.A. No.
387, as amended x x x;
Tatad vs. Secretary of the Department of Energy
4. 4.Regulate the capacities of new refineries or additional capacities of existing refineries
controlling shares of Bataan Refining Corporation, the largest refinery in the country. PNOC later 6
and license refineries that may be organized after the issuance of (E.O. No. 172) under
put up its own marketing subsidiary—Petrophil. PNOC operated under the business name such terms and conditions as are consistent with the national interest; and
PETRON Corporation. For the first time, there was a Filipino presence in the Philippine oil
market. 5. 5.Whenever the Board has determined that there is a shortage of any petroleum product,
In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil or when public interest so requires, it may take such steps as it may consider necessary,
Price Stabilization Fund (OPSF) to cushion the effects of frequent changes in the price of oil including the temporary adjustment of the levels of prices of petroleum products and
caused by exchange rate adjustments or increase in the world market prices of crude oil and the payment to the Oil Price Stabilization Fund x x x by persons or entities engaged in
imported petroleum products. The fund is used (1) to reimburse the oil companies for cost the petroleum industry of such amounts as may be determined by the Board, which
increases in crude oil and imported petroleum products resulting from exchange rate adjustment may enable the importer to recover its cost of importation. 8
and/or increase in world market prices of crude oil, and (2) to reimburse oil companies for cost
underrecovery incurred as a result of the reduction of domestic prices of petroleum products. On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of
Under the law, the OPSF may be sourced from: Energy to prepare, integrate, coordinate, supervise and control all plans, programs, projects, and
activities of the government in relation to energy
_______________
1. 1.any increase in the tax collection from ad valorem tax or customs duty imposed on
petroleum products subject to tax under P.D. No. 1956 arising from exchange rate
P.D. 1956 as amended by E.O. 137.
7
adjustment, Section 3, E.O. No. 172.
8
2. 2.any increase in the tax collection as a result of the lifting of tax exemptions of 342
government corporations, as may be determined by the Minister of Finance in
342 SUPREME COURT REPORTS ANNOTATED
consultation with the Board of Energy,
3. 3.any additional amount to be imposed on petroleum products to augment the resources Tatad vs. Secretary of the Department of Energy
of the fund through an appropriate order that may be issued by the Board of Energy exploration, development, utilization, distribution and conservation. The thrust of the Philippine
9
requiring payment of persons or companies engaged in the business of importing, energy program under the law was toward privatization of government agencies related to
manufacturing and/or marketing petroleum products, or energy, deregulation of the power and energy industry and reduction of dependency on oil-fired
4. 4.any resulting peso costs differentials in case the actual peso costs paid by oil plants. The law also aimed to encourage free and active participation and investment by the
10
companies in the importation of crude oil and private sector in all energy activities. Section 5(e) of the law states that “at the end of four (4)
years from the effectivity of this Act, the Department shall, upon approval of the President,
_______________ institute the programs and timetable of deregulation of appropriate energy projects and activities
of the energy industry.”
6
Makasiar, G., Structural Response to the Energy Crisis: The Philippine Case. Energy and Structural Change in the Asia Pursuant to the policies enunciated in R.A. No. 7638, the government approved
Pacific Region: Papers and Proceedings of the 13th Pacific Trade and Development Conference. Published by the Philippine the privatization of Petron Corporation in 1993. On December 16, 1993, PNOC sold 40% of its
Institute for Development Studies/Asian Development Bank and edited by Romeo M. Bautista and Seiji Naya, pp. 311-312 equity in Petron Corporation to the Aramco Overseas Company.
(1984).
341 In March 1996, Congress took the audacious step of deregulating the downstream oil
industry. It enacted R.A. No. 8180, entitled the “Downstream Oil Industry Deregulation Act of
VOL. 281, NOVEMBER 5, 1997 341 1996.” Under the deregulated environment, “any person or entity may import or purchase any
quantity of crude oil and petroleum products from a foreign or domestic source, lease or own and In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto
operate refineries and other downstream oil facilities and market such crude oil or use the same for Tañada, Flag Human Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas
his own requirement,” subject only to monitoring by the Department of Energy. 11
contest the constitutionality of Section 15 of R.A. No. 8180 and E.O. No. 392. Section 15
The deregulation process has two phases: the transition phase and the full deregulation provides:
phase. During the transition phase, controls of the non-pricing aspects of the oil industry were to “Sec. 15. Implementation of Full Deregulation.—Pursuant to Section 5(e) of Republic Act No. 7638, the DOE
be lifted. The following were to be accomplished: (1) liberalization of oil importation, exportation, shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later
manufacturing, marketing and distribution, (2) implementation of an automatic pricing than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil
and petroleum products in the world market are declining and when the exchange rate of the peso in relation to
mechanism, (3) implementation of an automatic formula to set margins of dealers and rates of
the US dollar is stable. Upon the implementation of the full deregulation as provided herein, the transition
haulers, water phase is deemed terminated and the following laws are deemed repealed:
_______________
xxx
E.O. No. 372 states in full, viz.:
R.A. No. 7638.
“WHEREAS, Republic Act No. 7638, otherwise known as the “Department of Energy Act of 1992,” provides
9
Section 5(b), R.A. No. 7638.
10
Section 5, R.A. No. 8180.
11
that, at the end of four years from its effectivity last December 1992, “the Department (of Energy) shall, upon
343 approval of the President, institute the programs and time table of deregulation of appropriate energy projects
and activities of the energy sector”;
VOL. 281, NOVEMBER 5, 1997 343 WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the “Downstream Oil Industry
Deregulation Act of 1996,” provides that “the DOE shall, upon approval of the President, im-
Tatad vs. Secretary of the Department of Energy
345
transport operators and pipeline concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign exchange cover were to be lifted and the VOL. 281, NOVEMBER 5, 1997 345
OPSF was to be abolished. Tatad vs. Secretary of the Department of Energy
The first phase of deregulation commenced on August 12, 1996. plement full deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the
On February 8, 1997, the President implemented the full deregulation of the Downstream Oil DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market
Industry through E.O. No. 372. are declining and when the exchange rate of the peso in relation to the US dollar is stable”;
The petitions at bar assail the constitutionality of various provisions of R.A. No. 8180 and WHEREAS, pursuant to the recommendation of the Department of Energy, there is an imperative need to
E.O. No. 372. implement the full deregulation of the downstream oil industry because of the following recent developments:
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of Section 5(b) of R.A. (i) depletion of the buffer fund on or about 7 February 1997 pursuant to the Energy Regulatory Board’s Order
dated 16 January 1997; (ii) the prices of crude oil had been stable at $21-$23 per barrel since October 1996
No. 8180. Section 5(b) provides: while prices of petroleum products in the world market had been stable since mid-December of last year.
“b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be
Moreover, crude oil prices are beginning to soften for the last few days while prices of some petroleum
imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined petroleum
products had already declined; and (iii) the exchange rate of the peso in relation to the US dollar has been
products at the rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be the same as that
stable for the past twelve (12) months, averaging at around P26.20 to one US dollar;
for imported crude oil: Provided, That beginning on January 1, 2004 the tariff rate on imported crude oil and
WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for
refined petroleum products shall be the same: Provided, further, That this provision may be amended only by
the administration of the deregulated industry by defining the functions and responsibilities of various
an Act of Congress.”
government agencies;
The petition is anchored on three arguments: WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a truly
First, that the imposition of different tariff rates on imported crude oil and imported refined competitive market which can better achieve the social policy objectives of fair prices and adequate,
petroleum products violates the equal protection clause. Petitioner contends that the 3%-7% tariff continuous supply of environmentally-clean and high quality petroleum products;
differential unduly favors the three existing oil refineries and discriminates against prospective NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by the powers
investors in the downstream oil industry who do not have their own refineries and will have to vested in me by law, do hereby declare the full deregulation of the downstream oil industry.”
source refined petroleum products from abroad. In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following
Second, that the imposition of different tariff rates does not deregulate the downstream oil submissions:
industry but instead controls the oil industry, contrary to the avowed policy of the law. Petitioner First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the
avers that the tariff differential between imported crude oil and imported refined petroleum President and the Secretary of Energy because it does not provide a determinate or determinable
products bars the standard to guide the Executive Branch in determining when to implement the full deregulation of
344 the downstream oil industry. Petitioners contend that the law does not define when it is practicable
344 SUPREME COURT REPORTS ANNOTATED
for the Secretary of Energy to recommend to the President the full deregulation of
346
Tatad vs. Secretary of the Department of Energy 346 SUPREME COURT REPORTS ANNOTATED
entry of other players in the oil industry because it effectively protects the interest of oil
companies with existing refineries. Thus, it runs counter to the objective of the law “to foster a Tatad vs. Secretary of the Department of Energy
truly competitive market.” the downstream oil industry or when the President may consider it practicable to declare full
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates deregulation. Also, the law does not provide any specific standard to determine when the prices of
Section 26(1) Article VI of the Constitution requiring every law to have only one subject which crude oil in the world market are considered to be declining nor when the exchange rate of the
shall be expressed in its title. Petitioner contends that the imposition of tariff rates in section 5(b) peso to the US dollar is considered stable.
of R.A. No. 8180 is foreign to the subject of the law which is the deregulation of the downstream Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the
oil industry. downstream oil industry is arbitrary and unreasonable because it was enacted due to the alleged
depletion of the OPSF fund—a condition not found in R.A. No. 8180.
Third, Section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues
among the three existing oil companies—Petron, Caltex and Shell—in violation of the which deserve the resolution of this Court in view of their seriousness and their value as
constitutional prohibition against monopolies, combinations in restraint of trade and unfair precedents. Our statement of facts and definition of issues clearly show that petitioners are
competition. assailing R.A. No. 8180 because its provisions infringe the Constitution and not because the law
Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and lacks wisdom. The principle of separation of power mandates that challenges on the
E.O. No. 392. In addition, respondents contend that the issues raised by the petitions are not constitutionality of a law should be resolved in our courts of justice while doubts on the wisdom of
justiciable as they pertain to the wisdom of the law. Respondents further aver that petitioners have a law should be debated in the halls of Congress. Every now and then, a law may be denounced in
no locus standi as they did not sustain nor will they sustain direct injury as a result of the court both as bereft of wisdom and constitutionality infirmed. Such denunciation will not deny this
implementation of R.A. No. 8180. Court of its jurisdiction to resolve the constitutionality of the said law while prudentially refusing
The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court to pass on its wisdom.
ordered the private respondents oil companies “to maintain the status quo and to cease and desist The effort of respondents to question the locus standi of petitioners must also fall on barren
from increasing the prices of gasoline and other petroleum fuel products for a period of thirty (30) ground. In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a
days x x x subject to further orders as conditions may warrant.” petitioner’s locus standi where the petitioner is able to craft an issue of transcendental significance
We shall now resolve the petitions on the merit. The petitions raise procedural and substantive to the people. In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, we
15 16
issues bearing on the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural stressed:
issues are: (1) whether or not the petitions raise a justiciable controversy, and (2) whether or not “x x x
the petitioners have the standing to assail the validity of the subject law and executive order. Objections to taxpayers’ suit for lack of sufficient personality, standing or interest are, however, in the
The substantive issues are: (1) whether or not section 5(b) violates the one title-one subject main procedural matters.
____________________________
requirement of the Constitution; (2) whether or not the same section violates
347
Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmeña v. COMELEC,199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA
15
52 (1991); Daza v. Singson, 180 SCRA 496 (1989); Araneta v. Dinglasan, 84 Phil. 368 (1949).
VOL. 281, NOVEMBER 5, 1997 347 163 SCRA 371 (1988).
16
349
Tatad vs. Secretary of the Department of Energy
the equal protection clause of the Constitution; (3) whether or not section 15 violates the VOL. 281, NOVEMBER 5, 1997 349
constitutional prohibition on undue delegation of power; (4) whether or not E.O. No. 392 is
Tatad vs. Secretary of the Department of Energy
arbitrary and unreasonable; and (5) whether or not R.A. No. 8180 violates the constitutional Considering the importance to the public of the cases at bar, and in keeping with the Court’s duty, under the
prohibition against monopolies, combinations in restraint of trade and unfair competition. 1987 Constitution, to determine whether or not the other branches of government have kept themselves within
We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court
of the petitioners assail the wisdom of R.A. No. 8180. They aver that deregulation of the has brushed aside technicalities of procedure and has taken cognizance of these petitions.”
downstream oil industry is a policy decision made by Congress and it cannot be reviewed, much There is not a dot of disagreement between the petitioners and the respondents on the far reaching
less be reversed by this Court. In constitutional parlance, respondents contend that the petitions importance of the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there
failed to raise a justiciable controversy. is no good sense in being hypertechnical on the standing of petitioners for they pose issues which
Respondents’ joint stance is unnoteworthy. Judicial power includes not only the duty of the are significant to our people and which deserve our forthright resolution.
courts to settle actual controversies involving rights which are legally demandable and We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is
enforceable, but also the duty to determine whether or not there has been grave abuse of discretion Senator Tatad, it is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the provision of the Constitution requiring every law to have only one subject which should be
17
government. The courts, as guardians of the Constitution, have the inherent authority to determine
12
expressed in its title. We do not concur with this contention. As a policy, this Court has adopted a
whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. liberal construction of the one title—one subject rule. We have consistently ruled that the title 18
Where a statute violates the Constitution, it is not only the right but the duty of the judiciary to need not mirror, fully index or catalogue all contents and minute details of a law. A law having a
declare such act as unconstitutional and void. We held in the recent case of Tañada v. Angara:
13 14
single general subject indicated in the title may contain any number of provisions, no matter how
“x x x diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the may be considered in furtherance of such subject by providing for the method and means of
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged carrying out the general subject. We hold that section 5(b) providing for tariff differential is
19
to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to
_______________ germane to the
_______________
12
Section 1, Article VIII, 1987 Constitution.
13
Bondoc v. Pineda, 201 SCRA 792 (1991); Osmeña v. COMELEC, 199 SCRA 750 (1991). Section 26(1), Article VI of the 1987 Constitution provides that “every bill passed by the Congress shall embrace only
17
14
G.R. No. 118295, May 2, 1997. one subject which shall be expressed in the title thereof.”
348 Tobias v. Abalos, 239 SCRA 106 (1994); Philippine Judges Association v. Prado, 227 SCRA 703 (1993); Lidasan v.
18
COMELEC, 21 SCRA 496 (1967).
348 SUPREME COURT REPORTS ANNOTATED Tio v. Videogram Regulatory Board, 151 SCRA 208 (1987).
19
350
Tatad vs. Secretary of the Department of Energy
settle the dispute. The question thus posed is judicial rather than political. The duty to adjudicate remains to 350 SUPREME COURT REPORTS ANNOTATED
assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or
interpretation of a constitutional provision is raised before this Court, it becomes a legal issue which the Court Tatad vs. Secretary of the Department of Energy
is bound by constitutional mandate to decide.”
subject of R.A. No. 8180 which is the deregulation of the downstream oil industry. The section is backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional
supposed to sway prospective investors to put up refineries in our country and make them rely less infirmity.” 24
on imported petroleum. We shall, however, return to the validity of this provision when we
20
Given the groove of the Court’s rulings, the attempt of petitioners to strike down section 15 on
examine its blocking effect on new entrants to the oil market. the ground of undue delegation of legislative power cannot prosper. Section 15 can hurdle both the
We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 completeness test and the sufficient standard test. It will be noted that Congress expressly provided
of R.A. No. 8180 which fixes the time frame for the full deregulation of the downstream oil in R.A. No. 8180 that full deregulation will start at the end of March 1997, regardless of the
industry. We restate its pertinent portion for emphasis, viz.: occurrence of any event. Full deregulation at the end of March 1997 is mandatory and the
“Sec. 15. Implementation of Full Deregulation—Pursuant to section 5(e) of Republic Act No. 7638, the DOE Executive has no discretion to postpone it for any purported reason. Thus, the law is complete on
shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later the question of the final date of full deregulation. The discretion given to the President is to
than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil advance the date of full deregulation before the end of March 1997. Section 15 lays down the
and petroleum products in the world market are declining and when the exchange rate of the peso in relation to
standard to guide the judgment of the President—he is to time it as far as practicable when the
the US dollar is stable . . .”
prices of crude oil and petroleum products in the world market are declining and when the
Petitioners urge that the phrases “as far as practicable,” “decline of crude oil prices in the world
exchange rate of the peso in relation to the US dollar is stable.
market” and “stability of the peso exchange rate to the US dollar” are ambivalent, unclear and
Petitioners contend that the words “as far as practicable,” “declining” and “stable” should
inconcrete in meaning. They submit that they do not provide the “determinate or determinable
have been defined in R.A. No. 8180 as they do not set determinate or determinable standards. The
standards” which can guide the President in his decision to fully deregulate the downstream oil
stubborn submission deserves scant consideration. The dictionary meanings of these words are
industry. In addition, they contend that E.O. No. 392 which advanced the date of full deregulation
well settled and cannot confuse men of reasonable intelligence. Webster defines “practicable” as
is void for it illegally considered the depletion of the OPSF fund as a factor.
meaning possible to practice or perform, “decline” as meaning to take a downward direction, and
The power of Congress to delegate the execution of laws has long been settled by this Court.
“stable” as meaning firmly established. The fear of petitioners that these words will result in the
As early as 1916 in Compania General de Tabacos de Filipinas vs. The Board of Public
25
_______________ exercise of executive discretion that will run riot is thus groundless. To be sure, the
_______________
Journal of the House of Representatives, December 13, 1995, p. 32.
20
351 320 US 99.
23
Philippine Political Law, 1995 ed., p. 99.
24
VOL. 281, NOVEMBER 5, 1997 351 Webster, New Third International Dictionary, 1993 ed., pp. 1780, 586 and 2218.
25
353
Tatad vs. Secretary of the Department of Energy
VOL. 281, NOVEMBER 5, 1997 353
Utility Commissioners, this Court thru, Mr. Justice Moreland, held that “the true distinction is
21
between the delegation of power to make the law, which necessarily involves a discretion as to Tatad vs. Secretary of the Department of Energy
what it shall be, and conferring authority or discretion as to its execution, to be exercised under Court has sustained the validity of similar, if not more general standards in other cases. 26
and in pursuance of the law. The first cannot be done; to the latter no valid objection can be It ought to follow that the argument that E.O. No. 392 is null and void as it was based on
made.” Over the years, as the legal engineering of men’s relationship became more difficult, indeterminate standards set by R.A. 8180 must likewise fail. If that were all the attack against the
Congress has to rely more on the practice of delegating the execution of laws to the executive and validity of E.O. No. 392, the issue need not further detain our discourse. But petitioners further
other administrative agencies. Two tests have been developed to determine whether the delegation posit the thesis that the Executive misapplied R.A. No. 8180 when it considered the depletion of
of the power to execute laws does not involve the abdication of the power to make law itself. We the OPSF fund as a factor in fully deregulating the downstream oil industry in February 1997. A
delineated the metes and bounds of these tests in Eastern Shipping Lines, Inc. vs. POEA, thus: 22
perusal of section 15 of R.A. No. 8180 will readily reveal that it only enumerated two factors to be
“There are two accepted tests to determine whether or not there is a valid delegation of legislative considered by the Department of Energy and the Office of the President, viz.: (1) the time when
power, viz: the completeness test and the sufficient standard test. Under the first test, the law must be complete the prices of crude oil and petroleum products in the world market are declining, and (2) the time
in all its terms and conditions when it leaves the legislative such that when it reaches the delegate the only
when the exchange rate of the peso in relation to the US dollar is stable. Section 15 did not
thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate guidelines or
limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from mention the depletion of the OPSF fund as a factor to be given weight by the Executive before
running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who ordering full deregulation. On the contrary, the debates in Congress will show that some of our
is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.” legislators wanted to impose as a pre-condition to deregulation a showing that the OPSF fund must
The validity of delegating legislative power is now a quiet area in our constitutional landscape. As not be in deficit. We therefore hold that the Executive department failed to follow faithfully the
27
sagely observed, delegation of legislative power has become an inevitability in light of the standards set by R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF
increasing complexity of the task of government. Thus, courts bend as far back as possible to fund. The misappreciation of this extra factor cannot be justified on the ground that the Executive
sustain the constitutionality of laws which are assailed as unduly delegating department considered anyway the stability of the prices of crude oil in the world market and the
_______________ stability of the exchange rate of the peso to the dollar. By considering another factor to hasten full
deregulation, the Executive department rewrote the standards set forth in R.A. 8180. The
34 Phil. 136 citing Cincinnati, W. & Z. R.R. Co. vs. Clinton Country Commrs. (1 Ohio St. 77).
21
Executive is
166 SCRA 533, 543-544.
22
_______________
352
SUPREME COURT REPORTS ANNOTATED 352 See e.g., Balbuena v. Secretary of Education, 110 Phil. 150 used the standard “simplicity and dignity.” People v.
26
Rosenthal, 68 Phil. 328(“public interest”); Calalang v. Williams, 70 Phil. 726 (“public welfare”); Rubi v. Provincial Board of
Tatad vs. Secretary of the Department of Energy Mindoro, 39 Phil. 669 (“interest of law and order”).
legislative powers. Citing Hirabayashi v. United States as authority, Mr. Justice Isagani A. Cruz
23
See for example TSN of the Session of the Senate on November 14, 1995, p. 19, view of Senator Gloria M. Arroyo.
27
354
states “that even if the law does not expressly pinpoint the standard, the courts will bend over
354 SUPREME COURT REPORTS ANNOTATED Tatad vs. Secretary of the Department of Energy
bereft of any right to alter either by subtraction or addition the standards set in R.A. No. 8180 for it
has no power to make laws. To cede to the Executive the power to make law is to invite tyranny,
indeed, to transgress the principle of separation of powers. The exercise of delegated power is
given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the
terms of agency. In the cases at bar, the Executive co-mingled the factor of depletion of the OPSF
fund with the factors of decline of the price of crude oil in the world market and the stability of the
peso to the US dollar. On the basis of the text of E.O. No. 392, it is impossible to determine the
weight given by the Executive department to the depletion of the OPSF fund. It could well be the
principal consideration for the early deregulation. It could have been accorded an equal
significance. Or its importance could be nil. In light of this uncertainty, we rule that the early
deregulation under E.O. No. 392 constitutes a misapplication of R.A. No. 8180.
We now come to grips with the contention that some provisions of R.A. No. 8180 violate
section 19 of Article XII of the 1987 Constitution. These provisions are:
1. (1)Section 5(b) which states—“Any law to the contrary notwithstanding and starting
with the effectivity of this Act, tariff duty shall be imposed and collected on imported
crude oil at the rate of three percent (3%) and imported refined petroleum products at
the rate of seven percent (7%) except fuel oil and LPG, the rate for which shall be the
same as that for imported crude oil. Provided, that beginning on January 1, 2004 the
tariff rate on imported crude oil and refined petroleum products shall be the same.
Provided, further, that this provision may be amended only by an Act of Congress.”
2. (2)Section 6 which states—“To ensure the security and continuity of petroleum crude
and products supply, the DOE shall require the refiners and importers to maintain a
minimum inventory equivalent to ten percent (10%) of their respective annual sales
volume or forty (40) days of supply, whichever is lower,” and
3. (3)Section 9(b) which states—“To ensure fair competition and prevent cartels and
monopolies in the downstream oil industry, the following acts shall be prohibited:
xxx
355
VOL. 281, NOVEMBER 5, 1997 355
Tatad vs. Secretary of the Department of Energy
1. (b)Predatory pricing which means selling or offering to sell any product at a price
unreasonably below the industry average cost so as to attract customers to the
detriment of com-petitors.”
On the other hand, section 19 of Article XII of the Constitution allegedly violated by the
aforestated provisions of R.A. No. 8180 mandates: “The State shall regulate or prohibit
monopolies when the public interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed.”
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies,
consisting in the exclusive right or power to carry on a particular business or trade, manufacture a
particular article, or control the sale or the whole supply of a particular commodity. It is a form of
market structure in which one or only a few firms dominate the total sales of a product or
service. On the other hand, a combination in restraint of trade is an agreement or understanding
28
between two or more persons, in the form of a contract, trust, pool, holding company, or other
form of association, for the purpose of unduly restricting competition, monopolizing trade and
commerce in a certain commodity, controlling its production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority. Combination in restraint of trade
29
refers to the means while monopoly refers to the end. 30
Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to enterprise system is dictated by the need to achieve the goals of our national economy as defined
this constitutional policy. Article 186 of the Revised Penal Code penalizes monopolization and by section 1, Article XII of the Constitution which are: more equitable distribution of
creation of combinations in restraint of trade, while 31
opportunities, income and wealth; a sustained increase in the amount of goods and services
_______________ produced
_______________
Black’s Law Dictionary, 6th edition, p. 1007.
28
Id., p. 266.
29
Bernas, The Intent of the 1986 Constitution Writers (1995), p. 877; Philippine Long Distance Telephone Co. v.
33
54 Am Jur 2d 669.
30
National Telecommunications Commission, 190 SCRA 717 (1990); Northern Cement Corporation v. Intermediate Appellate
Art. 186. Monopolies and combinations in restraint of trade.—The penalty of prision correccional in its minimum
31
Court, 158 SCRA 408 (1988); Philippine Ports Authority v. Mendoza, 138 SCRA 496 (1985); Anglo-Fil Trading Corporation
period or a fine ranging from 200 to 6,000 pesos, or both, shall be imposed upon: 1. Any person who shall enter into any v. Lazaro, 124 SCRA 494 (1983).
contract or agreement or shall take part in any conspiracy or combination in the form of a Record of the Constitutional Commission, Volume III, p. 258.
34
356 358
356 SUPREME COURT REPORTS ANNOTATED 358 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy Tatad vs. Secretary of the Department of Energy
Article 28 of the New Civil Code makes any person who shall engage in unfair competition liable by the nation for the benefit of the people; and an expanding productivity as the key to raising the
for damages. 32
quality of life for all, especially the underprivileged. It also calls for the State to protect Filipino
_______________
enterprises against unfair competition and trade practices.
Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses
trust or otherwise, in restraint of trade or commerce to prevent by artificial means free competition in the market.
2. Any person who shall monopolize any merchandise or object of trade or commerce, or shall combine with any other competition. The desirability of competition is the reason for the prohibition against restraint of
person or persons to monopolize said merchandise or object in order to alter the price thereof by spreading false rumors or trade, the reason for the interdiction of unfair competition, and the reason for regulation of
making use of any other article to restrain free competition in the market; unmitigated monopolies. Competition is thus the underlying principle of section 19, Article XII of
3. Any person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an
importer of any merchandise or object of commerce from any foreign country, either as principal or agent, wholesaler or
our Constitution which cannot be violated by R.A. No. 8180. We subscribe to the observation of
retailer, shall combine, conspire or agree in any manner with any person likewise engaged in the manufacture, production, Prof. Gellhorn that the objective of anti-trust law is “to assure a competitive economy, based upon
processing, assembling or importation of such merchandise or object of commerce or with any other persons not so similarly the belief that through competition producers will strive to satisfy consumer wants at the lowest
engaged for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market price in any part of price with the sacrifice of the fewest resources. Competition among producers allows consumers
the Philippines, or any such merchandise or object of commerce manufactured, produced, or processed, assembled in or
imported into the Philippines, or of any article in the manufacture of which such manufactured, produced, processed, or to bid for goods and services, and thus matches their desires with society’s opportunity costs.” He 35
imported merchandise or object of commerce is used. adds with appropriateness that there is a reliance upon “the operation of the ‘market’ system (free
If the offense mentioned in this article affects any food substance, motor fuel or lubricants, or other articles of prime enterprise) to decide what shall be produced, how resources shall be allocated in the production
necessity the penalty shall be that of prision mayor in its maximum and medium periods, it being sufficient for the imposition
thereof that the initial steps have been taken toward carrying out the purposes of the combination.
process, and to whom the various products will be distributed. The market system relies on the
xxx consumer to decide what and how much shall be produced, and on competition, among producers
Whenever any of the offenses described above is committed by a corporation or association, the president and each one to determine who will manufacture it.”
of the directors or managers of said corporation or association, who shall have knowingly permitted or failed to prevent the Again, we underline in scarlet that the fundamental principle espoused by section 19, Article
commission of such offenses, shall be held liable as principals thereof.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force,
32
XII of the Constitution is competition for it alone can release the creative forces of the market. But
intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the competition that can unleash these creative forces is competition that is fighting yet is fair.
the person who thereby suffers damage. Ideally, this kind of competition requires the presence of not one, not just a few but several
357 players. A market controlled by one player (monopoly) or dominated by a handful of players
VOL. 281, NOVEMBER 5, 1997 357 (oligopoly) is
_______________
Tatad vs. Secretary of the Department of Energy
Respondents aver that sections 5(b), 6 and 9(b) implement the policies and objectives of R.A. No. Gellhorn, Anti Trust Law and Economics in a Nutshell, 1986 ed., p. 45.
35
8180. They explain that the 4% tariff differential is designed to encourage new entrants to invest in 359
refineries. They stress that the inventory requirement is meant to guaranty continuous domestic VOL. 281, NOVEMBER 5, 1997 359
supply of petroleum and to discourage fly-by-night operators. They also submit that the
prohibition against predatory pricing is intended to protect prospective entrants. Respondents Tatad vs. Secretary of the Department of Energy
manifested to the Court that new players have entered the Philippines after deregulation and have hardly the market where honest-to-goodness competition will prevail. Monopolistic or
now captured 3%-5% of the oil market. oligopolistic markets deserve our careful scrutiny and laws which barricade the entry points of
The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter new players in the market should be viewed with suspicion.
and spirit of our Constitution, especially section 19, Article XII. Beyond doubt, the Constitution Prescinding from these baseline propositions, we shall proceed to examine whether the
committed us to the free enterprise system but it is system impressed with its own distinctness. provisions of R.A. No. 8180 on tariff differential, inventory reserves, and predatory prices
Thus, while the Constitution embraced free enterprise as an economic creed, it did not prohibit per imposed substantial barriers to the entry and exit of new players in our downstream oil industry. If
se the operation of monopolies which can, however, be regulated in the public interest. Thus too, 33 they do, they have to be struck down for they will necessarily inhibit the formation of a truly
our free enterprise system is not based on a market of pure and unadulterated competition where competitive market. Contrariwise, if they are insignificant impediments, they need not be stricken
the State pursues a strict hands-off policy and follows the let-the-devil devour the hindmost rule. down.
Combinations in restraint of trade and unfair competitions are absolutely proscribed and the In the cases at bar, it cannot be denied that our downstream oil industry is operated and
proscription is directed both against the State as well as the private sector. This distinct free 34 controlled by an oligopoly, a foreign oligopoly at that. Petron, Shell and Caltex stand as the only
major league players in the oil market. All other players belong to the lilliputian league. As the We come to the final point. We now resolve the total effect of the untimely deregulation, the
dominant players, Petron, Shell and Caltex boast of existing refineries of various capacities. The imposition of 4% tariff differential on imported crude oil and refined petroleum products, the
tariff differential of 4% therefore works to their immense benefit. Yet, this is only one edge of the requirement of inventory and the prohibition on predatory pricing on the constitutionality of R.A.
tariff differential. The other edge cuts and cuts deep in the heart of their competitors. It erects a No. 8180. The question is whether these offending provisions can be individually struck down
high barrier to the entry of new players. New players that intend to equalize the market power of without invalidating the entire R.A. No. 8180. The ruling case law is well stated by
Petron, Shell and Caltex by building refineries of their own will have to spend billions of pesos. author Agpalo, viz.: 37
Those who will not build refineries but compete with them will suffer the huge disadvantage of “x x x
increasing their product cost by 4%. They will be competing on an uneven field. The argument The general rule is that where part of a statute is void as repugnant to the Constitution, while another part
that the 4% tariff differential is desirable because it will induce prospective players to invest in is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather than
refineries puts the cart before the horse. The first need is to attract new players and they cannot be
complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid
attracted by burdening them with heavy disincentives. Without new players belonging to the portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it
league of Petron, Shell and Caltex, competition in our downstream oil industry is an idle dream. could not constitutionaly enact the other. Enough must remain to make a complete, intelligible and valid
The provision on inventory widens the balance of advantage of Petron, Shell and Caltex statute, which carries out the legislative intent. x x x
against prospective new players. Petron, Shell and Caltex can easily comply with the The exception to the general rule is that when the parts of a statute are so mutually dependent and
360 connected, as conditions,
_______________
360 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy 37
Statutory Construction, 1986 ed., pp. 28-29.
362
inventory requirement of R.A. No. 8180 in view of their existing storage facilities. Prospective
competitors again will find compliance with this requirement difficult as it will entail a prohibitive 362 SUPREME COURT REPORTS ANNOTATED
cost. The construction cost of storage facilities and the cost of inventory can thus scare prospective Tatad vs. Secretary of the Department of Energy
players. Their net effect is to further occlude the entry points of new players, dampen competition considerations, inducements, or compensations for each other, as to warrant a belief that the legislature
and enhance the control of the market by the three (3) existing oil companies. intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute
Finally, we come to the provision on predatory pricing which is defined as “x x x selling or dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a
offering to sell any product at a price unreasonably below the industry average cost so as to attract whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the
customers to the detriment of competitors.” Respondents contend that this provision works against other provisions thus dependent, conditional, or connected must fall with them.”
Petron, Shell and Caltex and protects new entrants. The ban on predatory pricing cannot be R.A. No. 8180 contains a separability clause. Section 23 provides that “if for any reason, any
analyzed in isolation. Its validity is interlocked with the barriers imposed by R.A. No. 8180 on the section or provision of this Act is declared unconstitutional or invalid, such parts not affected
entry of new players. The inquiry should be to determine whether predatory pricing on the part of thereby shall remain in full force and effect.” This separability clause notwithstanding, we hold
the dominant oil companies is encouraged by the provisions in the law blocking the entry of new that the offending provisions of R.A. No. 8180 so permeate its essence that the entire law has to be
players. Text-writer Hovenkamp, gives the authoritative answer and we quote:
36 struck down. The provisions on tariff differential, inventory and predatory pricing are among the
“x x x principal props of R.A. No. 8180. Congress could not have deregulated the downstream oil
“The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits industry without these provisions. Unfortunately, contrary to their intent, these provisions on tariff
in the future. The monopoly profits will never materialize, however, if the market is flooded with new entrants differential, inventory and predatory pricing inhibit fair competition, encourage monopolistic
as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the power and interfere with the free interaction of market forces. R.A. No. 8180 needs provisions to
market contains significant barriers to new entry.” vouchsafe free and fair competition. The need for these vouchsafing provisions cannot be
As aforediscussed, the 4% tariff differential and the inventory requirement are significant barriers overstated. Before deregulation, PETRON, SHELL and CALTEX had no real competitors but did
which discourage new players to enter the market. Considering these significant barriers not have a free run of the market because government controls both the pricing and non-pricing
established by R.A. No. 8180 and the lack of players with the comparable clout of PETRON, aspects of the oil industry. After deregulation,PETRON, SHELL and CALTEX remain
SHELL and CALTEX, the temptation for a dominant player to engage in predatory unthreatened by real competition yet are no longer subject to control by government with respect
_______________
to their pricing and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated market
Economics and Federal Anti-Trust Law, Hornbook Series, Student ed., 1985 ed., p. 181.
36
where competition can be corrupted and where market forces can be manipulated by oligopolies.
361 The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress.
A lot of our leading legislators have come out openly with bills seeking the repeal of these odious
VOL. 281, NOVEMBER 5, 1997 361
and offensive provisions in R.A. No. 8180. In the
Tatad vs. Secretary of the Department of Energy 363
pricing and succeed is a chilling reality. Petitioners’ charge that this provision on predatory pricing VOL. 281, NOVEMBER 5, 1997 363
is anti-competitive is not without reason.
Tatad vs. Secretary of the Department of Energy
Respondents belittle these barriers with the allegation that new players have entered the
market since deregulation. A scrutiny of the list of the alleged new players will, however, reveal Senate, Senator Freddie Webb has filed S.B. No. 2133 which is the result of the hearings
that not one belongs to the class and category of PETRON, SHELL and CALTEX. Indeed, there is conducted by the Senate Committee on Energy. The hearings revealed that (1) there was a need to
no showing that any of these new players intends to install any refinery and effectively compete level the playing field for the new entrants in the downstream oil industry, and (2) there was no
with these dominant oil companies. In any event, it cannot be gainsaid that the new players could law punishing a person for selling petroleum products at unreasonable prices. Senator Alberto G.
have been more in number and more impressive in might if the illegal entry barriers in R.A. No. Romulo also filed S.B. No. 2209 abolishing the tariff differential beginning January 1, 1998. He
8180 were not erected. declared that the amendment “x x x would mean that instead of just three (3) big oil companies
there will be other major oil companies to provide more competitive prices for the market and the Board (ERB) the authority to review prices of oil and other petroleum products, as may be petitioned by a
consuming public.” Senator Heherson T. Alvarez, one of the principal proponents of R.A. No. person, group or any entity, and to subsequently compel any entity in the industry to submit any and all
8180, also filed S.B. No. 2290 increasing the penalty for violation of its section 9. It is his opinion documents relevant to the imposition of new prices. In cases where the Board determines that there exist
collusion, economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any step
as expressed in the explanatory note of the bill that the present oil companies are engaged in
necessary to protect the public, including the readjustment of the prices of petroleum products. Further, the
cartelization despite R.A. No. 8180, viz.: Board may also impose the fine and penalty of imprisonment, as prescribed in Section 9 of R.A. 8180, on any
“x x x person or entity from the oil industry who is found guilty of such prohibited acts.
“Since the downstream oil industry was fully deregulated in February 1997, there have been eight (8) fuel By doing all of the above, the measure will effectively provide Filipino consumers with a venue where
price adjustments made by the three oil majors, namely: Caltex Philippines, Inc.; Petron Corporation; and their grievances can be heard and immediately acted upon by government.
Pilipinas Shell Petroleum Corporation. Very noticeable in the price adjustments made, however, is the Thus, this bill stands to benefit the Filipino consumer by making the price-setting process more
uniformity in the pump prices of practically all petroleum products of the three oil companies. This, despite the transparent and making it easier to prosecute those who perpetrate such prohibited acts as collusion,
fact, that their selling rates should be determined by a combination of any of the following factors: the overpricing, economic conspiracy and unfair trade.”
prevailing peso-dollar exchange rate at the time payment is made for crude purchases, sources of crude, and
Representative Sergio A.F. Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180
inventory levels of both crude and refined petroleum products. The abovestated factors should have resulted in
different, rather than identical prices. where there is no agency in government that determines what is “reasonable” increase in the prices
The fact that the three (3) oil companies’ petroleum products are uniformly priced suggests collusion, of oil products. Representative Dante O. Tinga, one of the principal sponsors of R.A. No. 8180,
amounting to cartelization,among Caltex Philippines, Inc., Petron Corporation, and Pilipinas Shell Petroleum filed H.B. No. 10057 to strengthen its anti-trust provisions. He elucidated in its explanatory note:
Corporation to fix the prices of petroleum products in violation of paragraph(a), Section 9 of R.A. No. 8180. “x x x
To deter this pernicious practice and to assure that present and prospective players in the downstream oil The definition of predatory pricing, however, needs to be tightened up particularly with respect to the
industry conduct their definitive benchmark price
364 366
364 SUPREME COURT REPORTS ANNOTATED 366 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy Tatad vs. Secretary of the Department of Energy
business with conscience and propriety, cartel-like activities ought to be severely penalized.” and the specific anti-competitive intent. The definition in the bill at hand which was taken from the Areeda-
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on Turner test in the United States on predatory pricing resolves the questions. The definition reads, ‘Predatory
imported crude oil and refined petroleum products. In the explanatory note of the bill, he declared pricing means selling or offering to sell any oil product at a price below the average variable cost for the
purpose of destroying competition, eliminating a competitor or discouraging a competitor from entering the
in no uncertain terms that “x x x the present set-up has raised serious public concern over the way
market.’
the three oil companies have uniformly adjusted the prices of oil in the country, an indication of a The appropriate actions which may be resorted to under the Rules of Court in conjunction with the oil
possible existence of a cartel or a cartel-like situation within the downstream oil industry. This deregulation law are adequate. But to stress their availability and dynamism, it is a good move to incorporate
situation is mostly attributed to the foregoing provision on tariff differential, which has effectively all the remedies in the law itself. Thus, the present bill formalizes the concept of government intervention and
discouraged the entry of new players in the downstream oil industry.” private suits to address the problem of antitrust violations. Specifically, the government may file an action to
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are equally prevent or restrain any act of cartelization or predatory pricing, and if it has suffered any loss or damage by
feverish. Representative Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the reason of the antitrust violation it may recover damages. Likewise, a private person or entity may sue to
tariff differential for imported crude oil and imported refined petroleum products. In the prevent or restrain any such violation which will result in damage to his business or property, and if he has
already suffered damage he shall recover treble damages. A class suit may also be allowed.
explanatory note of the bill, Rep. Buenaventura explained:
To make the DOE Secretary more effective in the enforcement of the law, he shall be given additional
“x x x
powers to gather information and to require reports.”
As we now experience, this difference in tariff rates between imported crude oil and imported refined
petroleum products, unwittingly provided a built-in-advantage for the three existing oil refineries in the Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A.
country and eliminating competition which is a must in a free enterprise economy. Moreover, it created a No. 8180. He wants it completely repealed. He explained:
disincentive for other players to engage even initially in the importation and distribution of refined petroleum “x x x
products and ultimately in the putting up of refineries. This tariff differential virtually created a monopoly of Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation was
the downstream oil industry by the existing three oil companies as shown by their uniform and capricious discussed and debated upon in the plenary session prior to its approval into law, there aren’t any new players
pricing of their products since this law took effect, to the great disadvantage of the consuming public. or investors in the oil industry. Thus, resulting in practically a cartel or monopoly in the oil industry by the
Thus, instead of achieving the desired effects of deregulation, that of free enterprise and a level playing three (3) big oil companies, Caltex, Shell and Petron. So much so, that with the deregulation now being
field in the downstream oil industry, R.A. 8180 has created an environment conducive to cartelization, partially implemented, the said oil companies have succeeded in increasing the prices of most of their
unfavorable, increased, unrealistic prices of petroleum products in the country by the three existing petroleum products with little or no interference at all from the government. In the month of August, there was
refineries.” an increase of Fifty centavos (50¢) per liter by subsidizing the same with the OPSF, this is only temporary as
365 in March 1997, or a few months from now, there will be full deregulation (Phase II) whereby the increase in
the
VOL. 281, NOVEMBER 5, 1997 365 367
Tatad vs. Secretary of the Department of Energy VOL. 281, NOVEMBER 5, 1997 367
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981to prevent collusion among the
Tatad vs. Secretary of the Department of Energy
present oil companies bystrengthening the oversight function of the government, particularly its
prices of petroleum products will be fully absorbed by the consumers since OPSF will already be abolished by
ability to subject to a review any adjustment inthe prices of gasoline and other petroleum products. then. Certainly, this would make the lives of our people, especially the unemployed ones, doubly difficult and
In theexplanatory note of the bill, Rep. Punzalan, Jr., said: unbearable.
“x x x The much ballyhooed coming in of new players in the oil industry is quite remote considering that these
To avoid this, the proposed bill seeks to strengthen the oversight function of government, particularly its prospective investors cannot fight the existing and well established oil companies in the country today,
ability to review the prices set for gasoline and other petroleum products. It grants the Energy Regulatory namely, Caltex, Shell and Petron. Even if these new players will come in, they will still have no chance to
compete with the said three (3) existing big oil companiesconsidering that there is an imposition of oil tariff 8180, And What Measures Should Be Taken To Help Ensure The Successful Implementation Of
differential of 4% between importation of crude oil by the said oil refineries paying only 3% tariff rate for the The Law In Accordance With Its Letter And Spirit, Including Recommending Criminal
said importation and 7% tariff rate to be paid by businessmen who have no oil refineries in the Philippines but Prosecution Of the Officers Concerned Of the Oil Companies If Warranted By The Evidence, And
will import finished petroleum/oil products which is being taxed with 7% tariff rates.
For Other Purposes.” Representatives Marcial C. Punzalan, Jr. Dante O. Tinga and Antonio E.
So, if only to help the many who are poor from further suffering as a result of unmitigated increase in oil
products due to deregulation, it is a must that the Downstream Oil Industry Deregulation Act of 1996, or R.A. Bengzon III filed H.R. No. 894 directing the House Committee on Energy to inquire into the
8180 be repealed completely.” proper implementation of the deregulation of the downstream oil industry. House Resolution No.
Various resolutions have also been filed in the Senate calling for an immediate and comprehensive 1013 was also filed by Representatives Edcel C. Lagman, Enrique T. Garcia, Jr. and Joker P.
review of R.A. No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No. Arroyo urging the President to immediately suspend the implementation of E.O. No. 392.
574 was filed by Senator Gloria M. Macapagal entitled Resolution “Directing the Committee on In recent memory there is no law enacted by the legislature afflicted with so much
Energy to Inquire Into The Proper Implementation of the Deregulation of the Downstream Oil constitutional deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity
Industry and Oil Tax Restructuring As Mandated Under R.A. Nos. 8180 and 8184, In Order to whose supply and price affect the ebb and flow of the lifeblood of the nation. Its shortage of
Make The Necessary Corrections In the Apparent Misinterpretation Of The Intent And Provision supply or a slight, upward spiral in its price shakes our economic foundation. Studies show that the
Of The Laws And Curb The Rising Tide Of Disenchantment Among The Filipino Consumers And areas most impacted by the movement of oil are food manufacture, land transport, trade, electricity
Bring About The Real Intentions And Benefits Of The Said Law.” Senator Blas P. Ople filed S. and water. At a time when our economy is in a dangerous downspin, the perpetuation of R.A. No.
38
Res. No. 664 entitled resolution “Directing the Committee on Energy To Conduct An Inquiry In 8180 threatens to multiply the number of our people with bent backs and begging bowls. R.A. No.
Aid Of Legislation To Review The Government’s Oil Deregulation Policy In Light Of The 8180 with its anti-competition provisions cannot be allowed by this Court to stand even while
Successive Increases In Transportation, Electricity And Power Rates, As Well As Of Food And Congress is working to remedy its defects.
Other Prime Commodities And Recommend Appropriate Amendments To Protect The Consuming The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our
Public.” Senator Ople observed: restraining order to enable them to adjust upward the price of petroleum and petroleum products in
368 view of the plummeting value of the peso. Their plea, however, will now have to be addressed to
the Energy Regulatory Board as the effect of the declaration of unconstitutionality of R.A. No.
368 SUPREME COURT REPORTS ANNOTATED
8180 is to revive the former laws it repealed. The length of our return to the regime of regula-
39
Tatad vs. Secretary of the Department of Energy _______________
“x x x
WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has imposed IBON Facts and Figures, Vol. 18, No. 7, p. 5, April 15, 1995.
38
successive increases in oil prices which has triggered increases in electricity and power rates, transportation Cruz v. Youngberg, 56 Phil. 234 (1931).
39
fares, as well as in prices of food and other prime commodities to the detriment of our people, particularly the 370
poor; 370 SUPREME COURT REPORTS ANNOTATED
WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex and Petron—
have not come in; Tatad vs. Secretary of the Department of Energy
WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider appropriate tion depends on Congress which can fasttrack the writing of a new law on oil deregulation in
amendments to the existing law such as an extension of the transition phase before full deregulation in order to accord with the Constitution.
give the competitive market enough time to develop; With this Decision, some circles will chide the Court for interfering with an economic
WHEREAS, the review can include the advisability of providing some incentives in order to attract the
entry of new oil companies to effect a dynamic competitive market;
decision of Congress. Such criticism is charmless for the Court is annulling R.A. No. 8180 not
WHEREAS, it may also be necessary to defer the setting up of the institutional framework for full because it disagrees with deregulation as an economic policy but because as cobbled by Congress
deregulation of the oil industry as mandated under Executive Order No. 377 issued by President Ramos last in its present form, the law violates the Constitution. The right call therefor should be for Congress
October 31, 1996 x x x.” to write a new oil deregulation law that conforms with the Constitution and not for this Court to
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution “Directing the Committees on shirk its duty of striking down a law that offends the Constitution. Striking down R.A. No. 8180
Energy and Public Services In Aid Of Legislation To Assess The Immediate MediumAnd Long may cost losses in quantifiable terms to the oil oligopolists. But the loss in tolerating the tampering
Term Impact of Oil Deregulation On Oil Prices AndThe Economy.” Among the reasons for the of our Constitution is not quantifiable in pesos and centavos. More worthy of protection than the
resolution is thefinding that “the requirement of a 40-day stock inventory effectively limits the supra-normal profits of private corporations is the sanctity of the fundamental principles of the
entry of other oil firms in the market with theconsequence that instead of going down oil prices Constitution. Indeed when confronted by a law violating the Constitution, the Court has no option
will rise.” but to strike it down dead. Lest it is missed, the Constitution is a covenant that grants and
Parallel resolutions have been filed in the House of Representatives. Representative Dante O. guarantees both the political and economic rights of the people. The Constitution mandates this
Tinga filed H. Res. No. 1311 “Directing The Committee on Energy To Conduct An Inquiry, In Court to be the guardian not only of the people’s political rights but their economic rights as well.
Aid of Legislation, Into The Pricing Policies And Decisions Of The Oil Companies Since The The protection of the economic rights of the poor and the powerless is of greater importance to
Implementation of Full Deregulation Under the Oil Deregulation Act (R.A. No. 8180) For the them for they are concerned more with the exoterics of living and less with the esoterics of liberty.
Purpose of Determining In the Context Of The Oversight Functions Of Congress Whether The Hence, for as long as the Constitution reigns supreme so long will this Court be vigilant in
Conduct Of The Oil Companies, Whether Singly Or Collectively, Constitutes Cartelization Which upholding the economic rights of our people especially from the onslaught of the powerful. Our
Is A Prohibited Act Under R.A. No. defense of the people’s economic rights may appear heartless because it cannot be half-hearted.
369 IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional
VOL. 281, NOVEMBER 5, 1997 369 and E.O. No. 372 void.
SO ORDERED.
Tatad vs. Secretary of the Department of Energy Regalado, Davide, Jr., Romero, Bellosillo and Vitug, JJ., concur.
Narvasa (C.J.), On official leave.
371 b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be
imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined petroleum
VOL. 281, NOVEMBER 5, 1997 371
products at the rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be the same as that
Tatad vs. Secretary of the Department of Energy for imported crude oil: Provided, That beginning on January 1, 2004 the tariff rate on imported crude oil and
Melo, J., I dissent. Opinion follows. refined petroleum products
373
Kapunan, J., See concurring opinion.
Mendoza, J., In the result. VOL. 281, NOVEMBER 5, 1997 373
Francisco, J., See dissenting opinion. Tatad vs. Secretary of the Department of Energy
Panganiban, J., See concurring opinion. shall be the same: Provided, further, That this provision may be amended only by an Act of Congress;
SEPARATE OPINION Respondents are one in asserting that the 4% tariff differential between imported crude oil and
imported refined petroleum products is intended to encourage the new entrants to put up their own
KAPUNAN, J.: refineries in the country. The advantages of domestic refining cannot be discounted, but we must
view this intent in the proper perspective. The primary purpose of the deregulation law is to open
Lately, the Court has been perceived (albeit erroneously) to be an unwelcome interloper in affairs up the market and establish free competition. The priority of the deregulation law, therefore, is to
and concerns best left to legislators and policy-makers. Admittedly, the wisdom of political and encourage new oil companies to come in first. Incentives to encourage the building of local
economic decisions are outside the scrutiny of the Court. However, the political question doctrine refineries should be provided after the new oil companies have entered the Philippine market and
is not some mantra that will automatically cloak executive orders and laws (or provisions thereof) are actively participating therein.
with legitimacy. It is this Court’s bounden duty under Sec. 4(2), Art. VIII of the 1987 Constitution The threshold question therefore is, is the 4% tariff differential a barrier to the entry of new oil
to decide all cases involving the constitutionality of laws and under Sec. 1 of the same article, “to companies in the Philippine market?
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of It is. Since the prospective oil companies do not (as yet) have local refineries, they would have
jurisdiction on the part of any branch or instrumentality of the Government.” to import refined petroleum products, on which a 7% tariff duty is imposed. On the other hand, the
In the instant case, petitioners assail the constitutionality of certain provisions found in R.A. existing oil companies already have domestic refineries and, therefore, only import crude oil
No. 8180, otherwise known as the “Downstream Oil Industry Deregulation Act of 1996.” To avoid which is taxed at a lower rate of 3%. Tariffs are part of the costs of production. Hence, this means
accusations of undue interference with the workings of the two other branches of government, this that with the 4% tariff differential (which becomes an added cost) the prospective players would
discussion is limited to the issue of whether or not the assailed provisions are germane to the law have higher production costs compared to the existing oil companies and it is precisely this factor
or serve the purpose for which it was enacted. which could seriously affect its decision to enter the market.
The objective of the deregulation law is quite simple. As aptly enunciated in Sec. 2 thereof, it Viewed in this light, the tariff differential between imported crude oil and refined petroleum
is to “foster a truly competitive market which can better achieve the social policy objectives of fair products becomes an obstacle to the entry of new players in the Philippine oil market. It defeats
prices and adequate, continuous supply of environmentally-clean and high quality petroleum the purpose of the law and should thus be struck down.
products.” Public respondents contend that “. . . a higher tariff rate is not the overriding factor
372 confronting a prospective trader/importer but, rather, his ability to generate the desired internal
rate of return (IRR) and net present value (NPV). In other
372 SUPREME COURT REPORTS ANNOTATED 374
Tatad vs. Secretary of the Department of Energy 374 SUPREME COURT REPORTS ANNOTATED
The key, therefore, is free competition which is commonly defined as:
The act or action of seeking to gain what another is seeking to gain at the same time and usually under or as if Tatad vs. Secretary of the Department of Energy
under fair or equitable rules and circumstances: a common struggle for the same object especially among words, if said trader/importer, after some calculation, finds that he can match the price of locally
individuals of relatively equal standing . . . a market condition in which a large number of independent buyers refined petroleum products and still earn the desired profit margin, despite a higher tariff rate, he
and sellers compete for identical commodity, deal freely with each other, and retain the right of entry and exit will be attracted to embark in such business. A tariff differential does not per se make the business
from the market. (Webster’s Third International Dictionary.) of importing refined petroleum product a losing proposition.” 1
and in a landscape where our oil industry is dominated by only three major oil firms, this translates The problem with this rationale, however, is that it is highly speculative. The opposite may
primarily into the establishment of a free market conducive to the entry of new and several oil well hold true. The point is to make the prospect of engaging in the oil business in the Philippines
companies in the business. Corollarily, it means the removal of any and all barriers that will hinder appealing, so why create a barrier in the first place?
the influx of prospective players. It is a truism in economics that if there are many players in the There is likewise no merit in the argument that the removal of the tariff differential will revive
market, healthy competition will ensue and in order to survive and profit the competitors will try the 10% (for crude oil) and 20% (for refined petroleum products) tariff rates that prevailed before
to outdo each other in terms of quality and price. The result: better quality products and the enactment of R.A. No. 8180. What petitioners are assailing is the tariff differential. Phrased
competitive prices. In the end, it will be the public that benefits (which is ultimately the most differently, why is the tariff duty imposed on imported petroleum products not the same as that
important goal of the law). Thus, it is within this framework that we must determine the validity of imposed on imported crude oil? Declaring the tariff differential void is not equivalent to declaring
the assailed provisions. the tariff itself void. The obvious consequence thereof would be that imported refined petroleum
I products would now be taxed at the same rate as imported crude oil which R.A. No. 8180 has
specifically set at 3%. The old rates have effectively been repealed by Sec. 24 of the same law. 2
The 4% Tariff Differential
Sec. 5. Liberalization of Downstream Oil Industry and Tariff Treatment.— II
x x x. The Minimum Inventory Requirement and the Prohibition Against Predatory Pricing
SEC. 6. Security of Supply.—To ensure the security and continuity of petroleum crude and products supply, PREMISES CONSIDERED, I vote that Section 5(b), Section 6 and Section 9(b) of R.A. No.
the DOE shall require the refiners and importers to maintain a minimum inventory 8180 be declared unconstitutional.
_______________
CONCURRING OPINION
Public respondents’ Comment, G.R. No. 127867, p. 39.
1
SEC. 24. Repealing Clause.—All laws, presidential decrees, executive orders, issuances, rules and regulations or parts thereof, which are
2
inconsistent with the provisions of this Act are hereby repealed or modified accordingly. PANGANIBAN, J.:
375
VOL. 281, NOVEMBER 5, 1997 375 I concur with the lucid and convincing ponencia of Mr. Justice Reynato S. Puno. I write to stress
two points:
Tatad vs. Secretary of the Department of Energy
equivalent to ten percent (10%) of their respective annual sales volume or forty (40) days of supply, whichever 1. The Issue Is Whether Oil Companies May Unilaterally Fix Prices, Not Whether This Court May
is lower. Interfere in Economic Questions
x x x.
With the issuance of the status quo order on October 7, 1997 requiring the three respondent oil
SEC. 9. Prohibited Acts.—To ensure fair competition and prevent cartels and monopolies in the
downstream oil industry, the following acts are hereby prohibited: companies—Petron, Shell and Caltex—“to cease and desist from increasing the
377
x x x.
b) Predatory pricing which means selling or offering to sell any product at a price unreasonably below the VOL. 281, NOVEMBER 5, 1997 377
industry average cost so as to attract customers to the detriment of competitors.
The same rationale holds true for the two other assailed provisions in the Oil Deregulation law. Tatad vs. Secretary of the Department of Energy
The primordial purpose of the law, I reiterate, is to create a truly free and competitive market. To prices of gasoline and other petroleum fuel products for a period of thirty (30) days,” the Court has
achieve this goal, provisions that show the possibility, or even the merest hint, of deterring or been accused of interfering in purely economic policy matters or, worse, of arrogating unto itself
1
impeding the ingress of new blood in the market should be eliminated outright. I am confident that price-regulatory powers. Let it be emphasized that we have no desire—nay, we have no power—
2
our lawmakers can formulate other measures that would accomplish the same purpose (insure to intervene in, to change or to repeal the laws of economics, in the same manner that we cannot
security and continuity of petroleum crude products supply and prevent fly by night operators, in and will not nullify or invalidate the laws of physics or chemistry.
the case of the minimum inventory requirement, for instance) but would not have on the downside The issue here is not whether the Supreme Court may fix the retail prices of petroleum
the effect of seriously hindering the entry of prospective traders in the market. products. Rather, the issue is whether RA 8180, the law allowing the oil companies to unilaterally
The overriding consideration, which is the public interest and public benefit, calls for the set, increase or decrease their prices, is valid or constitutional.
levelling of the playing fields for the existing oil companies and the prospective new entrants. Under the Constitution, this Court has—in appropriate cases—the DUTY, not just the power,
3
Only when there are many players in the market will free competition reign and economic to determine whether a
_______________
development begin.
Consequently, Section 6 and Section 9(b) of R.A. No. 8180 should similarly be struck down.
Consolidated Memorandum of Public Respondents, dated October 14, 1997.
1
III Petron Corporation’s Motion to Lift Temporary Restraining Order, dated October 9, 1997, p. 16; Pilipinas Shell
2
Corporation’s Memorandum, dated October 15, 1997, pp. 36-37.
Conclusion Sections 1 & 5 of Article VIII of the Constitution provides:
3
Respondent oil companies vehemently deny the “cartelization” of the oil industry. Their parallel “Sec. 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and
business behavior and uniform pricing are the result of competition, they say, in order to keep their enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of
share of the market. This rationale fares any branch or instrumentality of the Government.”
“Sec. 5. The Supreme Court shall have the following powers:
376
376 SUPREME COURT REPORTS ANNOTATED 1. (1)Exercise original jurisdiction over x x x petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
2. (2)Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or Rules of Court may provide, final judgments and
Tatad vs. Secretary of the Department of Energy orders of lower courts in:
well when oil prices are lowered, i.e., when one oil company rolls back its prices, the others follow
suit so as not to lose its market. But how come when one increases its prices the others likewise 1. (a)All cases in which the constitutionality or validity of any treaty, international or executive agree-
follow? Is this competition at work?
Respondent oil companies repeatedly assert that due to the devaluation of the peso, they had 378
to increase the prices of their oil products, otherwise, they would lose, as they have allegedly been
378 SUPREME COURT REPORTS ANNOTATED
losing specially with the issuance of a temporary restraining order by the Court. However, what
we have on record are only the self-serving lamentations of respondent oil companies. Not one has Tatad vs. Secretary of the Department of Energy
presented hard data, independently verified, to attest to these losses. Mere allegations are not law or a part thereof offends the Constitution and, if so, to annul and set it aside. Because a serious 4
sufficient but must be accompanied by supporting evidence. What probably is nearer the truth is challenge has been hurled against the validity of one such law, namely RA 8180—its critically
that respondent oil companies will not make as much profits as they have in the past if they are not having been preliminary determined from the petition, comments, reply and, most tellingly, the
allowed to increase the prices of their products everytime the value of the peso slumps. But in the oral argument on September 30, 1997—this Court, in the exercise of its mandated judicial
midst of worsening economic difficulties and hardships suffered by the people, the very customers discretion, issued the status quo order to prevent the continued enforcement and implementation of
who have given them tremendous profits throughout the years, is it fair and decent for said a law that was prima facie found to be constitutionally infirm. Indeed, after careful final
companies not to bear a bit of the burden by foregoing a little of their profits? deliberation, said law is now ruled to be constitutionally defective thereby disabling respondent oil
companies from exercising their erstwhile power, granted by such defective statute, to determine The law in question, Republic Act No. 8180, otherwise known as the Downstream Oil
prices by themselves. Deregulation Act of 1996, contains, inter alia, the following provisions which have become the
Concededly, this Court has no power to pass upon the wisdom, merits and propriety of the subject of the present controversy, to wit:
acts of its co-equal branches in government. However, it does have the prerogative to uphold the SEC. 5. Liberalization of Downstream Oil Industry and Tariff Treatment.—
Constitution and to strike down and annul a law that contravenes the Charter. From such duty and 5 xxx
prerogative, it shall never shirk or shy away. (b) Any law to the contrary notwithstanding and starting with the effectivity of this act, tariff duty shall be
imposed and collected on imported crude oil at the rate of (3%) and imported refined petroleum products at the
By annulling RA 8180, this Court is not making a policy statement against deregulation.
rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be the same as that for imported
Quite the contrary, it is simply invalidating a pseudo deregulation law which in reality restrains crude oil: Provided, That beginning on January 1, 2004 the tariff rate on imported crude oil and refined
free trade and perpetuates a cartel, an oligopoly. The Court is merely upholding constitutional petroleum products shall be the same: Provided, further, That this provision may be amended only by an Act
adherence to a truly competitive economy that releases the creative energy of free enterprise. It of Congress. x x x
leaves to Congress, as the policy-setting agency of the government, the speedy crafting of a SEC. 6. Security of Supply.—To ensure the security and continuity of petroleum crude and products
genuine, constitutionally justified oil deregulation law. supply, the DOE shall require the refiners and importers to maintain a minimum inventory equivalent to ten
_______________ percent (10%) of their respective annual sales volume or forty (40) days of supply, whichever is lower.
xxx
ment, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. SEC. 9. Prohibited Acts.—To ensure fair competition and prevent cartels and monopolies in the
x x x x x x x x x” downstream oil industry, the following acts are hereby prohibited:
Osmeña vs. Comelec, 199 SCRA 750, July 30, 1991; Angara vs. Electoral Commission, 63 Phil. 139, July 15, 1936.
4
xxx
Tañada vs. Angara, G.R. No. 118295, May 2, 1997, p. 26.
b) Predatory pricing which means selling or offering to sell any product at a price unreasonably below the
5
379
industry average cost so as to attract customers to the detriment of competitors.
VOL. 281, NOVEMBER 5, 1997 379 381
Tatad vs. Secretary of the Department of Energy VOL. 281, NOVEMBER 5, 1997 381
2. Everyone, Rich or Poor, Must Share in the Burdens of Economic Dislocation Tatad vs. Secretary of the Department of Energy
Much has been said and will be said about the alleged negative effect of this Court’s holding on xxx
the oil giants’ profit and loss statements. We are not unaware of the disruptive impact of the SEC. 15. Implementation of Full Deregulation.—Pursuant to Section 5(e) of Republic Act No. 7638, the
DOE [Department of Energy] shall, upon approval of the President, implement the full deregulation of the
depreciating peso on the retail prices of refined petroleum products. But such price-escalating
downstream oil industry not later than March 1997. As far as practicable, the DOE shall time the full
consequence adversely affects not merely these oil companies which occupy hallowed places deregulation when the prices of crude oil and petroleum products in the world market are declining and when
among the most profitable corporate behemoths in our country. In these critical times of the exchange rate of the peso in relation to the US Dollar is stable. x x x
widespread economic dislocations, abetted by currency fluctuations not entirely of domestic In G.R. No. 124360, petitioners therein pray that the aforequoted Section 5(b) be declared null and
origin, all sectors of society agonize and suffer. Thus, everyone, rich or poor, must share in the void. However, despite its pendency, President Ramos, pursuant to the above-cited Section 15 of
burdens of such economic aberrations. the assailed law, issued Executive Order No. 392 on 22 January 1997 declaring the full
I can understand foreign investors who see these price adjustments as necessary consequences deregulation of the downstream oil industry effective February 8, 1997. A few days after the
of the country’s adherence to the free market, for that, in the first place, is the magnet for their implementation of said Executive Order, the second consolidated petition was filed (G.R. No.
presence here. Understandably, their concern is limited to bottom lines and market share. But in all 127867), seeking, inter alia, the declaration of the unconstitutionality of Section 15 of the law on
these mega companies, there are also Filipino entrepreneurs and managers. I am sure there are various grounds.
patriots among them who realize that, in times of economic turmoil, the poor and the I submit that the instant consolidated petitions should be denied. In support of my view, I shall
underprivileged proportionately suffer more than any other sector of society. There is a certain discuss the arguments of the parties point by point.
threshold of pain beyond which the disadvantaged cannot endure. Indeed, it has been wisely said 1. The instant petitions do not raise a justiciable controversy as the issues raised therein
that “if the rich who are few will not help the poor who are many, there will come a time when the pertain to the wisdom and reasonableness of the provisions of the assailed law. The contentions
few who are filled cannot escape the wrath of the many who are hungry.” Kaya’t sa mga made by petitioners, that the “imposition of different tariff rates on imported crude oil and
kababayan nating kapitalista at may kapangyarihan, nararapat lamang na makiisa tayo sa mga imported refined petroleum products will not foster a truly competitive market, nor will it level the
walang palad at mahihirap sa mga araw ng pangangailangan. Huwag na nating ipagdiinan ang playing fields” and that said imposition “does not deregulate the downstream oil industry, instead,
kawalan ng tubo, o maging ang panandaliang pagkalugi. At sa mga mangangalakal na ganid it controls the oil industry, contrary to the avowed policy of the law,” are clearly policy matters
at walang puso: hirap na hirap na po ang ating mga kababayan. Makonsiyensya naman kayo! which are within the province of the political departments of the government. These submissions
380
require a review of issues that are in the nature of political questions, hence, clearly beyond the
380 SUPREME COURT REPORTS ANNOTATED ambit of judicial inquiry.
A political question refers to a question of policy or to issues which, under the Constitution,
Tatad vs. Secretary of the Department of Energy
are to be decided by the
DISSENTING OPINION 382
382 SUPREME COURT REPORTS ANNOTATED
MELO, J.:
Tatad vs. Secretary of the Department of Energy
people in their sovereign capacity, or in regard to which full discretionary authority has been
With all due respect to my esteemed colleague, Mr. Justice Puno, who has, as usual, prepared a
delegated to the legislative or executive branch of the government. Generally, political questions
well-written and comprehensive ponencia, I regret I cannot share the view that Republic Act No.
are concerned with issues dependent upon the wisdom, not the legality, of a particular measure
8180 should be struck down as violative of the Constitution.
(Tañada vs. Cuenco, 100 Phil. 101[1957]).
Notwithstanding the expanded judicial power of this Court under Section 1, Article VIII of the the Downstream Oil Industry, and for Other Purposes,” necessarily implies that the law provides
Constitution, an inquiry on the above-stated policy matters would delve on matters of wisdom for the means for such deregulation. One such means is the imposition of the differential tariff
which are exclusively within the legislative powers of Congress. rates which are provided to encourage new investors as well as existing players to put up new
2. The petitioners do not have the necessary locus standi to file the instant consolidated refineries. The aforesaid provision is thus germane to, and in furtherance of, the object of
petitions. Petitioners Lagman, Arroyo, Garcia, Tañada, and Tatad assail the constitutionality of the deregulation. The trend of jurisprudence, ever since Sumulong vs. COMELEC (73 Phil.
above-stated laws through the instant consolidated petitions in their capacity as members of 288 [1941]), is to give the above-stated constitutional requirement a liberal interpretation. Hence,
Congress, and as taxpayers and concerned citizens. However, the existence of a constitutional there is indeed substantial compliance with said requirement.
issue in a case does not per se confer or clothe a legislator with locus standi to bring suit. In Phil. Petitioners claim that because the House version of the assailed law did not impose any tariff
Constitution Association (PHILCONSA) v. Enriquez (235 SCRA 506 [1994]), we held that rates but merely set the policy of “zero differential” and that the Senate version did not set or fix
members of Congress may properly challenge the validity of an official act of any department of any tariff, the tariff changes being imposed by the assailed law was never subject of any
the government only upon showing that the assailed official act affects or impairs their rights and deliberations in both houses nor the Bicameral Conference Committee. I believe that this argument
prerogatives as legislators. In Kilosbayan, Inc., et al. vs. Morato, et al. (246 SCRA 540 [1995]), is bereft of merit.
this Court further clarified that “if the complaint is not grounded on the impairment of the power The report of the Bicameral Conference Committee, which was precisely formed to settle
of Congress, legislators do not have standing to question the validity of any law or official action.” differences between the two houses of Congress, was approved by members thereof only after a
Republic Act No. 8180 clearly does not violate or impair prerogatives, powers, and rights of full deliberation on the conflicting provisions of the Senate version and the House version of the
Congress, or the individual members thereof, considering that the assailed official act is the very assailed law. Moreover, the joint explanatory statement of said Committee which was submitted to
act of Congress itself authorizing the full deregulation of the downstream oil industry. both houses, explicitly states that “while sub-paragraph (b) is a modification, its thrust and style
Neither can petitioners sue as taxpayers or concerned citizens. A condition sine qua non for were patterned after the House’s original sub-paragraph (b).” Thus, it cannot be denied that both
the institution of a tax-payer’s suit is an allegation that the assailed action is an unconstitutional houses were informed of the changes in the aforestated provision of the assailed law. No legislator
exercise of the spending powers of Congress can validly state that he was not apprised of the purposes, nature, and scope of the provisions of
383 the law since the inclusion of the tariff differential was clearly mentioned in the Bicameral
VOL. 281, NOVEMBER 5, 1997 383 Conference Committee’s explanatory note.
385
Tatad vs. Secretary of the Department of Energy
VOL. 281, NOVEMBER 5, 1997 385
or that it constitutes an illegal disbursement of public funds. The instant consolidated petitions do
not allege that the assailed provisions of the law amount to an illegal disbursement of public Tatad vs. Secretary of the Department of Energy
money. Hence, petitioners cannot, even as taxpayers or concerned citizens, invoke this Court’s As regards the power of the Bicameral Conference Committee to include in its report an entirely
power of judicial review. new provision that is neither found in the House bill or Senate bill, this Court already upheld such
Further, petitioners, including Flag, FDC, and Sanlakas, can not be deemed proper parties for power in Tolentino vs. Sec. of Finance (235 SCRA 630 [1994]), where we ruled that the
lack of a particularized interest or elemental substantial injury necessary to confer on them locus conference committee can even include an amendment in the nature of a substitute so long as such
standi. The interest of the person assailing the constitutionality of a statute must be direct and amendment is germane to the subject of the bill before it.
personal. He must be able to show, not only that the law is invalid, but also that he has sustained or Lastly, in view of the “enrolled bill theory” pronounced by this Court as early as 1947 in the
is in immediate danger of sustaining some direct injury as a result of its enforcement, and not case of Mabanag vs. Lopez Vito (78 Phil. 1 [1947]), the duly authenticated copy of the bill, signed
merely that he suffers thereby in some indefinite way. It must appear that the person complaining by the proper officers of each house, and approved by the President, is conclusive upon the courts
has been or is about to be denied some right or privilege to which he is lawfully entitled or that he not only of its provisions but also of its due enactment.
is about to be subjected to some burdens or penalties by reason of the statute complained of. 4. Section 15 of Republic Act No. 8180 does not constitute undue delegation of legislative
Petitioners have not established such kind of interest. power. Petitioners themselves admit that said section provides the Secretary of Energy and the
3. Section 5(b) of Republic Act No. 8180 is not violative of the “one title-one subject” rule President with the bases of (1) “practicability,” (2) “the decline of crude oil prices in the world
under Section 26(1), Article VI of the Constitution. It is not required that a provision of law be market,” and (3) “the stability of the Peso exchange rate in relation to the US Dollar,” in
expressed in the title thereof as long as the provision in question is embraced within the subject determining the effectivity of full deregulation. To my mind, said bases are determinate and
expressed in the title of the law. The “title of a bill does not have to be a catalogue of its contents determinable guidelines, when examined in the light of the tests for permissible delegation.
and will suffice if the matters embodied in the text are relevant to each other and may be inferred The assailed law satisfies the completeness test as it is complete and leaves nothing more for
from the title.” (Association of Small Landowners in the Phils., Inc. vs. Sec. of Agrarian the Executive Branch to do but to enforce the same. Section 2 thereof expressly provides that “it
Reform,175 SCRA 343 [1989]) An “act having a single general subject, indicated in the title, may shall be the policy of the State to deregulate the downstream oil industry to foster a truly
contain any number of provisions, no matter how diverse they may be, so long as they are not competitive market which can better achieve the social policy objectives of fair prices and
inconsistent with or foreign to the general subject, and may be considered in furtherance of such adequate, continuous supply of environmentally-clean and high-quality petroleum products.” This
subject by providing for the method and means of carrying out the general object.” (Sinco, Phil. provision manifestly declares the policy to be achieved through the delegate, that is, the full
Political Law, 11th ed., p. 225) deregulation of the downstream oil industry toward the end of full and free competition. Section
384 15 further provides for all the basic terms and conditions for its execution and thus belies the
384 SUPREME COURT REPORTS ANNOTATED argument that the Executive Branch is given complete liberty to determine whether or not
386
Tatad vs. Secretary of the Department of Energy
386 SUPREME COURT REPORTS ANNOTATED
The questioned tariff provision in Section 5(b) was provided as a means to implement the
deregulation of the downstream oil industry and hence, is germane to the purpose of the assailed Tatad vs. Secretary of the Department of Energy
law. The general subject of Republic Act No. 8180, as expressed in its title, “An Act Deregulating
to implement the law. Indeed, Congress did not only make full deregulation mandatory, but prospective trader/importer (subjected to the 7% tariff rate) to compete in the downstream oil
likewise set a deadline (that is, not later than March 1997), within which full deregulation should industry as a
be achieved. 388
Congress may validly provide that a statute shall take effect or its operation shall be revived or 388 SUPREME COURT REPORTS ANNOTATED
suspended or shall terminate upon the occurrence of certain events or contingencies the
ascertainment of which may be left to some official agency. In effect, contingent legislation may Tatad vs. Secretary of the Department of Energy
be issued by the Executive Branch pursuant to a delegation of authority to determine some fact or new player is based solely on whether he can, based on his computations, generate the desired
state of things upon which the enforcement of a law depends (Cruz, Phil. Political Law, 1996 ed., internal rate of return (IRR) and net present value (NPV) notwithstanding the imposition of a
p. 96; Cruz vs. Youngberg, 56 Phil. 234 [1931]). This is a valid delegation since what the delegate higher tariff rate. Second, such a difference in tax treatment does not necessarily provide refiners
performs is a matter of detail whereas the statute remains complete in all essential matters. Section of imported crude oil with a significant level of economic advantage considering the huge amount
15 falls under this kind of delegated authority. Notably, the only aspect with respect to which the of investments required in putting up refinery plants which will then have to be added to said
President can exercise “discretion” is the determination of whether deregulation may be refiners’ production cost. It is not unreasonable to suppose that the additional cost imputed by
implemented on or before March, 1997, the deadline set by Congress. If he so decides, however, higher tariff can anyway be overcome by a new player in the business of importation due to lower
certain conditions must first be satisfied, to wit: (1) the prices of crude oil and petroleum products operating costs, lower capital infusion, and lower capital carrying costs. Consequently, the
in the world market are declining, and (2) the exchange rate of the peso in relation to the US resultant cost of imported finished petroleum and that of locally refined petroleum products may
Dollar is stable. Significantly, the so-called “discretion” pertains only to the ascertainment of the turn out to be approximately the same.
existence of conditions which are necessary for the effectivity of the law and not a discretion as to The existence of a tariff differential with regard to imported crude oil and imported finished
what the law shall be. products is nothing new or novel. In fact, prior to the passage of Republic Act No. 8180, there
In the same vein, I submit that the President’s issuance of Executive Order No. 392 last existed a 10% tariff differential resulting from the imposition of a 20% tariff rate on imported
January 22, 1997 is valid as contingent legislation. All the Chief Executive did was to exercise his finished petroleum products and 10% on imported crude oil (based on Executive Order No. 115).
delegated authority to ascertain and recognize certain events or contingencies which prompted him Significantly, Section 5(b) of the assailed law effectively lowered the tariff rates from 20% to 7%
to advance the deregulation to a date earlier than March, 1997. Anyway, the law does not prohibit for imported refined petroleum products, and 10% to 3% for imported crude oil, or a reduction of
him from implementing the deregulation prior to March, 1997, as long as the standards of the law the differential from 10% to 4%. This provision is certainly favorable to all in the downstream oil
are met. industry, whether they be existing or new players. It thus follows that the 4% tariff differential
Further, the law satisfies the sufficient standards test. The words “practicable,” “declining,” aims to ensure the stable supply of petroleum products by encouraging new entrants to put up oil
and “stable,” as used in Sec- refineries in the Philippines and to discourage fly-by-night importers.
387 Further, the assailed tariff differential is likewise not violative of the equal protection clause of
the Constitution. It is germane to the declared policy of Republic Act No. 8180 which is to achieve
VOL. 281, NOVEMBER 5, 1997 387
(1) fair prices; and (2) adequate and continuous supply of environmentally-clean and high quality
Tatad vs. Secretary of the Department of Energy petroleum products. Said adequate and continuous supply of petroleum products will be achieved
tion 15 of the assailed law are sufficient standards that saliently “map out the boundaries of the if new investors or players are en-
delegate’s authority by defining the legislative policy and indicating the circumstances under 389
which it is to be pursued and effected.” (Cruz, Phil. Political Law, 1996 ed., p. 98). Considering VOL. 281, NOVEMBER 5, 1997 389
the normal and ordinary definitions of these standards, I believe that the factors to be considered
by the President and/or Secretary of Energy in implementing full deregulation are, as mentioned, Tatad vs. Secretary of the Department of Energy
determinate and determinable. ticed to engage in the business of refining crude oil in the country. Existing refining companies,
It is likewise noteworthy that the above-mentioned factors laid down by the subject law are are similarly encouraged to put up additional refining companies. All of this can be made possible
not solely dependent on Congress. Verily, oil pricing and the peso-dollar exchange rate are in view of the lower tariff duty on imported crude oil than that levied on imported refined
dependent on the various forces working within the consumer market. Accordingly, it would have petroleum products. In effect, the lower tariff rates will enable the refiners to recoup their
been unreasonable, or even impossible, for the legislature to have provided for fixed and specific investments considering that they will be investing billions of pesos in putting up their refineries in
oil prices and exchange rates. To require Congress to set forth specifics in the law would the Philippines. That incidentally the existing refineries will be benefited by the tariff differential
effectively deprive the legislature of the flexibility and practicability which subordinate legislation does not negate the fact that the intended effect of the law is really to encourage the construction
is ultimately designed to provide. Besides, said specifics are precisely the details which are beyond of new refineries, whether by existing players or by new players.
the competence of Congress, and thus, are properly delegated to appropriate administrative As regards the 40-day inventory requirement, it must be emphasized that the 10% minimum
agencies and executive officials to “fill in.” It cannot be gainsaid that the detail of the timing of requirement is based on the refiners’ and importers’ annual sales volume, and hence, obviously
full deregulation has been “filled in” by the President, upon the recommendation of the DOE, inapplicable to new entrants as they do not have an annual sales volume yet. Contrary to
when he issued Executive Order No. 329. petitioners’ argument, this requirement is not intended to discourage new or prospective players in
5. Republic Act No. 8180 is not violative of the constitutional prohibition against monopolies, the downstream oil industry. Rather, it guarantees “security and continuity of petroleum crude and
combinations in restraint of trade, and unfair competition. The three provisions relied upon by products supply.” (Section 6, Republic Act No. 8180) This legal requirement is meant to weed out
petitioners (Section 5[b] on tariff differential; Section 6 on the 40-day minimum inventory entities not sufficiently qualified to participate in the local downstream oil industry. Consequently,
requirement; and Section 9[b] on the prohibited act of predatory pricing) actually promote, rather it is meant to protect the industry from fly-by-night business operators whose sole interest would
than restrain, free trade and competition. be to make quick profits and who may prove unreliable in the effort to provide an adequate and
The tariff differential provided in the assailed law does not necessarily make the business of steady supply of petroleum products in the country. In effect, the aforestated provision benefits not
importing refined petroleum products a losing proposition for new players. First, the decision of a only the three respondent oil companies but all entities serious and committed to put up storage
facilities and to participate as serious players in the local oil industry. Moreover, it benefits the
entire consuming public by its guarantee of an “adequate continuous supply of environmentally- The apparent thrust of the consolidated petitions is to declare, not the entirety, but only some
clean and high-quality petroleum products.” It ensures that all companies in the downstream oil isolated portions of Republic Act No. 8180 unconstitutional. This is clear from the grounds
industry operate according to the same high standards, that the necessary storage and distribution enumerated by the petitioners, to wit:
facilities are in place to support the level of business G.R. No. 124360
390
“4.0. Grounds:
390 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy 4.1.
activities involved, and that operations are conducted in a safe and environmentally sound manner
for the benefit of the consuming public. “THE IMPOSITION OF DIFFERENT TARIFF RATES ON IMPORTED CRUDE OIL AND IMPORTED
REFINED PETROLEUM PRODUCTS VIOLATES THE EQUAL PROTECTION OF THE LAWS.
Regarding the prohibition against predatory pricing, I believe that petitioners’ argument is _______________
quite misplaced. The provision actually protects new players by preventing, under pain of criminal
sanction, the more established oil firms from driving away any potential or actual competitor by Section 2, Republic Act No. 8180.
1
taking undue advantage of their size and relative financial stability. Obviously, the new players are 392
the ones susceptible to closing down on account of intolerable losses which will be brought about
392 SUPREME COURT REPORTS ANNOTATED
by fierce competition with rival firms. The petitioners are merely working under the presumption
that it is the new players which would succumb to predatory pricing, and not the more established Tatad vs. Secretary of the Department of Energy
oil firms. This is not a factual assertion but a rather baseless and conjectural assumption. 4.2.
As to the alleged cartel among the three respondent oil companies, much as we suspect the
same, its existence calls for a finding of fact which this Court is not in the position to make. We “THE IMPOSITION OF DIFFERENT TARIFF RATES DOES NOT DEREGULATE THE DOWNSTREAM
cannot be called to try facts and resolve factual issues such as this (Trade Unions of the Phils. vs. OIL INDUSTRY, INSTEAD, IT CONTROLS THE OIL INDUSTRY, CONTRARY TO THE AVOWED
Laguesma, 236 SCRA 586 [1994]; Ledesma vs. NLRC, 246 SCRA 247 [1995]). POLICY OF THE LAW.
With respect to the amendatory bills filed by various Congressmen aimed to modify the
alleged defects of Republic Act No. 8180, I submit that such bills are the correct remedial steps to 4.3.
pursue, instead of the instant petitions to set aside the statute sought to be amended. The proper
forum is Congress, not this Court. “THE INCLUSION OF A TARIFF PROVISION IN SECTION 5(b) OF THE DOWNSTREAM OIL
Finally, as to the ponencia’s endnote which cites the plea of respondent oil companies for the INDUSTRY DEREGULATION LAW VIOLATES THE ‘ONE SUBJECT-ONE TITLE’ RULE EMBODIED
IN ARTICLE VI, SECTION 26(1) OF THE CONSTITUTION.”
lifting of the restraining order against them to enable them to adjust the prices of petroleum and
2
petroleum products in view of the devaluation of our currency, I am pensive as to how the matter G.R. No. 127867
can be addressed to the obviously defunct Energy Regulatory Board. There has been a number of “GROUNDS
price increases in the meantime. Too much water has passed under the bridge. It is too difficult to
turn back the hands of time. “THE IMPLEMENTATION OF FULL DEREGULATION PRIOR TO THE EXISTENCE OF A TRULY
391 COMPETITIVE MARKET VIOLATES THE CONSTITUTION PROHIBITING MONOPOLIES, UNFAIR
COMPETITION AND PRACTICES IN RESTRAINT OF TRADE.
VOL. 281, NOVEMBER 5, 1997 391 “R.A. NO. 8180 CONTAINS DISGUISED REGULATIONS IN A SUPPOSEDLY DEREGULATED
Tatad vs. Secretary of the Department of Energy INDUSTRY WHICH CREATE OR PROMOTE MONOPOLY OF THE OIL INDUSTRY BY THE THREE
For all the foregoing reasons, I, therefore, vote for the outright dismissal of the instant EXISTING OIL COMPANIES.
“THE REGULATORY AND PENAL PROVISIONS OF R.A. NO. 8180 VIOLATE THE EQUAL
consolidated petitions for lack of merit. PROTECTION OF THE LAWS, DUE PROCESS OF LAW AND THE CONSTITUTIONAL RIGHTS OF
DISSENTING OPINION AN ACCUSED TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST
HIM.” 3
FRANCISCO, J.: And culled from petitioners’ arguments in support of the above grounds the provisions of Republic
Act No. 8180 which they now impugn are:
_______________
The continuing peso devaluation and the spiraling cost of commodities have become hard facts of
life nowadays. And the wearies are compounded by the ominous prospects of very unstable oil Petition in G.R. No. 124360, p. 8.
2
prices. Thus, with the goal of rationalizing the oil scheme, Congress enacted Republic Act No. Supplement to the Petition in G.R. No. 127867, p. 2.
3
8180, otherwise known as the Downstream Oil Deregulation Act of 1996, the policy of which is 393
“to foster a truly competitive market which can better achieve the social policy objectives of fair VOL. 281, NOVEMBER 5, 1997 393
prices and adequate, continuous supply of environmentally-clean and high quality petroleum
products.” But if the noble and laudable objective of this enactment is not accomplished, as to date
1
Tatad vs. Secretary of the Department of Energy
A. Section 5(b) on the imposition of tariff which provides: “Any law to the contrary notwithstanding and
oil prices continue to rise, can this Court be called upon to declare the statute unconstitutional or
starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the
must the Court desist from interfering in a matter which is best left to the other branch/es of rate of three percent (3%), and imported refined petroleum products at the rate of seven percent (7%), except
government? fuel oil and LPG, the rate for which shall be the same as that for imported crude oil: Provided, That beginning
on January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be the same:
Provided further, That this provision may be amended only by an Act of Congress.” [Emphasis added].
B. Section 6 on the minimum inventory requirement, thus: “Security of Supply.—To ensure the security imposing the seven percent (7%) and three percent (3%) tariff on refined and crude oil products as
and continuity of petroleum crude and products supply, the DOE shall require the refiners and importers to both Houses advocated, prior to the holding of the bicameral conference committee, a “zero
maintain a minimum inventory equivalent to ten percent (10%) of their respective annual sales volume or forty differential.” Moreover, petitioners insist that the tariff rates violate “the equal protection of the
(40) days of supply, whichever is lower.”
laws enshrined in Article III, Section 1 of the Constitution” since the rates and their classification
9
C. Section 9(b) on predatory pricing: “Predatory pricing which means selling or offering to sell any
product at a price unreasonably below the industry average cost so as to attract customers to the detriment of are not relevant in attaining the avowed policy of the law, not based on substantial distinctions and
competitors. limited to the existing condition.
“Any person, including but not limited to the chief operating officer or chief executive officer of the The Constitution mandates that “every bill passed by Congress shall embrace only one subject
corporation involved, who is found guilty of any of the said prohibited acts shall suffer the penalty of which shall be expressed in the title thereof.” The object sought to be accomplished by this
10
imprisonment for three (3) years and fine ranging from Five hundred thousand pesos (P500,000) to One mandatory requirement has been explained by the Court in the vintage case of Central Capiz v.
million pesos (P1,000,000).” Ramirez, thus: 11
D. Section 10 on the other prohibited acts which states: “Other Prohibited Acts.—To ensure compliance “The object sought to be accomplished and the mischief proposed to be remedied by this provision are well
with the provisions of this Act, the failure to comply with any of the following shall likewise be prohibited: 1) known. Legislative assemblies, for the dispatch of business, often pass bills by their titles only without
submission of any reportorial requirements; 2)maintenance of the minimum inventory; and, 3) use of clean and requiring them to be read. A specious title sometimes covers legislation which, if its real character had been
safe (environment and worker-benign) technologies. disclosed, would not have commanded assent. To prevent surprise and fraud on the legislature is one of the
“Any person, including but not limited to the chief operating officer or chief executive officer of the purposes this provision was intended to accomplish. Before the adoption of this provision the title of a statute
corporation involved, who is found guilty of any of the said prohibited acts shall suffer the penalty of was often no indication of its subject or contents.
imprisonment for two (2) years and fine ranging from Two hundred fifty thousand pesos (P250,000) to Five “An evil this constitutional requirement was intended to correct was the blending in one and the same
hundred thousand pesos (P500,000).” statute of such things as
E. Section 15 on the implementation of full deregulation, thus: “Implementation of Full Deregulation.— _______________
Pursuant to Section 5(e) of Republic Act No. 7683, the DOE shall, upon approval of the
394 6
Supplement to the Petition in G.R. No. 127867, p. 6.
7
Id.
394 SUPREME COURT REPORTS ANNOTATED 8
Id.
9
Petition in G.R. No. 124360, p. 11.
Tatad vs. Secretary of the Department of Energy 10
Article VI, Section 26(1), Constitution.
40 Phil. 883.
President, implement the full deregulation of the downstream oil industry not later than March, 1997. As far as
11
396
practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the
world market are declining and when the exchange rate of the peso in relation to the US dollar is stable. Upon 396 SUPREME COURT REPORTS ANNOTATED
the implementation of the full deregulation as provided herein, the transition phase is deemed terminated and
the following laws are deemed repealed: x x x .” [Emphasis added]. Tatad vs. Secretary of the Department of Energy
F. Section 20 on the imposition of administrative fine: “Administrative Fine.—The DOE may, after due were diverse in their nature, and were connected only to combine in favor of all the advocates of each, thus
notice and hearing impose a fine in the amount of not less than One hundred thousand pesos (P100,000) but often securing the passage of several measures no one of which could have succeeded on its own merits. Mr.
not more than One million pesos (P1,000,000) upon any person or entity who violates any of its reportorial and Cooley thus sums up in his review of the authorities defining the objects of this provision: ‘It may therefore be
minimum inventory requirements, without prejudice to criminal sanctions.” assumed as settled that the purpose of this provision was: First, to prevent hodge-podge or log-rolling
Executive Order No. 392, entitled “Declaring Full Deregulation Of The Downstream Oil Industry” legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which
which declared the full deregulation effective February 8, 1997, is also sought to be declared the titles gave no information, and which might therefore be overlooked and carelessly and unintentionally
adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is
unconstitutional. usually made, of the subjects of legislation that are being considered, in order that they may have opportunity
A careful scrutiny of the arguments proffered against the constitutionality of Republic Act No. of being heard thereon by petition or otherwise if they shall so desire.’ (Cooley’s Constitutional Limitations, p.
8180 betrays the petitioners’ underlying motive of calling upon this Court to determine the 143).” 12
wisdom and efficacy of the enactment rather than its adherence to the Constitution. Nevertheless, I The interpretation of “one subject-one title” rule, however, is never intended to impede or stifle
shall address the issues raised if only to settle the alleged constitutional defects afflicting some legislation. The requirement is to be given a practical rather than a technical construction and it
provisions of Republic Act No. 8180. To elaborate: would be sufficient compliance if the title expresses the general subject and all the provisions of
A. On the imposition of tariff. Petitioners argue that the existence of a tariff provision violated the enactment are germane and material to the general subject. Congress is not required to employ
13
the “one subject-one title” rule under Article VI, Section 26(1) as the imposition of tariff rates is
4
in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the
“inconsistent with” and not at all germane to the deregulation of the oil industry. They also stress
5
contents and the minute details therein. All that is required is that the title should not cover
14
that the variance between the seven percent (7%) duty on imported gasoline and other refined legislation incongruous in itself, and which by no fair intendment can be considered as having a
petroleum products and three percent (3%) duty on crude oil gives a “4% tariff protection in necessary or proper connection. Hence, the title “An Act Amending Certain Sections of Republic
15
_______________ Act Numbered One Thousand One Hundred Ninety-Nine, otherwise known as the Agricultural
Tenancy Act of the Philippines” was declared by the Court sufficient to contain a provision
Petition in G.R. No. 124360, p. 14.
empowering the Secretary of Justice, acting through a tenancy mediation division, to carry out a
4
Id.
5
395 national enforce-
_______________
VOL. 281, NOVEMBER 5, 1997 395
Tatad vs. Secretary of the Department of Energy 40 Phil., at p. 891.
12
Sumulong v. Commission on Elections, 73 Phil. 288, 291.
13
favor of Petron, Shell and Caltex which own and operate refineries here.” The provision, 6
Lidasan v. Commission on Elections, 21 SCRA 496, 501.
14
petitioners insist, “inhibits prospective oil players to do business here because it will unnecessarily Blair v. Chicago, 26 S. Ct. 427, 201 U.S. 400, 50 L. Ed. 801.
15
increase their product cost by 4%.” In other words, the tariff rates “does not foster ‘a truly
7 397
competitive market.’ ” Also petitioners claim that both Houses of Congress never envisioned
8
VOL. 281, NOVEMBER 5, 1997 397
Petition in G.R. No. 124360, p. 14.
19
Tatad vs. Secretary of the Department of Energy 151 SCRA at 215.
20
ment program, including the mediation of tenancy disputes. The title “An Act Creating the
16 Petition in G.R. No. 124360, p. 15.
21
399
Videogram Regulatory Board” was similarly declared valid and sufficient to embrace a regulatory
tax provision, i.e., the imposition of a thirty percent (30%) tax on the purchase price or rental rate, VOL. 281, NOVEMBER 5, 1997 399
as the case may be, for every sale, lease or disposition of a videogram containing a reproduction of
Tatad vs. Secretary of the Department of Energy
any motion picture or audiovisual program with fifty percent (50%) of the proceeds of the tax
by the conferees thereof only “after full and free conference” on the disagreeing provisions of
collected accruing to the province and the other fifty percent (50%) to the municipality where the
Senate Bill No. 1253 and House Bill No. 5264. Indeed, the “zero differential” on the tariff rates
tax is collected. Likewise, the title “An Act To Further Amend Commonwealth Act Numbered
17
imposed in the House version was embodied in the law, save for a slight delay in its
One Hundred Twenty, as amended by Republic Act Numbered Twenty Six Hundred and Forty
implementation to January 1, 2004. Moreover, any objection on the validity of provisions inserted
One” was declared sufficient to cover a provision limiting the allowable margin of profit to not
by the legislative bicameral conference committee has been passed upon by the Court in the recent
more than twelve percent (12%) annually of its investments plus two-month operating expenses
case of Tolentino v. Secretary of Finance, which, in my view, laid to rest any doubt as to the
for franchise holder receiving at least fifty percent (50%) of its power from the National Power
22
validity of the bill emerging out of a Conference Committee. The Court in that case, speaking
Corporation. 18
through Mr. Justice Mendoza, said:
In the case at bar, the title “An Act Deregulating The Downstream Oil Industry, And For
“As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been explained:
Other Purposes” is adequate and comprehensive to cover the imposition of tariff rates. The tariff ‘Under congressional rules of procedure, conference committees are not expected to make any material
provision under Section 5(b) is one of the means of effecting deregulation. It must be observed change in the measure at issue, either by deleting provisions to which both houses have already agreed or by
that even prior to the passage of Republic Act No. 8180 oil products have always been subject to inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house amends
tariff and surely Congress is cognizant of such fact. The imposition of the seven percent (7%) and a proposal originating in either house by striking out everything following the enacting clause and substituting
three percent (3%) duties on imported gasoline and refined petroleum products and on crude oil, provisions which make it an entirely new bill. The versions are now altogether different, permitting a
respectively, are germane to the deregulation of the oil industry. The title, in fact, even included conference committee to draft essentially a new bill . . .’
the broad and all-encompassing phrase “And For Other Purposes” thereby indicating the “The result is a third version, which is considered an ‘amendment in the nature of a substitute,’ the only
requirement for which being that the third version be germane to the subject of the House and Senate bills.
legislative intent to cover anything that has some relation to or connection with the deregulation of
“Indeed, this Court recently held that it is within the power of a conference committee to include in its
the oil industry. The tax provision is a mere tool and mechanism considered essential by report an entirely new provision that is not found either in the House bill or in the Senate bill. If the committee
_______________
can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose
several provisions, collectively considered as an ‘amendment in the nature of a substitute,’ so long as such
Cordero v. Cabatuando, 6 SCRA 418.
16
amendment is germane to the subject of the bills before the committee. After all, its report was not final but
Tio v. Videogram Regulatory Board, 151 SCRA 208.
needed the approval of both houses of Congress to become valid as an act of the legislative department. The
17
Alalayan v. National Power Corp., 24 SCRA 172.
18
398
charge that in this case the
_______________
398 SUPREME COURT REPORTS ANNOTATED
22
235 SCRA 632.
Tatad vs. Secretary of the Department of Energy 400
Congress to fulfill Republic Act No. 8180’s objective of fostering a competitive market and
400 SUPREME COURT REPORTS ANNOTATED
achieving the social policy objectives of fair prices. To curtail any adverse impact which the tariff
treatment may cause by its application, and perhaps in answer to petitioners’ apprehension Tatad vs. Secretary of the Department of Energy
Congress included under the assailed section a proviso that will effectively eradicate the tariff Conference Committee acted as a third legislative chamber is thus without any basis.
difference in the treatment of refined petroleum products and crude oil by stipulating “ that x x x x x x x x x
beginning on January 1, 2004 the tariff rate on imported crude oil and refined petroleum products “To be sure, nothing in the Rules [of the Senate and the House of Representatives] limits a conference
committee to a consideration of conflicting provisions. But Rule XLVI, (Sec.) 112 of the Rules of the Senate is
shall be the same.”
cited to the effect that ‘If there is no Rule applicable to a specific case the precedents of the Legislative
The contention that tariff “does not foster a truly competitive market” and therefore restrains
19
Department of the Philippines shall be resorted to, and as a supplement of these, the Rules contained in
trade and does not help achieve the purpose of deregulation is an issue not within the power of the Jefferson’s Manual.’ The following is then quoted from the Jefferson’s Manual.
Court to resolve. Nonetheless, the Court’s pronouncement in Tio vs. Videogram Regulatory ‘The managers of a conference must confine themselves to the differences committed to them . . . and may not include subjects
Board appears to be worth reiterating: not within disagreements, even though germane to a question in issue.’
“Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive, confiscatory, and in “Note that, according to Rule XLIX, (Sec.) 112, in case there is no specific rule applicable, resort must be
restraint of trade. However, it is beyond serious question that a tax does not cease to be valid merely because it to the legislative practice. The Jefferson’s Manual is resorted to only as supplement. It is common place in
regulates, discourages, or even definitely deters the activities taxed. The power to impose taxes is one so Congress that conference committee reports include new matters which, though germane, have not been
unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to committed to the committee. This practice was admitted by Senator Raul S. Roco, petitioner in G.R. No.
any restrictions whatever, except such as rest in the discretion of the authority which exercises it. In imposing 115543, during the oral argument in these cases. Whatever, then, may be provided in the Jefferson’s Manual
a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and must be considered to have been modified by the legislative practice. If a change is desired in the practice it
oppressive taxation.” [Emphasis added]
20
must be sought in Congress since this question is not covered by any constitutional provision but is only an
Anent petitioners’ claim that both House Bill No. 5264 and Senate Bill No. 1253, [the precursor internal rule of each house. Thus, Art. VI, (Sec.) 16(3) of the Constitution provides that ‘Each House may
determine the rules of its proceedings. . .’
bills of Republic Act No. 8180], “did not impose any tariff rates but merely set the policy of ‘zero
“This observation applies to the other contention that the Rules of the two chambers were likewise
differential’ in the House version, and nothing in the Senate version” is inconsequential. Suffice it
21
disregarded in the preparation of the Conference Committee Report because the Report did not contain a
to state that the bicameral conference committee report was approved ‘detailed and sufficiently explicit statement of changes in, or amendments to, the subject measure.’ The Report
_______________ used brackets and capital letters to indicate the changes. This is a standard practice in bill-drafting. We cannot
say that in using these marks and symbols the Committee violated the Rules of the Senate and the House.
Moreover, this Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as imposed for its violation. Petitioners maintain that it would be the new oil companies or “players”
we have already ruled, ‘parliamentary rules are merely procedural and with their observance the courts have no which would lower their prices to gain a foothold on the market and not Petron, Shell or Caltex, an
concern.’ Our concern is with the occasion for these three big oil “companies” to control the prices by keeping their average
401 _______________
VOL. 281, NOVEMBER 5, 1997 401
Comment of the Office of the Solicitor General in G.R. No. 127867, p. 33; Rollo, p. 191.
25
Tatad vs. Secretary of the Department of Energy Supplement to the Petition in G.R. No. 127867, p. 8.
26
procedural requirements of the Constitution for the enactment of laws. As far as these requirements are 403
concerned, we are satisfied that they have been faithfully observed in these cases.”
23
VOL. 281, NOVEMBER 5, 1997 403
The other contention of petitioners that Section 5(b) “violates the equal protection of the laws
enshrined in Article III, Section 1 of the Constitution” deserves a short shrift for the equal
24
Tatad vs. Secretary of the Department of Energy
protection clause does not forbid reasonable classification based upon substantial distinctions cost at a level which will ensure their desired profit margin. Worse, the penal sanction, they add,
27
where the classification is germane to the purpose of the law and applies equally to all the deters new “players” from entering the oil market and the practice of lowering prices is now
members of the class. The imposition of three percent (3%) tariff on crude oil, which is four condemned as a criminal act.
percent (4%) lower than those imposed on refined oil products, as persuasively argued by the Petitioners’ contentions are nebulous if not speculative. In the absence of any concrete proof
Office of the Solicitor General, is based on the substantial distinction that importers of crude oil, of evidence, the assertion that it will only be the new oil companies which will lower oil prices
by necessity, have to establish and maintain refinery plants to process and refine the crude oil remains a mere guess or suspicion. And then again petitioners are not the proper party to raise the
thereby adding to their production costs. To encourage these importers to set up refineries issue. The query on why lowering of prices should be penalized and the broad scope of predatory
involving huge expenditures and investments which peddlers and importers of refined petroleum pricing is not for this Court to traverse the same being reserved for Congress. The Court should
products do not shoulder, Congress deemed it appropriate to give a lower tariff rate to foster the not lose sight of the fact that its duty under Article 5 of the Revised Penal Code is not to
entry of new “players” and investors in line with the law’s policy to create a competitive market. determine, define and legislate what act or acts should be penalized, but simply to report to the
The residual contention that there is no substantial distinction in the imposition of seven percent Chief Executive the reasons why it believes an act should be penalized, as well as why it considers
(7%) and three percent (3%) tariff since the law itself will level the tariff rates between the a penalty excessive, thus:
imported crude oil and refined petroleum products come January 1, 2004, to my mind, is “ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by
addressed more to the legislative’s prerogative to provide for the duration and period of effectivity the law, and in cases of excessive penalties.—Whenever a court has knowledge of any act which it may deem
of the imposition. If Congress, after consultation, analysis of material data and due deliberations, proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the
is convinced that by January 1, 2004, the investors and importers of crude oil would have already Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act
should be made the subject of legislation.
recovered their huge investments and expenditures in establishing refineries and plants then it is “In the same way the court shall submit to the Chief Executive, through the Department of Justice, such
within its prerogative to lift the tariff differential. Such matter is well within the pale of legislative statement as may be deemed proper, without suspending the execution of the sentence, when a strict
power enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking
_______________ into consideration the degree of malice and the injury caused by the offense.”
Furthermore, in the absence of an actual conviction for violation of Section 9(b) and the
235 SCRA at pp. 667-671.
23
appropriate appeal to this Court, I fail to see the need to discuss any longer the issue as it is not
Petition in G.R. No. 124360, p. 11.
24
402 ripe for judicial adjudication. Any pronouncement on the legality of the sanction will only be
advisory.
402 SUPREME COURT REPORTS ANNOTATED _______________
Tatad vs. Secretary of the Department of Energy
Id.
which the Court may not fetter. Besides, this again is in line with Republic Act No. 8180’s avowed
27
404
policy to foster a truly competitive market which can achieve the social policy objectives of fair, if
not lower, prices. 404 SUPREME COURT REPORTS ANNOTATED
B. On the minimum inventory requirement. Petitioners’ attack on Section 6 is premised upon Tatad vs. Secretary of the Department of Energy
their belief that the inventory requirement is hostile and not conducive for new oil companies to D. On other prohibited acts. In discussing their objection to Section 10, together with Section 20,
operate here, and unduly favors Petron, Shell and Caltex, companies which according to them can petitioners assert that these sanctions “even provide stiff criminal and administrative penalties for
easily hurdle the requirement. I fail to see any legal or constitutional issue here more so as it is not failure to maintain said minimum requirement and other regulations” and posed this query: “Are
raised by a party with legal standing for petitioners do not claim to be the owners or operators of these provisions consistent with the policy objective to level the playing [field] in a truly
new oil companies affected by the requirement. Whether or not the requirement is advantageous, competitive answer?” A more circumspect analysis of petitioners’ grievance, however, does not
28
disadvantageous or conducive for new oil companies hinges on presumptions and speculations present any legal controversy. At best, their objection deals on policy considerations that can be
which is not within the realm of judicial adjudication. It may not be amiss to mention here that more appropriately and effectively addressed not by this Court but by Congress itself.
according to the Office of the Solicitor General “there are about thirty (30) new entrants in the E. On the implementation of full deregulation under Section 15, and the validity of Executive
downstream activities x x x, fourteen (14) of which have started operation x x x, eight (8) having Order No. 392.Petitioners stress that “Section 15 of Republic Act No.8180 delegates to the
commenced operation last March 1997, and the rest to operate between the second quarter of 1997 Secretary of Energy and to the President of the Philippines the power to determine when to fully
and the year 2000.” Petitioners did not controvert this averment which thereby cast serious doubt
25
deregulate the downstream oil industry” without providing for any standards “to determine when
29
over their claim of “hostile” environment. the prices of crude oil in the world market are considered to be ‘declining’ ” and when may the 30
C. On predatory pricing. What petitioners bewail the most in Section 9(b) is “the definition of exchange rate be considered “stable” for purposes of determining when it is “practicable” to
‘predatory pricing’ [which] is too broad in scope and indefinite in meaning” and the penal sanction
26
declare full deregulation. In the absence of standards, Executive Order No. 392 which
31
implemented Section 15 constitute “executive lawmaking,” hence the same should likewise be
32
usual to inquire whether the statute was complete in all its terms and provisions when it left the
struck down as invalid. Petitioners additionally decry the brief seven (7) month transition period hands of the legislative so that nothing was left to the judgment of any other appointee or delegate
under Section 15 of Republic Act No. 8180. The premature full deregulation declared in Executive of the legislature. An enactment is said to be incomplete and invalid if it does not lay down any
35
Order No. 392 allowed Caltex, Petron and Shell oil companies “to define the conditions under rule or definite standard by which the administrative officer may be guided in the exercise of the
which any ‘new players’ will have to adhere to in order to become competitive in the new discretionary powers delegated to it. In People v. Vera, the Court laid down a guideline on how to
36 37
deregulated market even before such a market has been created.” 33
distinguish which power may or may not be delegated by Congress, to wit:
_______________ “ ‘The true distinction,’ says Judge Ranney, ‘is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its
Supplement to the Petition in G.R. No. 127867, p. 7.
28 execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid
Petition in G.R. No. 127867, p. 8.
29
objection can be made.’ (Cincinnati, W. & Z.R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88 See
Id.
30
also,Sutherland on Statutory Construction, sec. 68.)”
Id.
31
_______________
Id., p. 10.
32
Petition in G.R. No. 127867, p. 13.
33
405 People v. Vera, 65 Phil. 56, 115, citing 6. R.C.L., p. 165.
35
Id., at p. 116, citing Scheter v. U.S., 295 U.S., 495; 79 L. Ed., 1570; 55 Supt. Ct. Rep. 837; 97 A.L.R. 947; People ex
36
VOL. 281, NOVEMBER 5, 1997 405 rel.; Rice v. Wilson Oil Co.,364 Ill. 406; 4 N.E. [2d], 847; 107 A.L.R., 1500.
Id., at p. 117.
37
Tatad vs. Secretary of the Department of Energy 407
Petitioners are emphatic that Section 15 and Executive Order No. 392 “have effectively legislated VOL. 281, NOVEMBER 5, 1997 407
a cartel among respondent oil companies, directly violating the Constitutional prohibition against
unfair trade practices and combinations in restraint of trade.” 34 Tatad vs. Secretary of the Department of Energy
Section 15 of Republic Act No. 8180 provides for the implementation of full deregulation. It Applying these parameters, I fail to see any taint of unconstitutionality that could vitiate the
states: validity of Section 15. The discretion to ascertain when may the prices of crude oil in the world
Section 15 on the implementation of full deregulation, thus: “Implementation of Full Deregulation.—Pursuant market be deemed “declining” or when may the peso-dollar exchange rate be considered “stable”
to Section 5(e) of Republic Act No. 7683, the DOE shall, upon approval of the President, implement the full relates to the assessment and appreciation of facts. There is nothing essentially legislative in
deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall ascertaining the existence of facts or conditions as the basis of the taking into effect of a law so as 38
time the full deregulation when the prices of crude oil and petroleum products in the world market are to make the provision an undue delegation of legislative power. The alleged lack of definitions of
declining and when the exchange rate of the peso in relation to the US dollar is stable. Upon the
the terms employed in the statute does not give rise to undue delegation either for the words of the
implementation of the full deregulation as provided herein, the transition phase is deemed terminated and the
following laws are deemed repealed: x x x.”[Emphasis added]. statute, as a rule, must be given its literal meaning. Petitioners’ contentions are concerned with the
39
It appears from the foregoing that deregulation has to be implemented “not later than March details of execution by the executive officials tasked to implement deregulation. No proviso in
1997.” The provision is unequivocal, i.e., deregulation must be implemented on or before March Section 15 may be construed as objectionable for the legislature has the latitude to provide that a
1997. The Secretary of Energy and the President is devoid of any discretion to move the date of law may take effect upon the happening of future specified contingencies leaving to some other
full deregulation to any day later than March 1997. The second sentence which provides that “[a]s person or body the power to determine when the specified contingency has arisen. The instant 40
far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petition is similarly situated with the past cases, as summarized in the case of People v.
petroleum products in the world market are declining and when the exchange rate of the peso in Vera, where the Court ruled for the validity of several assailed statutes, to wit:
“To the same effect are decisions of this court in Municipality of Cardona vs. Municipality of
relation to the US dollar is stable” did not modify or reset to any other date the full deregulation of
Binangonan ([1917], 36 Phil. 547); Rubi vs. Provincial Board of Mindoro ([1919], 39 Phil. 660), and Cruz vs.
downstream oil industry. Not later than March 1997 is a complete and definite period for full Youngberg ([1931], 56 Phil. 234). In the first of these cases, this court sustained the validity of a law
deregulation. What is conferred to the Department of Energy in the implementation of full conferring upon the GovernorGeneral authority to adjust provincial and municipal boundaries. In the second
deregulation, with the approval of the President, is not the power and discretion on what the law case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on
should be. The provision of Section 15 gave the President the authority to proceed with unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third
deregulation on or before, but not case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at
_______________ _______________
38
Id., at p. 118.
Id.
34
39
Globe-Mackay Cable and Radio Corporation v. NLRC, 206 SCRA 701, 711.
406 40
People v. Vera, supra, at pp. 119-120.
408
406 SUPREME COURT REPORTS ANNOTATED
408 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy
after, March 1997, and if implementation is made before March, 1997, to execute the same, if Tatad vs. Secretary of the Department of Energy
possible, when the prices of crude oil and petroleum products in the world market are declining his discretion, the prohibition of the importation of foreign cattle, such prohibition to be raised ‘if the
and the peso-dollar exchange rate is stable. But if the implementation is made on March, 1997, the conditions of the country make this advisable or if disease among foreign cattle has ceased to be a menace to
President has no option but to implement the law regardless of the conditions of the prices of oil in the agriculture and livestock of the lands.’ ” 41
the world market and the exchange rates. If the Governor-General in the case of Cruz v. Youngberg can “suspend or not, at his discretion,
42
The settled rule is that the legislative department may not delegate its power. Any attempt to the prohibition of the importation of cattle, such prohibition to be raised ‘if the conditions of the
abdicate it is unconstitutional and void, based on the principle of potestas delegata non delegare country make this advisable or if disease among foreign cattles has ceased to be a menace to the
potest. In testing whether a statute constitutes an undue delegation of legislative power or not, it is agriculture and livestock of the lands” then with more reason that Section 15 of Republic Act No.
8180 can pass the constitutional challenge as it has mandatorily fixed the effectivity date of full
deregulation to not later than March 1997, with or without the occurrence of stable peso-dollar geared towards accomplishing the noble purpose of the law. The inventory requirement ensures
exchange rate and declining oil prices. Contrary to petitioners’ protestations, therefore, Section 15 the security and continuity of petroleum crude and products supply, while the reportorial 44
is complete and contains the basic conditions and terms for its execution. requirement is a mere devise for the Department of Energy to
To restate, the policy of Republic Act No. 8180 is to deregulate the downstream oil industry _______________
and to foster a truly competitive market which could lead to fair prices and adequate supply of
me by law, do hereby declare the full deregulation, of the downstream oil industry.
environmentally clean and high-quality petroleum products. This is the guiding principle installed “This Executive Order shall take effect on 8 February 1997.
by Congress upon which the executive department of the government must conform. Section 15 of “DONE in the City of Manila, this 22nd day of January in the year of Our Lord, Nineteen Hundred and Ninety-Seven.
(Signed)
Republic Act No. 8180 sufficiently supplied the metes and bounds for the execution of full FIDEL V. RAMOS”
deregulation. In fact, a cursory reading of Executive Order No. 392 which advanced deregulation 43
Section 6, Republic Act No. 8180.
44
to February 8, 411
_______________
VOL. 281, NOVEMBER 5, 1997 411
41
Id., at pp. 117-118. Tatad vs. Secretary of the Department of Energy
42
56 Phil. 234. monitor compliance with the law. In any event, the issue pertains to the efficacy of incorporating
43
Executive Order No. 392 provides in full as follows:
“EXECUTIVE ORDER NO. 392 in the law the administrative sanctions which lies outside the Court’s sphere and competence.
“DECLARING FULL DEREGULATION OF THE In fine, it seems to me that the petitions dwell on the insistent and recurrent arguments that the
DOWNSTREAM OIL INDUSTRY
imposition of different tariff rates on imported crude oil and imported petroleum products is
“WHEREAS, Republic Act No. 7638, otherwise known as the ‘Department of Energy Act of 1992,’ provides that, at the end of four years from its
violative of the equal protection clause of the constitution; is not germane to the purpose of the
effectivity last December 1992, ‘the Department [of Energy] shall, upon approval of law; does not foster a truly competitive market; extends undue advantage to the existing oil
409 refineries or companies; and creates a cartel or a monopoly of sort among Shell, Caltex and Petron
VOL. 281, NOVEMBER 5, 1997 409 in clear contravention of the Constitutional proscription against unfair trade practices and
combinations in restraint of trade. Unfortunately, this Court, in my view, is not at liberty to tread
Tatad vs. Secretary of the Department of Energy upon or even begin to discuss the merits and demerits of petitioners’ stance if it is to be faithful to
1997 convincingly shows the determinable factors or standards, enumerated under Section 15, the time honored doctrine of separation of powers—the underlying principle of our republican
which were taken into state. Nothing is so fundamental in our system of government than its division into three distinct
45
_______________
and independent branches, the executive, the legislative and the judiciary, each branch having
the President, institute the programs and timetable of deregulation of appropriate energy projects and activities of the energy sector’;
exclusive cognizance of matters within its jurisdiction, and supreme within its own sphere. It is
“WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the ‘Downstream Oil Industry Deregulation Act of 1996,’ provides true that there is sometimes an inevitable overlapping and interlacing of functions and duties
that ‘the DOE shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later than March, 1997. As between these departments. But this elementary tenet remains: the legislative is vested with the
far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining
and when the exchange rate of the peso in relation to the US dollar is stable’; power to make law, the judiciary to apply and interpret it. In cases like this, “the judicial branch of
“WHEREAS, pursuant to the recommendation of the Department of Energy, there is an imperative need to implement the full deregulation of the government has only one duty—to lay the article of the Constitution which is invoked beside
the downstream oil industry because of the following recent developments: (i) depletion of the buffer fund on or about 7 February 1997 pursuant to
the Energy Regulatory Board’s Order dated 16 January 1997; (ii) the prices of crude oil had been stable at $21-$23 per barrel since October 1996 the statute which is challenged and to decide whether the latter squares with the former.” This 46
while prices of petroleum products in the world market had been stable since mid-December of last year. Moreover, crude oil prices are beginning having been done and finding no constitutional infirmity therein, the Court’s task is finished. Now
to soften for the last few days while prices of some petroleum products had already declined; and (iii) the exchange rate of the peso in relation to the
US dollar has been stable for the past twelve (12) months, averaging at around P26.20 to one US dollar; whether or not the law fails to achieve its avowed policy because Congress did not
“WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for the administration of the _______________
deregulated industry by defining the functions and responsibilities of various government agencies;
“WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a truly competitive market which can better
achieve the social policy objectives of fair prices and adequate, continuous supply of environmentally-clean and high quality petroleum products; Article II, Section 1, 1987 Constitution.
45
“NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by the powers vested in United States v. Butler, 297 U.S. 1.
46
410 412
410 SUPREME COURT REPORTS ANNOTATED 412 SUPREME COURT REPORTS ANNOTATED
Tatad vs. Secretary of the Department of Energy Tatad vs. Secretary of the Department of Energy
account by the Chief Executive in declaring full deregulation. I cannot see my way clear on how carefully evaluate the long term effects of some of its provisions is a matter clearly beyond this
or why Executive Order No. 392, as professed by petitioners, may be declared unconstitutional for Court’s domain.
adding the “depletion of buffer fund” as one of the grounds for advancing the deregulation. The Perhaps it bears reiterating that the question of validity of every statute is first determined by
enumeration of factors to be considered for full deregulation under Section 15 did not proscribe the legislative department of the government, and the courts will resolve every presumption in
the Chief Executive from acknowledging other instances that can equally assuage deregulation. favor of its validity. The courts will assume that the validity of the statute was fully considered by
What is important is that the Chief Executive complied with and met the minimum standards the legislature when adopted. The wisdom or advisability of a particular statute is not a question
supplied by the law. Executive Order No. 392 may not, therefore, be branded as unconstitutional. for the courts to determine. If a particular statute is within the constitutional power of the
Petitioners’ vehement objections on the short seven (7) month transition period under Section legislature to enact, it should be sustained whether the courts agree or not in the wisdom of its
15 and the alleged resultant de facto formation of cartel are matters which fundamentally strike at enactment. This Court continues to recognize that in the determination of actual cases and
47
the wisdom of the law and the policy adopted by Congress. These are outside the power of the controversies, it must reflect the wisdom and justice of the people as expressed through their
courts to settle; thus I fail to see the need to digress any further. representatives in the executive and legislative branches of government. Thus, the presumption is
F. On the imposition of administrative fine. The administrative fine under Section 20 is always in favor of constitutionality for it is likewise always presumed that in the enactment of a
claimed to be inconsistent with deregulation. The imposition of administrative fine for failure to law or the adoption of a policy it is the people who speak through their representatives. This
meet the reportorial and minimum inventory requirements, far from petitioners’ submission, are
principle is one of caution and circumspection in the exercise of the grave and delicate function of _______________
judicial review. Explaining this principle Thayer said,
48
“It can only disregard the Act when those who have the right to make laws have not merely made a mistake, Id., citing Thayer, James B., “The Origin and Scope of the American Doctrine of Constitutional Law,” p. 9.
49
but have made a very clear one-so clear that it is not open to rational question. That is the standard of duty to 414
which the courts bring legislative acts; that is the test which they apply-not merely their own judgment as to 414 SUPREME COURT REPORTS ANNOTATED
constitutionality, but their conclusion as to what judgment is permissible to another department which the
constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, Tatad vs. Secretary of the Department of Energy
complex, ever-unfolding exigencies of government, much will seem unconstitutional to one man, or body of are put on hold, this Court is faced with the unnecessary burden of disposing of issues merely
men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that contrived to fall within the ambit of judicial review. All that is achieved is delay which is perhaps,
there is often a range of choice and judgment; that in such cases the constitution does not sad to say, all that may have been intended in the first place.
_______________
Indeed, whether Republic Act No. 8180 or portions thereof are declared unconstitutional, oil
47
Case v. Board of Health, 24 Phil. 250, 276. prices may continue to rise, as they depend not on any law but on the volatile market and
48
The Lawyers Journal, January 31, 1949, p. 8. economic forces. It is therefore the political departments of government that should address the
413 issues raised herein for the discretion to allow a deregulated oil industry and to determine its
VOL. 281, NOVEMBER 5, 1997 413 viability is lodged with the people in their primary political capacity, which as things stand, has
been delegated to Congress.
Tatad vs. Secretary of the Department of Energy
In the end, petitioners are not devoid of a remedy. To paraphrase the words of Justice Padilla
impose upon the legislature any one specific opinion, but leaves open their range of choice; and that whatever
choice is rational is constitutional.” 49
in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas v. Tan, if petitioners seriously 50
The petitions discuss rather extensively the adverse economic implications of Republic Act No. believe that the adoption and continued application of Republic Act No. 8180 are prejudicial to the
8180. They put forward more than anything else, an assertion that an error of policy has been general welfare or the interests of the majority of the people, they should seek recourse and relief
committed. Reviewing the wisdom of the policies adopted by the executive and legislative from the political branches of government, as they are now doing by moving for an amendment of
departments is not within the province of the Court. the assailed provisions in the correct forum which is Congress or for the exercise of the people’s
It is safe to assume that the legislative branch of the government has taken into consideration power of initiative on legislation. The Court following the time honored doctrine of separation of
and has carefully weighed all points pertinent to the law in question. We cannot doubt that these powers, cannot substitute its judgment for that of the Congress as to the wisdom, justice and
matters have been the object of intensive research and study nor that they have been subject of advisability of Republic Act No. 8180. 51
comprehensive consultations with experts and debates in both houses of Congress. Judicial review ACCORDINGLY, finding no merit in the instant petitions I vote for their outright dismissal.
at this juncture will at best be limited and myopic. For admittedly, this Court cannot ponder on the Petitions granted. R.A. No. 8180 declared unconstitutional and E.O. No. 372 void.
points raised in the petitions with the same technical competence as that of the economic experts
who have contributed valuable hours of study and deliberation in the passage of this law. ——o0o——
I realize that to invoke the doctrine of separation of powers at this crucial time may be viewed
by some as an act of shirking from our duty to uphold the Constitution at all cost. Let it be _______________
remembered, however, that the doctrine of separation of powers is likewise enshrined in our
Constitution and deserves the same degree of fealty. In fact, it carries more significance now in the 163 SCRA 371.
50
Id., at p. 385.
51
face of an onslaught of similar cases brought before this Court by the opponents of almost every 415
enacted law of major importance. It is true that this Court is the last bulwark of justice and it is our © Copyright 2018 Central Book Supply, Inc. All rights reserved.
task to preserve the integrity of our fundamental law. But we cannot become, wittingly or
unwittingly, instruments of every aggrieved minority and losing legislator. While the laudable
objectives of the law
G.R. No. 179267. June 25, 2013.* judicial power to determine what are the valid and binding laws by the criterion of their conformity to the
JESUS C. GARCIA, petitioner, vs. THE HONORABLE RAY ALAN T. DRILON, Presiding fundamental law.”—Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency. It is settled that
herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE
RTCs have jurisdiction to re-
ANTHONE, all surnamed GARCIA, respondents. _______________
Remedial Law; Civil Procedure; Courts; Family Courts; Family Courts Act of 1997 (R.A. No. 8369); It * EN BANC.
must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A. 353
8369, otherwise known as the “Family Courts Act of 1997,” family courts have exclusive original jurisdiction VOL. 699, JUNE 25, 2013 353
to hear and decide cases of domestic violence against women and children.—At the outset, it must be stressed
that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A. 8369, otherwise Garcia vs. Drilon
known as the “Family Courts Act of 1997,” family courts have exclusive original jurisdiction to hear and solve the constitutionality of a statute, “this authority being embraced in the general definition of the
decide cases of domestic violence against women and children. In accordance with said law, the Supreme judicial power to determine what are the valid and binding laws by the criterion of their conformity to the
Court designated from among the branches of the Regional Trial Courts at least one Family Court in each of fundamental law.” The Constitution vests the power of judicial review or the power to declare the
several key cities identified. To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now constitutionality or validity of a law, treaty, international or executive agreement, presidential decree, order,
provides that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction instruction, ordinance, or regulation not only in this Court, but in all RTCs. We said in J.M. Tuason and Co.,
over cases of VAWC defined under the latter law. Inc. v. CA, 3 SCRA 696 (1961), that, “[p]lainly the Constitution contemplates that the inferior courts should
Same; Same; Same; Regional Trial Courts; It is settled that Regional Trial Courts have jurisdiction to have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review
resolve the constitutionality of a statute, “this authority being embraced in the general definition of the of final judgments of inferior courts in cases where such constitutionality happens to be in issue.”
Same; Violence Against Women and Children; Section 20 of A.M. No. 04-10-11-SC, the Rule on granted ex parte so as to protect women and their children from acts of violence. To issue an injunction against
Violence Against Women and Their Children, lays down a new kind of procedure requiring the respondent to such orders will defeat the very purpose of the law against VAWC.
file an opposition to the petition and not an answer.—Section 20 of A.M. No. 04-10-11-SC, the Rule on Constitutional Law; Separation of Powers; Courts are not concerned with the wisdom, justice, policy,
Violence Against Women and Their Children, lays down a new kind of procedure requiring the respondent to or expediency of a statute; By the principle of separation of powers, it is the legislative that determines the
file an opposition to the petition and not an answer. Thus: SEC. 20. Opposition to petition.—(a) The necessity, adequacy, wisdom and expediency of any law.—It is settled that courts are not concerned with the
respondent may file an opposition to the petition which he himself shall verify. It must be accompanied by the wisdom, justice, policy, or expediency of a statute. Hence, we dare not venture into the real motivations and
affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be wisdom of the members of Congress in limiting the protection against violence and abuse under R.A. 9262 to
issued; (b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party women and children only. No proper challenge on said grounds may be entertained in this proceeding.
complaint, but any cause of action which could be the subject thereof may be litigated in a separate civil Congress has made its choice and it is not our prerogative to supplant this judgment. The choice may be
action. perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by the
Same; Civil Procedure; Cause of Action; The unconstitutionality of a statute is not a cause of action legislative. By the principle of separation of powers, it is the legislative that determines the necessity,
that could be the subject of a counterclaim, cross-claim or a third-party complaint.—We cannot subscribe to adequacy, wisdom and expediency of any law. We only step in when there is a violation of the Constitution.
the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party complaint are to be However, none was sufficiently shown in this case.
excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. Same; Equal Protection of the Laws; Equal protection simply requires that all persons or things
A counterclaim is defined as any claim for money or other relief which a defending party may have against an similarly situated should be treated alike, both as to rights conferred and responsibilities im-
opposing party. A crossclaim, on the other hand, is any claim by one party against a co-party arising out of the 356
transaction or occurrence that is the subject matter either of the original action or of a counterclaim 3 SUPREME COURT REPORTS ANNOTATED
354
56
3 SUPREME COURT REPORTS ANNOTATED
54 Garcia vs. Drilon
posed.—Equal protection simply requires that all persons or things similarly situated should be treated
Garcia vs. Drilon alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case
therein. Finally, a third-party complaint is a claim that a defending party may, with leave of court, file of Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54 (1974), is instructive: The guaranty of equal
against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It
of his opponent’s claim. As pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every
statute is not a cause of action that could be the subject of a counterclaim, cross-claim or a third-party man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean
complaint. Therefore, it is not prohibited from being raised in the opposition in view of the familiar indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding
maxim expressio unius est exclusio alterius. them. It guarantees equality, not identity of rights. The Constitution does not require that things which are
Same; Evidence; Constitutional Law; The question relative to the constitutionality of a statute is one of different in fact be treated in law as though they were the same. The equal protection clause does not forbid
law which does not need to be supported by evidence.—That the proceedings in Civil Case No. 06-797 are discrimination as to things that are different. It does not prohibit legislation which is limited either in the object
summary in nature should not have deterred petitioner from raising the same in his Opposition. The question to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause
relative to the constitutionality of a statute is one of law which does not need to be supported by evidence. of the Constitution allows classification. Classification in law, as in the other departments of knowledge or
Same; Temporary Protection Order (TPO); If a temporary protection order issued is due to expire, the practice, is the grouping of things in speculation or practice because they agree with one another in certain
trial court may extend or renew the said order for a period of thirty (30) days each time until final judgment is particulars. A law is not invalid because of simple inequality. The very idea of classification is that of
rendered.—To obviate potential dangers that may arise concomitant to the conduct of a hearing when inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due constitutionality. All that is required of a valid classification is that it be reasonable, which means that the
to expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until final classification should be based on substantial distinctions which make for real differences; that it must
judgment is rendered. It may likewise modify the extended or renewed temporary protection order as may be be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it
necessary to meet the needs of the parties. With the private respondent given ample protection, petitioner could must apply equally to each member of the class. This Court has held that the standard is satisfied if the
proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.
adoption of the rules on summary procedure. Same; Same; The unequal power relationship between women and men; the fact that women are more
Same; Provisional Remedies; Injunction; Temporary Protection Order (TPO); It bears stressing that likely than men to be victims of violence; and the widespread gender bias and prejudice against women all
protection orders are granted ex parte so as to protect women and their children from acts of violence. To make for real differences justifying the classification under the law.—The unequal power relationship between
issue an injunction against such orders will defeat the very purpose of the law against Violence Against women and men; the fact that women are more likely than men to be victims of violence; and the widespread
Women and Children.—As the rules stand, a review of the case by appeal or certiorari before judgment is gender bias and prejudice against women
prohibited. Moreover, if the appeal of a judgment granting permanent protection shall not stay its enforcement, 357
with more VOL. 699, JUNE 25, 2013 357
355
VOL. 699, JUNE 25, 2013 355 Garcia vs. Drilon
all make for real differences justifying the classification under the law. As Justice McIntyre succinctly
Garcia vs. Drilon states, “the accommodation of differences ... is the essence of true equality.”
reason that a TPO, which is valid only for thirty (30) days at a time, should not be enjoined. The mere Same; Same; Gender-Based Violence; According to the Philippine Commission on Women (the
fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same National Machinery for Gender Equality and Women’s Empowerment), violence against women (VAW) is
enjoined. In Younger v. Harris, Jr., 27 L.Ed.2d 669 (1971), the Supreme Court of the United States declared, deemed to be closely linked with the unequal power relationship between women and men otherwise known as
thus: Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate “gender-based violence.”—According to the Philippine Commission on Women (the National Machinery for
and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. Gender Equality and Women’s Empowerment), violence against women (VAW) is deemed to be closely
No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal linked with the unequal power relationship between women and men otherwise known as “gender-based
acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not violence.” Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the take on dominant roles in society while women are nurturers, men’s companions and supporters, and take on
plaintiff who seeks its aid. (Citations omitted) The sole objective of injunctions is to preserve the status subordinate roles in society. This perception leads to men gaining more power over women. With power
quo until the trial court hears fully the merits of the case. It bears stressing, however, that protection orders are
comes the need to control to retain that power. And VAW is a form of men’s expression of controlling women relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that
to retain power. the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating
Same; Same; The enactment of R.A. 9262 aims to address the discrimination brought about by biases relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code
and prejudices against women.—The enactment of R.A. 9262 aims to address the discrimination brought about (RPC). Thus, in the case of Go-Tan v. Spouses Tan, 567 SCRA 231 (2008), the parents-in-law of Sharica Mari
by biases and prejudices against women. As emphasized by the CEDAW Committee on the Elimination of L. Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon the allegation that
Discrimination against Women, addressing or correcting discrimination through specific measures focused on they and their son (Go-Tan’s husband) had community of design and purpose in tormenting her by giving her
women does not discriminate against men. Petitioner’s contention, therefore, that R.A. 9262 is discriminatory insufficient financial support; harassing and pressuring her to be ejected from the family home; and in
and that it is an “anti-male,” “husband-bashing,” and “hate-men” law deserves scant consideration. As a State repeatedly abusing her verbally, emotionally, mentally and physically.
Party to the CEDAW, the Philippines bound itself to take all appropriate measures “to modify the social and Remedial Law; Temporary Protection Order; Words and Phrases; A protection order is an order
cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and issued to prevent further acts of violence against women and their children, their family or household
customary and all other practices which are based on the idea of the inferiority or the superiority of either of members, and to grant other necessary reliefs; The rules require that petitions for protection order be in
the sexes or on stereotyped roles for men and women.” Justice Puno correctly pointed out that “(t)he paradigm writing, signed and verified by the petitioner thereby undertaking full responsibility, criminal or
shift changing the character of domestic violence from a private affair to a public offense will require the 360
development 3 SUPREME COURT REPORTS ANNOTATED
358
60
3 SUPREME COURT REPORTS ANNOTATED
58 Garcia vs. Drilon
civil, for every allegation therein.—A protection order is an order issued to prevent further acts of
Garcia vs. Drilon violence against women and their children, their family or household members, and to grant other necessary
of a distinct mindset on the part of the police, the prosecution and the judges.” reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their
Same; Same; The distinction between men and women is germane to the purpose of R.A. 9262, which is daily life and facilitate the opportunity and ability to regain control of their life. “The scope of reliefs in
to address violence committed against women and children, spelled out in its Declaration of Policy.—The protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary
distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of
committed against women and children, spelled out in its Declaration of Policy, as follows: SEC. violence; to accord the victim and any designated family or household member safety in the family residence,
2. Declaration of Policy.—It is hereby declared that the State values the dignity of women and children and and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim.
guarantees full respect for human rights. The State also recognizes the need to protect the family and its It also enables the court to award temporary custody of minor children to protect the children from violence, to
members particularly women and children, from violence and threats to their personal safety and security. prevent their abduction by the perpetrator and to ensure their financial support.” The rules require that petitions
Towards this end, the State shall exert efforts to address violence committed against women and children in for protection order be in writing, signed and verified by the petitioner thereby undertaking full responsibility,
keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the Universal criminal or civil, for every allegation therein. Since “time is of the essence in cases of VAWC if further
Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against violence is to be prevented,” the court is authorized to issue ex parte a TPO after raffle but before notice and
Women, Convention on the Rights of the Child and other international human rights instruments of which the hearing when the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe
Philippines is a party. that the order is necessary to protect the victim from the immediate and imminent danger of VAWC or to
Same; Same; The application of R.A. 9262 is not limited to the existing conditions when it was prevent such violence, which is about to recur.
promulgated, but to future conditions as well, for as long as the safety and security of women and their Same; Same; Just like a writ of preliminary attachment which is issued without notice and hearing
children are threatened by violence and abuse.—The application of R.A. 9262 is not limited to the existing because the time in which the hearing will take could be enough to enable the defendant to abscond or dispose
conditions when it was promulgated, but to future conditions as well, for as long as the safety and security of of his property, in the same way, the victim of Violence Against Women and Children may already have
women and their children are threatened by violence and abuse. R.A. 9262 applies equally to all women and suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing
children who suffer violence and abuse. were required before such acts could be prevented.—The grant of a TPO ex parte cannot, therefore, be
Statutes; An act will not be held invalid merely because it might have been more explicit in its challenged as violative of the right to due process. Just like a writ of preliminary attachment which is issued
wordings or detailed in its provisions.—There is nothing in the definition of VAWC that is vague and without notice and hearing because the time in which the hearing will take could be enough to enable the
ambiguous that will confuse petitioner in his defense. The acts enumerated above are easily understood and defendant to abscond or dispose of his property, in the same way, the victim of VAWC may already have
provide adequate contrast between the innocent and the prohibited acts. They are worded with sufficient suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing
definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and need not were required before such acts could be pre-
guess at its meaning nor differ in its application. Yet, petitioner insists that 361
359
VOL. 699, JUNE 25, 2013 361
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Garcia vs. Drilon
Garcia vs. Drilon vented. It is a constitutional commonplace that the ordinary requirements of procedural due process
phrases like “depriving or threatening to deprive the woman or her child of a legal right,” “solely must yield to the necessities of protecting vital public interests, among which is protection of women and
controlling the conjugal or common money or properties,” “marital infidelity,” and “causing mental or children from violence and threats to their personal safety and security. It should be pointed out that when the
emotional anguish” are so vague that they make every quarrel a case of spousal abuse. However, we have TPO is issued ex parte, the court shall likewise order that notice be immediately given to the respondent
stressed that the “vagueness” doctrine merely requires a reasonable degree of certainty for the statute to be directing him to file an opposition within five (5) days from service. Moreover, the court shall order that
upheld — not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather notice, copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. TPOs are initially effective for thirty (30) days from service on the respondent. Where no TPO is issued ex
An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in parte, the court will nonetheless order the immediate issuance and service of the notice upon the respondent
its provisions. requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary
Criminal Law; Violence Against Women and Children; Conspiracy; While the law provides that the conference and hearing on the merits shall likewise be indicated on the notice.
offender be related or connected to the victim by marriage, former marriage, or a sexual or dating Same; Same; The respondent of a petition for protection order should be apprised of the charges
relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code imputed to him and afforded an opportunity to present his side; “To be heard” does not only mean verbal
(RPC).—VAWC may likewise be committed “against a woman with whom the person has or had a sexual or arguments in court; one may be heard also through pleadings.—It is clear from the foregoing rules that the
dating relationship.” Clearly, the use of the gender-neutral word “person” who has or had a sexual or dating respondent of a petition for protection order should be apprised of the charges imputed to him and afforded an
opportunity to present his side. Thus, the fear of petitioner of being “stripped of family, property, guns, money, Statutes; Before a statute or its provisions duly challenged are voided, an unequivocal breach or a
children, job, future employment and reputation, all in a matter of seconds, without an inkling of what clear conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such
happened” is a mere product of an overactive imagination. The essence of due process is to be found in the a manner as to leave no doubt in the mind of the Court.—Before a statute or its provisions duly challenged are
reasonable opportunity to be heard and submit any evidence one may have in support of one’s defense. “To be voided, an unequivocal breach or a clear conflict with the Constitution, not merely a doubtful or argumentative
heard” does not only mean verbal arguments in court; one may be heard also through pleadings. Where one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court. In other words, the
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of grounds for nullity must be beyond reasonable doubt. In the instant case, however, no concrete evidence and
procedural due process. convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A.
Same; Same; Indubitably, petitioner may be removed and excluded from private respondent’s 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
residence, regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal 364
and exclusion may be permanent only where no property rights are violated.—Petitioner next laments that the 3 SUPREME COURT REPORTS ANNOTATED
removal and exclusion of the respondent in the VAWC case from the residence of the
362 64
3 SUPREME COURT REPORTS ANNOTATED Garcia vs. Drilon
62 executive department. As we said in Estrada v. Sandiganbayan, 369 SCRA 394 (2001), courts must
assume that the legislature is ever conscious of the borders and edges of its plenary powers, and passed laws
Garcia vs. Drilon with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of
victim, regardless of ownership of the residence, is virtually a “blank check” issued to the wife to claim the majority.
any property as her conjugal home. The wording of the pertinent rule, however, does not by any stretch of the LEONARDO-DE CASTRO, J., Concurring Opinion:
imagination suggest that this is so. It states: SEC. 11. Reliefs available to the offended party.—The protection Remedial Law; Civil Procedure; Courts; Regional Trial Courts; View that the Regional Trial Court
order shall include any, some or all of the following reliefs: x x x x (c) Removing and excluding the respondent (RTC), designated as a Family Court, is vested with jurisdiction to decide issues of constitutionality of a law,
from the residence of the offended party, regardless of ownership of the residence, either temporarily for the and that the constitutionality of Republic Act No. 9262 can be resolved in a summary proceeding, in
purpose of protecting the offended party, or permanently where no property rights are violated. If the accordance with the rule that the question of constitutionality must be raised at the earliest opportunity,
respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to otherwise it may not be considered on appeal.—I agree with Justice Bernabe that the RTC, designated as a
accompany the respondent to the residence, remain there until the respondent has gathered his things and Family Court, is vested with jurisdiction to decide issues of constitutionality of a law, and that the
escort him from the residence; x x x x Indubitably, petitioner may be removed and excluded from private constitutionality of Republic Act No. 9262 can be resolved in a summary proceeding, in accordance with the
respondent’s residence, regardless of ownership, only temporarily for the purpose of protecting the latter. Such rule that the question of constitutionality must be raised at the earliest opportunity, otherwise it may not be
removal and exclusion may be permanent only where no property rights are violated. How then can the private considered on appeal. Section 20 of A.M. No. 04-10-11-SC, the Rule on Republic Act No. 9262 provides: Sec.
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest? 20. Opposition to Petition.—(a) The respondent may file an opposition to the petition which he himself shall
Same; Same; Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the Violence verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or
Against Women and Children case or any issue thereof to a mediator.—Under Section 23(c) of A.M. No. 04- permanent protection order should not be issued. (b) Respondent shall not include in the opposition any
10-11-SC, the court shall not refer the case or any issue thereof to a mediator. The reason behind this provision counterclaim, cross-claim or third-party complaint, but any cause of action which could be the subject
is well-explained by the Commentary on Section 311 of the Model Code on Domestic and Family Violence as thereof may be litigated in a separate civil action.
follows: This section prohibits a court from ordering or referring parties to mediation in a proceeding for an Same; Same; Same; Same; Temporary Protection Order; View that the alleged unconstitutionality of
order for protection. Mediation is a process by which parties in equivalent bargaining positions voluntarily Republic Act No. 9262 is a matter that would have prevented the trial court from granting the petition for
reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A protection order against the petitioner.—The alleged unconstitutionality of Republic Act No. 9262 is a matter
process which involves parties mediating the issue of violence implies that the victim is somehow at fault. In that would have prevented the trial court from granting the petition for protection order against the petitioner.
addition, mediation of issues in a proceeding for an order of protection is problematic because the petitioner is Thus, petitioner should have raised it in his Opposition as a defense against the issuance of a protection order
frequently unable to participate equally with the person against whom the protection order has been sought. against him.365
Same; Same; Barangay Protection Order (BPO); The Barangay Protection Order issued by the
VOL. 699, JUNE 25, 2013 365
Punong Barangay or, in his unavail-
363
Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 363 Same; Same; Same; Same; Same; View that an action questioning the constitutionality of the law
cannot be filed separately even with another branch of the RTC. This is not technically feasible because there
Garcia vs. Drilon will be no justiciable controversy or an independent cause of action that can be the subject of such separate
ability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing action if it were not for the issuance of the Temporary Protection Order against the petitioner. —For all intents
physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. and purposes, the Petition for Prohibition filed before the Court of Appeals was precipitated by and was
Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty under the ultimately directed against the issuance of the TPO, an interlocutory order, which under Section 22(j) of A.M.
Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the No. 04-10-11-SC is a prohibited pleading. An action questioning the constitutionality of the law also cannot be
barangay.”—Judicial power includes the duty of the courts of justice to settle actual controversies involving filed separately even with another branch of the RTC. This is not technically feasible because there will be no
rights which are legally demandable and enforceable, and to determine whether or not there has been a grave justiciable controversy or an independent cause of action that can be the subject of such separate action if it
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of were not for the issuance of the TPO against the petitioner. Thus, the controversy, subject of a separate action,
the Government. On the other hand, executive power “is generally defined as the power to enforce and whether before the Court of Appeals or the RTC, would still have to be the issuance of the TPO, which is the
administer the laws. It is the power of carrying the laws into practical operation and enforcing their due subject of another case in the RTC.
observance.” As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, Statutes; View that the challenge to the constitutionality of the law must be raised at the earliest
in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) opportunity.—The challenge to the constitutionality of the law must be raised at the earliest opportunity.
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical In Dasmariñas Water District v. Monterey Foods Corporation, 565 SCRA 624 (2008), we said: A law is
harm. Such function of the Punong Barangayis, thus, purely executive in nature, in pursuance of his duty deemed valid unless declared null and void by a competent court; more so when the issue has not been duly
under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in pleaded in the trial court. The question of constitutionality must be raised at the earliest opportunity. x x x. The
the barangay.” We have held that “(t)he mere fact that an officer is required by law to inquire into the settled rule is that courts will not anticipate a question of constitutional law in advance of the necessity of
existence of certain facts and to apply the law thereto in order to determine what his official conduct shall be deciding it. (Citation omitted.) This Court held that such opportunity is in the pleadings before a competent
and the fact that these acts may affect private rights do not constitute an exercise of judicial powers.”
court that can resolve it, such that “if it is not raised in the pleadings, it cannot be considered at the trial, and, if classification in the challenged law must (1) serve important governmental objectives, and (2) be substantially
not considered at the trial, it cannot be considered on appeal.” The decision upon the constitutional question is related to the achievement of those objectives.
necessary to determine whether the TPO should be issued against petitioner. Such question should have been Same; Same; View that by constitutional mandate, the Philippines is committed to ensure that human
raised at the earliest opportunity as an affirmative defense in the Opposition filed with the RTC handling the rights and fundamental
protection order proceedings, which was the competent court to pass upon the constitutional issue.366 368
3 SUPREME COURT REPORTS ANNOTATED 3 SUPREME COURT REPORTS ANNOTATED
66 68
Garcia vs. Drilon Garcia vs. Drilon
Remedial Law; Civil Procedure; Multiplicity of Suits; View that the filing of a separate action before freedoms are fully enjoyed by everyone.—By constitutional mandate, the Philippines is committed to
the Court of Appeals or the RTC for the declaration of unconstitutionality of Republic Act No. 9262 would ensure that human rights and fundamental freedoms are fully enjoyed by everyone. It was one of the countries
result to multiplicity of suits. It is clear that the issues of constitutionality and propriety of issuing a protection that voted in favor of the Universal Declaration of Human Rights (UDHR), which was a mere two years after it
order raised by petitioner are inextricably intertwined.—The filing of a separate action before the Court of gained independence from the United States of America. In addition, the Philippines is a signatory to many
Appeals or the RTC for the declaration of unconstitutionality of Republic Act No. 9262 would result to United Nations human rights treaties such as the Convention on the Elimination of All Forms of Racial
multiplicity of suits. It is clear that the issues of constitutionality and propriety of issuing a protection order Discrimination, the International Covenant on Economic, Social and Cultural Rights, the International
raised by petitioner are inextricably intertwined. Another court, whether it is an appellate court or a trial court, Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Rights of
cannot resolve the constitutionality question in the separate action without affecting the petition for the the Child, among others.
issuance of a TPO. Bringing a separate action for the resolution of the issue of constitutionality will result in an Same; Same; View that the Declaration of Policy in Republic Act No. 9262 enunciates the purpose of
unresolved prejudicial question to the validity of issuing a protection order. If the proceedings for the the said law, which is to fulfill the government’s obligation to safeguard the dignity and human rights of
protection order is not suspended, it does create the danger of having inconsistent and conflicting judgments women and children by providing effective remedies against domestic violence or physical, psychological, and
between the two separate courts, whether of the same or different levels in the judicial hierarchy. These two other forms of abuse perpetuated by the husband, partner, or father of the victim.—The Declaration of Policy
judgments would eventually be the subject of separate motions for reconsideration, separate appeals, and in Republic Act No. 9262 enunciates the purpose of the said law, which is to fulfill the government’s
separate petitions for review before this Court – the exact scenario the policy against multiplicity of suits is obligation to safeguard the dignity and human rights of women and children by providing effective remedies
avoiding. As we previously held, “the law and the courts frown upon split jurisdiction and the resultant against domestic violence or physical, psychological, and other forms of abuse perpetuated by the husband,
multiplicity of actions.” partner, or father of the victim. The said law is also viewed within the context of the constitutional mandate to
Procedural Rules and Technicalities; View that when public interest requires the resolution of the ensure gender equality, which is quoted as follows: Section 14. The State recognizes the role of women in
constitutional issue raised, and in keeping with the Supreme Court’s duty of determining whether other nationbuilding, and shall ensure the fundamental equality before the law of women and men.
agencies or even co-equal branches of government have remained within the limits of the Constitution and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Republic
have not abused the discretion given them, the Court may brush aside technicalities of procedure and resolve Act No. 9262; View that Republic Act No. 9262 can be viewed therefore as the Philippines’ compliance with
the constitutional issue.—Notwithstanding my position that the Court of Appeals properly dismissed the the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which is
Petition for Prohibition because of petitioner’s failure to raise the issue of constitutionality of Republic Act No. committed to condemn discrimination against women and directs its members to undertake, without delay, all
9262 at the earliest opportunity, I concur that the Court, in the exercise of its sound discretion, should still pass appropriate means to eliminate discrimination against women in all forms both in law and in practice. —It has
upon the said issue in the present Petition. Notable is the fact that not only the petitioner, but the private been acknowledged that “gender-based violence is a form of discrimination that seriously inhibits women’s
respondent as well, pray that the Court resolve the constitutional issue considering its novelty and paramount ability to enjoy rights and freedoms on a basis of equality with men.” Republic
369
importance. Indeed, when public interest
367 VOL. 699, JUNE 25, 2013 369
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Garcia vs. Drilon
Garcia vs. Drilon Act No. 9262 can be viewed therefore as the Philippines’ compliance with the Convention on the
requires the resolution of the constitutional issue raised, and in keeping with this Court’s duty of Elimination of All Forms of Discrimination against Women (CEDAW), which is committed to condemn
determining whether other agencies or even co-equal branches of government have remained within the limits discrimination against women and directs its members to undertake, without delay, all appropriate means to
of the Constitution and have not abused the discretion given them, the Court may brush aside technicalities of eliminate discrimination against women in all forms both in law and in practice. Known as the International
procedure and resolve the constitutional issue. Bill of Rights of Women, the CEDAW is the central and most comprehensive document for the advancement
Constitutional Law; Equal Protection of the Law; View that recent Philippine jurisprudence has of the welfare of women. It brings the women into the focus of human rights concerns, and its spirit is rooted
recognized the need to apply different standards of scrutiny in testing the constitutionality of classifications. — in the goals of the UN: to reaffirm faith in fundamental human rights, in the dignity and worth of the human
Recent Philippine jurisprudence has recognized the need to apply different standards of scrutiny in testing the person, in the equal rights of men and women. The CEDAW, in its preamble, explicitly acknowledges the
constitutionality of classifications. In British American Tobacco v. Camacho, 585 SCRA 36 (2009), this Court existence of extensive discrimination against women, and emphasized that such is a violation of the
held that since the case therein neither involved a suspect classification nor impinged on a fundamental right, principles of equality of rights and respect for human dignity.
then “the rational basis test was properly applied to gauge the constitutionality of the assailed law in the face of Constitutional Law; Equal Protection of the Law; Gender-Based Violence; As one of the country’s
an equal protection challenge.” pervasive social problems, violence against women is deemed to be closely linked with the unequal power
Same; Same; View that in the context of the constitutional policy to “ensure the fundamental equality relationship between women and men and is otherwise known as “gender-based violence.”—As one of the
before the law of women and men” the level of scrutiny applicable, to test whether or not the classification in country’s pervasive social problems, violence against women is deemed to be closely linked with the unequal
Republic Act No. 9262 violates the equal protection clause, is the middle-tier scrutiny or the intermediate power relationship between women and men and is otherwise known as “gender-based violence.” Violent acts
standard of judicial review.—Since statutory remedies accorded to women are not made available to men, towards women has been the subject of an examination on a historic world-wide perspective. The exhaustive
when the reality is that there are men, regardless of their number, who are also suffering from domestic study of a foreign history professor noted that “[f]rom the earliest civilizations on, the subjugation of women,
violence, the rational basis test may be too wide and liberal to justify the statutory classification which in effect in the form of violence, were facts of life,” as three great bodies of thought, namely: Judeo-Christian religious
allows different treatment of men who are similarly situated. In the context of the constitutional policy to ideas; Greek philosophy; and the Common Law Legal Code, which have influenced western society’s views
“ensure the fundamental equality before the law of women and men” the level of scrutiny applicable, to test and treatment of women, all “assumed patriarchy as natural; that is, male domination stemming from the view
whether or not the classification in Republic Act No. 9262 violates the equal protection clause, is the middle- of male superiority.” It cited 18th century legal expert William Blackstone, who explained that the common
tier scrutiny or the intermediate standard of judicial review. To survive intermediate review, the law doctrine of coverture reflected the theological assumption that husband and wife were ‘one body’ before
God; thus “they were ‘one person’ under the law, and that one person was the husband,” a concept that in our Constitution does not guarantee an absolute prohibition against classification. The non-identical
evidently found its way in some of our Civil Code provisions prior to the enactment of the Family Code.370 treatment of women and men under Republic Act No. 9262 is justified to put them on
372
3 SUPREME COURT REPORTS ANNOTATED
3 SUPREME COURT REPORTS ANNOTATED
70
72
Garcia vs. Drilon
Criminal Law; Violence Against Women and Children (R.A. No. 9262); View that although there exists Garcia vs. Drilon
other laws on violence against women in the Philippines, Republic Act No. 9262 deals with the problem of equal footing and to give substance to the policy and aim of the state to ensure the equality of women
violence within the family and intimate relationships, which deserves special attention because it occurs in and men in light of the biological, historical, social, and culturally endowed differences between men and
situations or places where women and children should feel most safe and secure but are actually not. — women. Republic Act No. 9262, by affording special and exclusive protection to women and children, who are
Preventing violence against women and children through their availment of special legal remedies, serves the vulnerable victims of domestic violence, undoubtedly serves the important governmental objectives of
governmental objectives of protecting the dignity and human rights of every person, preserving the sanctity of protecting human rights, insuring gender equality, and empowering women. The gender-based classification
family life, and promoting gender equality and empowering women. Although there exists other laws on and the special remedies prescribed by said law in favor of women and children are substantially related, in
violence against women in the Philippines, Republic Act No. 9262 deals with the problem of violence within fact essentially necessary, to achieve such objectives. Hence, said Act survives the intermediate review or
the family and intimate relationships, which deserves special attention because it occurs in situations or places middle-tier judicial scrutiny. The gender-based classification therein is therefore not violative of the equal
where women and children should feel most safe and secure but are actually not. The law provides the widest protection clause embodied in the 1987 Constitution.
range of reliefs for women and children who are victims of violence, which are often reported to have been Violence Against Women and Children; Temporary Protection Order; View that a protection order is
committed not by strangers, but by a father or a husband or a person with whom the victim has or had a sexual issued under Republic Act No. 9262 for the purpose of preventing further acts of violence against a woman or
or dating relationship. Aside from filing a criminal case in court, the law provides potent legal remedies to the her child.—A protection order is issued under Republic Act No. 9262 for the purpose of preventing further
victims that theretofore were not available. The law recognizes, with valid factual support based on statistics acts of violence against a woman or her child. The circumstances surrounding the availment thereof are often
that women and children are the most vulnerable victims of violence, and therefore need legal intervention. On attended by urgency; thus, women and child victims must have immediate and uncomplicated access to the
the other hand, there is a dearth of empirical basis to anchor a conclusion that men need legal protection from same.
violence perpetuated by women. Same; Same; Police Power; View that Republic Act No. 9262 and its implementing regulations were
Temporary Protection Order (TPO); View that the law permits the issuance of protection orders and enacted and promulgated in the exercise of that pervasive, sovereign power of the State to protect the safety,
the granting of certain reliefs to women victims, even without a hearing; Despite the ex parte issuance of these health, and general welfare and comfort of the public (in this case, a particular sector thereof), as well as the
protection orders, the temporary nature of these remedies allow them to be availed of by the victim without protection of human life, commonly designated as the police power.—The ex parte issuance of the TPO does
violating the offender’s right to due process as it is only when a full-blown hearing has been done that a not make it unconstitutional. Procedural due process refers to the method or manner by which the law is
permanent protection order may be issued.—The law takes into account the pervasive vulnerability of women enforced. It consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an
and children, and the seriousness and urgency of the situation, which, in the language of the law result in or is impartial and competent tribunal. However, it is a constitutional commonplace that the ordinary requirements
likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of of procedural due process yield to the necessities of protecting vital public interests like those involved herein.
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. Hence, the law permits the Republic Act No. 9262 and its implementing regulations were enacted and promulgated in the exercise of that
issuance of pervasive, sovereign power of the State to protect the safety, health, and general welfare and comfort
371 373
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Garcia vs. Drilon Garcia vs. Drilon
protection orders and the granting of certain reliefs to women victims, even without a hearing. The law of the public (in this case, a particular sector thereof), as well as the protection of human life,
has granted authority for barangay officials to issue a protection order against the offender, based on the commonly designated as the police power.
victim’s application. The RTC may likewise grant an application for a temporary protection order (TPO) and Barangay Protection Order (BPO); Words and Phrases; View that a Barangay Protection Order
provide other reliefs, also on the mere basis of the application. Despite the ex parte issuance of these protection (BPO) refers to the protection order issued by the Punong Barangay, or in his absence the Barangay
orders, the temporary nature of these remedies allow them to be availed of by the victim without violating the Kagawad, ordering the perpetrator to desist from committing acts of violence against the family or household
offender’s right to due process as it is only when a full-blown hearing has been done that a permanent members particularly women and their children.—A Barangay Protection Order (BPO) refers to the
protection order may be issued. Thus, these remedies are suitable, reasonable, and justified. More importantly, protection order issued by the Punong Barangay, or in his absence the Barangay Kagawad, ordering the
they serve the objectives of the law by providing the victims necessary immediate protection from the violence perpetrator to desist from committing acts of violence against the family or household members particularly
they perceive as threats to their personal safety and security. This translates to the fulfillment of other women and their children. The authority of barangay officials to issue a BPO is conferred under Section 14 of
governmental objectives as well. By assuring the victims instant relief from their situation, they are Republic Act No. 9262: SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.—Barangay
consequently empowered and restored to a place of dignity and equality. Such is embodied in the purpose to be Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
served by a protection order. to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives
Criminal Law; Violence Against Women and Children (R.A. No. 9262); View that in furtherance of the applications for a BPO shall issue the protection order to the applicant on the date of filing after ex
governmental objectives, especially that of protecting human rights, violence against women and children parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the
under this Act has been classified as a public offense, making its prosecution independent of the victim’s application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is
initial participation.—In furtherance of the governmental objectives, especially that of protecting human issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay
rights, violence against women and children under this Act has been classified as a public offense, making its Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be
prosecution independent of the victim’s initial participation. Verily, the classification made in Republic Act effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
No. 9262 is substantially related to the important governmental objectives of valuing every person’s Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct
dignity, respecting human rights, safeguarding family life, protecting children, promoting gender any barangayofficial to effect is personal service. The parties may be accompanied by a non-lawyer advocate
equality, and empowering women. in any proceeding before the Punong Barangay.
Constitutional Law; Equal Protection of the Law; View that the equal protection clause in our Same; View that in the case of a Barangay Protection Order, it is a mere provisional remedy under
Constitution does not guarantee an absolute prohibition against classification.—The equal protection clause Republic Act No. 9262, meant to address the pressing need of the victims for instant protection; Under the
Implementing Rules of Republic Act No. 9262, the issuance of a Barangay Protection Order or the pendency
of an application for a Barangay Protection Order shall not preclude the victim from applying for, or the
court from granting, a Temporary Protection Order or Permanent Protection Order.—While judicial power
3 SUPREME COURT REPORTS ANNOTATED
rests exclusively
374 76
3 SUPREME COURT REPORTS ANNOTATED Garcia vs. Drilon
74 fication.” A suspect classification is one where distinctions are made based on the most invidious bases
for classification that violate the most basic human rights, i.e., on the basis of race, national origin, alien status,
Garcia vs. Drilon religious affiliation and, to a certain extent, sex and sexual orientation. With a suspect classification, the most
in the judiciary, it may be conceded that the legislature may confer on administrative boards or bodies, stringent scrutiny of the classification is applied: the ordinary presumption of constitutionality is reversed and
or even particular government officials, quasi-judicial power involving the exercise of judgment and the government carries the burden of proving the statute’s constitutionality. This approach is unlike the lowest
discretion, as incident to the performance of administrative functions. But in so doing, the legislature must level of scrutiny (reasonableness test) that the Court has applied in the past where the classification is
state its intention in express terms that would leave no doubt, as even such quasi-judicial prerogatives must be scrutinized and constitutionally upheld if found to be germane to the purpose of the law. Under a
limited, if they are to be valid, only to those incidental to or in connection with the performance of reasonableness test, there is a presumption of constitutionality and that the laws enacted by Congress are
administrative duties, which do not amount to conferment of jurisdiction over a matter exclusively vested in presumed to fall within its constitutional powers.
the courts. In the case of a BPO, it is a mere provisional remedy under Republic Act No. 9262, meant to Same; Same; View that there is no indication that Congress actually intended to classify women and
address the pressing need of the victims for instant protection. However, it does not take the place of children as a group against men, under the terms of R.A. No. 9262. Rather than a clear intent at classification,
appropriate judicial proceedings and remedies that provide a more effective and comprehensive protection to the overriding intent of the law is indisputably to harmonize family relations and protect the family as a basic
the victim. In fact, under the Implementing Rules of Republic Act No. 9262, the issuance of a BPO or the social institution.—I do not really see any indication that Congress actually intended to classify women and
pendency of an application for a BPO shall not preclude the victim from applying for, or the court from children as a group against men, under the terms of R.A. No. 9262. Rather than a clear intent at classification,
granting, a TPO or PPO. Where a TPO has already been granted by any court, the barangay official may no the overriding intent of the law is indisputably to harmonize family relations and protect the family as a
longer issue a BPO. The same Implementing Rules also require that within twenty-four (24) hours after the basic social institution. After sifting through the comprehensive information gathered, Congress found that
issuance of a BPO, the barangay official shall assist the victim in filing an application for a TPO or PPO with domestic and other forms of violence against women and children impedes the harmony of the family and the
the nearest court in the victim’s place of residence. If there is no Family Court or RTC, the application may be personal growth and development of family members. In the process, Congress found that these types of
filed in the Municipal Trial Court, the Municipal Circuit Trial Court or the Metropolitan Trial Court. violence must pointedly be addressed as they are more commonly experienced by women and children due to
BRION, J., Concurring Opinion: the unequal power relations of men and women in our society; Congress had removed these types of violence
Criminal Law; Violence Against Women and Children; View that Congress found that domestic and as they are impediments that block the harmonious development that it envisions for the family, of which men
other forms of violence against women and children contribute to the failure to unify and strengthen family are important component members.
ties, thereby impeding the State’s mandate to actively promote the family’s total development.—From the Same; Same; Suspect Classification; View that a suspect classification and the accompanying strict
terms of the law, I find it plain that Congress enacted R.A. No. 9262 as a measure intended to strengthen the scrutiny should depend on the circumstances of the case, on the impact of the illegal differential treatment on
family. Congress found that domestic and other forms of violence against women and children contribute to the group involved, on the needed protection and the
the failure to unify and strengthen family ties, thereby impeding the State’s mandate to actively promote the 377
family’s total development. Congress also found, as a reality, that women and children are more susceptible to
VOL. 699, JUNE 25, 2013 377
domestic and other forms of violence due to, among
375
Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 375 impact of recognizing a suspect classification on future classification.—In my view, a suspect
classification and the accompanying strict scrutiny should depend on the circumstances of the case, on the
Garcia vs. Drilon impact of the illegal differential treatment on the group involved, on the needed protection and the impact of
others, the pervasive bias and prejudice against women and the stereotyping of roles within the family recognizing a suspect classification on future classification. A suspect classification label cannot solely and
environment that traditionally exist in Philippine society. On this basis, Congress found it necessary to automatically be triggered by the circumstance that women and children are accorded special protection by the
recognize the substantial distinction within the family between men, on the one hand, and women and children, Constitution. In fact, there is no place for a strict level of scrutiny when the Constitution itself has recognized
on the other hand. This recognition, incidentally, is not the first to be made in the laws as our law on persons the need for special protection; where such recognition has been made, congressional action should carry the
and family under the Civil Code also recognize, in various ways, the distinctions between men and women presumption of validity.
in the context of the family. Same; Same; View that the classification in the law was not immediately brought on by considerations
Constitutional Law; Reasonableness Test; View that the reasonableness test has been consistently of gender or sex; it was simply a reality as unavoidable as the reality that in Philippine society, a marriage is
applied to allow the courts to uphold State action as long as the action is found to be germane to the purpose composed of a man, a woman and their children.—A suspect classification and the accompanying strict
of the law, in this case to support the unity and development of the family.—My serious reservation on the use scrutiny standard cannot be solely based on the circumstance that the law has the effect of being “gender-
of an expanded equal protection clause and in applying a strict scrutiny standard is, among others, based on specific.” I believe that the classification in the law was not immediately brought on by considerations of
lack of necessity; we do not need these measures when we can fully examine R.A. No. 9262’s constitutionality gender or sex; it was simply a reality as unavoidable as the reality that in Philippine society, a marriage
using the reasonableness test. The family is a unit, in fact a very basic one, and it cannot operate on an uneven is composed of a man, a woman and their children. An obvious reason, of course, why the classification did
standard where measures beyond what is necessary are extended to women and children as against the man— not solely depend on gender is because the law also covers children, without regard to their sex or their sexual
the head of the family and the family provider. The use of an expanded equal protection clause only stresses orientation.
the concept of an uneven equality that cannot long stand in a unit living at close quarters in a situation of Same; Same; View that R.A. No. 9262 does not deny, restrict or curtail civil and human rights of other
mutual dependency on one another. The reasonableness test, on the other hand, has been consistently applied persons falling outside the classification, particularly of the men members of the family who can avail of
to allow the courts to uphold State action as long as the action is found to be germane to the purpose of the remedies provided by other laws to ensure the protection of their own rights and interests.—With the objective
law, in this case to support the unity and development of the family. If we are to deviate from or to modify of promoting solidarity and the development of the family, R.A. No. 9262 provides the legal redress for
this established standard of scrutiny, we must do so carefully and for strong justifiable reasons. domestic violence that particularly affects women and their children. Significantly, the law does not deny,
Same; Equal Protection of the Law; Suspect Classification; Words and Phrases; View that a suspect restrict or curtail civil and human rights of other persons falling outside the classification, particularly of
classification is one where distinctions are made based on the most invidious bases for classification that the men members of the family who can avail of remedies provided by other laws to ensure the protection of
violate the most basic human rights, i.e., on the basis of race, national origin, alien status, religious affiliation their own rights and interests. Consequently, the resulting classification under R.A. No.
and, to a certain extent, sex and sexual orientation.—When the court uses a strict standard for review to 378
evaluate the constitutionality of a law, it proceeds from the premise that the law established a “suspect classi-
376 3 SUPREME COURT REPORTS ANNOTATED
Elimination of all forms of Discrimination Against Women (CEDAW) as equality which requires that women
78 be given an equal start and that they be empowered by an enabling environment to achieve equality of results.
Garcia vs. Drilon —In the context of women’s rights, substantive equality has been defined by the Convention on the
9262 is not wholly intended and does not work an injustice by removing remedies that are available to Elimination of all forms of Discrimination Against Women (CEDAW) as equality which requires that women
men in violence committed against them. The law furthermore does not target men against women and be given an equal start and that they be empowered by an enabling environment to achieve equality of results.
children and is there simply to achieve a legitimate constitutional objective, and it does not achieve this by a It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as
particularly harmful classification that can be labeled “suspect” in the sense already established by socially and culturally constructed differences between women and men must be taken into account. Under
jurisprudence. Under the circumstances, the use and application of strict scrutiny review, or even the use of an certain circumstances, non-identical treatment of women and men will be required in order to address such
expanded equal protection perspective, strike me as both unnecessary and disproportionate. differences.
ABAD, J., Separate Concurring Opinion: Same; View that R.A. No. 9262 is based on the experiences of women who have been victims of
Constitutional Law; Equal Protection of the Law; View that men and women are supposed to be equal domestic violence.—Clearly, the substantive equality model inspired R.A. 9262. For one thing, Congress
yet this particular law provides immediate relief to complaining women and harsh consequences to their men enacted it because of compelling interest in preventing and addressing the serious problem of violence against
even before the matter reaches the courtroom, a relief not available to the latter. —This separate concurring women in the context of intimate relationships — recognized all over the world as one of the most insidious
opinion will address the issue of equal protection since it presents the more serious challenge to the forms of gender discrimination. For another, R.A. 9262 is based on the experiences of women who have been
constitutionality of the law. Men and women are supposed to be equal yet this particular law provides victims of domestic violence. The list of acts regarded as forms of violence come from true-to-life stories of
immediate relief to complaining women and harsh consequences to their men even before the matter reaches women who have suffered abuses from their male partners. Finally, R.A. 9262 seeks women’s full
the courtroom, a relief not available to the latter. The law, Garcia says, violates his right to equal protection participation in society. Hence, the law grants them needed relief to ensure equality, protection, and personal
because it is gender-specific, favoring only women when men could also be victims of domestic violence. safety, enabling them to enjoy their civil, political, social, and economic rights. The provision on protection
Same; Same; View that the equal protection clause can no longer be interpreted as only a guarantee of orders, for instance, precisely aims to safeguard “the victim from further harm, minimizing any disruption in
formal equality but of substantive equality.—Chief Justice Puno’s thesis is that the right to equal protection the victim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control
casts another shadow when the issue raised under it involves persons protected by the social justice provision over her life.”
of the Constitution, specifically, Section 1, Article XIII. The equal protection clause can no longer be LEONEN, J., Concurring Opinion:
interpreted as only a guarantee of formal equality but of substantive equality. “It ought to be construed,” said Remedial Law; Civil Procedure; Locus Standi; Words and Phrases; View that Locus standi is defined
the Chief Justice, “in consonance with social justice as ‘the heart’ particularly of the 1987 Constitution — a as “a right of appearance
381
transformative covenant in which the Filipino people agreed to enshrine asymmetrical equality to uplift
disadvantaged groups and build a genuinely egalitarian democracy.” This means that the weak, including VOL. 699, JUNE 25, 2013 381
women
379 Garcia vs. Drilon
in a court of justice on a given question.”—Legal standing in cases that raise constitutional issues is
VOL. 699, JUNE 25, 2013 379 essential. Locus standi is defined as “a right of appearance in a court of justice on a given question.” The
Garcia vs. Drilon fundamental question is “whether a party alleges such personal stake in the outcome of the controversy as to
in relation to men, can be treated with a measure of bias that they may cease to be weak. assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for
Same; Same; Expanded Equal Protection Clause; View that the expanded equal protection clause illumination of difficult constitutional questions.
should be understood as meant to “reduce social, economic, and political inequalities, and remove cultural Violence Against Women and Children; View that it may be said that violence in the context of intimate
inequities by equitably diffusing wealth and political power for the common good.”—Chief Justice Puno goes relationships should not be seen and encrusted as a gender issue; rather, it is a power issue. —In this light, it
on: “The Expanded Equal Protection Clause, anchored on the human rights rationale, is designed as a weapon may be said that violence in the context of intimate relationships should not be seen and encrusted as a gender
against the indignity of discrimination so that in the patently unequal Philippine society, each person may be issue; rather, it is a power issue. Thus, when laws are not gender-neutral, male victims of domestic violence
restored to his or her rightful position as a person with equal moral status.” Specifically, the expanded equal may also suffer from double victimization first by their abusers and second by the judicial system. Incidentally,
protection clause should be understood as meant to “reduce social, economic, and political inequalities, and focusing on women as the victims entrenches some level of heteronormativity. It is blind to the possibility that,
remove cultural inequities by equitably diffusing wealth and political power for the common good.” Borrowing whatever moral positions are taken by those who are dominant, in reality intimate relationships can also
the language of Law v. Canada, 1 S.C.R. 497 (1999), case and adding his own thoughts, the Chief Justice said: happen between men.
The purpose of the Expanded Equal Protection Clause is to protect and enhance the right to dignity by: 1) Statutes; View that an unconstitutional act is not a law; it confers no rights; it imposes no duties; it
preventing the imposition, perpetuation and aggravation “of disadvantage, stereotyping, or political affords no protection; it creates no office; it is x x x as inoperative as though it had never been passed.—We
[,economic, cultural,] or social prejudice”; and 2) promo[ting a Philippine] society in which all persons enjoy have declared that “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
equal recognition at law as human beings. protection; it creates no office; it is x x x as inoperative as though it had never been passed.” However, the
Violence Against Women and Children; Equal Protection of the Law; View that Republic Act No. 9262 seemingly all-inclusive statement of absolute retroactive invalidity may not always be justified. One
is gender-specific as only they may file the prescribed actions against offenders, whether men or women, with established exception is the doctrine of operative fact. The doctrine of operative fact, as an exception to the
whom the victims are or were in lesbian relationships.—What remedies does R.A. 9262 especially provide general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law
women and children? The law is gender-specific as only they may file the prescribed actions against offenders, by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact
whether men or women, with whom the victims are or were in lesbian relationships. The definition includes and may have consequences which cannot always be ignored. The past cannot always be erased by a new
past or present marital, live-in, sexual or dating relationships. This law also provides for the remedy of a judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
protection order in a civil action or in a criminal action, aside from the criminal action for its violation. It burden on those who have relied on the invalid Law.
makes the process of securing a restraining order against perpetrators easier and more immediate by providing 382
for the legal remedy of protection orders from both the courts and barangay officials.380 382 SUPREME COURT REPORTS ANNOTATED
3 SUPREME COURT REPORTS ANNOTATED Garcia vs. Drilon
80 PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Garcia vs. Drilon
Roland G. Ravina for petitioner.
Same; Same; Convention on the Elimination of all forms of Discrimination Against Women (CEDAW);
View that in the context of women’s rights, substantive equality has been defined by the Convention on the
Ma. Rowena Amelia V. Guanzon for private respondents.
Mae Niña Reyes-Gallos for private respondents. Private respondent described herself as a dutiful and faithful wife, whose life revolved around
Claire Angeline P. Luczon co-counsel for private respondents. her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant,
PERLAS-BERNABE, J.: controlling, and demands absolute obedience from his wife and children. He forbade private
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos respondent to pray, and deliberately isolated her from her friends. When she took up law, and even
— or 93 percent of a total population of 93.3 million adhering to the teachings of Jesus when she was already working part time at a law office, petitioner trivialized her ambitions and
Christ. Yet, the admonition for husbands to love their wives as their own bodies just as Christ
1
prevailed upon her to just stay at home. He was often jealous of the fact that his attractive wife still
loved the church and gave himself up for her failed to prevent, or even to curb, the pervasiveness
2
catches the eye of some men, at one point threatening that he would have any man eyeing her
of violence against Filipino women. The National Commission on the Role of Filipino Women killed. 9
(NCRFW) reported that, for the years 2000-2003, “female violence comprised more than 90% of Things turned for the worse when petitioner took up an affair with a bank manager of
all forms of abuse and violence and more than 90% of these reported cases were committed by the Robinson’s Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to
women’s intimate partners such as their husbands and live-in partners.” 3
the affair when private respondent confronted him about it in 2004. He even boasted to the
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women’s groups, household help about his sexual relations with said bank manager. Petitioner told private
Congress enacted Republic Act (R.A.) No. 9262, entitled “An Act Defining Violence Against respondent, though, that he was just using the woman because of their accounts with the bank. 10
_______________ Petitioner’s infidelity spawned a series of fights that left private respondent physically and
1 “Philippines still top Christian country in Asia, 5th in world,” Philippine Daily Inquirer, December 21, 2011.
2 Ephesians 5:25-28.
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
3 RATIONALE OF THE PROPOSED RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN , citing statistics furnished and shook her with such force that caused
by the National Commission on the Role of Filipino Women. _______________
383 8 Id., at p. 64.
9 Id., at pp. 67-68.
VOL. 699, JUNE 25, 2013 383 10 Id., at pp. 68-70.
385
Garcia vs. Drilon
Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties VOL. 699, JUNE 25, 2013 385
Therefor, and for Other Purposes.” It took effect on March 27, 2004. 4
Garcia vs. Drilon
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against bruises and hematoma. At another time, petitioner hit private respondent forcefully on the lips that
women and their children (VAWC) perpetrated by women’s intimate partners, i.e., husband; caused some bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had
former husband; or any person who has or had a sexual or dating relationship, or with whom the seen the text messages he sent to his paramour and whom he blamed for squealing on him. He beat
woman has a common child. The law provides for protection orders from the barangay and the
5
Jo-Ann on the chest and slapped her many times. When private respondent decided to leave
courts to prevent the commission of further acts of VAWC; and outlines the duties and petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat
responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social her up. Even the small boys are aware of private respondent’s sufferings. Their 6-year-old son said
workers, health care providers, and other local government officials in responding to complaints of that when he grows up, he would beat up his father because of his cruelty to private respondent. 11
VAWC or requests for assistance. All the emotional and psychological turmoil drove private respondent to the brink of despair.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being On December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found
violative of the equal protection and due process clauses, and an undue delegation of judicial by her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the
power to barangay officials. hospital. Private respondent was hospitalized for about seven (7) days in which time petitioner
The Factual Antecedents never bothered to visit, nor apologized or showed pity on her. Since then, private respondent has
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf been undergoing therapy almost every week and is taking anti-depressant medications. 12
of her minor children, a verified petition (Civil Case No. 06-797) before the Regional Trial Court
6
When private respondent informed the management of Robinson’s Bank that she intends to
(RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against her file charges against the bank manager, petitioner got angry with her for jeopardizing the manager’s
husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of job. He then packed his things and told private respondent that he was leaving her for good. He
physical abuse; emotional, psychological, and economic violence as a result of marital infidelity even told private respondent’s mother, who lives with them in the family home, that private
on the part of petitioner, with threats of deprivation of custody of her children and of financial respondent should just accept his extramarital affair since he is not cohabiting with his paramour
support. 7
and has not sired a child with her. 13
_______________ _______________
4 Id. 11 Id., at pp. 70-71.
5 Section 3(a), R.A. 9262. 12 Id., at p. 72.
6 Rollo, pp. 63-83. 13 Id., at p. 73.
7 Id., at pp. 66-67. 386
384
386 SUPREME COURT REPORTS ANNOTATED
384 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Garcia vs. Drilon
Private respondent is determined to separate from petitioner but she is afraid that he would
Private respondent’s claims
take her children from her and deprive her of financial support. Petitioner had previously warned
Private respondent married petitioner in 2002 when she was 34 years old and the former was
her that if she goes on a legal battle with him, she would not get a single centavo. 14
eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who
Petitioner controls the family businesses involving mostly the construction of deep wells. He
is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6
is the President of three corporations — 326 Realty Holdings, Inc., Negros Rotadrill Corporation,
years old; and Joseph Eduard J. Garcia, 3 years old. 8
and J-Bros Trading Corporation — of which he and private respondent are both stockholders. In
contrast to the absolute control of petitioner over said corporations, private respondent merely g) To render an accounting of all advances, benefits, bonuses and other cash he received from all
draws a monthly salary of P20,000.00 from one corporation only, the Negros Rotadrill the corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the
Corporation. Household expenses amounting to not less than P200,000.00 a month are paid for by corporations and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to the court by the Comptroller, copy furnished to the
private respondent through the use of credit cards, which, in turn, are paid by the same corporation
Petitioner, every 15 days of the month, under pain of Indirect Contempt of Court.
together with the bills for utilities. 15
h) To ensure compliance especially with the order granting support pendente lite, and considering
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill the financial resources of the Respondent and his threat that if the Petitioner sues she will not get a
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of single centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount
pesos from the corporations. After private respondent confronted him about the affair, petitioner
16
of FIVE MILLION PESOS, in two sufficient sureties.
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the On April 24, 2006, upon motion of private respondent, the trial court issued an amended
19
corporations are conducted, thereby depriving her of access to full information about said TPO, effective for thirty (30) days, which included the following additional provisions:
20
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an _______________
19 Urgent Ex-Parte Motion for Renewal of Temporary Protection Order (TPO) or Issuance of Modified TPO. Id., at pp.
accounting of the businesses the value of which she had helped raise to millions of pesos. 17
90-93.
_______________ 20 Id., at pp. 94-97.
14 Id., at p. 74.
389
15 Id., at pp. 65-66.
16 Id., at p. 66. VOL. 699, JUNE 25, 2013 389
17 Id., at p. 70.
387 Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 387 i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and
the Starex Van which they are using in Negros Occidental.
Garcia vs. Drilon j) The petitioners are given the continued use and occupation of the house in Parañaque, the
Action of the RTC of Bacolod City continued use of the Starex van in Metro Manila, whenever they go to Manila.
Finding reasonable ground to believe that an imminent danger of violence against the private k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty
respondent and her children exists or is about to recur, the RTC issued a TPO on March 24, 2006
18
Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php
effective for thirty (30) days, which is quoted hereunder: 50,000.00) per month until the matter of support could be finally resolved.
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within
24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be Motion for Renewal of the TPO seeking the denial of the renewal of the TPO on the grounds that
21
removed by police officers from the conjugal dwelling; this order is enforceable notwithstanding that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing. He further
the house is under the name of 236 Realty Holdings Inc. (Republic Act No. 9262 states “regardless of asked that the TPO be modified by (1) removing one vehicle used by private respondent and
ownership”), this is to allow the Petitioner (private respondent herein) to enter the conjugal dwelling returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or
without any danger from the Respondent. reducing the amount of the bond from P5,000,000.00 to a more manageable level at
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner P100,000.00.Subsequently, on May 23, 2006, petitioner moved for the modification of the TPO
22
decides to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by police to allow him visitation rights to his children.
officers when re-entering the family home.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will attempt to take her children from her when he arrives following modifications prayed for by private respondent:
from Manila and finds out about this suit. a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie
b) To stay away from the petitioner and her children, mother and all her household help and driver and her
_______________
from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioner 21 Id., at pp. 98-103.
may be temporarily residing. 22 Id., at pp. 138-140.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly 390
or indirectly, or 390 SUPREME COURT REPORTS ANNOTATED
_______________
18 Id., at pp. 84-87.
Garcia vs. Drilon
388
children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the
388 SUPREME COURT REPORTS ANNOTATED Temporary Protection Order by his counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in
Garcia vs. Drilon
Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary
through other persons, or contact directly or indirectly her children, mother and household help, nor Protection Order by his counsel;
send gifts, cards, flowers, letters and the like. Visitation rights to the children may be subject of a c) Ordering the Chief of the Women’s Desk of the Bacolod City Police Headquarters to remove
modified TPO in the future. Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners have
the Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP left, so that the petitioner Rosalie and her representatives can remove things from the conjugal home
to cancel all the Respondent’s firearm licenses. He should also be ordered to surrender any unlicensed and make an inventory of the household furniture, equipment and other things in the conjugal home,
firearms in his possession or control. which shall be submitted to the Court.
e) To pay full financial support for the Petitioner and the children, including rental of a house for d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00
them, and educational and medical expenses. for clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary
f) Not to dissipate the conjugal business. Protection Order by his counsel, otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court 5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for
within 24 hours from receipt of the Temporary Protection Order by his counsel; rental for the period from August 6 to September 6, 2006; and support in arrears from March 2006 to
f) That respondent shall pay petitioner educational expenses of the children upon presentation of August 2006 the total amount of Php1,312,000.00;
proof of payment of such expenses. 23
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Claiming that petitioner continued to deprive them of financial support; failed to faithfully Php25,000.00;
comply with the TPO; and committed new acts of harassment against her and their 7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van
_______________ with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is ordered
23 Order dated May 24, 2006. Id., at pp. 148-149. to provide the petitioner another vehicle which is the one taken by J Bros Tading; 393
391
VOL. 699, JUNE 25, 2013 393
VOL. 699, JUNE 25, 2013 391
Garcia vs. Drilon
Garcia vs. Drilon 8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal
children, private respondent filed another application for the issuance of a TPO ex parte. She
24
assets, or those real properties in the name of Jesus Chua Garcia only and those in which the conjugal
alleged inter alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest in, especially
of which the latter was purportedly no longer president, with the end in view of recovering the the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other
Nissan Patrol and Starex Van used by private respondent and the children. A writ of replevin was properties which are conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes “I,” “I-1,” and “I-2,”
served upon private respondent by a group of six or seven policemen with long firearms that including properties covered by TCT Nos. T-186325 and T-168814;
scared the two small boys, Jessie Anthone and Joseph Eduard. 25
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale,
to kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On encumbrance or disposition of these above-cited properties to any person, entity or corporation
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened without the personal presence of petitioner Rosalie J. Garcia, who shall affix her signature in the
her. The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
26 presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will be
against her father for violation of R.A. 7610, also known as the “Special Protection of Children forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal
Against Child Abuse, Exploitation and Discrimination Act.” partnership of gains.
Aside from the replevin suit, petitioner’s lawyers initiated the filing by the housemaids In its Order dated September 26, 2006, the trial court extended the aforequoted TPO for
29
working at the conjugal home of a complaint for kidnapping and illegal detention against private another ten (10) days, and gave petitioner a period of five (5) days within which to show cause
respondent. This came about after private respondent, armed with a TPO, went to said home to get why the TPO should not be renewed, extended, or modified. Upon petitioner’s
her and her children’s belongings. Finding some of her things inside a housemaid’s (Sheryl manifestation, however, that he has not received a copy of private respondent’s motion to
30
Jamola) bag in the maids’ room, private respondent filed a case for qualified theft against Jamola. 27 modify/renew the TPO, the trial court directed in its Order dated October 6, 2006 that petitioner
31
On August 23, 2006, the RTC issued a TPO, effective for thirty (30) days, which reads as
28 be furnished a copy of said motion. Nonetheless, an Order dated a day earlier, October
32
_______________
follows: 29 Id., at p. 182.
_______________ 30 Id., at pp. 183-184.
24 Id., at pp. 154-166. 31 Id., at p. 185.
25 Id., at p. 156. 32 Id., at pp. 186-187.
26 Id., at p. 157. 394
27 Id., at pp. 158-159.
28 Id., at pp. 167-174. 394 SUPREME COURT REPORTS ANNOTATED
392
Garcia vs. Drilon
392 SUPREME COURT REPORTS ANNOTATED 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent portion is
Garcia vs. Drilon quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby: x x x x
1) Prohibited from threatening to commit or committing, personally or through another, acts of x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
violence against the offended party; Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
form with the offended party, either directly or indirectly; and subject to such modifications as may be ordered by the court.
3) Required to stay away, personally or through his friends, relatives, employees or agents, from all After having received a copy of the foregoing Order, petitioner no longer submitted the
the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia’s three brothers, her mother required comment to private respondent’s motion for renewal of the TPO arguing that it would
Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita only be an “exercise in futility.” 33
Bornales, security guard Darwin Gayona and the petitioner’s other household helpers from a distance Proceedings before the CA
of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioners are temporarily During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals
residing, as well as from the schools of the three children; Furthermore, that respondent shall not (CA) a petition for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
34
contact the schools of the children directly or indirectly in any manner including, ostensibly to pay
for their tuition or other fees directly, otherwise he will have access to the children through the
temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative
schools and the TPO will be rendered nugatory; of the due process and the equal protection clauses, and (2) the validity of the modified TPO
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the issued in the civil case for being “an unwanted product of an invalid law.”
Court; On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order (TRO) 35
against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
_______________
33 See Manifestation dated October 10, 2006. Id., at pp. 188-189. We disagree.
34 Id., at pp. 104-137.
35 Id., at pp. 151-152.
Family Courts have authority
395 and jurisdiction to consider the
constitutionality of a statute.
VOL. 699, JUNE 25, 2013 395
At the outset, it must be stressed that Family Courts are special courts, of the same level as
Garcia vs. Drilon Regional Trial Courts. Under R.A. 8369, otherwise known as the “Family Courts Act of 1997,”
Subsequently, however, on January 24, 2007, the appellate court dismissed the petition for 36 family courts have exclusive original jurisdiction to hear and decide cases of domestic violence
failure of petitioner to raise the constitutional issue in his pleadings before the trial court in the against women and children. In accordance with said law, the Supreme Court designated from
42
civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the among the branches of the Regional Trial Courts at least one Family Court in each of several key
validity of R.A. 9262 through a petition for prohibition seeking to annul the protection orders cities identified. To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now
43
issued by the trial court constituted a collateral attack on said law. provides that Regional Trial Courts designated as Family Courts shall have original and exclusive
His motion for reconsideration of the foregoing Decision having been denied in the jurisdiction over cases of VAWC defined under the latter law, viz.:
Resolution dated August 14, 2007, petitioner is now before us alleging that—
37 _______________
42 SEC. 5. Jurisdiction of Family Courts.—The Family Courts shall have exclusive original jurisdiction to hear and
The Issues decide the following cases:
I. x x x x
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE k) Cases of domestic violence against:
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND 1) Women—which are acts of gender based violence that results, or are likely to result in physical, sexual or
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW. psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and
II. coercion which violate a woman’s personhood, integrity and freedom movement; and
2) Children—which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence,
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. and discrimination and all other conditions prejudicial to their development.
9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. 43 Sec. 17, R.A. 8369.
III. 398
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION. 398 SUPREME COURT REPORTS ANNOTATED
_______________
36 Decision dated January 24, 2007. Penned by Associate Justice Priscilla Baltazar-Padilla, with Associate Justices Arsenio J. Magpale and Garcia vs. Drilon
Romeo F. Barza, concurring. Id., at pp. 47-57. SEC. 7. Venue.—The Regional Trial Court designated as a Family Court shall have original
37 Id., at pp. 60-61.
396
and exclusive jurisdiction over cases of violence against women and their children under this law. In
the absence of such court in the place where the offense was committed, the case shall be filed in the
396 SUPREME COURT REPORTS ANNOTATED Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Garcia vs. Drilon
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil,
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION. criminal, special proceedings, land registration, guardianship, naturalization, admiralty or
V. insolvency. It is settled that RTCs have jurisdiction to resolve the constitutionality of a
44
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID statute, “this authority being embraced in the general definition of the judicial power to determine
45
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL what are the valid and binding laws by the criterion of their conformity to the fundamental
POWER TO THE BARANGAY OFFICIALS. 38
law.” The Constitution vests the power of judicial review or the power to declare the
46
The Ruling of the Court constitutionality or validity of a law, treaty, international or executive agreement, presidential
Before delving into the arguments propounded by petitioner against the constitutionality of decree, order, instruction, ordinance, or regulation not only in this Court, but in all RTCs. We 47
R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition said in J.M. Tuason and Co., Inc. v. CA that, “[p]lainly the Constitution contemplates that the
48
for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner. inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for
As a general rule, the question of constitutionality must be raised at the earliest opportunity so it speaks of appellate review of final judgments of inferior courts
that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the _______________
trial court, it will not be considered on appeal. Courts will not anticipate a question of
39 44 Manalo v. Mariano, 161 Phil. 108, 120; 69 SCRA 80, 89 (1976).
45 Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008, 548 SCRA 485, 504.
constitutional law in advance of the necessity of deciding it. 40
46 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod 47 Planters Products, Inc. v. Fertiphil Corporation, supra note 45, at 505, citing Mirasol v. CA, 403 Phil. 760; 351
City, petitioner argues that the Family Court has limited authority and jurisdiction that is SCRA 44 (2001).
“inadequate to tackle the complex issue of constitutionality.” 41 48 G.R. Nos. L-18128 & L-18672, December 26, 1961, 3 SCRA 696, 703-704.
_______________ 399
38 Petition, Id., at p. 22. VOL. 699, JUNE 25, 2013 399
39 ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc., G.R. Nos. 175769-70, January 19, 2009,
576 SCRA 262, 289. Garcia vs. Drilon
40 Philippine National Bank v. Palma, 503 Phil. 917, 932; 466 SCRA 307, 323 (2005).
41 Petition, Rollo, p. 24. in cases where such constitutionality happens to be in issue.” Section 5, Article VIII of the 1987
397 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
VOL. 699, JUNE 25, 2013 397
x x x
Garcia vs. Drilon
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or SEC. 25. Order for further hearing.—In case the court determines the need for further hearing, it
the Rules of Court may provide, final judgments and orders of lower courts in: may issue an order containing the following:
a. All cases in which the constitutionality or validity of any treaty, (a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
international or executive agreement, law, presidential decree,
(c) Evidence, including objects and documents that have been marked and will be presented;
proclamation, order, instruction, ordinance, or regulation is in question. (d) Names of witnesses who will be ordered to present their direct testimonies in the form of
x x x x affidavits; and
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could (e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the
have been raised at the earliest opportunity in his Opposition to the petition for protection order extent possible, within the 30-day period of the effectivity of the temporary protection order issued.
before the RTC of Bacolod City, which had jurisdiction to determine the same, subject to the (Emphasis supplied)
review of this Court. To obviate potential dangers that may arise concomitant to the conduct of a hearing when
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection
Children, lays down a new kind of procedure requiring the respondent to file an opposition to the _______________
53 See People of the Philippine Islands and Hongkong & Shanghai Banking Corporation v. Vera, 65 Phil. 199
petition and not an answer. Thus:
49
(1937); Philippine Coconut Producers Federation, Inc. (COCOFED) v. Republic, G.R. Nos. 177857-58, January 24, 2012,
SEC. 20. Opposition to petition.—(a) The respondent may file an opposition to the petition which 663 SCRA 514, 594.
he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause 54 Recreation and Amusement Association of the Philippines v. City of Manila, 100 Phil. 950, 956 (1957).
why a temporary or permanent protection order should not be issued. 402
_______________
49 RATIONALE OF THE PROPOSED RULES ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN. 402 SUPREME COURT REPORTS ANNOTATED
400
Garcia vs. Drilon
400 SUPREME COURT REPORTS ANNOTATED
order issued is due to expire, the trial court may extend or renew the said order for a period of
Garcia vs. Drilon thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party renewed temporary protection order as may be necessary to meet the needs of the parties. With the
complaint, but any cause of action which could be the subject thereof may be litigated in a separate private respondent given ample protection, petitioner could proceed to litigate the constitutional
civil action. (Emphasis supplied) issues, without necessarily running afoul of the very purpose for the adoption of the rules on
summary procedure.
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross- In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition
claim and third-party complaint are to be excluded from the opposition, the issue of with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698).
constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim for Petitioner may have proceeded upon an honest belief that if he finds succor in a superior court, he
money or other relief which a defending party may have against an opposing party. A crossclaim,
50
could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly
on the other hand, is any claim by one party against a co-party arising out of the transaction or disallows the filing of a petition for certiorari, mandamus or prohibition against any
occurrence that is the subject matter either of the original action or of a counterclaim interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the appellate court
therein. Finally, a third-party complaint is a claim that a defending party may, with leave of
51
in this case against the enforcement of the TPO, the amended TPOs and other orders pursuant
court, file against a person not a party to the action for contribution, indemnity, subrogation or any thereto was improper, and it effectively hindered the case from taking its normal course in an
other relief, in respect of his opponent’s claim. As pointed out by Justice Teresita J. Leonardo-De
52
expeditious and summary manner.
Castro, the unconstitutionality of a statute is not a cause of action that could be the subject of a As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from being Moreover, if the appeal of a judgment granting permanent protection shall not stay its
raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius. enforcement, with more reason that a TPO, which is valid only for thirty (30) days at a
55
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because time, should not be enjoined.The mere fact that a statute is alleged to be unconstitutional or
56
the right of private respondent to a protection order is founded solely on the very invalid, does not of itself entitle a litigant to have the same enjoined. In Younger v. Harris,
57
_______________
50 Korea Exchange Bank v. Hon. Rogelio C. Gonzales, 496 Phil. 127, 143-144; 456 SCRA 224, 241 (2005); Spouses
Jr., the Supreme Court of the United States declared, thus:
58
Sapugay v. CA, 262 Phil. 506, 513; 183 SCRA 464, 479 (1990). _______________
51 Sec. 8, Rule 6, 1997 Rules of Civil Procedure. 55 Secs. 22 and 31, A.M. No. 04-10-11-SC.
52 Sec. 11, Rule 6, 1997 Rules of Civil Procedure. 56 Sec. 26 (b), A.M. No. 04-10-11-SC.
57 Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102; 96 SCRA 139, 147 (1980).
401
403
VOL. 699, JUNE 25, 2013 401
VOL. 699, JUNE 25, 2013 403
Garcia vs. Drilon
Garcia vs. Drilon
statute the validity of which is being attacked by petitioner who has sustained, or will sustain,
53
Federal injunctions against state criminal statutes, either in their entirety or with respect to their
direct injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are
intents and purposes, a valid cause for the non-issuance of a protection order.That the proceedings unconstitutional. No citizen or member of the community is immune from prosecution, in good faith,
in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from raising for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
the same in his Opposition. The question relative to the constitutionality of a statute is one of law unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
which does not need to be supported by evidence. Be that as it may, Section 25 of A.M. No. 04-
54 extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
10-11-SC nonetheless allows the conduct of a hearing to determine legal issues, among omitted)
others, viz.: The sole objective of injunctions is to preserve the status quo until the trial court hears fully
the merits of the case. It bears stressing, however, that protection orders are granted ex parte so as
to protect women and their children from acts of violence. To issue an injunction against such Also, may the Chair remind the group that there was the discussion whether to limit this to
orders will defeat the very purpose of the law against VAWC. women and not to families which was the issue of the AWIR group. The understanding
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to that I have is that we would be having a broader scope rather than just women, if I
determine novel issues, or issues of first impression, with far-reaching implications. We have, time remember correctly, Madam sponsor.
and again, discharged our solemn duty as final arbiter of constitutional issues, and with more Senator Estrada. Yes, Mr. President.
reason now, in view of private respondent’s plea in her Comment to the instant Petition that we
59
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation
should put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall. period.
Intent of Congress in I think Senator Sotto has something to say to that.
enacting R.A. 9262. Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child wrong. However, I believe that there is a need to protect women’s rights especially in the
abuse, which could very well be committed by either the husband or the wife, domestic environment.
_______________ As I said earlier, there are nameless, countless, voiceless women who have not had the
58 27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court of Appeals, 473 Phil. 27, 56-57; 429 SCRA 81, 102
(2004).
opportunity to file a case against their spouses, their live-in
_______________
59 Rollo, pp. 214-240, 237.
65 Id., at pp. 43-44.
404
406
404 SUPREME COURT REPORTS ANNOTATED
406 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Garcia vs. Drilon
gender alone is not enough basis to deprive the husband/father of the remedies under the law. 60
partners after years, if not decade, of battery and abuse. If we broaden the scope to include even
A perusal of the deliberations of Congress on Senate Bill No. 2723, which became R.A. 61
the men, assuming they can at all be abused by the women or their spouses, then it would not
9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
equalize the already difficult situation for women, Mr. President.
Estrada), had originally proposed what she called a “synthesized measure” — an amalgamation 62
I think that the sponsor, based on our earlier conversations, concurs with this position. I
of two measures, namely, the “Anti-Domestic Violence Act” and the “AntiAbuse of Women in
am sure that the men in this Chamber who love their women in their lives so dearly will
Intimate Relationships Act” — providing protection to “all family members, leaving no one in
63
agree with this representation. Whether we like it or not, it is an unequal world. Whether
isolation” but at the same time giving special attention to women as the “usual victims” of
we like it or not, no matter how empowered the women are, we are not given equal
violence and abuse, nonetheless, it was eventually agreed that men be denied protection under the
64
opportunities especially in the domestic environment where the macho Filipino man
same measure. We quote pertinent portions of the deliberations:
would always feel that he is stronger, more superior to the Filipino woman.
Wednesday, December 10, 2003
x x x x
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women’s groups
The President Pro Tempore. What does the sponsor say?
have expressed concerns and relayed these concerns to me that if we are to include
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill
domestic violence apart from against women as well as other members of the household,
because the family members have been included in this proposed measure since the other
including children or the husband, they fear that this would weaken the efforts to address
members of the family other than women are also possible victims of violence. While
domestic violence of which the main victims or the bulk of the victims really are the
women are most likely the intended victims, one reason incidentally why the measure
wives, the spouses or the female partners in a relationship. We would like to place that on
focuses on women, the fact remains that in some relatively few cases, men also stand to be
record. How does the good Senator respond to this kind of observation?
_______________
victimized and that children are almost always the helpless victims of violence. I am
60 Petition, Id., at pp. 26-27. worried that there may not be enough protection extended to other family members
61 An Act Defining Violence Against Women and Members of the Family, Prescribing Penalties Therefor, Providing for particularly children who are excluded. Although Republic Act No. 7610, for instance,
Protective Measures for Victims and for Other Purposes. more or less, addresses the special needs of abused children. The same law is inadequate.
62 Congressional Records, Vol. III, No. 45, December 10, 2003, p. 27.
63 Id., at p. 25. Protection orders for one are not available in said law.
64 Id., at p. 27. I am aware that some groups are apprehensive about granting the same protection to men,
405 fearing that they may use this law to justify their abusive
407
VOL. 699, JUNE 25, 2013 405
VOL. 699, JUNE 25, 2013 407
Garcia vs. Drilon
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves Garcia vs. Drilon
“WIIR” Women in Intimate Relationship. They do not want to include men in this behavior against women. However, we should also recognize that there are established procedures
domestic violence. But plenty of men are also being abused by women. I am playing safe and standards in our courts which give credence to evidentiary support and cannot just arbitrarily
so I placed here members of the family, prescribing penalties therefor and providing and whimsically entertain baseless complaints.
protective measures for victims. This includes the men, children, live-in, common-law Mr. President, this measure is intended to harmonize family relations and to protect the
wives, and those related with the family.65 family as the basic social institution. Though I recognize the unequal power relations
x x x x between men and women in our society, I believe we have an obligation to uphold
Wednesday, January 14, 2004 inherent rights and dignity of both husband and wife and their immediate family members,
x x x x particularly children.
The President Pro Tempore. x x x
While I prefer to focus mainly on women, I was compelled to include other family Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
members as a critical input arrived at after a series of consultations/meetings with various children only. No proper challenge on said grounds may be entertained in this proceeding.
NGOs, experts, sports groups and other affected sectors, Mr. President. Congress has made its choice and it is not our prerogative to supplant this judgment. The choice
Senator Sotto. Mr. President. may be perceived as erroneous but even then, the remedy against it is to seek its amendment or
The President Pro Tempore. Yes, with the permission of the other senators. repeal by the legislative. By the principle of separation of powers, it is the legislative that
Senator Sotto. Yes, with the permission of the two ladies on the Floor. determines the necessity, adequacy, wisdom and expediency of any law. We only step in when
68
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized. there is a violation of the Constitution. However, none was sufficiently shown in this case.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would _______________
66 Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-147.
be removing the “men and children” in this particular bill and focus specifically on 67 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management , G.R. No. 164987,
women alone. That will be the net effect of that proposed amendment. Hearing the April 24, 2012, 670 SCRA 373, 391.
rationale mentioned by the distinguished sponsor, Sen. Luisa “Loi” Ejercito Estrada, I am 68 Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 113-114.
not sure now whether she is inclined to accept the proposed amendment of Senator 410
Legarda. 410 SUPREME COURT REPORTS ANNOTATED
I am willing to wait whether she is accepting this or not because if she is going to accept
Garcia vs. Drilon
this, I will propose an amendment to the amendment rather than object to the amendment,
Mr. President.408 R.A. 9262 does not violate the
guaranty of equal protection
408 SUPREME COURT REPORTS ANNOTATED of the laws.
Garcia vs. Drilon Equal protection simply requires that all persons or things similarly situated should be treated
x x x x alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the
Senator Estrada. The amendment is accepted, Mr. President. early case of Victoriano v. Elizalde Rope Workers’ Union is instructive:
69
The President Pro Tempore. Is there any objection? The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
x x x x constitutional prohibition against inequality, that every man, woman and child should be affected
Senator Sotto. x x x May I propose an amendment to the amendment. alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons
The President Pro Tempore. Before we act on the amendment? merely as such, but on persons according to the circumstances surrounding them. It guarantees
Senator Sotto. Yes, Mr. President. equality, not identity of rights. The Constitution does not require that things which are different in
The President Pro Tempore. Yes, please proceed. fact be treated in law as though they were the same. The equal protection clause does not forbid
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished discrimination as to things that are different. It does not prohibit legislation which is limited either in
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, the object to which it is directed or by the territory within which it is to operate.
mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation or
talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children practice because they agree with one another in certain particulars. A law is not invalid because of
from this particular measure. simple inequality. The very idea of classification is that of inequality, so that it goes without saying
So, if I may propose an amendment— that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
The President Pro Tempore. To the amendment. required of a valid classification is that it be reasonable, which means that the classification should be
Senator Sotto.—more than the women, the children are very much abused. As a matter of fact, based on
_______________
it is not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I 69 158 Phil. 60, 86-87; 59 SCRA 54, 77-78 (1974).
have seen 14, 15-year-old children being abused by their fathers, even by their mothers. 411
And it breaks my heart to find out about these things. VOL. 699, JUNE 25, 2013 411
Because of the inadequate existing law on abuse of children, this particular measure will
update that. It will enhance and hopefully prevent the abuse of children and not only Garcia vs. Drilon
women.409 substantial distinctions which make for real differences; that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and that it must apply equally to
VOL. 699, JUNE 25, 2013 409 each member of the class. This Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.
Garcia vs. Drilon
(Emphasis supplied)
SOTTO-LEGARDA AMENDMENTS Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the valid classification as shall hereinafter be discussed and, as such, did not violate the equal
bill but not the children. protection clause by favoring women over men as victims of violence and abuse to whom the State
Senator Legarda. I agree, Mr. President, with the Minority Leader. extends its protection.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN. I. R.A. 9262 rests on substantial distinctions.
Senator Sotto. Yes, Mr. President. The unequal power relationship between women and men; the fact that women are more likely
Senator Estrada. It is accepted, Mr. President. than men to be victims of violence; and the widespread gender bias and prejudice against women
The President Pro Tempore. Is there any objection? [Silence] There being none, the all make for real differencesjustifying the classification under the law. As Justice McIntyre
amendment, as amended, is approved.66 succinctly states, “the accommodation of differences ... is the essence of true equality.” 70
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute. Hence, we dare not venture into the real motivations and wisdom of the members of
67
A. Unequal power relationship is not now acknowledged by our law... In person, the wife is entitled to the same protection
between men and women of the law that the husband can invoke for himself.414
According to the Philippine Commission on Women (the National Machinery for Gender 414 SUPREME COURT REPORTS ANNOTATED
Equality and Women’s Empowerment), violence against women (VAW) is deemed to be closely
linked with the unequal power relationship between women and men otherwise known as Garcia vs. Drilon
As time marched on, the women’s advocacy movement became more organized. The
“gender-based violence”. Societal norms and traditions dictate people to
_______________ temperance leagues initiated it. These leagues had a simple focus. They considered the evils of
70 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, p. 169. alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and
412 their husbands’ other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement’s agenda. They fought for women’s right to vote, to
412 SUPREME COURT REPORTS ANNOTATED own property, and more. Since then, the feminist movement was on the roll.
Garcia vs. Drilon The feminist movement exposed the private invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into an important public concern. No less than the
think men are the leaders, pursuers, providers, and take on dominant roles in society while women United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
are nurturers, men’s companions and supporters, and take on subordinate roles in society. This In an average 12-month period in this country, approximately two million women are the
perception leads to men gaining more power over women. With power comes the need to control victims of severe assaults by their male partners. In a 1985 survey, women reported that
to retain that power. And VAW is a form of men’s expression of controlling women to retain nearly one of every eight husbands had assaulted their wives during the past year. The
power. 71
[American Medical Association] views these figures as “marked underestimates,” because
The United Nations, which has long recognized VAW as a human rights issue, passed its the nature of these incidents discourages women from reporting them, and because surveys
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on December typically exclude the very poor, those who do not speak English well, and women who are
20, 1993 stating that “violence against women is a manifestation of historically unequal power homeless or in institutions or hospitals when the survey is conducted. According to the
AMA, “researchers on family violence agree that the true incidence of partner violence is
relations between men and women, which have led to domination over and discrimination probably double the above estimates; or four million severely assaulted women per year.”
against women by men and to the prevention of the full advancement of women, and that violence Studies on prevalence suggest that from one-fifth to one-third of all women will be
against women is one of the crucial social mechanisms by which women are forced into physically assaulted by a partner or ex-partner during their lifetime... Thus on an average
subordinate positions, compared with men.” 72
day in the United States, nearly 11,000 women are severely assaulted by their male partners.
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based Many of these incidents involve sexual assault... In families where wife beat-
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the 415
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent VOL. 699, JUNE 25, 2013 415
portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch Garcia vs. Drilon
of a family was accorded the right to use force on members of the family under his control. I quote ing takes place, moreover, child abuse is often present as well.
the early studies: Other studies fill in the rest of this troubling picture. Physical violence is only the most
_______________ visible form of abuse. Psychological abuse, particularly forced social and economic
71 Philippine Commission on Women, National Machinery for Gender Equality and Women’s Empowerment, “Violence Against Women isolation of women, is also common.
(VAW),” <http://www.pcw.gov.ph> (visited November 16, 2012).
72 <http://www.lawphil.net/international/treaties/dec_dec_1993.html> (visited November 16, 2012).
Many victims of domestic violence remain with their abusers, perhaps because they
413 perceive no superior alternative...Many abused women who find temporary refuge in
shelters return to their husbands, in large part because they have no other source of income...
VOL. 699, JUNE 25, 2013 413 Returning to one’s abuser can be dangerous. Recent Federal Bureau of Investigation
Garcia vs. Drilon statistics disclose that 8.8 percent of all homicide victims in the United States are killed by
Traditions subordinating women have a long history rooted in patriarchy—the institutional rule their spouses...Thirty percent of female homicide victims are killed by their male partners.
of men. Women were seen in virtually all societies to be naturally inferior both physically and Finally in 1994, the United States Congress enacted the Violence Against Women Act.
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the In the International front, the women’s struggle for equality was no less successful. The United
authority of men. In law, they were treated as property. States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
endangered his property right over her. Judaism, Christianity and other religions oriented towards the all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
patriarchal family strengthened the male dominated structure of society. adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
English feudal law reinforced the tradition of male control over women. Even the eminent role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
Blackstone has been quoted in his commentaries as saying husband and wife were one and that one The UN itself established a Commission on the Status of Women.
was the husband. However, in the late 1500s and through the entire 1600s, English common law The Philippines has been in cadence with the half — and full — steps of all these women’s
began to limit the right of husbands to chastise their wives. Thus, common law developed the rule of movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb. recognize the role of women in nation building and to ensure the fundamental equality before the law
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
416
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women. 416 SUPREME COURT REPORTS ANNOTATED
The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down Garcia vs. Drilon
the common law right of a husband to beat his wife: the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
The privilege, ancient though it may be, to beat one’s wife with a stick, to pull her hair, 9262, entitled “An Act Defining Violence Against Women and Their Children, Providing for
choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, Protective Measures for Victims, Prescribing Penalties therefor and for other Purposes.” (Citations
omitted)
Garcia vs. Drilon
B. Women are the “usual” and “most likely” victims of violence.
situation. In the United Kingdom, 32% of women who had ever experienced domestic violence did
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against
so four or five (or more) times, compared with 11% of the smaller number of men who had ever
women and children show that —
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total experienced domestic violence; and women constituted 89% of all those who had experienced 4 or
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of more incidents of domestic violence. Statistics in Canada show that spousal violence by a woman
75
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult against a man is less likely to cause injury than the other way around (18 percent versus 44
circumstances served by the Department of Social Welfare and Development (DSWD) for the year percent). Men, who experience violence from their spouses are much less likely to live in fear of
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here violence at the hands of their spouses, and much less likely to experience sexual assault. In fact,
are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003. Female many cases of physical violence by a woman against a spouse are in self-defense or the result of
violence comprised more than 90% of all forms of abuse and violence and more than 90% of these many years of physical or emotional abuse. 76
reported cases were committed by the women’s intimate partners such as their husbands and live-in
While there are, indeed, relatively few cases of violence and abuse perpetrated against men in
partners. 73
the Philippines, the same cannot render R.A. 9262 invalid.
Recently, the Philippine Commission on Women presented comparative statistics on violence
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
against women across an eight-year period from 2004 to August of 2011 with violations
_______________ vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by their
73 As reported by Senator Loi Estrada in her Sponsorship Speech, Congressional Records, Vol. III, No. 45, December vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance
10, 2003, p. 22. was challenged as violative of the guaranty of equal protection of laws as its application is limited
417 to owners and drivers of vehicle-drawing animals and not to those animals, although not utilized,
VOL. 699, JUNE 25, 2013 417 but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason that, while there may be non-
Garcia vs. Drilon
vehicle-drawing animals
under R.A. 9262 ranking first among the different VAW categories since its implementation _______________
in 2004, thus:74
75 Women’s Aid, “Who are the victims of domestic violence?,” citing Walby and Allen, 2004,
<www.womensaid.org.uk/domestic-violence-articles.asp?section=00010001002200410001&itemid=1273 (visited November
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011* 16, 2012).
76 Toronto District School Board, Facts and Statistics <www.tdsb.on.ca/site/viewitem.asp?siteid=15&
Reported Cases 2004 2005 2006 2007 2008 2009 2010 2011
menuid=23082&pageid=20007>(visited November 16, 2012).
419
Rape 997 927 659 837 811 770 1,042 832
Incestuous Rape 38 46 26 22 28 27 19 23
VOL. 699, JUNE 25, 2013 419
Attempted Rape 194 148 185 147 204 167 268 201
Garcia vs. Drilon
that also traverse the city roads, “but their number must be negligible and their appearance
Acts of Lasci-viousness 580 536 382 358 445 485 745 625
therein merely occasional, compared to the rig-drawing ones, as not to constitute a menace to the
Physical Injuries 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588 health of the community.” The mere fact that the legislative classification may result in actual
77
Sexual Harassment 53 37 38 46 18 54 83 63
inequality is not violative of the right to equal protection, for every classification of persons or
things for regulation by law produces inequality in some degree, but the law is not thereby
RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021 rendered invalid. 78
Threats 319 223 199 182 220 208 374 213 C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes against
Seduction 62 19 29 30 19 19 25 15
women are often treated differently and less seriously than other crimes. This was argued by then
Concubinage 121 102 93 109 109 99 158 128 United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence
RA 9208 17 11 16 24 34 152 190 62
Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S.
Congress’ authority under the Commerce and Equal Protection Clauses. He stressed that
Abduction / Kidnapping 29 16 34 23 28 18 25 22
the widespread gender bias in the U.S. has institutionalized historic prejudices against victims of
Unjust Vexation 90 50 59 59 83 703 183 155 rape or domestic violence, subjecting them to “double victimization”—first at the hands of the
offender and then of the legal system. 79
Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
*2011 report covers only from January to August
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723
Source: Philippine National Police – Women and Children Protection Center (WCPC) that “(w)henever violence occurs in the family, the police treat it as a private matter and advise the
On the other hand, no reliable estimates may be obtained on domestic abuse and violence parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor,
against men in the Philippines because incidents thereof are relatively low and, perhaps, because the latter is hesitant to file the complaint for fear that it might later be
many men will not even attempt to report the _______________
_______________ 77 People v. Solon, 110 Phil. 39, 41 (1960).
74 Philippine Commission on Women, “Statistics on Violence Against Filipino Women,” 78 Victoriano v. Elizalde Rope Workers’ Union, supra note 69, p. 90; p. 80.
<http://pcw.gov.ph/statistics/201210/statistics-violence-against-filipino-women> (visited October 12, 2012). 79 Biden, Jr., Joseph R., “The Civil Rights Remedy of the Violence Against Women Act: A Defense,” 37 Harvard Journal
on Legislation 1 (Winter, 2000).
418
420
418 SUPREME COURT REPORTS ANNOTATED
420 SUPREME COURT REPORTS ANNOTATED
Philippines on October 6, 2003. This Convention mandates that State parties shall accord to
86
Garcia vs. Drilon
women equality with men before the law and shall take all appropriate measures to eliminate
87
withdrawn. This lack of response or reluctance to be involved by the police and prosecution
discrimination against women in all matters relating to marriage and family relations on the basis
reinforces the escalating, recurring and often serious nature of domestic violence.” 80
of equality of men and women. The Philippines likewise ratified the Convention on the Rights of
88
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
the Child and its two protocols. It is, thus, bound by said Conventions and their respective
89
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila
protocols.
for Conduct Unbecoming of a Judge. He used derogatory and irreverent language in reference to
III. The classification is not limited to existing conditions only, and apply equally to all
the complainant in a petition for TPO and PPO under R.A. 9262, calling her as “only a live-in
members
partner” and presenting her as an “opportunist” and a “mistress” in an “illegitimate relationship.”
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
Judge Amila even called her a “prostitute,” and accused her of being motivated by “insatiable
promulgated, but to future conditions as well, for as long as the safety and security of women and
greed” and of absconding with the contested property. Such remarks betrayed Judge Amila’s
81
their children are threatened by violence and abuse.
prejudices and lack of gender sensitivity.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
3 thereof defines VAWC as:
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of x x x any act or a series of acts committed by any person against a woman who is his wife,
Discrimination against Women, addressing or correcting discrimination through specific measures former wife, or against a woman with whom the person has or had a sexual or dating relationship, or
focused on women does not discriminate against men. Petitioner’s contention, therefore, that
82 83
with whom he has a common child, or against her child whether legitimate or illegitimate, within or
R.A. 9262 is discriminatory and that it is an “anti-male,” “husband-bashing,” and “hate-men” law without the family abode, which result in or is likely to result in physical, sexual, psychological harm
deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harass-
_______________
all appropriate measures “to modify the social and cultural patterns of conduct of men and women, 86 Supra note 49.
with a view to achieving the elimi- 87 Article 15.
_______________ 88 Article 16.
89 Supra note 49.
80 Congressional Records, Vol. III, No. 45, December 10, 2003, pp. 22-23.
423
81 Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645 SCRA 1, 8.
82 “General recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of VOL. 699, JUNE 25, 2013 423
Discrimination against Women, on temporary special measures” <www.un.org/
womenwatch/.../recommendation> (visited January 4, 2013). Garcia vs. Drilon
83 Petition, Rollo, p. 27. ment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
421
A. “Physical Violence” refers to acts that include bodily or physical harm;
VOL. 699, JUNE 25, 2013 421 B. “Sexual violence” refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:
Garcia vs. Drilon a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex
nation of prejudices and customary and all other practices which are based on the idea of the object, making demeaning and sexually suggestive remarks, physically attacking the sexual
inferiority or the superiority of either of the sexes or on stereotyped roles for men and parts of the victim’s body, forcing her/him to watch obscene publications and indecent
women.” Justice Puno correctly pointed out that “(t)he paradigm shift changing the character of
84 shows or forcing the woman or her child to do indecent acts and/or make films thereof,
domestic violence from a private affair to a public offense will require the development of a forcing the wife and mistress/lover to live in the conjugal home or sleep together in the
same room with the abuser;
distinct mindset on the part of the police, the prosecution and the judges.” 85
b) acts causing or attempting to cause the victim to engage in any sexual activity by force,
II. The classification is germane to the purpose of the law. threat of force, physical or other harm or threat of physical or other harm or coercion;
The distinction between men and women is germane to the purpose of R.A. 9262, which is to c) Prostituting the woman or child.
address violence committed against women and children, spelled out in its Declaration of Policy, C. “Psychological violence” refers to acts or omissions causing or likely to cause mental or
as follows: emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
SEC. 2. Declaration of Policy.—It is hereby declared that the State values the dignity of women damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It
and children and guarantees full respect for human rights. The State also recognizes the need to includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a
protect the family and its members particularly women and children, from violence and threats to member of the family to which the victim belongs, or to witness pornography in any form or to
their personal safety and security. witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or
Towards this end, the State shall exert efforts to address violence committed against women and visitation of common children.
children in keeping with the fundamental freedoms guaranteed under the Constitution and the D. “Economic abuse” refers to acts that make or attempt to make a woman financially dependent
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All which includes, but is not limited to the following:
Forms of Discrimination Against Women, Convention on the Rights of the Child and other 1. withdrawal of financial support or preventing the victim from engaging in any
international human rights instruments of which the Philippines is a party. legitimate profes-
_______________ 424
84 Article 5(a), CEDAW.
85 “The Rule on Violence Against Women and Their Children,” Remarks delivered during the Joint Launching of R.A. 424 SUPREME COURT REPORTS ANNOTATED
9262 and its Implementing Rules last October 27, 2004 at the Session Hall of the Supreme Court.
Garcia vs. Drilon
422
sion, occupation, business or activity, except in cases wherein the other spouse/partner
422 SUPREME COURT REPORTS ANNOTATED objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and
Garcia vs. Drilon
enjoyment of the conjugal, community or property owned in common;
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on 3. destroying household property;
August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the
4. controlling the victims’ own money or properties or solely controlling the conjugal and facilitate the opportunity and ability to regain control of their life. “The scope of reliefs in
96
money or properties. protection orders is broadened to ensure that the victim or offended party is afforded all the
It should be stressed that the acts enumerated in the aforequoted provision are attributable to remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the
research that has exposed the dimensions and dynamics of battery. The acts described here are also victim from greater risk of violence; to accord the victim and any designated family or household
found in the U.N. Declaration on the Elimination of Violence Against Women. Hence, the 90
member safety in the family residence, and to prevent the perpetrator from committing acts that
argument advanced by petitioner that the definition of what constitutes abuse removes the jeopardize the employment and support of the victim. It also enables the court to award temporary
difference between violent action and simple marital tiffs is tenuous. custody of minor children to protect the children from violence, to prevent their abduction by the
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse perpetrator and to ensure their financial support.” 97
petitioner in his defense. The acts enumerated above are easily understood and provide adequate The rules require that petitions for protection order be in writing, signed and verified by the
contrast between the innocent and the prohibited acts. They are worded with sufficient definiteness petitioner thereby under-
98
that persons of ordinary intelligence can understand what conduct is prohibited, and need not _______________
guess at its meaning nor differ in its application. Yet, petitioner insists that phrases like
91 92 95 Petition, Rollo, p. 31.
96 Sec. 4 (o), A.M. No. 04-10-11-SC.
“depriving or threatening to deprive the woman or her child of a legal right,” “solely controlling 97 Supra note 49.
the conjugal or common money or properties,” “marital infidelity,” and “causing mental or 98 Sec. 7, A.M. No. 04-10-11-SC.
_______________ 427
90 Supra note 49.
91 Estrada v. Sandiganbayan, 421 Phil. 290, 351-352; 369 SCRA 394, 439 (2001). VOL. 699, JUNE 25, 2013 427
92 Petition, Rollo, p. 35.
425 Garcia vs. Drilon
taking full responsibility, criminal or civil, for every allegation therein. Since “time is of the
VOL. 699, JUNE 25, 2013 425
essence in cases of VAWC if further violence is to be prevented,” the court is authorized to
99
Garcia vs. Drilon issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of
emotional anguish” are so vague that they make every quarrel a case of spousal abuse. However, the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to
we have stressed that the “vagueness” doctrine merely requires a reasonable degree of certainty for protect the victim from the immediate and imminent danger of VAWC or to prevent such
the statute to be upheld — not absolute precision or mathematical exactitude, as petitioner seems violence, which is about to recur. 100
to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and There need not be any fear that the judge may have no rational basis to issue an ex parte order.
bounds of the statute are clearly delineated. An act will not be held invalid merely because it might The victim is required not only to verify the allegations in the petition, but also to attach her
have been more explicit in its wordings or detailed in its provisions. 93
witnesses’ affidavits to the petition. 101
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
as the culprit. As defined above, VAWC may likewise be committed “against a woman with process. Just like a writ of preliminary attachment which is issued without notice and hearing
whom the person has or had a sexual or dating relationship.” Clearly, the use of the gender-neutral because the time in which the hearing will take could be enough to enable the defendant to
word “person” who has or had a sexual or dating relationship with the woman encompasses even abscond or dispose of his property, in the same way, the victim of VAWC may already have
102
lesbian relationships. Moreover, while the law provides that the offender be related or connected suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice
to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude and hearing were required before such acts could be prevented. It is a constitutional commonplace
the application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the that the ordinary requirements of procedural due process must yield to the necessities of protecting
case of Go-Tan v. Spouses Tan, the parents-in-law of Sharica Mari L. Go-Tan, the victim, were
94
vital public interests, among which is protection of women and children from violence and
103
held to be proper respondents in the case filed by the latter upon the allegation that they and their threats to their personal safety and security.
son (Go-Tan’s husband) had community of design and purpose in tormenting her by giving her _______________
99 Supra note 49.
insufficient financial support; harassing and pressuring her to be ejected from the family home; 100 Id.
and in repeatedly abusing her verbally, emotionally, mentally and physically. 101 Supra note 85.
_______________ 102 Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212 SCRA 260, 265.
93 Estrada v. Sandiganbayan, supra note 91, at pp. 352-353; p. 440. 103 Laguna Lake Development Authority v. Court of Appeals, G.R. No. 110120, March 16, 1994, 231 SCRA 292, 307,
94 G.R. No. 168852, September 30, 2008, 567 SCRA 231. citing Pollution Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11, 1991, 195 SCRA 112.
426 428
426 SUPREME COURT REPORTS ANNOTATED 428 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon Garcia vs. Drilon
R.A. 9262 is not violative of the due It should be pointed out that when the TPO is issued ex parte, the court shall likewise order
process clause of the Constitution. that notice be immediately given to the respondent directing him to file an opposition within five
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all (5) days from service. Moreover, the court shall order that notice, copies of the petition and TPO
protections afforded by the due process clause of the Constitution. Says he: “On the basis of be served immediately on the respondent by the court sheriffs. The TPOs are initially effective for
unsubstantiated allegations, and practically no opportunity to respond, the husband is stripped of thirty (30) days from service on the respondent. 104
family, property, guns, money, children, job, future employment and reputation, all in a matter of Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
seconds, without an inkling of what happened.” 95
service of the notice upon the respondent requiring him to file an opposition to the petition within
A protection order is an order issued to prevent further acts of violence against women and five (5) days from service. The date of the preliminary conference and hearing on the merits shall
their children, their family or household members, and to grant other necessary reliefs. Its purpose likewise be indicated on the notice. 105
is to safeguard the offended parties from further harm, minimize any disruption in their daily life
The opposition to the petition which the respondent himself shall verify, must be accompanied The non-referral of a VAWC case
by the affidavits of witnesses and shall show cause why a temporary or permanent protection order to a mediator is justified.
should not be issued. 106
Petitioner argues that “by criminalizing run-of-the-mill arguments, instead of encouraging
It is clear from the foregoing rules that the respondent of a petition for protection order should mediation and counseling, the law has done violence to the avowed policy of the State to “protect
be apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, and strengthen the family as a basic autonomous social institution.” 109
the fear of petitioner of being “stripped of family, property, guns, money, children, job, future Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue
employment and reputation, all in a matter of seconds, without an inkling of what happened” is a thereof to a mediator. The reason behind this provision is well-explained by the Commentary on
mere product of an overactive imagination. The essence of due process is to be found in the Section 311 of the Model Code on Domestic and Family Violence as follows: 110
reasonable opportunity to be heard and submit any evidence one may have in support of one’s This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
defense. “To be heard” does not only mean verbal arguments in court; one may be heard also order for pro-
_______________
through pleadings. Where opportunity to be heard, either 109 Id., at p. 36.
_______________ 110 Supra note 49.
104 Sec. 15, A.M. No. 04-10-11-SC. 431
105 Sec. 16, A.M. No. 04-10-11-SC.
106 Sec. 20, A.M. No. 04-10-11-SC. VOL. 699, JUNE 25, 2013 431
429
Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 429 tection. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach
consensual agreement about the issue at hand. Violence, however, is not a subject for compromise.
Garcia vs. Drilon A process which involves parties mediating the issue of violence implies that the victim is somehow
through oral arguments or pleadings, is accorded, there is no denial of procedural due process. 107
at fault. In addition, mediation of issues in a proceeding for an order of protection is problematic
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex- because the petitioner is frequently unable to participate equally with the person against whom the
Parte Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. protection order has been sought. (Emphasis supplied)
Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him There is no undue delegation of
visitation rights to his children. Still, the trial court in its Order dated September 26, 2006, gave judicial power to barangay officials.
him five days (5) within which to show cause why the TPO should not be renewed or extended. Petitioner contends that protection orders involve the exercise of judicial power which, under
Yet, he chose not to file the required comment arguing that it would just be an “exercise in the Constitution, is placed upon the “Supreme Court and such other lower courts as may be
futility,” conveniently forgetting that the renewal of the questioned TPO was only for a limited established by law” and, thus, protests the delegation of power to barangay officials to issue
period (30 days) each time, and that he could prevent the continued renewal of said order if he can protection orders. The pertinent provision reads, as follows:
111
show sufficient cause therefor. Having failed to do so, petitioner may not now be heard to SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.—Barangay Protection
complain that he was denied due process of law. Orders (BPOs) refer to the protection order issued by the Punong Barangayordering the perpetrator to
desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangaywho receives
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex
from the residence of the victim, regardless of ownership of the residence, is virtually a “blank parte determination of the basis of the application. If the Punong Barangay is unavailable to act on
check” issued to the wife to claim any property as her conjugal home. 108
the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the
that this is so. It states: Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the
SEC. 11. Reliefs available to the offended party.—The protection order shall include any, some or BPO. BPOs shall be effective for fifteen
all of the following reliefs: _______________
111 Petition, Rollo, pp. 130-131.
x x x x 432
(c) Removing and excluding the respondent from the residence of the offended party,
regardless of owner- 432 SUPREME COURT REPORTS ANNOTATED
_______________
107 Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671 SCRA 66, 74. Garcia vs. Drilon
108 Petition, Rollo, pp. 30-31. (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay
430
Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official
430 SUPREME COURT REPORTS ANNOTATED to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Garcia vs. Drilon Barangay.
ship of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
Judicial power includes the duty of the courts of justice to settle actual controversies involving
from the residence, the court shall direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things and escort him from the rights which are legally demandable and enforceable, and to determine whether or not there has
residence; been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
x x x x branch or instrumentality of the Government. On the other hand, executive power “is generally
112
Indubitably, petitioner may be removed and excluded from private respondent’s residence, defined as the power to enforce and administer the laws. It is the power of carrying the laws into
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal practical operation and enforcing their due observance.” 113
and exclusion may be permanent only where no property rights are violated. How then can the As clearly delimited by the aforequoted provision, the BPO issued by the Punong
private respondent just claim any property and appropriate it for herself, as petitioner seems to Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders the
suggest? perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening
to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, Leonardo-De Castro, Abad and Leonen JJ., See Separate Concurring Opinion.
purely executive in nature, in pursuance of his duty under the Local Government Code to “enforce Brion, J., See: Concurring Opinion.
all laws and ordinances,” and to “maintain public order in the barangay.” 114
Peralta, J., On official leave.
We have held that “(t)he mere fact that an officer is required by law to inquire into the _______________
117 Supra note 91.
existence of certain facts and to apply the law thereto in order to determine what his official 118 Supra note 85.
conduct shall be and the fact that these acts may affect 435
_______________
112 Sec. 1, Article VIII, 1987 Constitution. VOL. 699, JUNE 25, 2013 435
113 Laurel v. Desierto, 430 Phil. 658; 381 SCRA 48 (2002).
114 People v. Tomaquin, 478 Phil. 885, 899; 435 SCRA 23, 36 (2004), citing Section 389, Chapter 3, Title One, Book Garcia vs. Drilon
III, Local Government Code of 1991, as amended.
433
CONCURRING OPINION
VOL. 699, JUNE 25, 2013 433
Garcia vs. Drilon LEONARDO-DE CASTRO, J.:
private rights do not constitute an exercise of judicial powers.” 115 I concur with the conclusion reached in the ponencia ably written by the Honorable Estela
In the same manner as the public prosecutor ascertains through a preliminary inquiry or Perlas-Bernabe. With due respect, however, I submit that the test to determine an equal protection
proceeding “whether there is reasonable ground to believe that an offense has been committed and challenge against the law, denying statutory remedies to men who are similarly situated as the
the accused is probably guilty thereof,” the Punong Barangay must determine reasonable ground women who are given differential treatment in the law, on the basis of sex or gender, should be at
to believe that an imminent danger of violence against the woman and her children exists or is the level of intermediate scrutiny or middle-tier judicial scrutiny rather than the rational basis
about to recur that would necessitate the issuance of a BPO. The preliminary investigation test used in the ponencia of Justice Bernabe.
conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same holds This Petition for Review on Certiorari assails: (1) the Decision dated January 24, 2007 of the
true with the issuance of a BPO. Court of Appeals in CA-G.R. CEB-SP No. 01698 dismissing the Petition for Prohibition with
We need not even belabor the issue raised by petitioner that since barangay officials and other Injunction and Temporary Restraining Order (Petition for Prohibition) which questioned the
law enforcement agencies are required to extend assistance to victims of violence and abuse, it constitutionality of Republic Act No. 9262, otherwise known as the “Anti-Violence Against
would be very unlikely that they would remain objective and impartial, and that the chances of Women and Their Children Act of 2004,” and sought a temporary restraining order and/or
acquittal are nil. As already stated, assistance by barangay officials and other law enforcement injunction to prevent the implementation of the Temporary Protection Order (TPO) and criminal
agencies is consistent with their duty to enforce the law and to maintain peace and order. prosecution of herein petitioner Jesus A. Garcia under the law; and (2) the Resolution dated
Conclusion August 14, 2007, denying petitioner’s Motion for Reconsideration of the said Decision.
Before a statute or its provisions duly challenged are voided, an unequivocal breach or a clear At the outset, it should be stressed that the Court of Appeals, in its assailed Decision and
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated Resolution, did not pass upon the issue of constitutionality of Republic Act No. 9262 and instead
in such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for dismissed the Petition for Prohibition on technical grounds, as follows:
nullity must be beyond reasonable doubt. In the instant case, however, no concrete evidence and
116 1. The constitutional issue was raised for the first time on appeal before the Court of Appeals by
convincing arguments were presented by petitioner to warrant a declaration petitioner and not at the earliest opportunity, which should be before the Regional Trial Court
_______________ (RTC), Branch 41, Bacolod City, acting as a Family Court, where private respondent Rosalie
115 Lovina and Montilla v. Moreno and Yonzon, 118 Phil 1401, 1406; 9 SCRA 557, 561 (1963). Garcia, wife of436
116 Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101, July 5, 2011, 653 SCRA
154, 258. 436 SUPREME COURT REPORTS ANNOTATED
434
Garcia vs. Drilon
434 SUPREME COURT REPORTS ANNOTATED petitioner, instituted a Petition for Temporary and Permanent Protection Order[s] under Republic
1
Garcia vs. Drilon Act No. 9262, against her husband, petitioner Jesus C. Garcia; and
of the unconstitutionality of R.A. 9262, which is an act of Congress and signed into law by the 2. The constitutionality of Republic Act No. 9262 can only be questioned in a direct action
highest officer of the co-equal executive department. As we said in Estrada v. and it cannot be the subject of a collateral attack in a petition for prohibition, as the inferior court
Sandiganbayan, courts must assume that the legislature is ever conscious of the borders and
117 having jurisdiction on the action may itself determine the constitutionality of the statute, and the
edges of its plenary powers, and passed laws with full knowledge of the facts and for the purpose latter’s decision on the matter may be reviewed on appeal and not by a writ of prohibition, as it
of promoting what is right and advancing the welfare of the majority. was held in People v. Vera. 2
We reiterate here Justice Puno’s observation that “the history of the women’s movement Hence, the Court of Appeals Decision and Resolution denied due course to the Petition for
against domestic violence shows that one of its most difficult struggles was the fight against the Prohibition “for being fraught with fatal technical infirmities” and for not being ripe for judicial
violence of law itself. If we keep that in mind, law will not again be a hindrance to the struggle of review. Nevertheless, four out of the five issues raised by the petitioner here dealt with the alleged
women for equality but will be its fulfillment.” Accordingly, the constitutionality of R.A. 9262
118 unconstitutionality of Republic Act No. 9262. More accurately put, however, the Court of Appeals
is, as it should be, sustained. refrained from touching at all those four substantive issues of constitutionality. The Court of
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of Appeals cannot therefore be faulted for any erroneous ruling on the aforesaid substantive
merit. constitutional issues.
SO ORDERED. In this instant Petition for Review, the only issue directly in point that can be raised against
Sereno (CJ.), Carpio, Velasco, Jr., Bersamin, Del Castillo, Villarama, Jr., Perez, the Court of Appeals Decision and Resolution is the first one cited as a ground for the appeal,
Mendoza and Reyes, JJ., concur. which I quote:
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE Prohibition before the Court of Appeals to question the constitutionality of Republic Act No.
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE FIRST OPPORTUNITY AND THAT, 9262.
THE PETITION WAS A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW. 3
What obviously escapes petitioner’s understanding is that the contents of the Opposition are
Under the circumstances, whether this Court should consider this Petition for Review as a not limited to mere refutations of the allegations in the petition for temporary and permanent
proper occasion to pass protection order. While it is true that A.M. No. 04-10-11-SC requires the respondent to file
_______________
1 Rollo, pp. 63-83. an Opposition and not
2 65 Phil. 56 (1937). _______________
3 Rollo, p. 22. 7 Id., at p. 309, Petitioner’s Memorandum.
437 439
VOL. 699, JUNE 25, 2013 437 VOL. 699, JUNE 25, 2013 439
Garcia vs. Drilon Garcia vs. Drilon
upon the constitutionality of Republic Act No. 9262 shall be a separate subject matter that is an Answer, it does not prevent petitioner from challenging the constitutionality of Republic Act
8
tackled below after the above-quoted first issue is disposed of. No. 9262 in such Opposition. In fact, Section 20(a) directs petitioner to state in his Opposition
On the Propriety of Raising the why a temporary or permanent protection order should not be issued against him. This means that
Issue of Constitutionality in a petitioner should have raised in his Opposition all defenses available to him, which may be either
Summary Proceeding Before the negative or affirmative. Section 5(b), Rule 6 of the Rules of Court define negative and affirmative
RTC Designated as a Family Court defenses as follows:
Petitioner assails the Court of Appeals ruling that he should have raised the issue of (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading
of the claimant essential to his cause or causes of action.
constitutionality in his Opposition to private respondent’s petition for protective orders pending
4
(b) An affirmative defense is an allegation of a new matter which, while hypothetically
before the RTC for the following reasons: admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar
1. The Rules on Violence Against Women and Children (A.M. No. 04-10-11-SC), recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment,
particularly Section 20 thereof, expressly prohibit him from alleging any counterclaim, cross-claim illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter
or third party claim, all of which are personal to him and therefore with more reason, he cannot by way of confession and avoidance.
impugn the constitutionality of the law by way of affirmative defense. 5
In Bayog v. Hon. Natino, the respondent, in a complaint for ejectment before the Municipal
9
2. Since the proceedings before the Family Court are summary in nature, its limited Circuit Trial Court (MCTC), raised as one of his defenses, the MCTC’s lack of jurisdiction over
jurisdiction is inadequate to tackle the complex issue of constitutionality. 6
the case in light of the agricultural tenancy relationship between him and the petitioner. The
I agree with Justice Bernabe that the RTC, designated as a Family Court, is vested with MCTC applied the Rule on Summary Procedure and issued an Order stating that it could not take
jurisdiction to decide issues of constitutionality of a law, and that the constitutionality of Republic cognizance of the Answer, for being filed belatedly. This Court ruled that while the MCTC was
Act No. 9262 can be resolved in a summary proceeding, in accordance with the rule that the correct in applying the Rule on Summary Procedure as the complaint was one for ejectment, it
question of constitutionality must be raised at the earliest opportunity, otherwise it may not be should have met and ruled squarely on the issue of jurisdiction, as there was nothing in the rules
considered on appeal. that barred it from admitting the Answer.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Republic Act No. 9262 provides: _______________
_______________ 8 Rationale of the Proposed Rule on Violence Against Women and their Children, 15th Salient Feature.
4 Id., at pp. 98-103. 9 327 Phil. 1019; 258 SCRA 378 (1996).
5 Id., at p. 23. 440
6 Id., at p. 24.
440 SUPREME COURT REPORTS ANNOTATED
438
438 SUPREME COURT REPORTS ANNOTATED Garcia vs. Drilon
Hence, the MCTC should have heard and received evidence for the precise purpose of determining
Garcia vs. Drilon whether or not it possessed jurisdiction over the case. 10
Sec. 20. Opposition to Petition.—(a) The respondent may file an opposition to the petition Similarly, the alleged unconstitutionality of Republic Act No. 9262 is a matter that would
which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show
have prevented the trial court from granting the petition for protection order against the petitioner.
cause why a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party Thus, petitioner should have raised it in his Opposition as a defense against the issuance of a
complaint, but any cause of action which could be the subject thereof may be litigated in a protection order against him.
separate civil action. (Emphasis supplied.) For all intents and purposes, the Petition for Prohibition filed before the Court of Appeals was
Petitioner cites the above provision, particularly paragraph (b) thereof, as one of his grounds precipitated by and was ultimately directed against the issuance of the TPO, an interlocutory order,
for not challenging the constitutionality of Republic Act No. 9262 in his Opposition. The error of which under Section 22(j) of A.M. No. 04-10-11-SC is a prohibited pleading. An action
such reasoning is that it treats “any cause of action” mentioned in Section 20(b) as distinct from questioning the constitutionality of the law also cannot be filed separately even with another
the “counterclaim, cross-claim or third-party complaint” referred to in the said Section 20(b). On branch of the RTC. This is not technically feasible because there will be no justiciable controversy
the contrary, the language of said section clearly refers to a cause of action that is the “subject” of or an independent cause of action that can be the subject of such separate action if it were not for
the counterclaim, cross-claim, or third-party complaint, which is barred and which may be the issuance of the TPO against the petitioner. Thus, the controversy, subject of a separate action,
litigated in a separate civil action. The issue of constitutionality is not a “cause of action” that is a whether before the Court of Appeals or the RTC, would still have to be the issuance of the TPO,
subject of the aforementioned prohibited pleadings. In fact, petitioner admitted that such which is the subject of another case in the RTC.
prohibited pleadings would allege “claims which are personal to him.” Hence, Section 20(b)
7 Moreover, the challenge to the constitutionality of the law must be raised at the earliest
cannot even be invoked as a basis for filing the separate special civil action of Petition for opportunity. In Dasmariñas Water District v. Monterey Foods Corporation, we said: 11
A law is deemed valid unless declared null and void by a competent court; more so when the standing as it is necessary that the person challenging the law must have a personal and substantial
issue has not been duly pleaded in the trial court. The question of constitutionality must be raised at interest in the case such that he has
the earliest opportunity. x x x. The settled rule is that courts will not anticipate a question of _______________
constitutional law in advance of the necessity of deciding it. (Citation omitted.) 14 Presidential Commission on Good Government v. Peña, 243 Phil. 93, 106; 159 SCRA 556, 565 (1988).
_______________ 443
10 Id., at pp. 1036-1037; p. 394.
11 G.R. No. 175550, September 17, 2008, 565 SCRA 624, 637. VOL. 699, JUNE 25, 2013 443
441
Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 441 sustained, or will sustain direct injury as a result of its enforcement. 15
Garcia vs. Drilon In this case, the petitioner’s challenge on the constitutionality of Republic Act No. 9262 was
This Court held that such opportunity is in the pleadings before a competent court that can on the basis of the protection order issued against him. Verily, the controversy became ripe only
resolve it, such that “if it is not raised in the pleadings, it cannot be considered at the trial, and, if when he was in danger of or was directly adversely affected by the statute mandating the issuance
not considered at the trial, it cannot be considered on appeal.” The decision upon the
12 of a protection order against him. He derives his standing to challenge the statute from the direct
constitutional question is necessary to determine whether the TPO should be issued against injury he would sustain if and when the law is enforced against him. Therefore, it is clear that the
petitioner. Such question should have been raised at the earliest opportunity as an affirmative proper forum to challenge the constitutionality of the law was before the RTC handling the
defense in the Opposition filed with the RTC handling the protection order proceedings, which protection order proceedings. The filing of a separate action to question the constitutionality of the
was the competent court to pass upon the constitutional issue. This Court, in Drilon v. Lim, held: 13 law amounts to splitting a cause of action that runs counter to the policy against multiplicity of
We stress at the outset that the lower court had jurisdiction to consider the suits.
constitutionality of Section 187, this authority being embraced in the general definition of the Moreover, the filing of the Petition for Prohibition with the Court of Appeals countenanced
judicial power to determine what are the valid and binding laws by the criterion of their the evil that the law and the rules sought to avoid. It caused the delay in the proceedings and
conformity to the fundamental law.Specifically, BP 129 vests in the regional trial courts inconvenience, hardship and expense on the part of the parties due to the multiplicity of suits
jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary between them at different court levels. The RTC where the petition for protection orders is filed
estimation, even as the accused in a criminal action has the right to question in his defense the should be trusted, instead of being doubted, to be able to exercise its jurisdiction to pass upon the
constitutionality of a law he is charged with violating and of the proceedings taken against him,
issue of constitutionality within the mandatory period set by the rules.
particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the
Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of In gist, there is no statutory, reglementary, or practical basis to disallow the constitutional
lower courts in all cases in which the constitutionality or validity of any treaty, international or challenge to a law, which is sought to be enforced, in a summary proceeding. This is particularly
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or true considering that the issue of a statute’s constitutionality is a question of law which may be
regulation is in question. (Citation omitted, emphases ours.) resolved without the reception of evidence or a full-blown trial. Hence, said issue should have
_______________ been raised at the earliest opportunity in
12 Matibag v. Benipayo, 429 Phil. 554, 578; 380 SCRA 49, 65 (2002). _______________
13 G.R. No. 112497, August 4, 1994, 235 SCRA 135, 139-140. 15 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management, G.R. No. 164987,
442 April 24, 2012, 670 SCRA 373, 383-384.
444
442 SUPREME COURT REPORTS ANNOTATED
444 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Furthermore, the filing of a separate action before the Court of Appeals or the RTC for the Garcia vs. Drilon
declaration of unconstitutionality of Republic Act No. 9262 would result to multiplicity of suits. It the proceedings before the RTC, Bacolod City and for failure of the petitioner to do so, it cannot
is clear that the issues of constitutionality and propriety of issuing a protection order raised by be raised in the separate Petition for Prohibition before the Court of Appeals, as correctly ruled by
petitioner are inextricably intertwined. Another court, whether it is an appellate court or a trial the latter, nor in a separate action before the RTC.
court, cannot resolve the constitutionality question in the separate action without affecting the On the Court Resolving the
petition for the issuance of a TPO. Bringing a separate action for the resolution of the issue of Issue of Constitutionality of
constitutionality will result in an unresolved prejudicial question to the validity of issuing a Republic Act No. 9262
protection order. If the proceedings for the protection order is not suspended, it does create the Notwithstanding my position that the Court of Appeals properly dismissed the Petition for
danger of having inconsistent and conflicting judgments between the two separate courts, whether Prohibition because of petitioner’s failure to raise the issue of constitutionality of Republic Act
of the same or different levels in the judicial hierarchy. These two judgments would eventually be No. 9262 at the earliest opportunity, I concur that the Court, in the exercise of its sound
the subject of separate motions for reconsideration, separate appeals, and separate petitions for discretion, should still pass upon the said issue in the present Petition. Notable is the fact that not
16
review before this Court — the exact scenario the policy against multiplicity of suits is avoiding. only the petitioner, but the private respondent as well, pray that the Court resolve the
17
As we previously held, “the law and the courts frown upon split jurisdiction and the resultant constitutional issue considering its novelty and paramount importance. Indeed, when public
multiplicity of actions.” 14
interest requires the resolution of the constitutional issue raised, and in keeping with this Court’s
It must be remembered that aside from the “earliest opportunity” requirement, the court’s duty of determining whether other agencies or even co-equal branches of government have
power of judicial review is subject to other limitations. Two of which are the existence of an actual remained within the limits of the Constitution and have not abused the discretion given them, the
case or controversy and standing. An aspect of the actual case or controversy requirement is the Court may brush aside technicalities of procedure and resolve the constitutional issue. 18
requisite of “ripeness.” This is generally treated in terms of actual injury to the plaintiff. Thus, a Aside from the technical ground raised by petitioner in his first assignment of error, petitioner
question is ripe for adjudication when the act being challenged had a direct adverse effect on the questions the constitutionality of Republic Act No. 9262 on the following grounds:
individual challenging it. This direct adverse effect on the individual will also be the basis of his THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. NO. 9262 IS DIS-
_______________
16 People v. Vera, supra note 2. and not made arbitrarily or capriciously, is permitted. The classification, however, to be
17 Rollo, p. 237, Private Respondents’ Comment.
18 Matibag v. Benipayo, supra note 12 at p. 579; p. 66. reasonable must be based on substantial distinctions which make real differences; it must be
445 germane to the purposes of the law; it must not be limited to existing conditions only, and must
apply equally to each member of the class. (Citations omitted, emphasis supplied.)
VOL. 699, JUNE 25, 2013 445
In our jurisdiction, the standard and analysis of equal protection challenges in the main have
Garcia vs. Drilon followed the foregoing “rational basis” test, coupled with a deferential attitude to legislative
CRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. classifications and a reluctance to invalidate a law unless there is a showing of a clear and
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. NO. unequivocal breach of the Constitution. 23
9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION. However, over time, three levels of tests were developed, which are to be applied in equal
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO protection cases, depending on the subject matter involved: 24
THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION. 1. Rational Basis Scrutiny — the traditional test, which requires “only that government must not impose differences in treatment
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. NO. 9262 AS except upon some reasonable differentiation fairly related to the object of regulation.” Simply put, it merely demands that the
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF classification in the statute reasonably relates to the legislative purpose. 25
2. Intermediate Scrutiny — requires that the classification (means) must serve an important governmental objective (ends) and
JUDICIAL POWER TO THE BARANGAY OFFICIALS. 19
is substantially related to the achievement of such objective. A
On the Constitutional Right to Equal _______________
23 Central Bank (now Bangko Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583-584; 446 SCRA 299, 370 (2004).
Protection of the Laws 24 Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 32, citing BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, pp. 139-140 (2009).
25 Central Bank (now Bangko Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, supra note 23.
448
Petitioner challenges the constitutionality of Republic Act No. 9262 for making a gender-
based classification, thus, providing remedies only to wives/women and not to husbands/men. He 448 SUPREME COURT REPORTS ANNOTATED
claims that even the title of the law, “An Act Defining Violence Against Women and Their Garcia vs. Drilon
Children” is already pejorative and sex-discriminatory because it means violence by men against classification based on sex is the best-established example of an intermediate level of review. 26
women. The law also does not include violence committed by women against children and other
20 3. Strict Scrutiny — requires that the classification serve a compelling state interest and is necessary to achieve such interest. This
level is used when suspect classifications or fundamental rights are involved. 27
women. He adds that gender alone is not enough basis to deprive the husband/father of the Recent Philippine jurisprudence has recognized the need to apply different standards of
remedies under it because its avowed purpose is to curb and punish spousal violence. The said scrutiny in testing the constitutionality of classifications. In British American Tobacco v.
remedies are discriminatory against the husband/male gender. There being no reasonable Camacho, this Court held that since the case therein neither involved a suspect classification nor
28
difference between an abused husband and an abused wife, the equal protection guarantee is impinged on a fundamental right, then “the rational basis test was properly applied to gauge the
violated. constitutionality of the assailed law in the face of an equal protection challenge.” We added: 29
_______________
19 Rollo, p. 22.
It has been held that “in the areas of social and economic policy, a statutory classification that neither
20 Id., at p. 26. proceeds along suspect lines nor infringes constitutional rights must be upheld against equal
446 protection challenge if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification.” Under the rational basis test, it is sufficient that the legislative
446 SUPREME COURT REPORTS ANNOTATED classification is rationally related to achieving some legitimate State interest. x x x. (Citations 30
Garcia vs. Drilon omitted.)
Echoing the same principle, this Court, speaking through then Chief Justice Puno in Central
Pertinently, Section 1, Article III of the 1987 Constitution states:
No person shall be deprived of life, liberty, or property without due process of law, nor shall Bank (now Bangko Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng
any person be denied the equal protection of the laws. (Emphasis supplied.) Pilipinas, stated:
31
_______________
The above provision was lifted verbatim from the 1935 and 1973 Constitutions, which in turn 26 Id.
was a slightly modified version of the equal protection clause in Section 1, Amendment 14 of the 21
27 Id.
United States Constitution. 28 G.R. No. 163583, April 15, 2009, 585 SCRA 36.
In 1937, the Court established in People v. Vera the four-fold test to measure the 22 29 Id., at p. 40.
30 Id., at pp. 40-41.
reasonableness of a classification under the equal protection clause, to wit: 31 Supra note 23 at pp. 597-600.
This basic individual right sheltered by the Constitution is a restraint on all the three grand 449
departments of our government and on the subordinate instrumentalities and subdivisions thereof, and
on many constitutional powers, like the police power, taxation and eminent domain. The equal VOL. 699, JUNE 25, 2013 449
protection of the laws, sententiously observes the Supreme Court of the United States, “is a pledge of Garcia vs. Drilon
the protection of equal laws.” Of course, what may be regarded as a denial of the equal protection of
Congress retains its wide discretion in providing for a valid classification, and its policies should
the laws is a question not always easily determined. No rule that will cover every case can be
be accorded recognition and respect by the courts of justice except when they run afoul of the
formulated. Class legislation discriminating against some and favoring others is prohibited. But
Constitution. The deference stops where the classification violates a fundamental right, or
classification on a reasonable basis,
_______________ prejudices persons accorded special protection by the Constitution. When these violations arise,
21 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; stricter and more exacting adherence to constitutional limitations. Rational basis should not
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. suffice.
22 Supra note 2 at pp. 125-126. x x x x
447 Under most circumstances, the Court will exercise judicial restraint in deciding questions of
VOL. 699, JUNE 25, 2013 447 constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion
Garcia vs. Drilon would be given deferential treatment.
But if the challenge to the statute is premised on the denial of a fundamental right, or the threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. x x x.
perpetuation of prejudice against persons favored by the Constitution with special protection, (Emphases supplied.)
judicial scrutiny ought to be more strict. A weak and watered down view would call for the The aforesaid law also institutionalized remedies such as the issuance of protection orders in
abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the favor of women and chil-
rights it enshrines. This is true whether the actor committing the unconstitutional act is a private _______________
person or the government itself or one of its instrumentalities. Oppressive acts will be struck down 34 Id., at pp. 93-95.
regardless of the character or nature of the actor. (Citations omitted.) 452
This was reiterated in League of Cities of the Philippines v. Commission on 452 SUPREME COURT REPORTS ANNOTATED
Elections, and Ang Ladlad LGBT Party v. Commission on Elections, wherein the Court, although
32 33
ap- Garcia vs. Drilon
_______________ dren who are victims of violence and prescribed public penalties for violation of the said law.
32 G.R. Nos. 176951, 177499, and 178056, November 18, 2008, 571 SCRA 263. Petitioner questions the constitutionality of Republic Act No. 9262 which denies the same
33 Supra note 24.
450
protection orders to husbands who are victims of wife-abuse. It should be stressed that under
aforecited section of said law violence may not only be physical or sexual but also psychological
450 SUPREME COURT REPORTS ANNOTATED and economic in nature.
Garcia vs. Drilon The Honorable Justice Marvic Mario Victor F. Leonen in his concurring opinion notes that
plying the rational basis test, noted that there are tests, which are more appropriate in other cases, “Husband abuse maybe an under reported form of family violence.” While concurring with the
especially those involving suspect classes and fundamental rights. In fact, Chief Justice Puno majority opinion, he opines as follows:
expounded on this in his Separate Concurring Opinion in the Ang Ladlad case. He said that Nevertheless, in a future case more deserving of our attention, we should be open to realities
which may challenge the dominant conception that violence in intimate relationships only happens to
although the assailed resolutions therein were correctly struck down, since the classification was
women and children. This may be predominantly true, but even those in marginal cases deserve
based on gender or sexual orientation, a quasi-suspect classification, a heightened level of fundamental constitutional and statutory protection. We should be careful that in correcting historical
review should have been applied and not just the rational basis test, which is the most liberal and cultural injustices, we may typecast all women as victims, stereotype all men as tormentors or
basis of judicial scrutiny. Citing American authority, Chief Justice Puno continued to elucidate make invisible the possibility that in some intimate relationships, men may also want to seek succor
on the three levels of scrutiny and the classes falling within each level, to wit: against acts defined in Section 5 of Republic Act No. 9262 in an expeditious manner.
If a legislative classification disadvantages a “suspect class” or impinges upon the exercise of a Since statutory remedies accorded to women are not made available to men, when the reality
“fundamental right,” then the courts will employ strict scrutiny and the statute must fall unless the is that there are men, regardless of their number, who are also suffering from domestic violence,
government can demonstrate that the classification has been precisely tailored to serve a compelling the rational basis test may be too wide and liberal to justify the statutory classification which in
governmental interest. Over the years, the United States Supreme Court has determined that suspect
effect allows different treatment of men who are similarly situated. In the context of the
classes for equal protection purposes include classifications based on race, religion, alienage, national
origin, and ancestry. The underlying rationale of this theory is that where legislation affects discrete constitutional policy to “ensure the fundamental equality before the law of women and men” the 35
and insular minorities, the presumption of constitutionality fades because traditional political level of scrutiny applicable, to test whether or not the classifi-
processes may have broken down. In such a case, the State bears a heavy burden of justification, and _______________
35 1987 Constitution, Article II, Section 14.
the government action will be closely scrutinized in light of its asserted purpose.
453
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to
recurring constitutional difficulties, or if a classification disadvantages a “quasi-suspect class,” VOL. 699, JUNE 25, 2013 453
it will be treated under intermediate or heightened review. To survive intermediate scrutiny, the
law must not only further an important governmental interest and be substantially related to that Garcia vs. Drilon
interest, but the justification for the classification must be genuine and must not de- cation in Republic Act No. 9262 violates the equal protection clause, is the middle-tier scrutiny
451 or the intermediate standard of judicial review.
VOL. 699, JUNE 25, 2013 451 To survive intermediate review, the classification in the challenged law must (1)
serve important governmental objectives, and (2) be substantially related to the achievement of
Garcia vs. Drilon those objectives. 36
pend on broad generalizations. Noteworthy, and of special interest to us in this case, quasi-suspect Important and Essential
classes include classifications based on gender or illegitimacy.
Governmental Objectives: Safeguard
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for
mere rationality. This is a relatively relaxed standard reflecting the Court’s awareness that the Human Rights, Ensure Gender
drawing of lines which creates distinctions is peculiarly a legislative task and an unavoidable one. Equality and Empower Women
The presumption is in favor of the classification, of the reasonableness and fairness of state action, Republic Act No. 9262 is a legislation that furthers important, in fact essential, governmental
and of legitimate grounds of distinction, if any such grounds exist, on which the State objectives as enunciated in the law’s Declaration of Policy, as quoted below:
acted. (Citations omitted, emphases supplied.)
34
SEC. 2. Declaration of Policy.—It is hereby declared that the State values the dignity of
This case presents us with the most opportune time to adopt the appropriate scrutiny in women and children and guarantees full respect for human rights. The State also recognizes the need
deciding cases where the issue of discrimination based on sex or gender is raised. The assailed to protect the family and its members particularly women and children, from violence and threats to
Section 3, among other provisions, of Republic Act No. 9262 provides: their personal safety and security.
SEC. 3. Definition of Terms.—As used in this Act: Towards this end, the State shall exert efforts to address violence committed against women and
(a) “Violence against women and their children” refers to any act or a series of acts committed children in keeping with the fundamental freedoms guaranteed under the Constitution and the
by any person against a woman who is his wife, former wife, or against a woman with whom the Provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of all
person has or had a sexual or dating relationship, or with whom he has a common child, or against forms of discrimination Against Women, Convention on the Rights of the Child and other
her child whether legitimate or illegitimate, within or without the family abode, which result in or is international human rights instruments of which the Philippines is a party.
_______________
likely to result in physical, sexual, psychological harm or suffering, or economic abuse including
36 Central Bank (now Bangko Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas,
supra note 23 at 586; p. 373, citing Justice Marshall’s dissent in San Antonio Independent School District v. Rodriguez, 411 456 SUPREME COURT REPORTS ANNOTATED
U.S. 1 (1973).
454 Garcia vs. Drilon
the International Bill of Rights of Women, the CEDAW is the central and most comprehensive
42
454 SUPREME COURT REPORTS ANNOTATED document for the advancement of the welfare of women. It brings the women into the focus of
43
Garcia vs. Drilon human rights concerns, and its spirit is rooted in the goals of the UN: to reaffirm faith in
This policy is in consonance with the constitutional provisions, which state:37 fundamental human rights, in the dignity and worth of the human person, in the equal rights of
SEC. 11. The State values the dignity of every human person and guarantees full respect for men and women. The CEDAW, in its preamble, explicitly acknowledges the existence of
44
human rights. extensive discrimination against women, and emphasized that such is a violation of the
SEC. 12. The State recognizes the sanctity of family life and shall protect and strengthen the principles of equality of rights and respect for human dignity.
family as a basic autonomous social institution. x x x. In addition, as a state party to the CEDAW, the Philippines is under legal obligation to to
By constitutional mandate, the Philippines is committed to ensure that human rights and ensure their development and advancement for the improvement of their position from one of de
fundamental freedoms are fully enjoyed by everyone. It was one of the countries that voted in jure as well as de factoequality with men. The CEDAW, going beyond the concept of
45
favor of the Universal Declaration of Human Rights (UDHR), which was a mere two years after it discrimination used in many legal standards and norms, focuses on discrimination against women,
gained independence from the United States of America. In addition, the Philippines is a signatory with the emphasis that women have suffered and are continuing to suffer from various forms of
to many United Nations human rights treaties such as the Convention on the Elimination of All discrimination on account of their biological sex. 46
Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural The Philippines’ accession to various international instruments requires it to promote and
Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, ensure the observance of human rights and “continually affirm its commitment to ensure that it
and the Convention on the Rights of the Child, among others. pursues gender equality in all aspects of the development process to eventually make real, a
As a signatory to the UDHR, the Philippines pledged itself to achieve the promotion of genderresponsive society.” Thus, the governmental objectives of protecting human rights and
47
universal respect for and observance of human rights and fundamental freedoms, keeping in mind 38
fundamental freedoms, which includes promoting gender equality and empowering
the standards under the Declaration. Among the standards under the UDHR are the following: _______________
Article 1. All human beings are born free and equal in dignity and rights. They are endowed 42 http://pcw.gov.ph/international-commitments/cedaw last visited on April 9, 2013.
with reason and conscience and should act towards one another in a spirit of brotherhood. 43 CEDAW, Introduction.
x x x x 44 Id.
_______________ 45 General Recommendation No. 25, CEDAW/par. 4 (2004).
37 1987 Constitution, Article II. 46 Id., par. 5 (2004).
38 Universal Declaration of Human Rights. 47 http://pcw.gov.ph/international-commitments last visited on April 9, 2013.
455 457
VOL. 699, JUNE 25, 2013 455 VOL. 699, JUNE 25, 2013 457
Garcia vs. Drilon Garcia vs. Drilon
Article 7. All are equal before the law and are entitled without any discrimination to women, as mandated not only by our Constitution, but also by commitments we have made in
equal protection of the law. All are entitled to equal protection against any discrimination in the international sphere, are undeniably important and essential.
violation of this Declaration and against any incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the competent national
The Gender-Based Classification
tribunals for acts violating the fundamental rights granted him by the constitution or by law. in Republic Act No. 9262 is Sub-
(Emphasis ours.) stantially Related to the Achieve-
The Declaration of Policy in Republic Act No. 9262 enunciates the purpose of the said law, ment of Governmental Objectives
which is to fulfill the government’s obligation to safeguard the dignity and human rights of women As one of the country’s pervasive social problems, violence against women is deemed to be
and children by providing effective remedies against domestic violence or physical, psychological, closely linked with the unequal power relationship between women and men and is otherwise
and other forms of abuse perpetuated by the husband, partner, or father of the victim. The said law known as “gender-based violence.” Violent acts towards women has been the subject of an
48
is also viewed within the context of the constitutional mandate to ensure gender equality, which is examination on a historic world-wide perspective. The exhaustive study of a foreign history
49
quoted as follows: professor noted that “[f]rom the earliest civilizations on, the subjugation of women, in the form of
Section 14. The State recognizes the role of women in nation-building, and shall ensure the violence, were facts of life,” as three great bodies of thought, namely: Judeo-Christian religious
50
fundamental equality before the law of women and men. 39
ideas; Greek philosophy; and the Common Law Legal Code, which have influenced western
It has been acknowledged that “gender-based violence is a form of discrimination that society’s views and treatment of women, all “assumed patriarchy as natural; that is, male
seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with domination stemming from the view of male superiority.” It cited 18th century legal expert
51
men.” Republic Act No. 9262 can be viewed therefore as the Philippines’ compliance with the
40
William Blackstone, who explained that the common law doctrine of coverture reflected the
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which theological assumption that husband and wife were ‘one body’ before God; thus “they were ‘one
is committed to condemn discrimination against women and directs its members to undertake, person’ under the law, and that one person was the husband,” a concept that evidently found its
52
without delay, all appropriate means to eliminate discrimination against women in all forms both way in some of our
in law and in practice. Known as
41 _______________
_______________ 48 http://pcw.gov.ph/focus-areas/violence-against-women last visited on April 10, 2013.
39 1987 Constitution, Article II. 49 Historical Perspectives on Violence Against Women. November 2002.
40 General Recommendation No. 19, CEDAW/par. 1 (1992). 50 Vivian C. Fox, Ph.D. Journal of International Women’s Studies Vol. 4 #1, Historical Perspectives on Violence
41 CEDAW, Article 2. Against Women. November 2002, p. 20.
456 51 Id., at p. 15.
52 Id., at p. 19.
458
Garcia vs. Drilon
458 SUPREME COURT REPORTS ANNOTATED tion orders and the granting of certain reliefs to women victims, even without a hearing. The
Garcia vs. Drilon law has granted authority for barangay officials to issue a protection order against the offender,
Civil Code provisions prior to the enactment of the Family Code. based on the victim’s application. The RTC may likewise grant an application for a temporary
Society and tradition dictate that the culture of patriarchy continue. Men are expected to take protection order (TPO) and provide other reliefs, also on the mere basis of the application. Despite
on the dominant roles both in the community and in the family. This perception naturally leads to the ex parteissuance of these protection orders, the temporary nature of these remedies allow them
men gaining more power over women —power, which must necessarily be controlled and to be availed of by the victim without violating the offender’s right to due process as it is only
maintained. Violence against women is one of the ways men control women to retain such power. 53 when a full-blown hearing has been done that a permanent protection order may be issued. Thus,
The enactment of Republic Act No. 9262 was in response to the undeniable numerous cases these remedies are suitable, reasonable, and justified. More importantly, they serve the objectives
involving violence committed against women in the Philippines. In 2012, the Philippine National of the law by providing the victims necessary immediate protection from the violence they
Police (PNP) reported that 65% or 11,531 out of 15,969 cases involving violence against women
54 perceive as threats to their personal safety and security. This translates to the fulfillment of other
were filed under Republic Act No. 9262. From 2004 to 2012, violations of Republic Act No. 9262 governmental objectives as well. By assuring the victims instant relief from their situation, they
ranked first among the different categories of violence committed against women. The number of are consequently empowered and restored to a place of dignity and equality. Such is embodied in
reported cases showed an increasing trend from 2004 to 2012, although the numbers might not the purpose to be served by a protection order, to wit:
exactly represent the real incidence of violence against women in the country, as the data is based SEC. 8. Protection Orders.—A protection order is an order issued under this act for the
purpose of preventing further acts of violence against a woman or her child specified in Section 5 of
only on what was reported to the PNP. Moreover, the increasing trend may have been caused by
this Act and granting other necessary relief. The relief granted under a protection order serve the
the continuous information campaign on the law and its strict implementation. Nonetheless, 55
purpose of safeguarding the victim from further harm, minimizing any disruption in the
statistics show that cases involving violence against women are prevalent, while there is a dearth victim’s daily life, and facilitating the opportunity and ability of the victim to independently
of reported cases involving violence committed by women against men, that will require regain control over her life. x x x. (Emphasis supplied.)
legislature intervention or solicitous treatment of men. In furtherance of the governmental objectives, especially that of protecting human rights,
Preventing violence against women and children through their availment of special legal violence against women and children under this Act has been classified as a public of-
remedies, serves the govern- 461
_______________
53 http://pcw.gov.ph/focus-areas/violence-against-women last visited on April 10, 2013. VOL. 699, JUNE 25, 2013 461
54 As Submitted by the Philippine Commission on Women.
55 http://pcw.gov.ph/statistics/201210/statistics-violence-against-filipino-women, last visited on March 18, 2013. Garcia vs. Drilon
459 fense, making its prosecution independent of the victim’s initial participation.
58
Verily, the classification made in Republic Act No. 9262 is substantially related to the
VOL. 699, JUNE 25, 2013 459
important governmental objectives of valuing every person’s dignity, respecting human
Garcia vs. Drilon rights, safeguarding family life, protecting children, promoting gender equality, and
mental objectives of protecting the dignity and human rights of every person, preserving the empowering women.
sanctity of family life, and promoting gender equality and empowering women. Although there The persistent and existing biological, social, and cultural differences between women and
exists other laws on violence against women in the Philippines, Republic Act No. 9262 deals with
56
men prescribe that they be treated differently under particular conditions in order to
the problem of violence within the family and intimate relationships, which deserves special achieve substantive equality for women. Thus, the disadvantaged position of a woman as
attention because it occurs in situations or places where women and children should feel most safe compared to a man requires the special protection of the law, as gleaned from the following
and secure but are actually not. The law provides the widest range of reliefs for women and recommendations of the CEDAW Committee:
children who are victims of violence, which are often reported to have been committed not by 8. [T]he Convention requires that women be given an equal start and that they be empowered
strangers, but by a father or a husband or a person with whom the victim has or had a sexual or by an enabling environment to achieve equality of results. It is not enough to guarantee women
dating relationship. Aside from filing a criminal case in court, the law provides potent legal treatment that is identical to that of men. Rather, biological as well as socially and culturally
constructed differences between women and men must be taken into account. Under certain
remedies to the victims that theretofore were not available. The law recognizes, with valid factual
circumstances, non-identical treatment of women and men will be required in order to address
support based on statistics that women and children are the most vulnerable victims of violence, such differences. Pursuit of the goal of substantive equality also calls for an effective strategy aimed
and therefore need legal intervention. On the other hand, there is a dearth of empirical basis to at overcoming underrepresentation of women and a redistribution of resources and power between
anchor a conclusion that men need legal protection from violence perpetuated by women. men and women.
The law takes into account the pervasive vulnerability of women and children, and the 9. Equality of results is the logical corollary of de facto or substantive equality. These
seriousness and urgency of the situation, which, in the language of the law result in or is likely to results may be quantitative and/or qualitative in nature; that is, women enjoying their rights in various
result in physical, sexual, psychological harm or suffering, or economic abuse including threats of fields in fairly equal numbers with men, enjoying the same income levels, equality in decision-
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. Hence, the law 57 making and political influence,
_______________
permits the issuance of protec- 58 Id., Section 25.
_______________ 462
56 Republic Act No. 3815, The Revised Penal Code; Republic Act No. 7877, The Anti-Sexual Harassment Act of 1995;
Republic Act No. 8353, The Anti-Rape Law of 1997; Republic Act No. 8505, The Rape Victims Assistance Act of 1998; 462 SUPREME COURT REPORTS ANNOTATED
Republic Act No. 6955; Republic Act No. 9208, The Anti-Trafficking in Persons Act of 2003; Republic Act No. 8369, The
Family Courts Act of 1997; and Republic Act No. 9710, The Magna Carta of Women of 2009. Garcia vs. Drilon
57 Republic Act No. 9262, Section 3. and women enjoying freedom from violence. (Emphases supplied.)
59
460 The government’s commitment to ensure that the status of a woman in all spheres of her life
460 SUPREME COURT REPORTS ANNOTATED are parallel to that of a man, requires the adoption and implementation of ameliorative measures,
such as Republic Act No. 9262. Unless the woman is guaranteed that the violence that she endures In Secretary of Justice v. Lantion, the Court enumerated three instances when notice and/or
63
in her private affairs will not be ignored by the government, which is committed to uplift her to her hearing may be dispensed with in administrative proceedings:
rightful place as a human being, then she can neither achieve substantive equality nor be These twin rights may, however, be considered dispensable in certain instances, such
empowered. as:
The equal protection clause in our Constitution does not guarantee an absolute prohibition 1. In proceedings where there is an urgent need for immediate action, like the
against classification. The non-identical treatment of women and men under Republic Act No. summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
9262 is justified to put them on equal footing and to give substance to the policy and aim of the suspension of a public servant facing administrative charges (Section 63, Local
state to ensure the equality of women and men in light of the biological, historical, social, and Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
culturally endowed differences between men and women. showing obscene movies or like establishments which are immediate threats to
Republic Act No. 9262, by affording special and exclusive protection to women and children, public health and decency, and the cancellation of a passport of a person sought
who are vulnerable victims of domestic violence, undoubtedly serves the important governmental for criminal prosecution;
objectives of protecting human rights, insuring gender equality, and empowering women. The 2. Where there is tentativeness of administrative action, that is, where the
gender-based classification and the special remedies prescribed by said law in favor of women and respondent is not precluded from enjoying the right to notice and hearing at a later
children are substantially related, in fact essentially necessary, to achieve such objectives. Hence, time without prejudice to the person affected, such as the summary distraint and
said Act survives the intermediate review or middle-tier judicial scrutiny. The gender-based levy of the property of a delinquent taxpayer, and the replacement of a temporary
classification therein is therefore not violative of the equal protection clause embodied in the 1987 appointee; and
Constitution. 3. Where the twin rights have previously been offered but the right to exercise them
_______________ had not been claimed.
59 General Recommendation No. 25, CEDAW/pars. 8-9 (2004). _______________
463 62 Pollution Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11, 1991, 195 SCRA 112, 123.
63 379 Phil. 165, 203-204; 322 SCRA 160, 187-188 (2000).
VOL. 699, JUNE 25, 2013 463
465
Garcia vs. Drilon VOL. 699, JUNE 25, 2013 465
The Issuance of the TPO did not
Violate Petitioner’s Right to Due Garcia vs. Drilon
Process The principles behind the aforementioned exceptions may also apply in the case of the ex
A protection order is issued under Republic Act No. 9262 for the purpose of preventing parte issuance of the TPO, although it is a judicial proceeding. As mentioned previously, the
further acts of violence against a woman or her child. The circumstances surrounding the
60 urgent need for a TPO is inherent in its nature and purpose, which is to immediately provide
availment thereof are often attended by urgency; thus, women and child victims must have protection to the woman and/or child victim/s against further violent acts. Any delay in the
immediate and uncomplicated access to the same. Hence, Republic Act No. 9262 provides for the issuance of a protective order may possibly result in loss of life and limb of the victim. The issuing
issuance of a TPO: judge does not arbitrarily issue the TPO as he can only do so if there is reasonable ground to
SEC. 15. Temporary Protection Orders.—Temporary Protection Orders (TPOs) refers to the believe that an imminent danger of violence against women and their children exists or is about to
protection order issued by the court on the date of filing of the application after ex recur based on the verified allegations in the petition of the victim/s. Since the TPO is effective for
64
parte determination that such order should be issued. A court may grant in a TPO any, some or all of only thirty (30) days, any inconvenience, deprivation, or prejudice the person enjoined — such as
65
the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a the petitioner herein — may suffer, is generally limited and temporary. Petitioner is also not
hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall completely precluded from enjoying the right to notice and hearing at a later time. Following the
order the immediate personal service of the TPO on the respondent by the court sheriff who may
issuance of the TPO, the law and rules require that petitioner be personally served with notice of
obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the
date of the hearing on the merits of the issuance of a PPO. the preliminary conference and hearing on private respondent’s petition for a Permanent
The ex parte issuance of the TPO does not make it unconstitutional. Procedural due process Protection Order (PPO) and that petitioner submit his opposition to private respondent’s petition
66
refers to the method or manner by which the law is enforced. It consists of the two basic rights of for protections orders. In fact, it was petitioner’s choice not to file an opposition, averring that it
67
notice and hearing, as well as the guarantee of being heard by an impartial and competent would only be an “exercise in futility.” Thus, the twin rights of notice and hearing were
tribunal. However, it is a constitutional commonplace that the ordinary requirements of
61 subsequently afforded to petitioner but he chose not to take advantage of them. Petitioner cannot
procedural due process yield to the necessi- now claim that the ex parte issuance of the TPO was in violation of his right to due process.
_______________
_______________
60 Section 8. 64 A.M. No. 04-10-11-SC, Section 15(a).
65 Id.
61 China Banking Corporation v. Lozada, G.R. No. 164919, July 4, 2008, 557 SCRA 177, 193.
66 Id., Section 15(b).
464
67 Id., Section 15(c).
464 SUPREME COURT REPORTS ANNOTATED 466
Garcia vs. Drilon 466 SUPREME COURT REPORTS ANNOTATED
ties of protecting vital public interests like those involved herein. Republic Act No. 9262 and its Garcia vs. Drilon
implementing regulations were enacted and promulgated in the exercise of that pervasive, There is No Undue Delegation of
sovereign power of the State to protect the safety, health, and general welfare and comfort of the Judicial Power to Barangay Officials
public (in this case, a particular sector thereof), as well as the protection of human life, commonly A Barangay Protection Order (BPO) refers to the protection order issued by the Punong
designated as the police power. 62
Barangay, or in his absence the Barangay Kagawad, ordering the perpetrator to desist from
committing acts of violence against the family or household members particularly women and
their children. The authority of barangay officials to issue a BPO is conferred under Section 14 of
68
comprehensive protection to the victim. In fact, under the Implementing Rules of Republic Act
Republic Act No. 9262: No. 9262, the issuance of a BPO or the pendency of an application for a BPO shall not preclude
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.—Barangay the victim from applying for, or the court from granting, a TPO or PPO. Where a TPO has already
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangayordering the been granted by any court, the barangay official may no longer issue a BPO. The same 74
perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Implementing Rules also require that within twenty-four (24) hours after the issuance of a BPO,
Barangaywho receives applications for a BPO shall issue the protection order to the applicant on the
the barangay official shall assist the victim in filing an application for a TPO or PPO with the
date of filing after ex parte determination of the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the application shall be acted upon by any nearest court in the victim’s place of residence. If there is no Family Court or RTC, the application
available Barangay Kagawad. If the BPO is issued by aBarangay Kagawad the order must be may be filed in the Municipal Trial Court, the Municipal Circuit Trial Court or the Metropolitan
accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable Trial Court. 75
at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately All things considered, there is no ground to declare Republic Act No. 9262 constitutionally
after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally infirm.
serve a copy of the same on the respondent, or direct any barangay official to effect is personal _______________
service. 73 Miller v. Mardo, 112 Phil. 792, 802; 2 SCRA 898, 907 (1961).
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong 74 Section 14(g).
Barangay. 75 Section 14(d).
469
Once more, the urgency of the purpose for which protection orders under Republic Act No.
9262 are issued justifies the grant of authority to barangay officials to issue BPOs. Baran- VOL. 699, JUNE 25, 2013 469
_______________
68 Id., Section 4(p). Garcia vs. Drilon
467
VOL. 699, JUNE 25, 2013 467 CONCURRING OPINION
Garcia vs. Drilon
BRION, J.:
gay officials live and interact closely with their constituents and are presumably easier to approach I concur with the ponencia’s conclusion that Republic Act (R.A.) No. 9262 (An Act Defining
and more readily available than any other government official. Their issuance of the BPO is but Violence Against Women and Their Children, Providing for Protective Measures for Victims,
part of their official executive function of enforcing all laws and ordinances within Prescribing Penalties Therefore and for Other Purposes) is constitutional and does not violate
their barangay and maintaining public order in the barangay. It is true that
69 70
the equal protection clause. As traditionally viewed, the constitutional provision of equal
the barangay officials’ issuance of a BPO under Republic Act No. 9262 necessarily involves the protection simply requires that similarly situated persons be treated in the same way. It does not
determination of some questions of fact, but this function, whether judicial or quasi-judicial, are connote identity of rights among individuals, nor does it require that every person is treated
merely incidental to the exercise of the power granted by law. The Court has clarified that:
71
identically in all circumstances. It acts as a safeguard to ensure that State-drawn distinctions
“The mere fact that an officer is required by law to inquire the existence of certain facts and to
apply the law thereto in order to determine what his official conduct shall be and the fact that these among persons are based on reasonable classifications and made pursuant to a proper
acts may affect private rights do not constitute an exercise of judicial powers. Accordingly, a statute governmental purpose. In short, statutory classifications are not unconstitutional when shown to be
may give to non-judicial officers the power to declare the existence of facts which call into operation reasonable and made pursuant to a legitimate government objective.
its provisions, and similarly may grant to commissioners and other subordinate officers power to In my view, Congress has presented a reasonable classification that focuses on women and
ascertain and determine appropriate facts as a basis for procedure in the enforcement of particular children based on protective provisions that the Constitution itself provides. Section 11, Article II
laws.” (11 Am. Jur., Const. Law, p. 950, sec. 235) 72
of the Constitution declares it a state policy to value the dignity of every human person and
Furthermore, while judicial power rests exclusively in the judiciary, it may be conceded that guarantees full respect for human rights. Further, under Section 14, Article II of the Constitution,
the legislature may confer on administrative boards or bodies, or even particular government the State recognizes the role of women in nation-building and ensures fundamental equality before
officials, quasi-judicial power involving the exercise of judgment and discretion, as incident to the the law of women and men. These policies are given purposeful meaning under Article XV of the
performance of Constitution on family, which states:
_______________ Section 1. The State recognizes the Filipino family as the foundation of the nation.
69 Section 389(b)(1), Chapter III, Title I, Book III of Republic Act No. 7160, otherwise known as The Local
Government Code of 1991.
Accordingly, it shall strengthen its solidarity and actively promote its total development.470
70 Section 389(b)(3), Chapter III, Title I, Book III of The Local Government Code of 1991. 470 SUPREME COURT REPORTS ANNOTATED
71 Lovina v. Moreno, 118 Phil. 1401, 1405; 9 SCRA 557, 561 (1963).
72 Id., at p. 1406; pp. 561-562. Garcia vs. Drilon
468 Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
468 SUPREME COURT REPORTS ANNOTATED shall be protected by the State.
Section 3. The State shall defend:
Garcia vs. Drilon (1) The right of spouses to found a family in accordance with their religious convictions and
administrative functions. But in so doing, the legislature must state its intention in express terms the demands of responsible parenthood;
that would leave no doubt, as even such quasi-judicial prerogatives must be limited, if they are to (2) The right of children to assistance, including proper care and nutrition, and special
be valid, only to those incidental to or in connection with the performance of administrative duties, protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to
which do not amount to conferment of jurisdiction over a matter exclusively vested in the their development[.]
courts. In the case of a BPO, it is a mere provisional remedy under Republic Act No. 9262, meant
73
From the terms of the law, I find it plain that Congress enacted R.A. No. 9262 as a measure
to address the pressing need of the victims for instant protection. However, it does not take the intended to strengthen the family. Congress found that domestic and other forms of violence
place of appropriate judicial proceedings and remedies that provide a more effective and against women and children contribute to the failure to unify and strengthen family ties, thereby
impeding the State’s mandate to actively promote the family’s total development. Congress also (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-
reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of
found, as a reality, that women and children are more susceptible to domestic and other forms of citizenship;
violence due to, among others, the pervasive bias and prejudice against women and the (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and
stereotyping of roles within the family environment that traditionally exist in Philippine society. association with others, protect them from bad company, and prevent them from acquiring habits detrimental to
On this basis, Congress found it necessary to recognize the substantial distinction within the their health, studies and morals;
(5) To represent them in all matters affecting their interests;
family between men, on the one hand, and women and children, on the other hand. This (6) To demand from them respect and obedience;
recognition, incidentally, is not the first to be made in the laws as our law on persons and (7) To impose discipline on them as may be required under the circumstances; and
family under the Civil Code also recognize, in various ways, the distinctions between men and (8) To perform such other duties as are imposed by law upon parents and guardians.
On the Effect of Parental Authority Upon the Property of the Children:
women in the context of the family. 1
473
_______________
1 Examples of this distinction are found in the following provisions of the Family Code, as amended: VOL. 699, JUNE 25, 2013 473
On the Ownership, Administrative, Enjoyment and Disposition of the Community Property:
471 Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 471 tion of Human Rights, the convention on the Elimination of all forms of discrimination Against
Women, Convention on the Rights of the Child and other international human rights instruments
Garcia vs. Drilon of which the Philippines is a party.” The only question perhaps is whether the considerations made
2
To be sure, Congress has not been alone in addressing violence committed against women and in these international instruments have reason or basis for recognition and active application in the
children as this move is Philippines.
_______________
“Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of
I believe that the policy consideration Congress made in this regard is not without basis in
disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which history and in contemporary Philippine society so that Congress was acting well within its
must be availed of within five years from the date of the contract implementing such decision.” prerogative when it enacted R.A. No. 9262 “to protect the family and its members particularly
On the Liquidation of the Absolute Community Assets and Liabilities: women and children, from violence and threats to their personal safety and security.” 3
“Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:
x x x x I consider, too, the statutory classification under R.A. No. 9262 to be valid, and that
(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on the lowest level of scrutiny of review should be applied in determining if the law has established a
which it is situated shall be adjudicated to the spouse with whom the majority of the commonchildren choose to remain. valid classification germane to the Constitution’s objective to protect the family by protecting its
Children below the age of seven years are deemed to have chosen the mother , unless the court has decided otherwise. In
case there in no such majority, the court shall decide, taking into consideration the best interests of said children.” (emphases
women and children members. In my view, no need exists to further test the law’s validity from
ours) the perspective of an expanded equal protection based on social justice. The Constitution itself
On the Administration of the Conjugal Partnership Property: has made special mention of women and their role in society (Article II) and the assistance and
“Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case protection that must be given to children irrespective of sex. It appears highly inconsistent to me
of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which
must be availed of within five years from the date of the contract implementing such decision.” (emphasis ours) under this situation if the Court would impose a strict level of scrutiny on government — the
On the Liquidation of the Conjugal Partnership Assets and Liabilities: primary implementor of constitutional policies — and lay on it the burden of
“Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: _______________
x x x x Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless common child without the necessity of a court appointment. In case of disagreement, the father’s decision shall prevail,
otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children unless there is a judicial order to the contrary.”
choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the 2 R.A. No. 9262, Section 2.
court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the 3 Ibid.; italics ours.
best interests of said children.” (emphases ours) 474
472
474 SUPREME COURT REPORTS ANNOTATED
472 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Garcia vs. Drilon establishing the validity of an Act directly addressing violence against women and children.
“in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions My serious reservation on the use of an expanded equal protection clause and in applying a
of the Universal Declara- strict scrutiny standard is, among others, based on lack of necessity; we do not need these
_______________
On Parental Authority:
measures when we can fully examine R.A. No. 9262’s constitutionality using the reasonableness
“Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated test. The family is a unit, in fact a very basic one, and it cannot operate on an uneven standard
children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and where measures beyond what is necessary are extended to women and children as against the man
efficiency and the development of their moral, mental and physical character and well-being. — the head of the family and the family provider. The use of an expanded equal protection clause
x x x x
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common only stresses the concept of an uneven equality that cannot long stand in a unit living at close
children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.” quarters in a situation of mutual dependency on one another. The reasonableness test, on the other
(emphasis ours) hand, has been consistently applied to allow the courts to uphold State action as long as the action
On the Effect of Parental Authority Upon the Persons of the Children:
“Art. 220 The parents and those exercising parental authority shall have with the respect to their unemancipated
is found to be germane to the purpose of the law, in this case to support the unity and development
children on wards the following rights and duties: of the family. If we are to deviate from or to modify this established standard of scrutiny, we
(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and must do so carefully and for strong justifiable reasons.
to provide for their upbringing in keeping with their means; If we are to use a strict level of scrutiny of government action, we must be aware of the risks
(2) To give them love and affection, advice and counsel, companionship and understanding;
that this system of review may open. A very real risk is to open the possibility that our social
legislations will always be subject to heightened scrutiny. Are we sure of what this approach
entails for the government and for our society in the long run? How will this approach affect the To pass strict scrutiny, the government must actively show that the classification established
social legislation that our society, particularly the most vulnerable members, need? What other in the law is justified by a compelling governmental interest and the means chosen by the State to
effects will a system of review — that regards governmental action as illegal unless the effectuate its purpose must be narrowly tailored to the achievement of that goal. In the context of 8
government can actively justify the classifications it has made in the course of pursuing its actions the present
— have? These are the questions that, in the long run, we have to contend with, and I hate to _______________
7 See note 5, at p. 321. Citing City of Cleburn, Texas v. Cleburne Living Center, 413 U.S. 432 (1985); Loving v.
provide an answer through a case that is not, on its face and even Commonwealth of Virginia, 388 U.S. 1 (1967).
475 8 Grutter v. Bollinger, 539 U.S. 306 (2003). See Pamore v. Sidoti, 466 U.S. 429, 432 (1984); Loving v. Commonwealth
VOL. 699, JUNE 25, 2013 475 of Virginia, supra note 7; and Graham v. Richardson, 403 U.S. 365, 375 (1971).
477
Garcia vs. Drilon
VOL. 699, JUNE 25, 2013 477
in deeper reality, representative of the questions we are asking or need to ask.
The cases of Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Garcia vs. Drilon
Pilipinas and Serrano v. Gallant Maritime Services, Inc. demonstrate the Court’s application of a
4 5 case, is the resulting classification in the present law so outstandingly harmful to men in general so
heightened sense of scrutiny on social legislations. In Central Bank and Serrano, we held that that a strict scrutiny is called for?I
classifications in the law that result in prejudice to persons accorded special protection by the do not really see any indication that Congress actually intended to classify women and
Constitution require a stricter judicial scrutiny. In both cases, the question may well be asked: was
6 children as a group against men, under the terms of R.A. No. 9262. Rather than a clear intent at
there an absolute necessity for a strict scrutiny approach when, as in Serrano, the same result classification, the overriding intent of the law is indisputably to harmonize family relations
emerges when using the lowest level of scrutiny? In short, I ask if a strict scrutiny is needed under and protect the family as a basic social institution. After sifting through the comprehensive
9
the circumstances of the present case as the Concurring Opinion of J. Roberto Abad suggests. information gathered, Congress found that domestic and other forms of violence against women
Not to be forgotten or glossed over in answering this question is the need to consider what a and children impedes the harmony of the family and the personal growth and development of
strict scrutiny requires, as well as the consequences of an expanded concept of equal protection family members. In the process, Congress found that these types of violence must pointedly be
clause and the accompanying use of a strict scrutiny standard. Among others, this approach affects addressed as they are more commonly experienced by women and children due to the unequal
the application of constitutional principles that we vigilantly adhere to in this jurisdiction. power relations of men and women in our society; Congress had removed these types of violence
I outline below what a strict scrutiny approach entails. as they are impediments that block the harmonious development that it envisions for the family, of
First, the use of strict scrutiny only applies when the challenged law or clause results in a which men are important component members.
“suspect classification”; Even granting that a classification resulted in the law, I do not consider the classification of
Second, the use of a strict scrutiny standard of review creates a reverse onus: the ordinary women and children to be within the “suspect classification” that jurisprudence has established. As
presumption of constitution- I mentioned earlier, suspect classifications are distinctions based on the most invidious bases for
_______________ classification that violate the most basic human rights. Some criteria used in determining suspect
4 487 Phil. 531; 446 SCRA 299 (2004). classifications are: (1) the group possesses an immutable and/or highly visible trait; and (2) they 10
5 G.R. No. 167614, March 24, 2009, 582 SCRA 254.
6 See note 4. In Central Bank, the classification was based on salary grade or officer-employee status. In the words of the are powerless to protect themselves via the political process. The group is a “discrete” and
11
decision, “It is akin to a distinction based on economic class and status, with higher grades as recipients of a benefit “insular” minority. 12
specifically withheld from the lower grades” (p. 391). _______________
476
476 SUPREME COURT REPORTS ANNOTATED 9 Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-147. See p. 25 of the ponencia.
10 477 U.S. 635 (1986).
Garcia vs. Drilon 11 United States v. Carolene Products Company, 304 U.S. 144 (1938).
12 Frontiero v. Richardson, 411 U.S. 677 (1973).
ality is reversed and the government carries the burden of proving that the challenged law or 478
clause is constitutional;
And third, the reverse onus in a strict scrutiny standard of review directly strikes, in the most 478 SUPREME COURT REPORTS ANNOTATED
glaring manner, at the regularity of the performance of functions of a co-equal branch of Garcia vs. Drilon
government. Women and children, to my mind, simply do not fall within these criteria.
When the court uses a strict standard for review to evaluate the constitutionality of a law, it In my view, a suspect classification and the accompanying strict scrutiny should depend on
proceeds from the premise that the law established a “suspect classification.” A suspect the circumstances of the case, on the impact of the illegal differential treatment on the group
classification is one where distinctions are made based on the most invidious bases for involved, on the needed protection and the impact of recognizing a suspect classification on future
classification that violate the most basic human rights, i.e., on the basis of race, national origin, classification. A suspect classification label cannot solely and automatically be triggered by the
13
alien status, religious affiliation and, to a certain extent, sex and sexual orientation. With a suspect 7
circumstance that women and children are accorded special protection by the Constitution. In fact,
classification, the most stringent scrutiny of the classification is applied: the ordinary presumption there is no place for a strict level of scrutiny when the Constitution itself has recognized the need
of constitutionality is reversed and the government carries the burden of proving the statute’s for special protection; where such recognition has been made, congressional action should carry
constitutionality. This approach is unlike the lowest level of scrutiny (reasonableness test) that the the presumption of validity.
Court has applied in the past where the classification is scrutinized and constitutionally upheld if Similarly, a suspect classification and the accompanying strict scrutiny standard cannot be
found to be germane to the purpose of the law. Under a reasonableness test, there is a presumption solely based on the circumstance that the law has the effect of being “gender-specific.” I believe
of constitutionality and that the laws enacted by Congress are presumed to fall within its that the classification in the law was not immediately brought on by considerations of gender
constitutional powers. or sex; it was simply a reality as unavoidable as the reality that in Philippine society, a
marriage is composed of a man, a woman and their children. An obvious reason, of course,
why the classification did not solely depend on gender is because the law also covers children, Inter-government harmony and courtesy demand that we reserve the strict scrutiny standard of
without regard to their sex or their sexual orientation. review to the worst possible cases of unacceptable classification, abject forms of discrimination,
Congress was sensitive to these realities and had to address the problem as it existed in order and the worst violations of the Constitution. R.A. No. 9262 does not present such a case.
15
to pinpoint and remove the obstacles that lay along the way. With this appreciation of reality, In these lights, I conclude that a valid classification exists to justify whatever differential
Congress had no recourse but to identify domestic and other forms of violence committed on treatment may exist in the law. I vote to deny the petition and uphold the constitutionality of
women and their children as among the obstacles that intrude on the development, peace and R.A. No. 9262 using the lowest level of scrutiny under the reasonableness test.
harmony of the family. From this perspective, the objective of the law — the productive devel- _______________
_______________ 15 Concurring Opinion in Serrano v. Gallant Maritime Services, Inc., supra note 5, at p. 322.
13 Concurring Opinion in Serrano v. Gallant Maritime Services, Inc., supra note 5, at p. 322. 481
479
VOL. 699, JUNE 25, 2013 481
VOL. 699, JUNE 25, 2013 479
Garcia vs. Drilon
Garcia vs. Drilon SEPARATE CONCURRING OPINION
opment of the family as a whole and the Congress’ view of what may be done in the area of ABAD, J.:
violence — stand out. Republic Act 9262 (R.A. 9262) or the Anti-Violence against Women and their Children Act is
Thus, with the objective of promoting solidarity and the development of the family, R.A. No. a historic step in the Filipino women’s long struggle to be freed from a long-held belief that men
9262 provides the legal redress for domestic violence that particularly affects women and their are entitled, when displeased or minded, to hit their wives or partners and their children. This law
children. Significantly, the law does not deny, restrict or curtail civil and human rights of other institutionalizes prompt community response to this violent behavior through barangay officials
persons falling outside the classification, particularly of the men members of the family who who can command the man to immediately desist from harming his home partner and their
can avail of remedies provided by other laws to ensure the protection of their own rights and children. It also establishes domestic violence as a crime, not only against its victims but against
interests. Consequently, the resulting classification under R.A. No. 9262 is not wholly intended society as well. No longer
and does not work an injustice by removing remedies that are available to men in violence is domestic violence lightly dismissed as a case of marital
committed against them. The law furthermore does not target men against women and children dispute that law enforcers ought not to get into. 1
and is there simply to achieve a legitimate constitutional objective, and it does not achieve this by Almost eight years after the passage of this landmark legislation, petitioner Jesus C. Garcia, a
a particularly harmful classification that can be labeled “suspect” in the sense already established husband charged with the offense, claims before the Court that R.A. 9262 violates his
by jurisprudence. Under the circumstances, the use and application of strict scrutiny review, or constitutional rights to due process and equal protection and that it constitutes an undue delegation
even the use of an expanded equal protection perspective, strike me as both unnecessary and of judicial power to barangay officials with respect to the Temporary Protection Order (TPO) that
disproportionate. the latter could issue against him for his alleged maltreatment of his wife and children.
As my final point, the level of review that the Court chooses to apply is crucial as it This separate concurring opinion will address the issue of equal protection since it presents the
determines both the process and the outcome of a given case. The reverse onus that a strict more serious challenge to the constitutionality of the law. Men and women are supposed to be
scrutiny brings ignores the most basic presumption of constitutionality that the courts consistently equal yet this particular law provides immediate relief to complaining women and harsh
adhere to when resolving issues of constitutionality. It also infringes on the regularity of consequences to their men even before the matter reaches the courtroom, a relief not available to
performance of functions of co-equal branches of government. As the Court pronounced in Drilon the latter. The law, Garcia says, violates his right to equal protection because it is gender-specific,
v. Lim: 14
favoring
In the exercise of this jurisdiction, lower courts are advised to act with the utmost _______________
circumspection, bearing in 1 SALIGAN Women’s Unit, “Strengthening Responses to Violence against Women: Overcoming Legal Challenges in
_______________ the Anti-Violence Against Women and their Children Act” (March 2008), Ateneo Law Journal.
14 G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140; citation omitted. 482
480
482 SUPREME COURT REPORTS ANNOTATED
480 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Garcia vs. Drilon only women when men could also be victims of domestic violence.
mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than
Justice Estela Perlas-Bernabe ran the issue of equal protection in her ponencia through the
on the doctrine of separation of powers. As the questioned act is usually the handiwork of the
legislative or the executive departments, or both, it will be prudent for such courts, if only out of a litmus test for holding a law valid even when it affects only a particular class, a test that the Court
becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, laid down in People v. Vera. A legislative classification, according to Vera, is reasonable as long
2
which is better determined after a thorough deliberation by a collegiate body and with the as: 1) it rests on substantial distinctions which make real differences; 2) it is germane to the
concurrence of the majority of those who participated in its discussion. purpose of the law; 3) it is not limited to existing conditions but applies as well to future identical
It is also emphasized that every court, including this Court, is charged with the duty of a conditions; and 4) it applies equally to all members of the same class. I dare not improve on 3
purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first Justice Bernabe’s persuasive reasoning and conclusions.
carefully studied by the executive and the legislative departments and determined by them to be in I agree with her but would like to hinge my separate concurring opinion on the concept of an
accordance with the fundamental law before it was finally approved. To doubt is to sustain. The
Expanded Equal Protection Clause that former Chief Justice Reynato S. Puno espouses in his
presumption of constitutionality can be overcome only by the clearest showing that there was indeed
an infraction of the Constitution, and only when such a conclusion is reached by the required majority book: Equal Dignity and Respect: The Substance of Equal Protection and Social Justice.
may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must Chief Justice Puno’s thesis is that the right to equal protection casts another shadow when the
be struck down. issue raised under it involves persons protected by the social justice provision of the Constitution,
specifically, Section 1, Article XIII. The equal protection clause can no longer be interpreted as
only a guarantee of formal equality but of substantive equality. “It ought to be construed,” said the
4
Chief Justice, “in consonance with social justice as ‘the heart’ particularly of the 1987 Constitution offenses which is akin to legislating hate crimes and imposes penalties based solely on gender; it
— a transformative covenant in which the Filipino people agreed to enshrine asymmetrical singles out the husband or father as the culprit, a clear form of “class legislation.”
equality to uplift _______________
_______________ 10 Id., at pp. 543-544.
2 65 Phil. 56 (1937). 485
3 Id., at p. 126.
4 It holds that two persons with equal status in at least one normatively relevant respect must be treated equally with
VOL. 699, JUNE 25, 2013 485
regard to this respect. Garcia vs. Drilon
483
But the Constitution requires the State to “ensure the fundamental equality before the law of
VOL. 699, JUNE 25, 2013 483 men and women.” Further, it commands Congress to “give highest priority to the enactment of
Garcia vs. Drilon measures that protect and enhance the rights of all the people to human dignity x x x.” and this
disadvantaged groups and build a genuinely egalitarian democracy.” 5 includes women. In his speech during the joint launching on October 27, 2004 of R.A. 9262 and
This means that the weak, including women in relation to men, can be treated with a measure its Implementing Rules, Chief Justice Puno recalled the historical and social context of gender-
of bias that they may cease to be weak. based violence that underpin its enactment. Thus:
History reveals that most societies sanctioned the use of violence against women. The patriarch
Chief Justice Puno goes on: “The Expanded Equal Protection Clause, anchored on the human
of a family was accorded the right to use force on members of the family under his control. I quote
rights rationale, is designed as a weapon against the indignity of discrimination so that in the the early studies:
patently unequal Philippine society, each person may be restored to his or her rightful position as a Traditions subordinating women have a long history rooted in patriarchy—the
person with equal moral status.” Specifically, the expanded equal protection clause should be
6
institutional rule of men. Women were seen in virtually all societies to be naturally inferior
understood as meant to “reduce social, economic, and political inequalities, and remove cultural both physically and intellectually. In ancient western societies, women whether slave,
inequities by equitably diffusing wealth and political power for the common good.” Borrowing the 7 concubine or wife, were under the authority of men. In law, they were treated as property.
language of Law v. Canada case and adding his own thoughts, the Chief Justice said:
8 The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
The purpose of the Expanded Equal Protection Clause is to protect and enhance the right to endangered his property right over her. Judaism, Christianity and other religions oriented towards the
dignity by: 1) preventing the imposition, perpetuation and aggravation “of disadvantage, stereotyping, patriarchal family strengthened the male dominated structure of society.
or political [,economic, cultural,] or social prejudice;” and 2) promo[ting a Philippine] society in English feudal law reinforced the tradition of male control over women. Even the eminent
which all persons enjoy equal recognition at law as human beings. 9 Blackstone has been quoted in his commentaries as saying husband and wife were one and that one
Chief Justice Puno points out that the equal protection clause must be interpreted in was the husband. However, in the late 1500s and through the entire 1600s, English common law
began to limit the right of husbands to chastise their wives. Thus, common law developed the rule of
connection with the social justice provisions of the Constitution “so as not to frustrate or
_______________
thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.
5 Chief Justice Reynato S. Puno (ret.), “Equal Dignity and Respect: The Substance of Equal Protection and Social Article II, Section 14 of the 1987 Constitution states:486
Justice,” (2012), p. 546.
6 Id., at p. 523. 486 SUPREME COURT REPORTS ANNOTATED
7 1987 Philippine Constitution, Art. XIII, Section 1.
Garcia vs. Drilon
8 1 S.C.R. 497 (1999).
9 Supra note 5, at pp. 512-513. The State recognizes the role of women in nation-building, and shall ensure the fundamental
484 equality before the law of women and men.
Also, Article XIII, Section 1 of the 1987 Constitution further states:
484 SUPREME COURT REPORTS ANNOTATED The Congress shall give highest priority to the enactment of measures that protect and enhance
Garcia vs. Drilon the rights of all the people to human dignity, reduce social, economic, and political inequalities, and
water down the constitutional commitment to promote substantive equality and build the remove cultural inequities by equitably diffusing wealth and political power for the common good.
x x x x
genuinely “just and humane society” that Filipinos aspire for, as stated in the Preamble of the 1987
Constitution.”
The above provisions of the Constitution abundantly authorize Congress or the government to
But the expanded concept of equal protection, said Chief Justice Puno, only applies to the
actively undertake ameliorative action that would remedy existing inequalities and inequities
government’s ameliorative action or discriminatory actions intended to improve the lot of the
experienced by women and children brought about by years of discrimination. The equal
disadvantaged. Laws challenged for invalid classification because of being unreasonable or
protection clause when juxtaposed to this provision provides a stronger mandate for the
arbitrary, but not discriminatory, are outside the scope of the expanded equal protection clause.
government to combat such discrimination. Indeed, these provisions order Congress to “give
Such cases fall under the traditional equal protection clause which protects the right to formal
highest priority to the enactment of measures that protect and enhance the right of all the people to
equality and determines the validity of classifications through the well established reasonableness
human dignity, reduce social, economic, and political inequalities and remove cultural inequities.”
test. 10
No doubt, historically, the Philippine tribal and family model hews close to patriarchy, a
Here, petitioner Garcia argues that R.A. 9262 violates the guarantee of equal protection
pattern that is deeply embedded in the society’s subconscious. Consequently, it can be said that in
because the remedies against personal violence that it provides may be invoked only by the wives
enacting R.A. 9262, Congress has taken an ameliorative action that would address the evil effects
or women partners but not by the husbands or male partners even if the latter could possibly be
of such social model on Filipino women and children and elevate their status as human beings on
victims of violence by their women partners. Women, he claims, are also capable of committing
the same level as the father or the husband.
physical, psychological, emotional, and even sexual abuse against their husbands and children.
What remedies does R.A. 9262 especially provide women and children? The law is gender-
Garcia further assails the title of the law — “An Act Defining Violence against Women and
specific as only they may file the prescribed actions against offenders, whether men or women,
Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and
with whom the victims are or were in lesbian rela-
for Other Purposes” — as pejorative and sex-discriminatory. R.A. 9262 is an “anti-male,” 487
“husbandbashing,” and “hate-men” law. It establishes a special category of domestic violence
VOL. 699, JUNE 25, 2013 487 Garcia vs. Drilon
tionships. The definition includes past or present marital, live-in, sexual or dating relationships.
11
This law also provides for the remedy of a protection order in a civil action or in a criminal
action, aside from the criminal action for its violation. It makes the process of securing a
restraining order against perpetrators easier and more immediate by providing for the legal remedy
of protection orders from both the courts and barangayofficials.
R.A. 9262 aims to put a stop to the cycle of male abuses borne of discrimination against
women. It is an ameliorative measure, not a form of “reverse discrimination” against men as
Garcia would have it. Ameliorative action “is not, as Hogg remarked, an exception to equality, but
an expression and attainment of de facto equality, the genuine and substantive equality which the
Filipino people themselves enshrined as a goal of the 1987 Constitution.” Ameliorative measures
12
are necessary as a redistributive mechanism in an unequal society to achieve substantive equality. 13
In the context of women’s rights, substantive equality has been defined by the Convention on
the Elimination of all forms of Discrimination Against Women (CEDAW) as equality which
requires that women be given an equal start and that they be empowered by an enabling
environment to achieve equality of results. It is not enough to guarantee women treatment that is
identical to that of men. Rather, biological as well as socially and culturally constructed
differences between women and men must be taken into account. Under certain circumstances,
non-identical treatment of women and men will be required in order to address such differences.
_______________
11 Maria Rowena Amelia V. Guanzon, “The Anti-Violence Against Women and Their Children Act of 2004 (Republic
Act No. 9262),” 2009.
12 Supra note 5 at p. 527.
13 Id., at p. 497.
488
488 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
Women’s struggle for equality with men has evolved under three models:
1. Formal equality — women and men are to be regarded and treated as the same. But this
model does not take into account biological and socially constructed differences between women
and men. It uses male standards and assumes that women have equal access to such
14
standards. By failing to take into account these differences, a formal equality approach may in
15
fact perpetuate discrimination and disadvantage. 16
2. Protectionist model — this recognizes differences between women and men but considers
women’s weakness as the rationale for different treatment. This approach reinforces the inferior
17
status of women and does not address the issue of discrimination of women on account of their
gender. 18
3. Substantive equality model — this assumes that women are “not vulnerable by nature, but
suffer from imposed disadvantage” and that “if these imposed disadvantages were eliminated,
there was no further need for protection.” Thus, the substantive equality model gives prime
19
importance to women’s contexts, realities, and experiences, and the outcomes or results of acts and
measures directed, at or affecting them, with a view to eliminating the disadvantages they
experience as women. 20
_______________
14 IWRAW Asia Pacific Manual on CEDAW: Building Capacity for Change
15 Id.
16 Supra note 11, at p. 42, citing Fredman, S. and Spencer, S., “Beyond Discrimination: It’s Time for Enforceable Duties
on Public Bodies to promote Equality of Outcomes,” E.H.R.L.R. Issue 6, 601 (2006)”
17 Supra note 14.
18 Supra note 11, at p. 43.
19 Id., at pp. 43-44, citing Goonesekere.
20 Id., at p. 44.
489
VOL. 699, JUNE 25, 2013 489
Garcia vs. Drilon
Clearly, the substantive equality model inspired R.A. 9262. For one thing, Congress enacted it Protection Orders (TPO) ordering petitioner, among other things, to surrender all his firearms
because of compelling interest in preventing and addressing the serious problem of violence including a .9MM caliber firearm and a Walther PPK.
against women in the context of intimate relationships — recognized all over the world as one of This is the quintessential case where the full effects of Republic Act No. 9262 or the
the most insidious forms of gender discrimination. For another, R.A. 9262 is based on the
21
“VAWC” should take effect.
experiences of women who have been victims of domestic violence. The list of acts regarded as Seen in this light, petitioner’s belated challenge to the law is nothing but a cheap attempt to
forms of violence come from true-to-life stories of women who have suffered abuses from their
22
raise cherished fundamental constitutional principles to escape legal responsibility for causing
male partners. Finally, R.A. 9262 seeks women’s full participation in society. Hence, the law indignities in another human being. There is enough in our legal order to prevent the abuse of legal
grants them needed relief to ensure equality, protection, and personal safety, enabling them to principles to condone immoral acts.
enjoy their civil, political, social, and economic rights. The provision on protection orders, for For us to proceed to rule on Constitutional issues, we have required that: (1) there must be an
instance, precisely aims to safeguard “the victim from further harm, minimizing any disruption in actual case or controversy calling for the exercise of judicial power; (2) the person challenging the
the victim’s daily life, and facilitating the opportunity and ability of the victim to independently act must have “standing” to challenge; he must have a personal and substantial interest in the case,
regain control over her life.” 23
such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the
For the above reasons, I vote to dismiss the petition for lack of merit. question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
_______________ constitutionality must be the very lis mota of the case. 1
21 Id., at p. 45.
22 SEC. 3. Definition of Terms.—As used in this Act.
Legal standing in cases that raise constitutional issues is essential. Locus standi is defined as
(a) “Violence against women and their children” refers to any act or a series of acts committed by any person against “a right of appearance in a court of justice on a given question.” The fundamental question is
2
a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or “whether a party alleges such personal stake in the outcome of the controversy as to assure that
with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, concrete adverseness which sharpens the presentation of issues upon
which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including _______________
threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Emphasis supplied) 1 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936), People v. Vera, 65 Phil. 56 (1937). See also Mariano Jr. v.
23 REPUBLIC ACT 9262, Sec. 8. Commission on Elections, 312 Phil. 259, 270; 242 SCRA 211, 220-221 (1995); Funa v. Executive Secretary Ermita, G.R. No.
490 184740, February 11, 2010, 612 SCRA 308, 317.
490 SUPREME COURT REPORTS ANNOTATED 2 David v. Macapagal-Arroyo, 522 Phil. 705, 755; 489 SCRA 160, 216 (2006) citing BLACK’S LAW DICTIONARY 941
(Sixth Edition, 1991).
Garcia vs. Drilon 492
492 SUPREME COURT REPORTS ANNOTATED
CONCURRING OPINION
Garcia vs. Drilon
which the court depends for illumination of difficult constitutional questions. 3
LEONEN, J.: In private suits, standing is governed by the “real-parties-in-interest” rule under Section 2,
I join the ponencia in denying the challenge to the constitutionality of Republic Act No. 9262 Rule 3 of the 1997 Rules of Civil Procedure in that “every action must be prosecuted or defended
otherwise known as the “Anti-Violence against Women and their Children Act of 2004” at least in the name of the real party-in-interest.” “Interest” means material interest or an interest in issue
4
for this case. I write separately to clarify the basis of my agreement. to be affected by the judgment of the case, as distinguished from mere curiosity about the question
The petitioner is not the victim in this case. He does not have legal standing to raise the involved. 5
constitutional issue. Thus, there must be a present substantial interest as distinguished from a mere inchoate
He appears to have inflicted violence against private respondents. Petitioner admitted having expectancy or a future, contingent, subordinate, or consequential interest. Standing is based on6
an affair with a bank manager. He callously boasted about their sexual relations to the household one’s own right to the relief sought.
help. His infidelity emotionally wounded private respondent. Their quarrels left her with bruises The doctrine of locus standi in cases raising constitutional issues frames the power of judicial
and hematoma. Petitioner also unconscionably beat up their daughter, Joann, whom he blamed for review that we wield. This is the power “to settle actual controversies involving rights which are
squealing on him. legally demandable and enforceable” as well as “to determine whether or not there has been a
All these drove respondent to despair causing her to attempt suicide on December 17, 2005 by grave abuse of discretion amounting to lack or excess jurisdiction on the part of any branch or
slitting her wrist. Instead of taking her to the hospital, petitioner left the house. He never visited instrumentality of the Government.” 7
her when she was confined for seven (7) days. He even told his mother-in-law that respondent The presence of an “actual case” prevents this Court from providing advisory opinions or
should just accept his extramarital affair since he is not cohabiting with his paramour and has not using its immense power of judicial review absent the presence of a party with real and substantial
sired a child with her. interests to clarify the issues based upon his/her experience and standpoint. It prevents this Court
The private respondent was determined to separate from petitioner. But she was afraid he from speculating and rendering rulings on the basis of pure theory. Our
would take away their children and deprive her of financial support. He warned her that if she _______________
pursued legal battle, she would not get a single centavo from him. After she confronted him of his 3 Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 170.
affair, he forbade her to hold office at JBTC Building. This deprived her of access to full 4 Baltazar v. Ombudsman, 539 Phil. 131, 139; 510 SCRA 74, 83 (2006).
5 Goco, et al. v. Court of Appeals, G.R. No. 157449, April 6, 2010, 617 SCRA 397, 405. See also IBP v. Zamora, 392
information about their businesses. Phil. 618, 633; 338 SCRA 81, 100 (2000).
Thus, the Regional Trial Court found reasonable ground to believe there was imminent danger 6 Galicto v. Aquino III, supra.
of violence against respondent and her children and issued a series of Temporary 7 CONSTITUTION, Art. VIII, Sec. 1, par. (2).
491 493
VOL. 699, JUNE 25, 2013 491 VOL. 699, JUNE 25, 2013 493
Garcia vs. Drilon Garcia vs. Drilon
doctrines on justiciability are self-imposed applications of a fundamental view that we accord a Husband abuse may be an underreported form of family violence. According to a Quezon 11
presumption of constitutionality to acts done by the other constitutional organs and departments of City Police District Crime
government. Generally, we do not strike down acts done by co-equal departments until their _______________
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her
repugnancy to the Constitution can be shown clearly and materially. or her family, or deliberately providing the woman’s children insufficient financial support;
I am aware of our precedents where this Court has waived questions relating to the (3) Depriving or threatening to deprive the woman or her child of a legal right;
justiciability of the constitutional issues raised when they have “transcendental importance” to the (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or
public. In my view, this accommodates our power to promulgate guidance “concerning the
8 controlling the victim’s own money or properties, or solely controlling the conjugal or common money,
or properties
protection and enforcement of constitutional rights”. We choose to rule squarely on the
9
(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or
constitutional issues in a petition wanting all or some of the technical requisites to meet our decisions;
general doctrines on justiciability but raising clear conditions showing imminent threat to (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not
constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her
fundamental rights. The imminence and clarity of the threat to fundamental constitutional rights child or her/his immediate family;
outweigh the necessity for prudence. In a sense, our exceptional doctrine relating to constitutional (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes
issues of “transcendental importance” prevents courts from the paralysis of procedural niceties substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to,
when clearly faced with the need for substantial protection. the following acts:
(1) Stalking or following the woman or her child in public or private places;
That necessity is wanting in this case. (2) Peering in the window or lingering outside the residence of the woman or her child;
The extraordinary discretion to move beyond the well established doctrines on justiciability (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his
must be carefully exercised in cases involving social legislation that seeks to rectify historical and will;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman
cultural injustices present in our communities or her child; and
_______________ (5) Engaging in any form of harassment or violence
8 Kilosbayan, Incorporated v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139. See also Francisco v. (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but
House of Representatives, 460 Phil. 830, 899; 415 SCRA 44, 113 (2003), Funa v. Villar, G.R. No. 192791, April 24, 2012, 670 not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of
SCRA 579, 595. access to the woman’s child/children.
9 CONSTITUTION, Art. VIII, Sec. 5, par. (5) relates to the power of the Court to promulgate rules concerning the 11 T. Lewin, Battered Men Sounding Equal-Rights Battle Cry, THE NEW YORK TIMES NATIONAL (April 20, 1992)
protection and enforcement of constitutional rights. It was introduced only in the 1987 Constitution borne of historical <http://www.nytimes.com/1992/04/20/us/battered-men-sounding-equal-rights-battlecry.html?pagewanted=all&src=pm>
experiences where judicial succor was wanting. (visited May 27, 2013). See also C. M.
494 496
494 SUPREME COURT REPORTS ANNOTATED 496 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon Garcia vs. Drilon
and societies. As carefully pointed out in the erudite ponencia of Justice Perlas-Bernabe, Republic Laboratory chief, in his 10 years as medico-legal officer, he had only received three cases of
Act No. 9262 was borne out of the struggles of countless women who suffered indignities. It men complaining of spousal abuse. 12
cannot be undone by a petition filed by someone who cannot, by any stretch of the most fertile Another recent study found the same underreporting but explored the experiences of abuse in
imagination, be considered the victim. intimate relationships of six Filipino husbands. Their experiences were described as follows:
13
Nevertheless, in a future case more deserving of our attention, we should be open to realities All the participants acknowledged that they experienced abuse, but the forms differed from one
which may challenge the dominant conception that violence in intimate relationships only happens husband to another. Four out of the six participants admitted that their spouses’ abusive behavior
to women and children. This may be predominantly true, but even those in marginal cases deserve would initially start with verbal attacks and put-downs then would shift to physical abuse as their
fundamental constitutional and statutory protection. We should be careful that in correcting verbal tussle intensified. Most of the abuses cited by the participants happened in the confines of their
historical and cultural injustices, we may typecast all women as victims, stereotype all men as home, but could also happen in public places.
tormentors or make invisible the possibility that in some intimate relationships, men may also The constant threats, in the long term, affected the emotional and psychological well being of the
participants. Four of the husbands felt that their spouses were capable of carrying out their threats.
want to seek succor against acts defined in Section 5 of Republic Act No. 9262 in an expeditious 10
The frequent and long fights could be emotionally draining. Throughout the duration of marriage, EC
manner. suffered emotionally from
_______________ _______________
10 Section 5. Acts of Violence Against Women and Their Children.—The crime of violence against women and their RENZETTI AND D. J. CURRAN, WOMEN, MEN AND SOCIETY 164 (Second Edition, 1992) citing Steinmetz, 1978.
children is committed through any of the following acts: 12 C. Delfin, Ever Heard of Battered Husbands? GMA News Online (February 13, 2008) <http://www.gmanetwork.com/news/
(a) Causing physical harm to the woman or her child; story/80412/lifestyle/ever-heard-of-battered-husbands> (visited May 27, 2013). Seealso ATTY. A. Ordoñez Sison, Abused and the Battered Man
(b) Threatening to cause the woman or her child physical harm; (2009).
13 J. J. Jurisprudencia, Coming out of the Shadows: Husbands Speak About Their Experience of Abuse in Intimate Relationships ,
(c) Attempting to cause the woman or her child physical harm;
40 PHILIPPINE JOURNAL OF PSYCHOLOGY No. 2 (2007). In the study, JL was a teacher in one of the schools in Metro Manila. RE was a university
(d) Placing the woman or her child in fear of imminent physical harm; teacher. HM is a medical doctor. DL was a Physics and Engineering graduate. EC was a teacher. TG finished his MBA as well as his Bachelor of
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her Laws at a reputable institution but did not take the bar.
child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or 497
attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of
force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or VOL. 699, JUNE 25, 2013 497
child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or
restricting the woman’s or her child’s movement or conduct: Garcia vs. Drilon
(1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; the “weird” marital set-up. For TG, emotional abuse was associated with shattered trust.
495 The physical abuse for some participants became life-threatening to the extent that the injury
incurred needed medical attention. Their spouses could use weapons against them. Four participants
VOL. 699, JUNE 25, 2013 495
described the incidents that led to their injuries. Coming home one night, RE saw “this mono block
Garcia vs. Drilon chair flying…hit me…right on the nose.” DL narrated “…pumunta ako ng doctor on my own para
ipalinis yung sugat ko.” According to HM, his wound from a knife attack was wide and deep and
needed “…some stiches.” JL had to contend with the long scratches in his chest and back. RE almost In the early 80s, self-identifying feminist groups were formed. The “emancipation theory” 22
lost an eye when he was hit with a straight punch of the spouse. JL, RE, and DL would lie to posits that female crime
colleagues to avoid being laughed at. DL had to be absent from his work after being hit by a flying de _______________
lata (canned good) thrown at him during a fight. 18 S.D. Amussen, Being Stirred to Much Unquietness: Violence and Domestic Violence in Early Modern England, Vol.
Emotional abuse co-existed with verbal and/or physical abuse. The participants who were 6 No. 2 JOURNAL OF WOMEN’S HISTORY, 70-89 (1994).
recipients of physical abuse were also emotionally abused when they became susceptible to stress and 19 P. M. Jablow, Victims of Abuse and Discrimination: Protecting Battered Homosexuals Under Domestic Violence
threats of the abuser. JL felt guilty when the spouse carried out her threat of killing herself by Legislation, 28 Hofstra L Rev 1096-1097 (2000).
20 C. Sorisio, A Tale of Two Feminism: Power and Victimization in Contemporary Feminist Debate , 137 in THIRD
intentionally taking an overdose of pills in the middle of an intense disagreement. WAVE AGENDA: BEING FEMINIST, DOING FEMINISM , edited by L. Heywood and J. Drake (1997).
Emotional abuse could occur without physical abuse and yet its effects were still devastating. 21 See C. I. Sobritchea, The Second Wave of the Women’s Movement in the Philippines and the Evolution of Feminist
For instance, EC and TG were devastated by the lies and deceit of their spouses. The spouse’s threats Politics, 47, quoting A. F. Santos from The Philippine Women’s Movement: Problems of Perception, GENDER CULTURE AND
of suicide (JL), abandonment (RE), or taking their children away after a fight (DL) were as SOCIETY: SELECTED READINGS IN WOMEN STUDIES IN THE PHILIPPINES (2004).
distressing as the other forms of abuse experienced by the participants. 14 22 Id., at p. 44.
Social and cultural expectations on masculinity and male dominance urge men to keep quiet 500
about being a victim, adding to the unique experience of male victims of domestic 500 SUPREME COURT REPORTS ANNOTATED
_______________
14 Id., at pp. 41-42. Garcia vs. Drilon
498 has increased and has become more masculine in character as a result of the women’s liberation
498 SUPREME COURT REPORTS ANNOTATED movement. 23
Feminism also has its variants among Muslims. In 2009, Musawah (“equality” in Arabic) was
Garcia vs. Drilon launched as a global movement for equity and justice in the Muslim family. It brought together
abuse. This leads to latent depression among boys and men. In a sense, patriarchy while
15 16
activists, scholars, legal practitioners, policy makers, and grassroots women and men from all over
privileging men also victimizes them. the world. Their belief is that there cannot be justice without equality, and its holistic framework
34
It is true that numerous literature relate violence against women with the historically unequal integrates Islamic teachings, universal human rights, national constitutional guarantees of equality,
power relations between men and women, leading to domination over and discrimination against and the lived realities of women and men. 25
the latter. Sociologists cite the 18th-century
17
There is now more space to believe that portraying only women as victims will not always
_______________
15 K. F. Hogan, J. R. Hegarty, T. Ward, and L. J. Dodd, Counsellors’ Experiences of Working with Male Victims of promote gender equality before the law. It sometimes aggravates the gap by conceding that women
Female-Perpetrated Domestic Abuse, COUNSELLING AND PSYCHOTHERAPY RESEARCH (2011). have always been dominated by men. In doing so, it renders empowered women invisible; or, in
16 See S. V. Cochran and F. E. Rabinowitz, Men and Depression: Clinical and Empirical some cases, that men as human beings can also become victims.
Perspectives (2000).<http://books.google.
com.ph/books?
In this light, it may be said that violence in the context of intimate relationships should not be
id=bOVTz8HgDoC&pg=PR12&lpg=PR12&dq=Early+workers+in+the+field+including+Pleck+and+Sawyer&source=bl&ots seen and encrusted as a gender issue; rather, it is a power issue. Thus, when laws are not gender-
26
=G8bTheyAtB&sig=86_y6WVG_36VuTj3Lh6w585N2qM&hl=en&sa=X&ei=yizKUYzZEMeZiAe6y4CwCw&redir_esc=y# neutral, male victims of domestic violence may also suffer from double victimization first by their
v=onepage&q= abusers and second by the judicial system. Incidentally, focusing on women as the victims
27
Early%20workers%20in%20the%20field%20including%20
Pleck%20and%20Sawyer&f=false > (visited March 7, 2013). entrenches some level of heteronorma-
Early workers in the field including Pleck and Sawyer (1974), Farrell (1975), Fasteau (1974) and Goldberg _______________
(1976) took up the challenge to traditional masculine values that feminists had made and began to examine the 23 See C. M. Renzetti and D. J. Curran, Chapter 9 on Gender, Crime and Justice, WOMEN, MEN AND SOCIETY 220-249
negative and oppressive aspects of traditionally constructed gender roles. These efforts included an examination of (Second Edition, 1992).
the psychologically restrictive nature of most of the cultural conditioning little boys and men experience. Pleck 24 See <http://www.musawah.org/> (visited February 26, 2013). MUSAWAH is considered a movement rather than an
(1981), in his seminal critique of male gender identity ideology, introduced the concept of male gender role strain organization.
and conflict. 25 Id. Musawa is represented in the Philippines by Nisa Ul Haqq Fi Bangsamoro or “Women for Justice in the
See also J. H. Pleck, The Gender Role Strain: An Update and S. J. Bergman, Men’s Psychological Development: A Bangsamoro.”
Relational Perspective, in R.F. LEVANT AND W.S. POLLACK, A NEW PSYCHOLOGY OF MEN 11-32 AND 68-90 (1995). ALSO T. 26 A. Detschelt, Recognizing Domestic Violence Directed Towards Men: Overcoming Societal Perceptions, Conducting
REAL, I DON’T WANT TO TALK ABOUT IT: OVERCOMING THE SECRET LEGACY OF MALE DEPRESSION (1997) AND HOW CAN I Accurate Studies, and Enacting Responsible Legislation, 12 Kan. J.L. & Pub. Pol’y 249 (2003).
GET THROUGH TO YOU? CLOSING THE INTIMACY GAP BETWEEN MEN AND WOMEN (2002). 27 Id.
17 Domestic Violence Against Women and Girls, No. 6, UNICEF Innocenti Digest (2000). 501
499
VOL. 699, JUNE 25, 2013 501
VOL. 699, JUNE 25, 2013 499
Garcia vs. Drilon
Garcia vs. Drilon tivity. It is blind to the possibility that, whatever moral positions are taken by those who are
28
English legal tradition on the “rule of thumb” giving husbands the right to beat their wives dominant, in reality intimate relationships can also happen between men. 29
with a stick no thicker than a thumb. In America, women were regarded as property until the
18
I accept that for purposes of advocacy and for a given historical period, it may be important to
latter half of the 19th century with marital violence considered a husband’s privilege and men, as highlight abuse of women qua women. This strategy was useful in the passing of Republic Act
30
of right, exercised physical domination over women. 19
No. 9262. It was a strategy that assured that the problem of battered women and children in the
The perspective portraying women as victims with a heritage of victimization results in the 20
context of various intimate relationships becomes publicly visible. However, unlike advocacy,
unintended consequence of permanently perceiving all women as weak. This has not always been laws have the tendency to be resilient and permanent. Its existence may transcend historical per-
accepted by many other strands in the Feminist Movement. _______________
28 “[H]eteronormativity is defined as the predominance and privileging of a definitively heterosexualbased ideology and
As early as the 70s, the nationalist movement raised questions on the wisdom of a women’s social structure that acts as the exclusive interpreter of itself and of all other sexualities in relation to it.” Definition found in A.
movement and its possible divisive effects, as “class problems deserve unified and concentrated Ponce, Shoring up Judicial Awareness: LGBT Refugees and the Recognition of Social Categories, 18 NEW ENG. J. INT’L &
attention [while] the women question is vague, abstract, and does not have material base.” 21 COMP. L. 185 (2012) citing M. Warner, FEAR OF A QUEER PLANET: QUEER POLITICS AND SOCIAL THEORY (1993).
29 For a comparative analysis of lesbian, gay, bisexual and transgender (LGBT) issues and strategies, see M. P. Ofreneo 36 Indigenous Cultural Communities, See Constitution, Art. II, Sec. 22; Art. XII, Sec. 5; Art. XIII, Sec. 1.
and T. Casal de Vela, Spheres of Lesbian, Gay, Bisexual and Transgender Struggles: A Comparative Feminist Analysis, 37 Republic Act No. 8371; see also the Manahan amendments in Com. Act No. 141, Sec. 48 (c).
14 GENDER TECHNOLOGY AND DEVELOPMENTNo. 2, 197-215 (July 2010). For an understanding, see B. Fone, HOMOPHOBIA: 38 See for instance Pit-og v. People of the Philippines, 268 Phil. 413; 190 SCRA 386 (1990) and Cruz v. DENR
A HISTORY (2000). Secretary, et al., 400 Phil. 904; 347 SCRA 128 (2000).
30 x x x essentialism is, among other things, a tool for redressing power imbalances, as when the group under study is 39 See S. Walby, The ‘Declining Significance’ or the ‘Changing Forms’ of Patriarchy? in PATRIARCHY AND ECONOMIC
seen by the dominant group as illegitimate or trivial, or when a stigmatized group forms an oppositional identity to counter DEVELOPMENT: WOMEN’S POSITIONS AT THE END OF THE TWENTIETH CENTURY (1996).
such negative ideologies. Essentialism may therefore be a deliberate move to enable scholarly activity, to forge a political 40 CONSTITUTION, Art. II, Sec.11. See also the Universal Declaration of Human Rights which similarly provides that “all
alliance through the creation of a common identity, or to otherwise provide a temporarily stable ground for further social human beings are born free and equal in dignity and rights” (Art. 1, UDHR)
action. Such uses of essentialism have been termed strategic essentialism (Spivak 1988) as discussed in M. BUCHOTZ, 504
SOCIOLINGUISTIC NOSTALGIA AND THE AUTHENTICATION OF IDENTITY , 401 (2003). See also M. Lloyd, BEYOND IDENTITY
POLITICS: FEMINISM, POWER AND POLITICS , 64-67 (2005). Similarly, D. Fuss, ESSENTIALLY SPEAKING: FEMINISM, NATURE 504 SUPREME COURT REPORTS ANNOTATED
AND DIFFERENCE (1989).
502 Garcia vs. Drilon
protections already given to those who suffer historical or cultural prejudices should be
502 SUPREME COURT REPORTS ANNOTATED
automatically rescinded if only the scope of the law is found wanting.
Garcia vs. Drilon Our Constitution also mandates that the State “shall ensure the fundamental equality before
iods that dictate effective advocacy. Laws also have a constitutive function — the tendency to the law of women and men.” This is similar to the Convention on the Elimination of All Forms of
41
create false consciousness when the labels and categories it mandates succeed in reducing past Discrimination Against Women (CEDAW) which requires that the Philippines as state party take
42
evils but turn a blind eye to other issues. all appropriate measures “[to] modify the social and cultural patterns of conduct of men and
For instance, one of the first cases that laid down the requisites for determining whether there women, with a view to achieving the elimination of prejudices and customary and all other
was a violation of the equal protection of the law clause of the Constitution was the 1939 case practices which are based on the idea of the inferiority or the superiority of either of the sexes or
of People v. Cayat. It laid down the requirements of reasonable classification which requires that
31 on stereotyped roles for men and women.” The use of affirmative language should imply that in
43
it (a) must rest on substantial distinctions, (b) must be germane to the purposes of the law, (c) must the proper suit, a declaration of unconstitutionality on the ground of the equal protection should
not be limited to existing conditions only, and (d) must apply equally to all members of the same not automatically mean that the entire social legislation that provides effective and efficient
class. Even
32 protection of women be set aside.
as early as 1919, the Court in Rubi v. Provincial Board of Mindoro recognized the concept of
33 We have declared that “[a]n unconstitutional act is not a law; it confers no rights; it imposes
reasonable classification holding that “[t]he pledge that no person shall be denied the equal no duties; it affords no protection; it creates no office; it is x x x as inoperative as though it had
protection of the laws is not infringed by a statute which is applicable to all of a class. The never been passed.” However, the seemingly
44
classification must have a reasonable basis and cannot be purely arbitrary in nature.” 34 _______________
and “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such
Yet, it is in these two cases that the Court concluded the following: as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Art.
As authority of a judicial nature is the decision of the Supreme Court in the case of United States 2, UDHR)
vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal 41 CONSTITUTION, Art. II, Sec. 14.
marriage in connection with article 423 of the Penal Code concerning the husband who surprises his 42 The Philippines signed the CEDAW on July 15, 1980 and ratified the same on August 5, 1981. Available
wife in the act of adultery. In discussing the point, the court makes use of the following language: at <http://treaties.un.
x x x we are not advised of any provision of law which recognizes as legal a tribal org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV 8&chapter
=4&lang=en>
marriage of so-called non-Christians or members of uncivilized 43 Convention on the Elimination of all Forms of Discrimination against Women, Article 5(a).
_______________
31 68 Phil. 12 (1939). 44 Municipality of Malabang, Lanao Del Sur v. Benito, et al., 137 Phil. 358, 364; 27 SCRA 533, 539 (1969)
32 Id., at p. 18. citing Norton v. Shelby County, 118 U.S. 425, 442 (1886).
33 39 Phil. 660 (1919). 505
34 Id., at p. 707.
503 VOL. 699, JUNE 25, 2013 505
VOL. 699, JUNE 25, 2013 503 Garcia vs. Drilon
Garcia vs. Drilon all-inclusive statement of absolute retroactive invalidity may not always be justified. One 45
tribes, celebrated within that province without compliance with the requisites prescribed by established exception is the doctrine of operative fact.
General Orders No. 68 x x x. We hold also that the fact that the accused is shown to be a The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
should be taken into consideration as a second marked extenuating existence of a statute prior to a determination of unconstitutionality is an operative fact and may have
circumstance... (Emphasis supplied)
35 consequences which cannot always be ignored. The past cannot always be erased by a new judicial
The description of the label and the stereotype of “non-Christian tribe” would later on be declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden
corrected by the Constitution, law, and jurisprudence.
36 37 38
on those who have relied on the invalid Law. 46
The description of the label and the stereotype that only women can be considered victims
The possibility that the constitutionality of Republic Act No. 9262 may be challenged by male
may also evolve in the same way. We should hope that the situation of patriarchy will not be
victims of abuse in intimate relationships ventures to carve another exception if this court is to
permanent. Better cultural structures more affirming of human dignity should evolve. 39
ensure the guarantee of fundamental equality before the law of women and men as well as value 47
In a future case, the fact that there may be battered men should not cause the nullification of
the dignity of every human person. Applying the general rule or the existing doctrine of operative
48
protections given to women and children.
facts would mean removing the protection afforded to women. It will thus contradict the very
The Constitution states that: “[t]he State values the dignity of every human person and
reason it is being assailed and result to an even worse state of laws where none is protected from
guarantees full respect for human rights.” The guarantee of full respect should not mean that
40
_______________
intimate violence.
35 Id., at p. 686. But again, it is not in this case that we consider these possibilities.
_______________ The intimate spaces created by our human relationships are our safe havens from the helter
45 Id.
46 Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 608 citing Planter’s Products
skelter of this world. It is in that space where we grow in the safety of the special other who we
Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008, 548 SCRA 485, 516-517. hope will be there for our entire lifetime. If that is not possible, then for such time as will be
47 CONSTITUTION, Art. II, Sec. 14. sufficient to create cherished memories enough to last for eternity.
48 CONSTITUTION, Art. II, Sec. 11. I concur in the ponencia. Against abominable acts, let this law take its full course.
506
Petition denied.
506 SUPREME COURT REPORTS ANNOTATED Note.—Judge Arcaya-Chua is guilty of gross ignorance of the law for issuing a Temporary
Garcia vs. Drilon Protection Order (TPO) in favor of petitioner Albert Chang Tan, since a TPO cannot be issued in
By concurring with these statements I express a hope: that the normative constitutional favor of a man against his wife under R.A. No. 9292, known as the Anti-Violence Against Women
requirements of human dignity and fundamental equality can become descriptive reality. The and Their Children Act of 2004. (Ocampo vs. Arcaya-Chua, 619 SCRA 59 [2010])
socially constructed distinctions between women and men that have afflicted us and spawned ——o0o——
discrimination and violence should be eradicated sooner. Power and intimacy should not co-exist. © Copyright 2019 Central Book Supply, Inc. All rights reserved.
G.R. No. 192935. December 7, 2010.* disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail Executive Order
LOUIS “BAROK” C. BIRAOGO, petitioner, vs. THE PHILIPPINE TRUTH COMMISSION OF No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a body to which
2010, respondent. they belong as members. This certainly justifies their resolve to take the cudgels for Congress as an institution
and present the complaints on the usurpation of their power and rights as members of the legislature before the
G.R. No. 193036. December 7, 2010.*
Court. As held in Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994)—“To the extent the
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to
DATUMANONG, and REP. ORLANDO B. FUA, SR., petitioners, vs. EXECUTIVE participate in the exercise of the powers of that institution. An act of the Executive which injures the institution
SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of
MANAGEMENT SECRETARY FLORENCIO B. ABAD, respondents. Congress. In such a case, any member of Congress can have a resort to the courts.”
Public Officers; Philippine Truth Commission (PTC); Words and Phrases; Truth commissions have Same; Same; The Supreme Court leans on the doctrine that the rule on standing is a matter of
been described as bodies that share the following characteristics: (1) they examine only past events; (2) they procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are when the public interest so requires, such as when the matter is of transcendental importance, of overreaching
temporary bodies that finish their work with the submission of a report containing conclusions and significance to society, or of paramount public interest.—The Court leans on the doctrine that “the rule on
recommendations; and (4) they are officially sanctioned, authorized or empowered by the State; The standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens,
Philippine Truth Commission (PTC) is different from the truth commissions in other countries which have taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental
been created as official, transitory and non-judicial fact-finding bodies “to establish the facts and context of importance, of overreaching significance to society, or of paramount public interest.” Thus, in Coconut Oil
serious violations of human rights or of international humanitarian law in a country’s past.”—The PTC is Refiners Asso-
different from the truth commissions in other countries which have been created as official, transitory and non- 80
judicial fact-finding bodies “to establish the facts and context of serious violations of human rights or of 8 SUPREME COURT REPORTS ANNOTATED
international humanitarian law in a country’s past.” They are usually established by states emerging from
periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice. Truth 0
commissions have been described as bodies that share the following characteristics: (1) they examine only past
Biraogo vs. Philippine Truth Commission of 2010
events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular event;
(3) they are temporary bodies that finish their work with the submission of a report containing conclusions and ciation, Inc. v. Torres, 465 SCRA 47 (2005), the Court held that in cases of paramount importance
recommendations; and (4) they are officially sanctioned, authorized or empowered by the State. where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may
“Commission’s members are usually empowered to conduct research, support victims, and propose policy be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In
_______________ the first Emergency Powers Cases, 84 Phil. 368 (1949), ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders although they had only an indirect and general
* EN BANC. interest shared in common with the public.
79 Presidency; Philippine Truth Commission (PTC); Reorganizations; Administrative Code of 1987 (E.O.
292); Words and Phrases; To say that the Philippine Truth Commission (PTC) is borne out of a restructuring
VOL. 637, DECEMBER 7, 2010 7
of the Office of the President under Section 31, Chapter 10, Book III, of Executive Order (E.O.) No. 292, is a
9 misplaced supposition, even in the plainest meaning attributable to the term “restructure”—an “alteration of
an existing structure”—the PTC was not part of the structure of the Office of the President prior to the
Biraogo vs. Philippine Truth Commission of 2010 enactment of Executive Order No. 1.—The question, therefore, before the Court is this: Does the creation of
recommendations to prevent recurrence of crimes. Through their investigations, the commissions may the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised
aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the Administrative Code? Section 31 contemplates “reorganization” as limited by the following functional and
way for prosecutions and recommend institutional reforms.” structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing,
Judicial Review; Requisites.—Like almost all powers conferred by the Constitution, the power of consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any
judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring
exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the
the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of or redundancy of functions. These points to situations where a body or an office is already existent but a
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less
very lis mota of the case. envisioned in said provision. Accordingly, the answer to the question is in the negative. To say that the PTC is
Same; Locus Standi; An act of the Executive which injures the institution of Congress causes a borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in
derivative but nonetheless substantial injury, which can be questioned by a member of Congress.—The Court the plainest meaning attributable to the term “restructure”—an “alteration of an existing structure.” Evidently,
the PTC was not part of the structure of the Office of the President prior to the enactment of Executive Order stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters
No. 1. which the President is entitled to know so that he can be properly advised and guided in the performance of his
Same; Same; Same; Same; Power of Control; The power of control is entirely different from the power duties relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this
to create public offices—the former is inherent in the Executive, while the latter finds basis from either a valid was also the objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the
delegation from Congress, or his inherent duty to faithfully execute the laws.—In the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the
81 government structure, the Court is not inclined to declare such executive power as non-existent just because
VOL. 637, DECEMBER 7, 2010 8 the direction of the political winds have changed.
Same; Same; Appropriations; There is no usurpation on the part of the Executive of the power to
1 appropriate funds where there is only allotment or allocations of existing funds already appropriated.—On the
charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of
Biraogo vs. Philippine Truth Commission of 2010 a public office, suffice it to say that there will be no ap-
same vein, the creation of the PTC is not justified by the President’s power of control. Control is 83
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power VOL. 637, DECEMBER 7, 2010 8
of control is entirely different from the power to create public offices. The former is inherent in the Executive, 3
while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully
execute the laws. Biraogo vs. Philippine Truth Commission of 2010
Same; Same; Same; Same; Same; Statutes; The Court declines to recognize Presidential Decree (P.D.) propriation but only an allotment or allocations of existing funds already appropriated. Accordingly,
No. 1416 as a justification for the President to create a public office—P.D. No. 1416, as amended by P.D. No. there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there
1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, is no need to specify the amount to be earmarked for the operation of the commission because, in the words of
Article XVIII of the 1987 Constitution.—The Court, however, declines to recognize P.D. No. 1416 as a the Solicitor General, “whatever funds the Congress has provided for the Office of the President will be the
justification for the President to create a public office. Said decree is already stale, anachronistic and very source of the funds for the commission.” Moreover, since the amount that would be allocated to the PTC
inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.
administrative structure of the national government including the power to create offices and transfer Same; Same; Words and Phrases; No quasi-judicial powers have been vested in the Philippine Truth
appropriations pursuant to one of the purposes of the decree, embodied in its last “Whereas” clause: Commission (PTC) as it cannot adjudicate rights of persons who come before it; Quasi-judicial powers
WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the involve the power to hear and determine questions of fact to which the legislative policy is to apply and to
organization of the national government. Clearly, as it was only for the purpose of providing manageability decide in accordance with the standards laid down by law itself in enforcing and administering the same law.
and resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficioupon the —Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been
Same; Same; Faithful Execution Clause; The creation of the Philippine Truth Commission (PTC) finds vested in the said body as it cannot adjudicate rights of persons who come before it. It has been said that
justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure “Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative
that the laws are faithfully executed.—While the power to create a truth commission cannot pass muster on the policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section administering the same law.” In simpler terms, judicial discretion is involved in the exercise of these quasi-
17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the
executed. Section 17 reads: Section 17. The President shall have control of all the executive departments, legislature in the case of administrative agencies.
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied). As correctly Same; Same; Same; “Power to Investigate,” and “Power to Adjudicate,” Distinguished.—The
pointed out by the respondents, the allocation of power in the three principal branches of government is a grant distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cariño
of all powers inherent in them. The President’s power to conduct investigations to aid him in ensuring the v. Commission on Human Rights, 204 SCRA 483 (1991). Thus: “Investigate,” commonly understood, means to
faithful execution of laws—in this case, fundamental laws on public account- examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of “investigate”
82 is “to observe or study closely: inquire into systematically: “to search or inquire into: x x to subject to an
8 SUPREME COURT REPORTS ANNOTATED official probe x x: to conduct an official inquiry.” The purpose of investigation, of course, is to discover, to
find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or
2 resolving a controversy involved in the facts inquired into by application of the law to the facts established by
the inquiry. The legal meaning of “investigate” is essentially the same: “(t)o follow up step by step by patient
Biraogo vs. Philippine Truth Commission of 2010 inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
ability and transparency—is inherent in the President’s powers as the Chief Executive. That the 84
authority of the President to conduct investigations and to create bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does not mean that he is bereft of such authority. 8 SUPREME COURT REPORTS ANNOTATED
Same; Same; Same; Residual Powers; The powers of the President are not limited to those specific 4
powers under the Constitution—one of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees, a power which flows from the Biraogo vs. Philippine Truth Commission of 2010
obvious need to ascertain facts and determine if laws have been faithfully executed.—The Executive is given accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;” “to
much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are inquire; to make an investigation,” “investigation” being in turn described as “(a)n administrative function, the
not limited to those specific powers under the Constitution. One of the recognized powers of the President exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or
granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows otherwise, for the discovery and collection of facts concerning a certain matter or matters.” “Adjudicate,”
from the obvious need to ascertain facts and determine if laws have been faithfully executed. Thus, commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on,
in Department of Health v. Camposano, 457 SCRA 438 (2005), the authority of the President to issue settle. The dictionary defines the term as “to settle finally (the rights and duties of the parties to a court case)
Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge.” And “adjudge”
against the employees of the Department of Health for the anomalous purchase of medicines was upheld. means “to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant
Same; Same; Same; The purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry judicially in a case of controversy x x.” In the legal sense, “adjudicate” means: “To settle in the exercise of
into matters which the President is entitled to know so that he can be properly advised and guided in the judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;” and “adjudge”
performance of his duties relative to the execution and enforcement of the laws of the land.—It should be
means: “To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the
determination of a fact, and the entry of a judgment.” sense that the members of the class should possess the same characteristics in equal degree. Substantial
Same; Same; Same; Ombudsman; The Philippine Truth Commission (PTC) will not supplant the similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated
Ombudsman or the Department of Justice (DOJ) or erode their respective powers—if at all, the investigative equally. The mere fact that an individual belonging to a class differs from the other members, as long as that
function of the commission will complement those of the two offices; The Ombudsman’s power to investigate class is substantially distinguishable from all others, does not justify the non-application of the law to him.”
under Republic Act (R.A.) No. 6770 is not exclusive but is shared with other similarly authorized government Same; Same; Same; The classification must not be based on existing circumstances only, or so
agencies.—Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or constituted as to preclude addition to the number included in the class—it must be of such a nature as to
erode their respective powers. If at all, the investigative function of the commission will complement those of embrace all those who may thereafter be in similar circumstances and conditions.—The classification must
the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence not be based on existing circumstances only, or so constituted as to preclude addition to the number included in
of the overall task of the commission to conduct a fact-finding investigation.” The actual prosecution of the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances
suspected offenders, much less adjudication on the merits of the charges against them, is certainly not a and conditions. It must not leave out or “underinclude” those that should otherwise fall into a certain
function given to the commission. The phrase, “when in the course of its investigation,” under Section 2(g), classification. As elucidated in Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54 (1974), and
highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of reiterated in a long line of cases, The guaranty of equal protection of the laws is not a guaranty of equality in
determining probable cause for the filing of the appropriate complaints before the courts remains to be with the the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
DOJ and the Ombudsman. At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not constitutional prohibition against inequality, that every man, woman and child should be affected alike by a
exclusive but is shared with other similarly authorized government agencies. statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
Same; Same; Equal Protection Clause; The equal protection of the laws is embraced in the concept of on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The
due process, as every unfair discrimination offends the requirements of justice and fair play.—One of the basic Constitution does not require that things which are different in fact be treated in law as though they were the
principles same. The equal protection clause does not forbid discrimination as to things that are different. It does not
85 prohibit legislation which is limited either in the object to which it is directed or by the territory within which it
VOL. 637, DECEMBER 7, 2010 8 is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice
5 because they agree with one another in certain particulars. A law is not invalid because of simple inequality.
The very idea of classification is that of inequality, so that it goes without saying that the mere
Biraogo vs. Philippine Truth Commission of 2010 87
on which this government was founded is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due VOL. 637, DECEMBER 7, 2010 8
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied 7
in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on the basis of the due process Biraogo vs. Philippine Truth Commission of 2010
clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
to cut it down is the equal protection clause. classification is that it be reasonable, which means that the classification should be based on substantial
Same; Same; Same; The concept of equal justice under the law requires the state to govern impartially, distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not
and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate be limited to existing conditions only; and that it must apply equally to each member of the class. This Court
governmental objective; The equal protection clause is aimed at all official state actions, not just those of the has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or
legislature.—According to a long line of decisions, equal protection simply requires that all persons or things rational basis and is not palpably arbitrary.
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.” It “requires Same; Same; Same; Not to include past administrations similarly situated constitutes arbitrariness
public bodies and institutions to treat similarly situated individuals in a similar manner.” “The purpose of the which the equal protection clause cannot sanction—the Arroyo administration is but just a member of a class,
equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary that is, a class of past administrations, not a class of its own.—Applying these precepts to this case, Executive
discrimination, whether occasioned by the express terms of a statue or by its improper execution through the Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the
state’s duly constituted authorities.” “In other words, the concept of equal justice under the law requires the envisioned truth commission is to investigate and find out the truth “concerning the reported cases of graft and
state to govern impartially, and it may not draw distinctions between individuals solely on differences that are corruption during the previous administration” only. The intent to single out the previous administration is
irrelevant to a legitimate governmental objective.” The equal protection clause is aimed at all official state plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive
actions, not just those of the legislature. Its inhibitions cover all the departments of the government including order. Specifically, these are: * * * In this regard, it must be borne in mind that the Arroyo administration is
the political and executive departments, and extend to all actions of a state denying equal protection of the but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include
laws, through whatever agency or whatever guise is taken. past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot
Same; Same; Same; Requisites; Superficial differences do not make for a valid classification.—It, sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for
however, does not require the universal application of the laws to all persons or things without distinction. vindictiveness and selective retribution.
What it simply requires is equality among equals as determined according to a valid classification. Indeed, the Same; Same; Same; The reports of widespread corruption in the Arroyo administration cannot be
equal protection clause permits classification. Such classification, however, to be valid must pass the test taken as basis for distinguishing said administration from earlier administrations which were also blemished
of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is by similar widespread reports of impropriety.—Though the OSG enumerates several differences between the
germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the
all members of the same class. “Superficial differences do not make for a valid classification.” 86 restriction of the investigation to the “previous administration” only. The reports of widespread corruption in
the Arroyo administration cannot be taken as basis for distinguishing said administration from earlier
8 SUPREME COURT REPORTS ANNOTATED administrations which were also blemished by similar widespread reports of impropriety. They are not inherent
6 in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, “Superficial
differences do not make for a valid classification.”88
Biraogo vs. Philippine Truth Commission of 2010
Same; Same; Same; For a classification to meet the requirements of constitutionality, it must include 8 SUPREME COURT REPORTS ANNOTATED
or embrace all persons who naturally belong to the class.—For a classification to meet the requirements of 8
constitutionality, it must include or embrace all persons who naturally belong to the class. “The classification
will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred Biraogo vs. Philippine Truth Commission of 2010
Same; Same; Same; The fact remains that Executive Order No. 1 suffers from arbitrary classification—
9 SUPREME COURT REPORTS ANNOTATED
the Philippine Truth Commission (PTC), to be true to its mandate of searching for the truth, must not exclude
the other past administrations.—Given the foregoing physical and legal impossibility, the Court logically 0
recognizes the unfeasibility of investigating almost a century’s worth of graft cases. However, the fact remains
that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of Biraogo vs. Philippine Truth Commission of 2010
searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the about the circumstances surrounding serious violations of human rights.”—The fundamental base
authority to investigate all past administrations. While reasonable prioritization is permitted, it should not be upon which a truth commission is created is the right to the truth. While the right to the truth is yet to be
arbitrary lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo v. established as a right under customary law or as a general principle of international law, it has nevertheless
Hopkins, Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered emerged as a “legal concept at the national, regional and international levels, and relates to the obligation of
by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal the state to provide information to victims or to their families or even society as a whole about the
discriminations between persons in similar circumstances, material to their rights, the denial of equal justice circumstances surrounding serious violations of human rights.” A truth commission has been generally defined
is still within the prohibition of the constitution. as a “body set up to investigate a past history of violations of human rights in a particular country ...,” and
Same; Same; Same; While with regard to equal protection claims, a legislature does not run the risk of includes four elements: ... First, a truth commission focuses on the past. Second, a truth commission is not
losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every focused on a specific event, but attempts to paint the overall picture of certain human rights abuses, or
evil that might conceivably have been attacked, in Executive Order No. 1, however, there is no inadvertence .— violations of international humanitarian law, over a period of time. Third, a truth commission usually exists
The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law under the equal temporarily and for a pre-defined period of time, ceasing to exist with the submission of a report of its
protection clause.” “Legislation is not unconstitutional merely because it is not all-embracing and does not findings. Finally, a truth commission is always vested with some sort of authority, by way of its sponsor, that
include all the evils within its reach.” It has been written that a regulation challenged under the equal allows it greater access to information, greater security or protection to dig into sensitive issues, and a greater
protection clause is not devoid of a rational predicate simply because it happens to be incomplete. In several impact with its report.
instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where Presidency; Separation of Powers; Public Office; It is settled that, except for the offices created by the
the purpose can be attained in future legislations or regulations. These cases refer to the “step by step” pro cess. Constitution, the creation of a public office is primarily a legislative function.—The separation of powers is a
“With regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme fundamental principle in our system of government. This principle is one of the cornerstones of our
simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have constitutional democracy and it cannot be eroded without endangering our government. The 1987 Constitution
been attacked.” In Executive Order No. 1, however, there is no inadvertence. That the previous administration divides governmental power into three co-equal branches: the executive, the legislative and the judicial. It
was picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least delineates the powers of the three branches: the legislature is generally limited to the enactment of laws, the
three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention executive department to the enforcement of laws and the judiciary to their interpretation and application to
any particular act, event or report to be focused on unlike the investigative commissions created in the past. cases and controversies. Each branch is independent and supreme within its own sphere and the encroachment
“The equal protection clause is violated by purposeful and intentional discrimination.” 89 by one branch on another is to be avoided at all costs. The power under scrutiny in this case is the creation of a
public office. It is settled that, except for the offices created by the Constitution, the creation of a public office
VOL. 637, DECEMBER 7, 2010 8 is primarily a legislative function. The legislature decides what offices are suitable, necessary or convenient for
9 the administration of government.
Same; Philippine Truth Commission; Equal Protection Clause; The identification of the Arroyo
Biraogo vs. Philippine Truth Commission of 2010 administration as the subject of the Truth Commission’s investigation does not pass the jurisprudential test of
Same; Same; Judicial Review; The Supreme Court, in exercising its power of judicial review, is not reasonableness.—Given the indubitably clear mandate of E.O. No. 1, does the identifica-
imposing its own will upon a co-equal body but rather simply making sure that any act of government is done 91
in consonance with the authorities and rights allocated to it by the Constitution.—To answer this accusation, VOL. 637, DECEMBER 7, 2010 9
the words of Justice Laurel would be a good source of enlightenment, to wit: “And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it 1
does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution Biraogo vs. Philippine Truth Commission of 2010
and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees tion of the Arroyo administration as the subject of the Truth Commission’s investigation pass the
to them.” Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co- jurisprudential test of reasonableness? Stated differently, does the mandate of E.O. No. 1 violate the equal
equal body but rather simply making sure that any act of government is done in consonance with the protection clause of the Constitution? Yes.
authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no Same; Same; What the President granted the Truth Commission is the authority to conduct preliminary
constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. investigation of complaints of graft and corruption against his immediate predecessor and her associates.—
Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional. The scope of the investigatory powers and functions assigned by the President to the Truth Commission
Same; Same; Same; Perhaps a revision of the executive issuance so as to include the earlier past encompasses all “public officers and employees, their co-principals, accomplices and accessories from the
administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution; Of private sector, if any, during the previous administration.” There is no doubt in my mind that what the
all the branches of the government, it is the judiciary which is the most interested in knowing the truth and so President granted the Truth Commission is the authority to conduct preliminary investigation of complaints of
it will not allow itself to be a hindrance or obstacle to its attainment.—Lest it be misunderstood, this is not the graft and corruption against his immediate predecessor and her associates.
death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the Same; Same; Ombudsman; Separation of Powers; The Constitution has vested in Congress alone the
executive issuance so as to include the earlier past administrations would allow it to pass the test of power to grant to any office concurrent jurisdiction with the Ombudsman to conduct preliminary investigation
reasonableness and not be an affront to the Constitution. Of all the branches of the government, it is the of cases of graft and corruption.—The power of control and supervision of the President includes the power to
judiciary which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or discipline which in turn implies the power to investigate. No Congress or Court can derogate from that power
obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within but the Constitution itself may set certain limits. And the Constitution has in fact carved out the preliminary
constitutional bounds for “ours is still a government of laws and not of men.” investigatory aspect of the control power and allocated the same to the following: (a) to Congress over
CORONA, C.J., Separate Opinion: presidential appointees who are impeachable officers (Article XI, Sections 2 and 3); (b) to the Supreme Court
Philippine Truth Commission; While the right to the truth is yet to be established as a right under over members of the courts and the personnel thereof (Article VIII, Section 6); and (c) to the Ombudsman over
customary law or as a general principle of international law, it has nevertheless emerged as a “legal concept any other public official, employee, office or agency (Article XI, Section 13 (1)). However, even as the
at the national, regional and international levels, and relates to the obligation of the state to provide Constitution has granted to the Ombudsman the power to investigate other public officials and employees,
information to victims or to their families or even society as a whole such power is not absolute and exclusive. Congress has the power to further define the powers of the
90 Ombudsman and, impliedly, to authorize other offices to conduct such investigation over their respective
officials and personnel. The Constitution has vested in Congress alone the power to grant to any office Presidency; Faithful Execution Clause; To execute faithfully the law, the President must first know the
concurrent jurisdiction with the Ombudsman to conduct preliminary investigation of cases of graft and facts that justify or require the execution of the law, and to know the facts, the President may have to conduct
corruption. fact-finding investigations.—Executive power is vested exclusively in the President. Neither the Judiciary nor
Same; Same; Same; Same; Without any law authorizing him, the President cannot legally create a the Legislature can execute the law. As the Executive, the President is mandated not only to execute the law,
committee to extend his investigatory reach across the boundaries of the executive department to “public but also to execute faithfully the law. To execute faithfully the law, the President must first know the facts that
officers and employees, their co-principals, accomplices and accessories from the private sector, if any, justify or require the execution of the law. To know the facts, the President may have to conduct fact-finding
92 investigations. Otherwise, without knowing the facts, the President may be blindly or negligently, and not
9 SUPREME COURT REPORTS ANNOTATED faithfully and intelligently, executing the law. Due to time and physical constraints, the President cannot
obviously conduct by himself the fact-finding investigations. The President will have to delegate the fact-
2 finding function to one or more subordinates. Thus, the President may appoint a single fact-finding
investigator, or a collegial body or committee.94
Biraogo vs. Philippine Truth Commission of 2010
during the previous administration” without setting apart those who are still in the executive 9 SUPREME COURT REPORTS ANNOTATED
department from those who are not—only the Ombudsman has the investigatory jurisdiction over them under
4
Article XI, Section 13.—Although pursuant to his power of control the President may supplant and directly
exercise the investigatory functions of departments and agencies within the executive department, his power of Biraogo vs. Philippine Truth Commission of 2010
control under the Constitution and the Administrative Code is confined only to the executive Same; Same; The power to find facts, or to conduct fact-finding investigations, is necessary and
department. Without any law authorizing him, the President cannot legally create a committee to extend his proper, and thus inherent in the President’s power to execute faithfully the law.—The power to find facts, or to
investigatory reach across the boundaries of the executive department to “public officers and employees, their conduct fact-finding investigations, is necessary and proper, and thus inherent in the President’s power to
co-principals, accomplices and accessories from the private sector, if any, during the previous administration” execute faithfully the law. Indeed, the power to find facts is inherent not only in Executive power, but also in
without setting apart those who are still in the executive department from those who are not. Only the Legislative as well as Judicial power. The Legislature cannot sensibly enact a law without knowing the factual
Ombudsman has the investigatory jurisdiction over them under Article XI, Section 13. There is no law milieu upon which the law is to operate. Likewise, the courts cannot render justice without knowing the facts
granting to the President the authority to create a committee with concurrent investigatory jurisdiction of this of the case if the issue is not purely legal.
nature. Same; Same; Philippine Truth Commission; The President can create the Truth Commission as a
Same; Same; Same; It is patent from the provisions of Executive Order (E.O.) No. 1 itself that quasi- public office in his Office pursuant to his power to reorganize the Office of the President Proper.—The
judicial powers are indeed vested in the Truth Commission, particularly in Section 2, paragraphs (b) and (g). creation of a public office must be distinguished from the creation of an ad hoc fact-finding public body. The
—Despite respondents’ denial that the Truth Commission is infused with quasi-judicial powers, it is patent power to create a public office is undeniably a legislative power. There are two ways by which a public office
from the provisions of E.O. No. 1 itself that such powers are indeed vested in the Truth Commission, is created: (1) by law, or (2) by delegation of law, as found in the President’s authority to reorganize his Office.
particularly in Section 2, paragraphs (b) and (g): “b) Collect, receive, review, and evaluate evidence related The President as the Executive does not inherently possess the power to reorganize the Executive branch.
to or regarding the cases of large scale corruption which it has chosen to investigate, … x x x g) Turn over However, the Legislature has delegated to the President the power to create public offices within the Office of
from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a the President Proper, as provided in Section 31(1), Chapter 10, Title III, Book III of EO 292. Thus, the
special or interim report and recommendation, all evidence on corruption of public officers and employees and President can create the Truth Commission as a public office in his Office pursuant to his power to reorganize
their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the the Office of the President Proper. In such a case, the President is exercising his delegated power to create a
Commission finds that there is reasonable ground to believe they are liable for graft and corruption under public office within the Office of the President Proper. There is no dispute that the President possesses this
pertinent applicable laws; x x x. delegated power.
Same; Same; Same; Words and Phrases; The powers to “evaluate evidence” and “find reasonable Same; Same; Same; In the alternative, the President can also create the Truth Commission as an ad
ground to believe that someone is liable for graft and corruption” are not merely fact-finding or investigatory hoc body to conduct a fact-finding investigation pursuant to the President’s inherent power to find facts as
—these are quasi-judicial in nature.—The powers to “evaluate evidence” and “find reasonable ground to basis to execute faithfully the law.—In the alternative, the President can also create the Truth Commission as
believe that someone is liable for graft and corruption” are not merely fact-finding or investigatory. These are an ad hoc body to conduct a fact-finding investigation pursuant to the President’s inherent power to find facts
quasi-judicial in nature because they actually go into the weighing of evidence, drawing up of legal as basis to execute faithfully the law. The creation of such ad hoc fact-finding body is indisputably necessary
conclusions from them as basis for their official action and the exercise of discretion of a judicial or quasi- and proper for the President to execute faithfully the law. In such a case, members of the Truth Commission
judicial nature.93 may be appointed as Special Assistants or Advisers of the President, and then assigned to conduct a fact-
VOL. 637, DECEMBER 7, 2010 9 finding investigation. The President can appoint as many Special Assistants or Advisers as he may need. There
is no public office created and members of the Truth Commission are incumbents already holding public office
3 in gov-
95
Biraogo vs. Philippine Truth Commission of 2010
Same; Same; Same; The power to establish if there is reasonable ground to believe that certain VOL. 637, DECEMBER 7, 2010 9
persons are liable for graft and corruption under pertinent applicable laws is quasi-judicial in nature because 5
it is akin to the discretion exercised by a prosecutor in the determination of probable cause during a
preliminary investigation.—The power to establish if there is reasonable ground to believe that certain persons Biraogo vs. Philippine Truth Commission of 2010
are liable for graft and corruption under pertinent applicable laws is quasi-judicial in nature because it is akin ernment. These incumbents are given an assignment by the President to be members of the Truth
to the discretion exercised by a prosecutor in the determination of probable cause during a preliminary Commission. Thus, the Truth Commission is merely an ad hoc body assigned to conduct a fact-finding
investigation. It involves a judicial (or quasi-judicial) appraisal of the facts for the purpose of determining if a investigation.
violation has in fact been committed. Same; Same; Same; The creation of ad hoc investigating bodies, as well as the appointment of ad hoc
Same; Same; Same; As a mere creation of the executive and without a law granting it the power to investigators, does not result in the creation of a public office.—The creation of such ad hoc investigating
investigate person and agencies outside the executive department, the Truth Commission can only perform bodies, as well as the appointment of ad hocinvestigators, does not result in the creation of a public office. In
administrative functions, not quasi-judicial functions.—As a mere creation of the executive and without a law creating ad hoc investigatory bodies or appointing ad hoc investigators, executive and judicial officials do not
granting it the power to investigate person and agencies outside the executive department, the Truth create public offices but merely exercise a power inherent in their primary constitutional or statutory functions,
Commission can only perform administrative functions, not quasi-judicial functions. “Administrative agencies which may be to execute the law, to exercise disciplinary authority, or both. These fact-finding bodies and
are not considered courts; they are neither part of the judicial system nor are they deemed judicial tribunals.” investigators are not permanent bodies or functionaries, unlike public offices or their occupants. There is no
CARPIO, J., Dissenting Opinion:
separate compensation, other than per diems or allowances, for those designated as members of ad of the Ombudsman.—The Ombudsman has “primary jurisdiction over cases cognizable by the
hoc investigating bodies or as ad hoc investigators. Sandiganbayan.” The cases cognizable by the Sandiganbayan are criminal cases as well as quasi-criminal
Same; Same; Same; Power of Control; The power of control does not involve the power to create a cases like the forfeiture of unexplained wealth. “[I]n the exercise of this primary jurisdiction” over cases
public office, neither does the President’s power to find facts or his broader power to execute the laws give the cognizable by the Sandiganbayan, the Ombudsman “may take over x x x the investigation of such cases” from
President the power to create a public office.—The President’s power to create ad hoc fact-finding bodies does any investigatory agency of the Government. The cases covered by the “primary jurisdiction” of the
not emanate from the President’s power of control over the Executive branch. The President’s power of control Ombudsman are criminal or quasi-criminal cases but not administrative cases. Administrative cases, such
is the power to reverse, revise or modify the decisions of subordinate executive officials, or substitute his own as administrative disciplinary cases, are not cognizable by the Sandiganbayan. With more reason, purely fact-
decision for that of his subordinate, or even make the decision himself without waiting for the action of his finding investigations conducted by the Executive branch are not cognizable by the Sandiganbayan. Purely
subordinate. This power of control does not involve the power to create a public office. Neither does the fact-finding investigations to improve administrative procedures and efficiency, to institute administrative
President’s power to find facts or his broader power to execute the laws give the President the power to create measures to prevent corruption, to provide the President with policy options, to recommend to Congress
a public office. The President can exercise the power to find facts or to execute the laws without creating a remedial legislation, and even to determine whether there is basis to file a formal administrative charge against
public office. a government official or employee, do not fall under the “primary jurisdiction” of the Ombudsman. These
Same; Philippine Truth Commission; Words and Phrases; There is no language in Executive Order fact-finding investigations do not involve criminal or quasi-criminal cases cognizable by the
(E.O.) No. 1 granting the Truth Commission quasi-judicial power, whether expressly or impliedly, because the Sandiganbayan.
Truth Commission is not, and was never intended to be, a quasi-judicial body; Quasi-judicial power is the Same; Same; Same; If the Ombudsman has the exclusive power to conduct fact-finding investigations,
power of an administrative body to adjudicate the rights and obligations of parties under its jurisdiction in a then even the Judiciary and the Legislature cannot perform their fundamental functions without the action or
manner that is final and binding, unless there is a proper appeal.—There is no language in EO 1 granting the approval of the Ombudsman.—If the Ombudsman has the exclusive power to conduct fact-finding
Truth Commission quasi-judicial power, whether expressly or impliedly, because the Truth Commission is investigations, then even the Judiciary and the Legislature cannot perform their fundamental functions without
not, and was never intended to be, a quasi-judicial body. The power of the President to create offices within the the action or approval of the Ombudsman. While the Constitution grants the Office of the Ombudsman the
Office of the President Proper is a power to create only executive or ad- power to “[i]nvestigate on its own x x x any act or omission of any public official, employee, office or
96 agency,” such power is not exclusive. To hold that such investigatory power is exclusive to the Ombudsman is
9 SUPREME COURT REPORTS ANNOTATED to make the Executive, Legislative and Judiciary wholly dependent on the Ombudsman for the performance of
their Executive, Legislative and Judicial functions.
6 Same; Same; The Truth Commission, a body authorized to take testimony, can administer oaths and
issue subpoena and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of Executive Order
Biraogo vs. Philippine Truth Commission of 2010 (E.O.) No. 292.—Section 2(e) of EO 1 confers on the Truth Commission the power to “[i]nvite or subpoena
ministrative offices, not quasi-judicial offices or bodies. Undeniably, a quasi-judicial office or body can witnesses and take their testimonies and for that purpose, ad-
only be created by the Legislature. The Truth Commission, as created under EO 1, is not a quasi-judicial body 98
and is not vested with any quasi-judicial power or function. The exercise of quasi-judicial functions involves
the determination, with respect to the matter in controversy, of what the law is, what the legal rights and 9 SUPREME COURT REPORTS ANNOTATED
obligations of the contending parties are, and based thereon and the facts obtaining, the adjudication of the 8
respective rights and obligations of the parties. The tribunal, board or officer exercising quasi-judicial
functions must be clothed with the power to pass judgment on the controversy. In short, quasi-judicial power Biraogo vs. Philippine Truth Commission of 2010
is the power of an administrative body to adjudicate the rights and obligations of parties under its minister oaths or affirmation as the case may be.” Thus, the Truth Commission, a body authorized to
jurisdiction in a manner that is final and binding, unless there is a proper appeal. take testimony, can administer oaths and issue subpoena and subpoena duces tecumpursuant to Section 37,
Same; Same; Same; That Executive Order (E.O.) No. 1 declares that the Truth Commission “will act Chapter 9, Book I of EO 292. In fact, this power to administer oaths and to issue subpoena and subpoena
as an independent collegial body” cannot invalidate EO 1—this provision merely means that the President duces tecum is a power of every administrative fact-finding investigative body created in the Executive,
will not dictate on the members of the Truth Commission on what their findings and recommendations should Legislative or Judicial branch. Section 37, Chapter 9, Book I of EO 292 grants such power to every fact-
be.—That EO 1 declares that the Truth Commission “will act as an independent collegial body” cannot finding body so created.
invalidate EO 1. This provision merely means that the President will not dictate on the members of the Truth Same; Same; Contempt Power; There is no provision in Executive Order (E.O.) No. 1 that gives the
Commission on what their findings and recommendations should be. The Truth Commission is free to come Truth Commission the power to cite persons for contempt; To require every administrative fact-finding body to
out with its own findings and recommendations, free from any interference or pressure from the President. Of have coercive or contempt powers is to invalidate all administrative fact-finding bodies created by the
course, as EO 1 expressly provides, the President, Congress and the Ombudsman are not bound by such Executive, Legislative and Judicial branches of government.—There is no provision in EO 1 that gives the
findings and recommendations. Truth Commission the power to cite persons for contempt. As explained by Solicitor General Jose Anselmo I.
Same; Same; Three Types of Fact-Finding Investigations in the Executive Department.—There are Cadiz, if the person who refuses to obey the subpoena, take oath or give testimony is a public officer, he can be
three types of fact-finding investigations in the Executive branch. First, there is the purely fact-finding charged with “defiance of a lawful order,” which should mean insubordination if his superior had ordered him
investigation the purpose of which is to establish the facts as basis for future executive action, excluding the to obey the subpoena of the Truth Commission. If the person is not a public officer or employee, he can only
determination of administrative culpability or the determination of probable cause. Second, there is the be dealt with in accordance with law, which should mean that the Truth Commission could file a petition with
administrative investigation to determine administrative culpabilities of public officials and employees. Third, the proper court to cite such private person in contempt pursuant to Sections 1 and 9 of Rule 21 of the Rules of
there is the preliminary investigation whose sole purpose is to determine probable cause as to the existence and Court. However, the mere fact that the Truth Commission, by itself, has no coercive power to compel any one,
perpetrator of a crime. These three types of fact-finding investigations are separate and distinct investigations. whether a government employee or a private individual, to testify before the Commission does not invalidate
Same; Same; Ombudsman; Purely fact-finding investigations to improve administrative procedures the creation by the President, or by the Judiciary or Legislature, of a purely administrative fact-finding
and efficiency, to institute administrative measures to prevent corruption, to provide the President with policy investigative body. There are witnesses who may voluntarily testify, and bring relevant documents, before such
options, to recom- fact-finding body. The fact-finding body may even rely only on official records of the government. To require
97 every administrative fact-finding body to have coercive or contempt powers is to invalidate all administrative
VOL. 637, DECEMBER 7, 2010 9 fact-finding bodies created by the Executive, Legislative and Judicial branches of government.
Same; Same; Words and Phrases; There is much ado about the words “Truth Commission” as the
7 name of the fact-finding body created under Executive Order (E.O.) No. 1—there is no law or rule prescribing
how a fact-finding body should be named.—There is much ado about the words “Truth Commission” as the
Biraogo vs. Philippine Truth Commission of 2010 name of the fact-finding body created under EO 1. There is no law or rule prescribing how a fact-finding
mend to Congress remedial legislation, and even to determine whether there is basis to file a formal body should be named. In fact, there is no law or rule prescribing how permanent govern-
administrative charge against a government official or employee, do not fall under the “primary jurisdiction” 99
Commission. To insist that “earlier past administrations” must also be investigated by the Truth
VOL. 637, DECEMBER 7, 2010 9 Commission, together with the Arroyo administration, is utterly bereft of any reasonable basis other than to
9 prevent absolutely the investigation of the Arroyo administration. No nation on this planet has even attempted
to assign to one ad-hoc fact-finding body the investigation of all its senior public officials in the past 100
Biraogo vs. Philippine Truth Commission of 2010 years.101
ment commissions, offices, or entities should be named. There is also no law or rule prohibiting the
use of the words “Truth Commission” as the name of a fact-finding body. Most fact-finding bodies are VOL. 637, DECEMBER 7, 2010 101
named, either officially or unofficially, after the chairperson of such body, which by itself, will not give any Biraogo vs. Philippine Truth Commission of 2010
clue as to the nature, powers or functions of the body. Thus, the name Feliciano Commission or Melo Same; Same; Same; Separation of Powers; If courts cannot exercise the Executive’s “special
Commission, by itself, does not indicate what the commission is all about. Naming the present fact-finding province” to decide whether or not to indict, which is the equivalent of determination of probable cause, with
body as the “Truth Commission” is more descriptive than naming it the Davide Commission after the name of greater reason courts cannot exercise the Executive’s “special province” to decide what or what not to
its chairperson. investigate for administrative fact-finding purposes.—In the present case, no one has been charged before the
Same; Same; Equal Protection Clause; To prioritize based on reasonable and even compelling prosecutor or the courts. What petitioners want this Court to do is invalidate a mere administrative fact-finding
grounds is not to discriminate, but to act sensibly and responsibly.—These are not only reasonable but also investigation by the Executive branch, an investigative phase prior to preliminary investigation. Clearly, if
compelling grounds for the Truth Commission to prioritize the investigation of the Arroyo administration. courts cannot exercise the Executive’s “special province” to decide whether or not to indict, which is the
To prioritize based on reasonable and even compelling grounds is not to discriminate, but to act sensibly equivalent of determination of probable cause, with greater reason courts cannot exercise the Executive’s
and responsibly. In any event, there is no violation of the equal protection clause just because the authorities “special province” to decide what or what not to investigate for administrative fact-finding purposes. For this
focus their investigation or prosecution on one particular alleged law-breaker, for surely a person accused of Court to exercise this “special province” of the President is to encroach on the exclusive domain of the
robbery cannot raise as a defense that other robbers like him all over the country are not being prosecuted. By Executive to execute the law in blatant violation of the finely crafted constitutional separation of power. Any
the very nature of an investigation or prosecution, there must be a focus on particular act or acts of a person or unwarranted intrusion by this Court into the exclusive domain of the Executive or Legislative branch disrupts
a group of persons. the separation of power among the three co-equal branches and ultimately invites re-balancing measures from
Same; Same; Same; To require that “earlier past administrations” must also be included in the the Executive or Legislative branch.
investigation of the Truth Commission, with the Truth Commission expressly empowered “to investigate all Same; Same; Same; A claim of selective prosecution that violates the equal protection clause can be
past administrations,” before there can be a valid investigation of the Arroyo administration under the equal raised only by the party adversely affected by the discriminatory act.—A claim of selective prosecution that
protection clause, is to prevent absolutely the investigation of the Arroyo administration under any violates the equal protection clause can be raised only by the party adversely affected by the
circumstance.—The majority opinion goes on to suggest that EO 1 could be amended “to include the earlier discriminatory act. In Nunez v. Sandiganbayan, 111 SCRA 433 (1982), this Court declared: ‘x x x Those
past administrations” to allow it “to pass the test of reasonableness and not be an affront to the adversely affected may under the circumstances invoke the equal protection clause only if they can show that
Constitution.” The majority opinion’s reasoning is specious, illogical, impractical, impossible to comply, and the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by
contrary to the Constitution and well-settled jurisprudence. To require that “earlier past administrations” the spirit of hostility, or at the very least, discrimination that finds no support in reason.’ x x x. (Emphasis
must also be included in the investigation of the Truth Commission, with the Truth Commission expressly supplied) Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under EO
empowered “to investigate all past administrations,” before there can be a valid investigation of the Arroyo 1. Even in the absence of such a claim by the proper party, the majority opinion strikes down EO 1 as
administration under the equal protection clause, is to prevent absolutely the investigation of the Arroyo discriminatory and thus violative of the equal protection clause. This is a gratuitous act to those who are not
administration under any circumstance.100 before this Court, a discriminatory exception to the rule that only those “adversely affected” by an alleged
1 SUPREME COURT REPORTS ANNOTATED selective prosecution can invoke the equal protection clause. Ironically, such discriminatory exception is a
violation of the equal protection clause. In short, the ruling of the majority is in itself a violation of the equal
00 protection clause, the very constitutional guarantee that it seeks to enforce.102
Biraogo vs. Philippine Truth Commission of 2010 1 SUPREME COURT REPORTS ANNOTATED
Same; Same; Same; Classifying the “earlier past administrations” in the last 111 years as just one
class is not germane to the purpose of investigating possible acts of graft and corruption.—The “earlier past 02
administrations” prior to the Arroyo administration cover the Presidencies of Emilio Aguinaldo, Manuel Biraogo vs. Philippine Truth Commission of 2010
Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Ramon Magsaysay, Carlos Garcia, Same; Same; Same; The majority opinion’s requirement that “earlier past administrations” in the last
Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Fidel Ramos, and Joseph Estrada, a period 111 years should be included in the investigation of the Truth Commission to comply with the equal protection
spanning 102 years or more than a century. All these administrations, plus the 9-year Arroyo clause is a recipe for all criminals to escape prosecution.—The majority opinion’s requirement that “earlier
administration, already constitute the universe of all past administrations, covering a total period of 111 years. past administrations” in the last 111 years should be included in the investigation of the Truth Commission to
All these “earlier past administrations” cannot constitute just one class of administrations because if they comply with the equal protection clause is a recipe for all criminals to escape prosecution. This requirement is
were to constitute just one class, then there would be no other class of administrations. It is like saying that like saying that before a person can be charged with estafa, the prosecution must also charge all persons who in
since all citizens are human beings, then all citizens belong to just one class and you cannot classify them as the past may have committed estafa in the country. Since it is impossible for the prosecution to charge all those
disabled, impoverished, marginalized, illiterate, peasants, farmers, minors, adults or seniors. Classifying the who in the past may have committed estafa in the country, then it becomes impossible to prosecute anyone for
“earlier past administrations” in the last 111 years as just one class is not germane to the purpose of estafa.
investigating possible acts of graft and corruption. There are prescriptive periods to prosecute crimes. There Same; Same; Same; A fact-finding investigation in the Executive or Judicial branch, even if limited to
are administrations that have already been investigated by their successor administrations. There are also specific government officials—whether incumbent, resigned or retired—does not violate the equal protection
administrations that have been subjected to several Congressional investigations for alleged large-scale clause.—A fact-finding investigation in the Executive or Judicial branch, even if limited to specific
anomalies. There are past Presidents, and the officials in their administrations, who are all dead. There are past government officials — whether incumbent, resigned or retired — does not violate the equal protection clause.
Presidents who are dead but some of the officials in their administrations are still alive. Thus, all the “ earlier If an anomaly is reported in a government transaction and a fact-finding investigation is conducted, the
past administrations” cannot be classified as just one single class—“a class of past administrations”— investigation by necessity must focus on the public officials involved in the transaction. It is ridiculous for
because they are not all similarly situated. anyone to ask this Court to stop the investigation of such public officials on the ground that past public
Same; Same; Same; To insist that “earlier past administrations” must also be investigated by the Truth officials of the same rank, who may have been involved in similar anomalous transactions in the past, are not
Commission, together with the Arroyo administration, is utterly bereft of any reasonable basis other than to being investigated by the same fact-finding body. To uphold such a laughable claim is to grant immunity to all
prevent absolutely the investigation of the Arroyo administration.—A fact-finding investigation of “earlier criminals, throwing out of the window the constitutional principle that “[p]ublic office is a public trust” and
past administrations,” spanning 111 years punctuated by two world wars, a war for independence, and that “[p]ublic officials and employees must at all times be accountable to the people.”
several rebellions—would obviously be an impossible task to undertake for an ad hoc body like the Truth
Same; Same; Same; Accountability of Public Officers; The majority opinion completely ignores the maintaining a confidential relation with it/them or acting as advocates of the rights of a non-party who seeks
constitutional principle that public office is a public trust and that public officials are at all times accountable access to their market or function.
to the people.—The majority opinion’s requirements that EO 1 should also include “earlier past Equal Protection Clause; Philippine Truth Commission; There is nothing arbitrary or unreasonable in
administrations,” with the Truth Commission empowered “to investigate all past administrations,” to the Truth Commission’s defined scope of investigation.—The ponencia holds that the previous administration
comply with the equal protection clause, is a requirement that is not only illogical and impossible to comply, it has been denied equal protection of the laws. To it, “[t]o restrict the scope of the commission’s investigation to
also allows the impunity to commit graft and corruption and other crimes under our penal laws. The majority said particular administration constitutes arbitrariness which the equal protection clause cannot sanction.” I
opinion completely ignores the constitutional principle that public office is a public trust and that public find nothing arbitrary or unreasonable in the Truth Commission’s defined scope of investigation. In issues
officials are at all times accountable to the people.103 involving the equal protection clause, the test developed by jurisprudence is that of reasonableness, which has
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the
VOL. 637, DECEMBER 7, 2010 103 law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
Biraogo vs. Philippine Truth Commission of 2010 Same; Same; Presidency; Separation of Powers; The Court could not, in any way, determine or dictate
Same; Same; Separation of Powers; The Court, in striking down Executive Order (E.O.) No. 1 creating what information the President would be needing in fulfilling the duty to ensure the faithful execution of laws
the Truth Commission, overrules the manifest will of the Filipino people to start the difficult task of putting an on public
105
end to graft and corruption in government, denies the President his basic constitutional power to determine
the facts in his faithful execution of the law, and suppresses whatever truth may come out in the purely fact- VOL. 637, DECEMBER 7, 2010 105
finding investigation of the Truth Commission.—Neither the Constitution nor any existing law prevents the
incumbent President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent Biraogo vs. Philippine Truth Commission of 2010
President’s campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II accountability.—This Court could not, in any way, determine or dictate what information the
of the Constitution, that: Section 27. The State shall maintain honesty and integrity in the public service President would be needing in fulfilling the duty to ensure the faithful execution of laws on public
and take positive and effective measures against graft and corruption. (Emphasis supplied) The incumbent accountability. This sweeping directive of the ponencia to include all past administrations in the probe
President’s campaign pledge also reiterates the constitutional principle that “[p]ublic office is a public trust” tramples upon the prerogative of a co-equal branch of government. The group or class, from which to elicit the
and that “[p]ublic officers and employees must at all times be accountable to the people.” This Court, in needed information, rests on substantial distinction that sets the class apart.
striking down EO 1 creating the Truth Commission, overrules the manifest will of the Filipino people to start Same; Same; Same; The exclusion of other past administrations from the scope of investigation by the
the difficult task of putting an end to graft and corruption in government, denies the President his basic Truth Commission is justified by the substantial distinction that complete and definitive reports covering their
constitutional power to determine the facts in his faithful execution of the law, and suppresses whatever truth respective periods have already been rendered.—The Executive Department’s determination of the futility or
may come out in the purely fact-finding investigation of the Truth Commission. This Court, in invoking the redundancy of investigating other administrations should be accorded respect. Respondents having manifested
equal protection clause to strike down a purely fact-finding investigation, grants immunity to those who violate that pertinent and credible data are already in their hands or in the archives, petitioners’ idea of an all-
anti-corruption laws and other penal laws, renders meaningless the constitutional principle that public office is encompassing de novo inquiry becomes tenuous as it goes beyond what the Executive Department needs. The
a public trust, and makes public officials unaccountable to the people at any time. exclusion of other past administrations from the scope of investigation by the Truth Commission is justified by
CARPIO-MORALES, J., Dissenting Opinion: the substantial distinction that complete and definitive reports covering their respective periods have already
Judicial Review; Locus Standi; Equal Protection Clause; Petitioners with legal standing as legislators been rendered. The same is not true with the immediate past administration. There is thus no undue favor or
cannot properly assert the equal protection claim of the previous administration—the peculiarity of the locus unwarranted partiality. To include everybody all over again is to insist on a useless act.
standi of legislators necessarily confines the adjudication of their petition only on matters that tend to impair Philippine Truth Commission; The purpose of Executive Order (E.O.) No. 1 is to produce a report
the exercise of their official functions.—Petitioners in G.R. No. 193036, with legal standing as legislators, which, insofar as the Truth Commission is concerned, is the end in itself—the purpose of the report is another
cannot properly assert the equal protection claim of the previous administration. While legislators matter which is already outside the control of E.O. No. 1.—The purpose of E.O. No. 1 is to produce a report
have locus standi in certain cases, their legal standing as such is recognized only insofar as the assailed which, insofar as the Truth Commission is concerned, is the end in itself. The purpose of the report is another
issuance affects their functions as legislators. In the absence of a claim that the issuance in question violated matter which is already outside the control of E.O. No. 1. Once the report containing the needed information is
the rights of petitioner-legislators or impermissibly intruded into the domain of the Legislature, they have no completed, the Truth Commission is dissolved functus officio. At that point, the endeavor of data-gathering is
legal standing to institute the present action accomplished, and E.O No. 1 has served its purpose. It cannot be said, however, that it already eradicated graft
104 and corruption. The report would still be passed upon by government agencies. Insofar as the Executive
Department is concerned, the report assimilates into a broader database that advises and guides the President in
1 SUPREME COURT REPORTS ANNOTATED law enforcement. To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to
04 the fallacious and artificial conclusion that respondents are stamping out corrupt acts of the previous
administration only, as if E.O. No. 1 represents the entire anti-corruption efforts of the Executive
Biraogo vs. Philippine Truth Commission of 2010 Department.106
in their capacity as members of Congress. No doubt, legislators are allowed to sue to question the
validity of any official action upon a claim of usurpation of legislative power. That is why, not every time that 1 SUPREME COURT REPORTS ANNOTATED
a Senator or a Representative invokes the power of judicial review, the Court automatically clothes them 06
with locus standi. The Court examines first, as the ponencia did, if the petitioner raises an issue pertaining to
an injury to Congress as an institution or a derivative injury to members thereof, before proceeding to resolve Biraogo vs. Philippine Truth Commission of 2010
that particular issue. The peculiarity of the locus standi of legislators necessarily confines the adjudication of Same; Equal Protection Clause; Laws that are limited in duration (e.g., general appropriations act) do
their petition only on matters that tend to impair the exercise of their official functions. not circumvent the guarantee of equal protection by not embracing all that may, in the years to come, be in
Same; Same; Same; Breach of the equal protection clause, as presently raised by petitioner-legislators similar conditions even beyond the effectivity of the law.—The Truth Commission is an ad hoc body formed
on behalf of the Executive Department of the immediate past administration, has nothing to do with the under the Office of the President. The nature of an ad hoc body is that it is limited in scope. Ad hoc means for
impairment of the powers of Congress.—Breach of the equal protection clause, as presently raised by the particular end or case at hand without consideration of wider application. An ad hoc body is inherently
petitioner-legislators on behalf of the Executive Department of the immediate past administration, has nothing temporary. E.O. No. 1 provides that the Truth Commission “shall accomplish its mission on or before
to do with the impairment of the powers of Congress. Thus, with respect to the issue in Pimentel, Jr. v. Exec. December 31, 2012.” That the classification should not be limited to existing conditions only, as applied in the
Secretary Ermita, 469 SCRA 1 (2005), that did not involve any impairment of the prerogatives of Congress, present case, does not mean the inclusion of future administrations. Laws that are limited in duration ( e.g.,
some Senators who merely invoked their status as legislators were not granted standing. Moreover, petitioner- general appropriations act) do not circumvent the guarantee of equal protection by not embracing all that may,
legislators cannot take the cudgels for the previous administration/s, unless they admit that they are in the years to come, be in similar conditions even beyond the effectivity of the law. The requirement not to
limit the classification to existing conditions goes into the operational details of the law. The law cannot, in
fine print, enumerate extant items that exclusively compose the classification, thereby excluding soon-to-exist specific issues, because ultimately, the President’s authority to reorganize is derived from the power-and-duty
ones that may also fall under the classification. nexus fleshed out in the two powers granted to him in Section 17, Article VII of the Constitution.
NACHURA, J., Concurring and Dissenting Opinion: Same; Judicial Review; Separation of Powers; Even with the Court’s expanded power of judicial
Philippine Truth Commission; Public Office; Given the powers conferred upon it, as spelled out in review, we still cannot refashion, and dictate on, the policy determination made by the President concerning
Executive Order (E.O.) No. 1, there can be no doubt that the Truth Commission is a public office, and the what function, of whichever Department, regarding specific issues, he may choose to directly assume and take
Chairman and the Commissioners appointed thereto, public officers.—A public office is defined as the right, cognizance of.—I earnestly believe that, even with this Court’s expanded power of judicial review, we still
authority, or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at cannot refashion, and dictate on, the policy determination made by the President concerning what function, of
the pleasure of the creating power, an individual is invested with some sovereign power of government to be whichever Department, regarding specific issues, he may choose to directly assume and take cognizance of. To
exercised by him for the benefit of the public. Public offices are created either by the Constitution, by valid do so would exceed the boundaries of judicial authority and encroach on an executive prerogative. It would
statutory enactments, or by authority of law. A person who holds a public office is a public officer. Given the violate the principle of separation of powers, the constitutional guarantee that no branch of government should
powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that the Truth Commission is a arrogate unto itself those functions and powers vested by the Constitution in the other branches.
public office, and the Chairman and the Commissioners appointed thereto, public officers. Same; Same; The Truth Commission is a public office validly created by the President of the
Presidency; Power of Control; Take Care Clause; The President’s power of control is derived directly Philippines under authority of law, as an adjunct of the Office of the President—to which the President has
from the Constitution and not from any implementing legislation, while, on the other hand, the power to take validly delegated the fact-finding and investigatory powers [of the Department of Justice] which he had
care that the laws be faithfully executed makes the President a dominant figure in the administration of the chosen to personally assume.—In fine, it is my submission that the Truth Commission is a public office
government.—Relevant to this disquisition are two specific powers that flow from this “plenitude of validly created by the President of the Philippines under authority of law, as an adjunct of the Office of the
authority.” Both are found in Section 17, Article VII of the Constitution. They are commonly referred to as President — to which the President has validly delegated the fact-finding and investigatory powers [of the
107 Department of Justice] which he had chosen to personally assume. Further, it is the product of the President’s
VOL. 637, DECEMBER 7, 2010 107 exercise of the power to reorganize the Office of the President granted under the Administrative Code.
Same; Same; Words and Phrases; The word “independent,” as used in Executive Order (E.O.) No. 1,
Biraogo vs. Philippine Truth Commission of 2010 cannot be understood to mean total separateness
the power of control and the take care clause. Section 17 is a self-executing provision. The President’s 109
power of control is derived directly from the Constitution and not from any implementing legislation. On the VOL. 637, DECEMBER 7, 2010 109
other hand, the power to take care that the laws be faithfully executed makes the President a dominant figure in
the administration of the government. The law he is supposed to enforce includes the Constitution itself, Biraogo vs. Philippine Truth Commission of 2010
statutes, judicial decisions, administrative rules and regulations and municipal ordinances, as well as the or full autonomy from the Office of the President—it should be interpreted as an expression of the
treaties entered into by our government. At almost every cusp of executive power is the President’s power of intent of the President: that the Truth Commission shall be accorded the fullest measure of freedom and
control and his constitutional obligation to ensure the faithful execution of the laws. objectivity in the pursuit of its mandate, unbound and uninhibited in the performance of its duties by
Same; Same; Same; It is abundantly clear that the overarching framework in the President’s power of interference or undue pressure coming from the President.—This conclusion inevitably brings to the threshold
control enables him to assume directly the powers of any executive department, bureau or office—whatever of our discussion the matter of the “independence” of the Truth Commission, subject of an amusing exchange
powers conferred by law upon subordinate officials within his control are powers also vested in the President we had with the Solicitor General during the oral argument, and to which the erudite Justice Arturo D. Brion
of the Philippines; When the power of control is juxtaposed with the constitutional duty to ensure that laws be devoted several pages in his Separate Concurring Opinion. The word “independent,” as used in E.O. No. 1,
faithfully executed, it is obvious that, for the effective exercise of the take care clause, it may become necessary cannot be understood to mean total separateness or full autonomy from the Office of the President. Being a
for the President to create an office, agency or commission, and charge it with the authority and the power creation of the President of the Philippines, it cannot be totally dissociated from its creator. By the nature of its
that he has chosen to assume for himself.—From these cited decisions, it is abundantly clear that the creation, the Truth Commission is intimately linked to the Office of the President, and the Executive Order, as
overarching framework in the President’s power of control enables him to assume directly the powers of any it were, is the umbilical cord that binds the Truth Commission to the Office of the President. The word
executive department, bureau or office. Otherwise stated, whatever powers conferred by law upon subordinate “independent,” used to describe the Commission, should be interpreted as an expression of the intent of the
officials within his control are powers also vested in the President of the Philippines. In contemplation of law, President: that the Truth Commission shall be accorded the fullest measure of freedom and objectivity in the
he may directly exercise the powers of the Secretary of Foreign Affairs, the Secretary of National Defense, the pursuit of its mandate, unbound and uninhibited in the performance of its duties by interference or undue
Commissioner of Customs, or of any subordinate official in the executive department. Thus, he could, for pressure coming from the President. Our exchange during the oral argument ended on this note: that while the
example, take upon himself the investigatory functions of the Department of Justice, and personally conduct an Truth Commission is, technically, subject to the power of control of the President, the latter has manifested his
investigation. If he decides to do so, he would be at liberty to delegate a portion of this investigatory function intention, as indicated in the Executive Order, not to exercise the power over the acts of the Commission.
to a public officer, or a panel of public officers, within his Office and under his control. There is no principle Equal Protection Clause; Standards of Review; Words and Phrases; The “rational basis” test is one of
of law that proscribes his doing so. In this context, the President may, therefore, create an agency within his three “levels of scrutiny” analyses developed by courts in reviewing challenges of unconstitutionality against
Office to exercise the functions, or part of the functions, that he has assumed for himself. Even statutes and executive action.—The “rational basis” test is one of three “levels of scrutiny” analyses developed
the ponencia admits that this can be done. When this power of control is juxtaposed with the constitutional by courts in reviewing challenges of unconstitutionality against statutes and executive action. Carl Cheng, in
duty to ensure that laws be faithfully executed, it is obvious that, for the effective exercise of the take care his dissertation, “Important Right and the Private Attorney General Doctrine,” enlightens us, thus: “[I]n the
clause, it may become necessary for the President to create an office, agency or commission, and charge it with area of equal protection analysis, the judiciary has developed a ‘level of scrutiny’ analysis for resolving the
the authority and the power that he has chosen to assume for himself. It will not simply be an exercise of the tensions inherent in judicial review. When engaging in this analysis, a court subjects the legislative or
power of executive action to one of three levels of scrutiny, depending on the class of persons and the rights affected by
108 the action. The three levels are rational basis scrutiny, intermediate scrutiny, and strict scrutiny. If a
1 SUPREME COURT REPORTS ANNOTATED particular legislative or executive act does not survive the appropriate level of scrutiny, the act is held to be
unconstitutional. If it does survive, it is deemed constitutional.
08 110
Biraogo vs. Philippine Truth Commission of 2010 1 SUPREME COURT REPORTS ANNOTATED
control, but also a measure intended to ensure that laws are faithfully executed. 10
Same; Philippine Truth Commission; That the Truth Commission is a derivative of the reorganization
of the Office of the President should brook no dissent.—That the Truth Commission is a derivative of the Biraogo vs. Philippine Truth Commission of 2010
reorganization of the Office of the President should brook no dissent. The President is not precluded from The three tensions discussed above and, in turn, the three judicial responses to each, run parallel to
transferring and re-aligning the fact-finding functions of the different Departments regarding certain and these three levels of scrutiny. In response to each tension, the court applies a specific level of scrutiny.”
Same; Same; Laws classify in order to achieve objectives, but the classification may not perfectly
12
achieve the objective.—Laws classify in order to achieve objectives, but the classification may not perfectly
achieve the objective. Thus, in Michael M. v. Supreme Court of Sonoma County, the U.S. Supreme Court said Biraogo vs. Philippine Truth Commission of 2010
that the relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the supervision, then the creation of the Commission must be done by legislative action and not by
line chosen [by the legislature] is within constitutional limitations. The equal protection clause does not require executive order.—If this Philippine Truth Commission is an office independent of the President and not
the legislature to enact a statute so broad that it may well be incapable of enforcement. subject to the latter’s control and supervision, then the creation of the Commission must be done by legislative
Same; Same; Under the rational basis test, the presence of any plausible legitimate objective for the action and not by executive order. It is undisputed that under our constitutional framework only Congress has
classification, where the classification serves to accomplish that objective to any degree, no matter how tiny, the power to create public offices and grant to them such functions and powers as may be necessary to fulfill
would validate the classification.—In the determination of whether the classification is invidious or arbitrary, their purpose. Even in the international sphere, the creation of the more familiar truth commissions has been
its relation to the purpose must be examined. Under the rational basis test, the presence of any plausible done by an act of legislature.
legitimate objective for the classification, where the classification serves to accomplish that objective to any Same; There is nothing in Executive Order (E.O.) No. 1 that indicates that the Commission is a part of
degree, no matter how tiny, would validate the classification. To be invalidated on constitutional grounds, the the executive department or of the Office of the President Proper.—There is nothing in EO No. 1 that indicates
test requires that the classification must have one of the following traits: (1) it has absolutely no conceivable that the Commission is a part of the executive department or of the Office of the President Proper. Indeed, it is
legitimate purpose; or (2) it is so unconnected to any conceivable objective, that it is absurd, utterly arbitrary, Justice Carpio who suggests that the President may appoint the commissioners of the Philippine Truth
whimsical, or even perverse. Commission as presidential special assistants or advisers in order that the Commission be subsumed in the
Same; Same; Pursuing a system of priorities does not translate to suspect classification resulting in Office of the President Proper and to clearly place EO No. 1 within the ambit of Section 31. To my mind, the
violation of the equal protection guarantee.—The initial categorization of the issues and reports which are to fact that the commissioners are proposed to be appointed as presidential advisers is an indication that the
be the subject of the Truth Commission’s investigation is the President’s call. Pursuing a system of priorities Philippine Truth Commission was initially planned to be independent of the President and the subsequent
does not translate to suspect classification resulting in violation of the equal protection guarantee. In his appointment of the commissioners as presidential advisers will be merely curative of the patent defect in the
assignment of priorities to address various government concerns, the President, as the Chief Executive, may creation of the Commission by an Executive Order, as an independent body.
initially limit the focus of his inquiry and investigate issues and reports one at a time. As such, there is actually Same; Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically
no differential treatment that can be equated to an invalid classification. “neutral” so as to assure a completely impartial conduct of its purported fact-finding mandate.—EO No. 1
Presidency; Constitutional Law; Peculiar to our nation is a verbose Constitution; Although the itself is replete with provisions that indicate that the existence and operations of the Commission will be
Solicitor General may have made certain declarations, read as admissions by the other Members of this dependent on the Office of the President. Its budget shall be provided by the Office of the President and
Court, these cannot bind the therefore it has no fiscal autonomy. The reports of the Commission shall be published upon the directive of the
111
President. Further, if we follow the legal premises of our dissenting colleagues to their logical conclusion, then
VOL. 637, DECEMBER 7, 2010 111 the Commission as a body created by executive order may likewise be abolished (if it is part of the Presidential
Special Assistants/Advisers System of the Office of the President Proper) or restructured by executive order.
Biraogo vs. Philippine Truth Commission of 2010 EO No. 1 may be amended, modified, and repealed all by executive order. More importantly, if the
Supreme Court in interpreting the constitutional grant of executive power—the matter is simply a Commission is subject to the power of control of the President, he may reverse, revise or modify the actions of
failure of articulation which cannot be used to diminish the power of the executive.—Considering all the the Commission or even substitute his own decision for that of the Commission. Whether by name or by
foregoing discussion, I must, regrettably, disagree with the suggestion. Peculiar to our nation is a verbose nature, the Philippine Truth Commission cannot be deemed politically “neutral” so as to assure a completely
Constitution. Herein enshrined are motherhood statements—exhortations for public officers to follow. A quick impartial conduct of
perusal of E.O. No. 1 bears out a similar intonation. Although the Solicitor General may have made certain 113
declarations, read as admissions by the other Members of this Court, these cannot bind the Supreme Court in
VOL. 637, DECEMBER 7, 2010 113
interpreting the constitutional grant of executive power. The matter is simply a failure of articulation which
cannot be used to diminish the power of the executive. On the whole, the erroneous declarations of the Biraogo vs. Philippine Truth Commission of 2010
Solicitor General, preempting and interpreting the President’s exercise of executive power beyond the its purported fact-finding mandate. I further concur with Chief Justice Corona that attempts to “sugar
articulated purpose of E.O. No. 1, are not equivalent to the wrongful exercise by the President of executive coat” the Philippine Truth Commission’s functions as “harmless” deserve no credence.
power. Same; Judicial Review; The Court cannot place its stamp of approval on executive action that is
LEONARDO-DE CASTRO, J., Concurring Opinion: constitutionally abhorrent even if for a laudable objective, and even if done by a President who has the
Philippine Truth Commission; Words and Phrases; Obviously, the title given to the Commission is support of popular opinion on his side.—The constitutional mandate for public accountability and the present
meant to convey the message that it is independent of the Office of the President—the creation of the administration’s noble purpose to curb graft and corruption simply cannot justify trivializing individual rights
Philippine Truth Commission and its naming as such were done as a deliberate reference to the tradition of equally protected under the Constitution. This Court cannot place its stamp of approval on executive action
independent truth commissions as they are conceived in international law, albeit adapted to a particular that is constitutionally abhorrent even if for a laudable objective, and even if done by a President who has the
factual situation in this jurisdiction.—With due respect, I disagree with Justice Antonio T. Carpio’s opinion support of popular opinion on his side. For the decisions of the Court to have value as precedent, we cannot
that the naming of the body created by EO No. 1 as the “Philippine Truth Commission” was a mere attempt to decide cases on the basis of personalities nor on something as fickle and fleeting as public sentiment. It is
be novel, to depart from the tired and repetitious scheme of naming a commission after its appointed worth repeating that our duty as a Court is to uphold the rule of law and not the rule of men.
head/leader or of calling it a “fact-finding” body. Obviously, the title given to the Commission is meant to BRION, J., Separate Opinion:
convey the message that it is independent of the Office of the President. Those who dissent from the majority Philippine Truth Commission; Words and Phrases; The first problem of the Executive Order (E.O.) is
position gloss over the fact that EO No. 1 itself expressly states that the Commission’s members shall “act as its use of the title “Truth Commission” and its objective of truth-telling; these assume that what the Truth
an independent collegial body.” During oral arguments, the Solicitor General confirmed that what EO No. 1 Commission speaks of is the “truth” because of its title and of its truth-telling function—anything other than
intended is for the Commission to be an independent body over which the President has no power of control. what the Commission reports would either be a distortion of the truth, or may even be an “untruth.”—The
The Solicitor General further claimed that one of the functions of the Commission is “truth-telling.” Verily, the first problem of the EO is its use of the title “Truth Commission” and its objective of truth-telling; these
creation of the Philippine Truth Commission and its naming as such were done as a deliberate reference to the assume that what the Truth Commission speaks of is the “truth” because of its title and of its truth-telling
tradition of independent truth commissions as they are conceived in international law, albeit adapted to a function; thus, anything other than what the Commission reports would either be a distortion of the truth, or
particular factual situation in this jurisdiction. may even be an “untruth.” This problem surfaced during the oral arguments on queries about the effect of the
Same; Separation of Powers; If this Philippine Truth Commission is an office independent of the title “Truth Commission” on the authority of the duly constituted tribunals that may thereafter rule on the
President and not subject to the latter’s control and matters that the Commission shall report on. Since the Commission’s report will constitute the “truth,” any
112
subsequent contrary finding by the Ombudsman would necessarily be suspect as an “untruth;” it is up then to
1 SUPREME COURT REPORTS ANNOTATED the Ombudsman to convince the public that its findings are true.
Same; Ombudsman; Faced with the findings of the Commission, the Ombudsman who enters a international experiences that gave rise to the title Truth Commission were transitional situations where, for
contrary ruling effectively carries the burden of proving that its findings, not those of the Commission, are peculiar reasons (such as the temporary absence of an established judicial system or the need to speed up the
correct; What the Executive Order (E.O.) patently expresses as a primary role for the Commis- transition to democratic rule), the use of ad hoc commissions were called for. In the Philippine setting, the
114 closest similar situation would be the immediate aftermath of the 1986 EDSA Revolution as the country
1 SUPREME COURT REPORTS ANNOTATED struggled in the transition from authoritarian martial law regime into a full-fledged democracy. To be sure, the
shortcut to the emergence of truth, fashioned under the terms of EO 1, finds no justification after the 1987
14 Constitution and its rights, freedoms and guarantees have been fully put in place.116
Biraogo vs. Philippine Truth Commission of 2010 1 SUPREME COURT REPORTS ANNOTATED
sion is negated in actual application by the title Truth Commission and its truth-telling function.—In
16
other words, faced with the findings of the Commission, the Ombudsman who enters a contrary ruling
effectively carries the burden of proving that its findings, not those of the Commission, are correct. To say the Biraogo vs. Philippine Truth Commission of 2010
least, this resulting reversal of roles is legally strange since the Ombudsman is the body officially established Same; Ombudsman; The extrajudicial intervention of the Commission, as provided in the Executive
and designated by the Constitution to investigate graft and other crimes committed by public officers, while the Order (E.O.), even for the avowed purpose of “assisting” the Ombudsman, directly disrupts the established
Commission is a mere “creation” of the Executive Order. The Ombudsman, too, by statutory mandate has order, as the Constitution and the law do not envision a situation where fact-finding recommendations,
primary jurisdiction over the investigation and prosecution of graft and corruption, while the Commission’s already labelled as “true,” would be submitted to the Ombudsman by an entity within the Executive branch.—
role is merely recommendatory. Thus, what the EO patently expresses as a primary role for the Commission The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed purpose of
is negated in actual application by the title Truth Commission and its truth-telling function. Expressed in “assisting” the Ombudsman, directly disrupts the established order, as the Constitution and the law do not
terms of the forums the EO spawned, the EO’s principal intent to use the Truth Commission as a second envision a situation where fact-finding recommendations, already labelled as “true,” would be submitted to
forum instrument is unmasked; the first forum—the officially sanctioned forum for the prosecution of crimes the Ombudsman by an entity within the Executive branch. This arrangement is simply not within the
—becomes merely a convenient cover for the second forum. dispensation of justice scheme, as the determination of whether probable cause exists cannot
Same; Even the Supreme Court will be perceived to have sided with an “untruth” when and if it goes be defeated, rendered suspect, or otherwise eroded by any prior process whose results are represented to be the
against the Commission’s report.—The effects of truth-telling could go beyond those that affect the “truth” of the alleged criminal acts. The Ombudsman may be bound by the findings of a court, particularly
Ombudsman. If the Ombudsman concurs with the Commission and brings the recommended graft and those of this Court, but not of any other body, most especially a body outside the regular criminal justice
corruption charges before the Sandiganbayan—a constitutionally-established court—this court itself would be system. Neither can the strictly judicial aspect of the justice system be saddled with this type of fact-finding, as
subject to the same truth-telling challenge if it decides to acquit the accused. For that matter, even this Court, the determination of the guilt or innocence of an accused lies strictly and solely with the courts. Nor can the
will be perceived to have sided with an “untruth” when and if it goes against the Commission’s report. Thus, EO cloak its intent of undercutting the authority of the designated authorities to rule on the merits of the
the authority, independence, and even the integrity of these constitutional bodies—the Ombudsman, the alleged graft and corruption through a statement that its findings are recommendatory; as has been discussed
Sandiganbayan, and the Supreme Court—would have been effectively compromised, to the prejudice of the above, this express provision is negated in actual application by the title Truth Commission and its truth-telling
justice system. All these, of course, begin with the premise that the Truth Commission has the mandate to find function.
the “truth,” as it name implies, and has a truth-telling function that it can fully exercise through its own efforts Same; Once the door is opened to the Truth Commission approach and public opinion enters as a
and through the media. consideration in the judicial handling of criminal cases, then the rules of judging would have effectively
Same; At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a changed—reliance on the law, the rules and jurisprudence would have been weakened to the extent that judges
mechanism for “priming” the public, even the Ombudsman and the courts, to the Commission’s way of are on the lookout, not only for what the law and the rules say, but also for what the public feels about the
thinking.—The present Truth Commission operating under the terms of the EO, however, introduces a new case; The primacy of public opinion may, without doubt, appeal to some but this is simply not the way of a
twist that the public and the country have not met before. For the first time, a Truth Commission, tasked with a Judiciary constitutionally-designed to follow the rule of law.—Because of truth-telling and its consequence of
truth-telling function, shall speak on the “truth” of what acts of graft and corruption were actually com- actively bringing in public opinion as a consideration, standards and usages other than those strictly laid down
115
or allowed by the Constitution, by the laws and by the Rules of Court will play a part in the criminal justice
VOL. 637, DECEMBER 7, 2010 115 system. For example, public comments on the merits of cases that are still sub judice may become rampant as
comments on a truth commission’s findings, not on the cases pending before the courts. The commission’s
Biraogo vs. Philippine Truth Commission of 2010 “truthful” findings, made without respect for the rules on evidence
mitted and who the guilty parties are. This official communication from a governmental body—the 117
Truth Commission—whose express mandate is to find and “tell the truth” cannot but make a difference in the
VOL. 637, DECEMBER 7, 2010 117
public perception. At the very least, the widely-publicized conclusions of the Truth Commission shall serve as
a mechanism for “priming” the public, even the Ombudsman and the courts, to the Commission’s way of Biraogo vs. Philippine Truth Commission of 2010
thinking. Pervasively repeated as an official government pronouncement, the Commission’s influence can go and the rights of the accused, would become the standards of public perception of and reaction to cases,
beyond the level of priming and can affect the public environment as well as the thinking of both the not the evidence as found by the courts based on the rules of evidence. Once the door is opened to the Truth
decision makers in the criminal justice system and the public in general. Otherwise stated, the Commission’s Commission approach and public opinion enters as a consideration in the judicial handling of criminal cases,
publicly announced conclusions cannot but assume the appearance of truth once they penetrate and effectively then the rules of judging would have effectively changed; reliance on the law, the rules and jurisprudence
color the public’s perception, through repetition without significant contradiction as official government would have been weakened to the extent that judges are on the lookout, not only for what the law and the rules
findings. These conclusions thus graduate to the level of “truth” in self-fulfillment of the name the say, but also for what the public feels about the case. In this eventuality, even a noisy minority can change the
Commission bears; the subtle manipulation of the Commission’s name and functions, fades in the background course of a case simply because of their noise and the media attention they get. (Such tactics have been
or simply becomes explainable incidents that cannot defeat the accepted truth. attempted in the immediate past where pressure has been brought to bear on this Court through street
Same; To be sure, the shortcut to the emergence of truth, fashioned under the terms of Executive Order demonstrations bordering on anarchy, the marshalling of opinions locally and internationally, and highly
(E.O.) No. 1, finds no justification after the 1987 Constitution and its rights, freedoms and guarantees have partisan media comments.) The primacy of public opinion may, without doubt, appeal to some but this is
been fully put in place.—In the context of the EO, the Executive can investigate within the limits of its legal simply not the way of a Judiciary constitutionally-designed to follow the rule of law.
parameters and can likewise publicize the results of its investigations to the full limit of allowable Same; Presidency; Separation of Powers; The President of the Philippines, through an executive or
transparency. But in so doing, it cannot act as catalyst by labelling the action of the Commission it has created administrative order and without authority of law, cannot introduce changes or innovations into the justice
as officially-sanctioned and authoritative truth-telling before the officially-designated bodies—the system and significantly water down the authoritative power of the courts and of duly designated
Ombudsman and the courts—have spoken. While the emergence of truth is a basic and necessary component constitutional bodies in dispensing justice.—To be sure, the President of the Philippines, through an executive
of the justice system, the truth-seeking and truth-finding processes cannot be speeded up through steps that or administrative order and without authority of law, cannot introduce changes or innovations into the justice
shortcut and bypass processes established by the Constitution and the laws. As heretofore mentioned, the
system and significantly water down the authoritative power of the courts and of duly designated constitutional of the truth-telling function on the persons investigated is on their persons, reputation and property. Simply
bodies in dispensing justice.The nobility of the President’s intentions is not enough to render his act legal. As being singled out as “charged” in a truth-telling report will inevitably mean disturbance of one’s routines,
has been said often enough, ours is a government of laws, not of men. activities and relationships; the preparation for a defense that will cost money, time and energy; changes in
Same; Ombudsman; The independence of the Ombudsman and its freedom from interference from all personal, job and business relationships with others; and adverse effects on jobs and businesses. Worse,
other departments of government in the performance of its functions is a barrier that cannot be breached, reputations can forever be tarnished after one is labelled as a participant in massive graft and corruption.
directly or indirectly, except only as the Constitution and the laws may allow.—While the Executive Same; Judicial Review; Evidence is hardly necessary where the prejudicial effects are self-evident, i.e.,
participates in the dispensation of justice under our constitutional and statutory system through its given that the announced and undisputed government position that truth-telling per se, in the manner
investigatory and prosecutory arms and has every authority in law to ensure that the law is enforced and that envisioned by the Executive Order (E.O.) and its implementing rules, is an independent objective the
violators are prosecuted, even these powers have limits. The independence of the Ombudsman and its freedom government wants to achieve; In testing the validity of a government act or statute, such potential for harm
from interference from all other departments of government in the performance of its functions is a barrier that suffices to invalidate the challenged act—evidence of actual harm is not necessary in the way it is necessary
cannot be breached, directly or indirectly, except only as the Constitution and the laws may allow. No such for a criminal conviction or to justify an award for damages.—These prejudicial effects may be dismissed as
exception has been allowed or given to the President speculative arguments that are not justified by any supporting evidence and, hence, cannot effectively be cited
118 as factual basis for the invalidity of the EO. Evidence, however, is hardly necessary where the prejudicial
1 SUPREME COURT REPORTS ANNOTATED effects are self-evident, i.e., given that the announced and undisputed government position that truth-
telling per se, in the manner envisioned by the EO and its implementing rules, is an independent objective the
18 gov-
120
Biraogo vs. Philippine Truth Commission of 2010
other than through the prosecution the Department of Justice may undertake when the Ombudsman has 1 SUPREME COURT REPORTS ANNOTATED
not asserted its primary jurisdiction. The concurrent jurisdiction given to the Department of Justice to 20
prosecute criminal cases, incidentally, is a grant specific to that office, not to any other office that the
Executive may create through an executive order. Biraogo vs. Philippine Truth Commission of 2010
Same; Presidency; Separation of Powers; While under his broad powers to execute the laws the ernment wants to achieve. When the government itself has been heard on the “truth,” the probability of
President can undoubtedly create ad hoc bodies for purposes of investigating reported crimes, he, however, prejudice for the individual charged is not only a likelihood; it approaches the level of certainty. In testing the
has to observe the limits imposed on him by the constitutional plan: he must respect the separation of powers validity of a government act or statute, such potential for harm suffices to invalidate the challenged act;
and the independence of other bodies which have their own constitutional and statutory mandates.—Under his evidence of actual harm is not necessary in the way it is necessary for a criminal conviction or to justify an
broad powers to execute the laws, the President can undoubtedly create ad hoc bodies for purposes of award for damages. In plainer terms, the certainty of consequent damage requires no evidence or further
investigating reported crimes. The President, however, has to observe the limits imposed on him by the reasoning when the government itself declares that for as long as the “story” of the allegedly massive graft and
constitutional plan: he must respect the separation of powers and the independence of other bodies which have corruption during the past administration is told, the Commission would have fulfilled one of its functions to
their own constitutional and statutory mandates, as discussed above. Contrary to what J. Antonio Eduardo B. satisfaction; under this reckless approach, it is self-evident that the mistaken object of the “truth” told must
Nachura claims in his Dissent, the President cannot claim the right to create a public office in the course of necessarily suffer.
implementing the law, as this power lodged exclusively in Congress. An investigating body, furthermore, must Same; Due Process; Presumption of Innocence; When the Commission’s report itself is characterized,
operate within the Executive branch; the President cannot create an office outside the Executive department. prior to trial, and held out by the government to be the true story of the graft and corruption charged, the
Same; Same; The President cannot create an office within the Executive branch that is independent of chances of individuals to have a fair trial in a subsequent criminal case cannot be very great; The
his control—under the constitutional plan, the creation of this kind of office with this kind of independence is presumption of innocence in law cannot serve an accused in a biased atmosphere pointing to guilt in fact
lodged only in the Legislature.—All these necessarily lead to the question: can the President really create an because the government and public opinion have spoken against the accused.—The essence of the due process
office within the Executive branch that is independent of his control? The short answer is he cannot, and the guarantee in a criminal case, as provided under Section 14(1) of the Constitution, is the right to a fair trial.
short reason again is the constitutional plan. The execution and implementation of the laws have been placed What is fair depends on compliance with the express guarantees of the Constitution, and on the circumstances
by the Constitution on the shoulders of the President and on none other. He cannot delegate his executive of each case. When the Commission’s report itself is characterized, prior to trial, and held out by the
powers to any person or entity outside the Executive department except by authority of the Constitution or the government to be the true story of the graft and corruption charged, the chances of individuals to have a fair
law (which authority in this case he does not have), nor can he delegate his authority to undertake fact-finding trial in a subsequent criminal case cannot be very great. Consider on this point that not even the main actors in
as an incident of his executive power, and at the same time take the position that he has no responsibility for the criminal justice system—the Ombudsman, the Sandiganbayan and even this Court—can avoid the cloud of
the fact-finding because it is independent of him and his office. Under the constitutional plan, the creation of “untruth” and a doubtful taint in their integrity after the government has publicized the Commission’s findings
this kind of office with this kind of independence is lodged only in the Legislature. For example, it is only the as the truth. If the rulings of these constitutional bodies themselves can be suspect, individual defenses for sure
Legislature which can create a body like the National Labor Relations Commission whose decisions are final cannot rise any higher. Where the government simply wants to tell its story, already labelled as true, well
and are neither appealable to the President nor to his alter ahead of any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public
119 opinion that news of government scandals generate, it does not require a leap of faith to conclude that an
VOL. 637, DECEMBER 7, 2010 119 accused brought to court against overwhelming public opinion starts his case with a less than equal chance of
acquittal. The presumption of innocencenotwithstanding, the playing field cannot but be uneven in a criminal
Biraogo vs. Philippine Truth Commission of 2010 trial when the accused enters trial with a government-sponsored badge of guilt on his forehead. The
ego, the Secretary of Labor. Yet another example, President Corazon Aquino herself, because the presumption of innocence in law cannot serve an accused in a biased
creation of an independentcommission was outside her executive powers, deemed it necessary to act pursuant 121
to a legislative fiat in constituting the first Davide Commission of 1989. VOL. 637, DECEMBER 7, 2010 121
Same; Truth-telling as envisioned under the Executive Order (E.O.), carries prejudicial effects on the
persons it immediately targets, namely, the officials, employees and private individuals alleged to have Biraogo vs. Philippine Truth Commission of 2010
committed graft and corruption during the previous administration.—Separately from the above effects, truth- atmosphere pointing to guilt in fact because the government and public opinion have spoken
telling as envisioned under the EO, carries prejudicial effects on the persons it immediately targets, namely: against the accused.
the officials, employees and private individuals alleged to have committed graft and corruption during the Same; Same; Standards of Review; “Fundamental rights” whose infringement leads to strict scrutiny
previous administration. This consequence proceeds from the above discussed truth-telling premise that— under the equal protection clause are those basic liberties explicitly or implicitly guaranteed in the
whether the Commission reports (recommending the charging of specific individuals) are proven or not in the Constitution; In the present case, Executive Order (E.O.) No. 1 infringes the personal due process rights of the
appropriate courts—the Commission’s function of truth-telling function would have been served and the investigated persons, as well as their constitutional right to a fair trial.—“Fundamental rights” whose
Commission would have effectively acted against the charged individuals. The most obvious prejudicial effect infringement leads to strict scrutiny under the equal protection clause are those basic liberties explicitly or
implicitly guaranteed in the Constitution. Justice Carpio-Morales, although in dissent in Central Bank similar reports have been made in earlier administrations. Moreover, a valid classification must rest upon
Employees Association, Inc. v. Bangko Sentral ng Pilipinas, elaborated on this point when she said: “Most material differences between the persons, or activities or thing included and excluded. Reasonable grounds
fundamental rights cases decided in the United States require equal protection analysis because these cases must exist for making a distinction between those who fall within the class and those who do not. There is no
would involve a review of statutes which classify persons and impose differing restrictions on the ability of a substantial distinction cited between public officers who may be involved in reported cases of graft and
certain class of persons to exercise a fundamental right. Fundamental rights include only those basic corruption during the previous administration and public officers who may be involved in reported cases of
liberties explicitly or implicitly guaranteed by the U.S. Constitution. And precisely because these statutes graft and corruption during prior administrations in relation to the purpose of ending graft and corruption. To
affect fundamental liberties, any experiment involving basic freedoms which the legislature conducts limit the investigation to public officers of the previous administration is violative of the equal protection
must be critically examined under the lens of Strict Scrutiny. Fundamental rights which give rise to clause.
Strict Scrutiny include the right of procreation, the right to marry, the right to exercise First BERSAMIN, J., Separate Opinion:
Amendment freedoms such as free speech, political expression, press, assembly, and so forth, the right to Philippine Truth Commission; Public Office; Separation of Powers; The power to create a public
travel, and the right to vote.” [Emphasis supplied] In the present case, as shown by the previously cited office is essentially legislative, and, therefore, it belongs to Congress.—A public office may be created only
grounds for the EO’s invalidity, EO No. 1 infringes the personal due process rights of the investigated through any of the following modes, namely: (a) by the Constitution; or (b) by statute enacted by Congress; or
persons, as well as their constitutional right to a fair trial. Indisputably, both these rights—one of them (c) by authority of law (through a valid delegation of power). The power to create a public office is essentially
guaranteed under Section 1, Article III, and under Section 14 of the same Article—are, by jurisprudential legislative, and, therefore, it belongs to Congress. It is not shared by Congress with the President, until and
definition, fundamental rights. With these infringements, the question now thus shifts to the application of the unless Congress enacts legislation that delegates a part of the power to the President, or any other officer or
strict scrutiny test—an exercise not novel in this jurisdiction. agency.
Same; In the absence of any specific guiding principle or directive, indicative of its rationale, the Same; Same; The Truth Commission has not existed before Executive Order (E.O.) No. 1 gave it life on
conclusion is unavoidable that the Executive Order (E.O.) carries no special compelling reason to single out 30 July 2010—it is a new office; If the Truth Commission is an entirely new office, then it is not the result of
officials of the previous administration—what is important is that the graft be attributed to the previous any reorganization undertaken pursuant to Section 31, Chapter 10, Book III, of the Administrative Code of
administration.—If the EO’s terms are to be the yardstick, the basis for the separate focus is the “extent and 1987.—The Truth Commission has not existed before E.O. No. 1 gave it life on July 30, 2010. Without a
magnitude” of the reported graft and corruption which “shock and offend the moral and ethical sensibili- doubt, it is a new office, something we come to know from the plain words of Section 1 of E.O. No. 1 itself, to
122 wit: “Section 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH
1 SUPREME COURT REPORTS ANNOTATED COMMISSION, hereinafter referred to as the “COMMISSION”, which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
22 offend the moral and ethical sensibilities of the people, com-
124
Biraogo vs. Philippine Truth Commission of 2010
ties of the people.” What this “extent and magnitude” is or what specific incidents of massive graft are 1 SUPREME COURT REPORTS ANNOTATED
referred to, however, have been left vague. Likewise, no explanation has been given on why special measures 24
—i.e., the special focus on the targeted officials, the creation of a new office, and the grant of truth-telling
authority—have been taken. Effectively, by acting as he did, the President simply gave the Commission the Biraogo vs. Philippine Truth Commission of 2010
license to an open hunting season to tell the “truth” against the previous administration; the Commission can mitted by public officers and employees, their co-principals, accomplices and accessories from the
investigate an alleged single billion-peso scam, as well as transactions during the past administration that, private sector, if any, during the previous administration; and thereafter recommend the appropriate action or
collectively, may reach the same amount. Only the Commission, in its wisdom, is to judge what allegations or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. The
reports of graft and corruption to cover for as long as these were during the past administration. In the absence Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial
of any specific guiding principle or directive, indicative of its rationale, the conclusion is unavoidable that the body.” If the Truth Commission is an entirely new office, then it is not the result of any reorganization
EO carries no special compelling reason to single out officials of the previous administration; what is undertaken pursuant to Section 31, Chapter 10, Book III, of the Administrative Code of 1987. Thus, the
important is that the graft be attributed to the previous administration. In other words, the real reason for the contention of the Solicitor General is absolutely unwarranted.
EO’s focus lies elsewhere, not necessarily in the nature or extent of the matters to be investigated. Same; Ombudsman; The Truth Commission replicates and usurps the duties and functions of the Office
PERALTA, J., Separate Concurring Opinion: of the Ombudsman.—I find that the Truth Commission replicates and usurps the duties and functions of the
Philippine Truth Commission; Public Office; The Truth Commission was not created in the nature of Office of the Ombudsman. Hence, the Truth Commission is superfluous and may erode the public trust and
the previous ad hoc investigating/fact-finding bodies—it was created more in the nature of a public office.— confidence in the Office of the Ombudsman.
The President has the power to create ad hoc committees to investigate or inquire into matters for the guidance ABAD, J., Separate Dissenting Opinion:
of the President to ensure that the laws be faithfully executed, I am of the view that the Truth Commission was Equal Protection Clause; As an element of due process, the equal protection clause bars arbitrary
not created in the nature of the aforementioned ad hocinvestigating/fact-finding bodies. The Truth Commission discrimination in favor of or against a class whether in what the law provides and how it is enforced.—The
was created more in the nature of a public office. Based on the creation of ad hoc investigating bodies idea behind the “equal protection clause” is that public authorities should treat all persons or things equally in
in Department of Health v. Camposano and Presidential Ad Hoc Fact-Finding Committee on Behest Loans terms of rights granted to and responsibilities imposed on them. As an element of due process, the equal
v. Desierto, the members of an ad hoc investigative body are heads and representatives of existing government protection clause bars arbitrary discrimination in favor of or against a class whether in what the law provides
offices, depending on the nature of the subject matter of the investigation. The ad hoc investigating body’s and how it is enforced.
functions are primarily fact-finding/investigative and recommendatory in nature. In this case, the members of Same; It would be just as unfair and discriminatory if people who hardly share anything in common
the Truth Commission are not officials from existing government offices. are grouped together and treated similarly.—But it would be just as unfair and discriminatory if people who
Same; Equal Protection Clause; There is no substantial distinction cited between public officers who hardly share anything in common are grouped together and treated similarly. The equal protection clause is not
may be involved in reported cases of graft and corruption during the previous administration and public violated by a law that applies only to persons falling within a specified class, if such law applies equally to all
officers who may be involved in reported cases of graft and corruption during prior administra- persons within such class, and reasonable grounds exist for making a distinction between those who fall within
123 it and those who do not.
VOL. 637, DECEMBER 7, 2010 123 Same; Time differentiation should not be so easily dismissed as superficial.—The majority holds that
picking on the “previous administration” and not the others before it makes the Commission’s investigation an
Biraogo vs. Philippine Truth Commission of 2010 “adventure in partisan hostility.” To be fair, said the majority, the search for truth must include corrupt acts not
tions in relation to the purpose of ending graft and corruption.—The distinctions cited by the OSG are only during the previous administration but also
not substantial to separate the previous administration as a distinct class from prior administrations as subject 125
matter for investigation for the purpose of ending graft and corruption. As stated by the ponencia, the reports VOL. 637, DECEMBER 7, 2010 125
of widespread corruption in the previous administration cannot be taken as a substantial distinction, since
VIII of the 1987 Constitution, only when the President gravely abuses his exercise of such discretion. This
Biraogo vs. Philippine Truth Commission of 2010 means that, in restricting
during the administrations before it where the “same magnitude of controversies and anomalies” has 127
been reported. The majority points out that corruption in the previous administration and corruption in the
administrations before it have no substantial difference. And what difference they have, the majority adds, is VOL. 637, DECEMBER 7, 2010 127
not relevant to the purpose of Executive Order 1, which is to uncover corrupt acts and recommend their Biraogo vs. Philippine Truth Commission of 2010
punishment. Superficial difference like the difference in time in this case does not make for a valid the Truth Commission’s investigation only to corruptions committed during the previous
classification. But time differentiation should not be so easily dismissed as superficial. The world in which administration, he acted capriciously and whimsically or in an arbitrary or despoticmanner. To act
people live has two great dimensions: the dimension of space and the dimension of time. Nobody can say that capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing one moment and crying
the difference in time between two acts or events makes for a superficial difference. Such difference is the the next without apparent reason. Does this characterize the President’s action in this case, considering that he
substance of human existence. merely acted to set a feasible target, neutralize political bias, assign the Commission a task suitable to its
Same; Recognizing the irreversibility of time is indispensable to every sound decision that people make limited capacity, and observe correct housekeeping procedures? Did he act arbitrarily in the manner of little
in their lives everyday.—Recognizing the irreversibility of time is indispensable to every sound decision that children changing the rules of the game in the middle of the play or despotically in the manner of a dictator?
people make in their lives everyday, like not combing the hair that is no longer there. In time, parents let their Unless he did, the Court must rein in its horses. It cannot itself exceed the limits of its power of review under
married children leave to make their own homes. Also, when a loved one passes away, he who is left must the Constitution.
know that he cannot bring back the time that is gone. He is wise to move on with his life after some period of PEREZ, J., Separate Opinion:
mourning. To deny the truth that the difference in time makes for substantial difference in human lives is to Philippine Truth Commission; Ombudsman; In light of the constitutionally declared and amply
deny the idea of transition from growth to decay, from life to death, and from relevant to irrelevant. underscored independence of the Office of the Ombudsman, which declaration is winnowed wisdom from the
Same; Time erodes the evidence of the past.—Time erodes the evidence of the past. The likelihood of experienced inherent defects of presidential creations, so real and true that the Ombudsman’s
finding evidence needed for conviction diminishes with the march of time. Witnesses, like everyone else, have constitutionalization was adopted to completion even if from the charter of an overthrown regime, Executive
short memories. And they become scarce, working overseas, migrating, changing addresses, or just passing Order No. 1 cannot pass the present constitutional test.—In light of the constitutionally declared and amply
away. Official or private documents needed as evidence are easily overwhelmed by the demand to file and underscored independence of the Office of the Ombudsman, which declaration is winnowed wisdom from the
keep even more documents generated by new activities and transactions. Thus, old documents are stored away experienced inherent defects of presidential creations, so real and true that the Ombudsman’s
in basements, garages, or corridors, and eventually lost track of, misplaced, or simply destroyed, whether constitutionalization was adopted to completion even if from the charter of an overthrown regime, Executive
intentionally or not. In a government that is notorious for throwing away or mishandling old records, searching Order No. 1 cannot pass the present constitutional test. Executive Order No. 1 is unconstitutional precisely
for a piece of document after ten years would be uncertain, tedious, long, and costly. because it was issued by the President. As articulated by Commissioner Colayco of the Commission that
Philippine Truth Commission; Limiting the Truth Commission’s investigation to the 9 years of the resurrected the Ombudsman, “our proposal is to constitutionalize the office so that it cannot be touched by the
previous administration gives it the best chance of yielding the required proof needed for successful action Presidents as they come and go.” And as this Court stated, repeating the observation regarding the erstwhile
against the offenders.—It would be a waste of effort and time to scour all of 66 years of the administrations presidential anti-graft commissions, such commissions failed to realize their objective because they did not
before the last, looking for evidence that would produce enjoy the political independence necessary for the effective performance of a government critic.
126
Same; Same; The Philippine Truth Commission is a defiance of the constitutional wisdom that
1 SUPREME COURT REPORTS ANNOTATED established the politically independent Ombudsman.—The Philippine Truth Commission is a defiance of the
constitutional wisdom that established the politically independent Ombudsman for one of its reasons for being
26 is the very campaign battlecry of the President “kung
128
Biraogo vs. Philippine Truth Commission of 2010
conviction. Time has blurred the chance of success. Limiting the Truth Commission’s investigation to 1 SUPREME COURT REPORTS ANNOTATED
the 9 years of the previous administration gives it the best chance of yielding the required proof needed for
successful action against the offenders. 28
Same; You cannot order five men to pull a train that a thousand men cannot move.—The Truth Biraogo vs. Philippine Truth Commission of 2010
Commission is a collegial body of just five members with no budget or permanent staffs of its own. It simply walang corrupt, walang mahirap.” Not that there is anything wrong with the political slogan. What is
would not have the time and resources for examining hundreds if not thousands of anomalous government wrong is the pursuit of the pledge outside the limits of the Constitution. What is wrong is the creation by the
contracts that may have been entered into in the past 75 years up to the time of President Quezon. You cannot President himself of an Ombudsman-like body while there stands established an Ombudsman, constitutionally
order five men to pull a train that a thousand men cannot move. created especially because of unsuccessful presidential antecedents, and thus made independent from
Same; Directing the investigation of reported corrupt acts committed during the previous presidential prerogative.
administration is consistent with good housekeeping.—Directing the investigation of reported corrupt acts Same; Same; Constitutional history, specific constitutional provisions, jurisprudence and current
committed during the previous administration is, as the Solicitor General pointed out, consistent with good statute combine to say that after the ratification of the Constitution in 1987, no body can be given “by law”
housekeeping. For example, a new treasurer would be prudent to ensure that the former treasurer he succeeds any of the powers, functions and duties already conferred on the Ombudsman by Section 13, Article XI of the
has balanced his accounts and submitted himself to a closing audit even after the new treasurer has taken over. Constitution.—Constitutional history, specific constitutional provisions, jurisprudence and current statute
This prevents the latter having to unfairly assume the liabilities of his predecessor for shortages in the cash combine to say that after the ratification of the Constitution in 1987, no body can be given “by law” any of the
box. Of course, the new treasurer is not required to look farther into the accounts of the earlier treasurers. powers, functions and duties already conferred on the Ombudsman by Section 13, Article XI of the
Same; Presidency; Since, as the majority concedes, the creation of the Truth Commission is within the Constitution. As already shown, the Truth Commission insofar as concerns the mentioned third level officers
constitutional powers of the President to undertake, then to him, not to the Court, belongs the discretion to or higher of the previous administration appropriates, not just one but virtually, all of the powers
define the limits of the investigation as he deems fit.—That is the first point. The second point is that the Court constitutionally enumerated for the Ombudsman. The violation of Section 7 in relation to Section 13 of Article
needs to stand within the limits of its power to review the actions of a co-equal branch, like those of the XI of the Constitution is evident.
President, within the sphere of its constitutional authority. Since, as the majority concedes, the creation of the Same; Same; Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth
Truth Commission is within the constitutional powers of President P-Noy to undertake, then to him, not to the Commission with is the authority of preliminary investigation.—Executive Order No. 1 itself pronounces that
Court, belongs the discretion to define the limits of the investigation as he deems fit. The Court cannot pit its what it empowers the Philippine Truth Commission with is the authority of preliminary investigation. Section
judgment against the judgment of the President in such matter. 2(g) of the executive order states: “Turn over from time to time, for expeditious prosecution, to the
Same; Same; Words and Phrases; To act capriciously and whimsically is to act freakishly, abruptly, or appropriate prosecutionalauthorities, by means of a special or interim report and recommendation, all evidence
erratically, like laughing one moment and crying the next without apparent reason.—And when can the on corruption of public officers and employees and their private sector co-principals, accomplice or
Supreme Court interfere with the exercise of that discretion? The answer is, as provided in Section 1, Article accessories, if any, when in the course of its investigation the Commission finds that there is reasonable
ground to believe that they are liable for graft and corruption under pertinent applicable laws.” (Underscoring administrations under the same scrutiny. Prioritization per se is not classification. Else, as all human activities
supplied.) Investigation to find reasonable ground to believe “that they are liable for graft and corruption under require prioritization, everyone in a priority list for regulation or investigation can make out a case that there
applicable laws” is preliminary investigation as defined in Rule 112, Section 1 of the Rules of Criminal is prima facie classification, and that the prioritization is not supported by a reasonable objective. All acts of
Procedure, which states: “Section 1. Preliminary investigation defined; when required.—Preliminary government would have to come to a halt and all public offices would need to justify every plan of action as to
investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well- reasonableness of phases and prioritization. The step-by-step approach of legislative and regulatory remedies
founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be —recognized as valid in Quinto v. COMELECand in the case law cited by the Decision—in essence says that
held for trial.”129 prioritization is not classification, much less invalid classification.
Same; Same; Judicial Review; A judicial analysis must not stop at reciting legal doctrines which are
VOL. 637, DECEMBER 7, 2010 129 its mere beginning points, but, especially in equal protection claims, it must move forward to examine the facts
Biraogo vs. Philippine Truth Commission of 2010 and the context of the controversy.—A judicial analysis must not stop at reciting legal doctrines which are its
Same; Same; In the case of the Philippine Truth Commission, the Ombudsman not only shares its mere beginning points, but, especially in equal protection claims, it must move forward to examine the facts
constitutional power but, over and above this, it is divested of any and all investigatory power because the and the context of the
131
Philippine Truth Commission’s finding of “reasonable ground” is final and unreviewable and is turned over
to the Ombudsman solely for “expeditious prosecution.”—In other words, under existing Rule which follows VOL. 637, DECEMBER 7, 2010 131
the statutorily defined primary jurisdiction of the Ombudsman in obeisance to the constitutional conferment of
authority, the Ombudsman reviews and may reverse or modify the resolution of the investigating prosecutor. In Biraogo vs. Philippine Truth Commission of 2010
the case of the Philippine Truth Commission, the Ombudsman not only shares its constitutional power but, controversy. Had the majority taken pains to examine its own cited cases, it would have discovered that
over and above this, it is divested of any and all investigatory power because the Philippine Truth the cases, far from condemning EO 1, would actually support the constitutionality of the latter.
Commission’s finding of “reasonable ground” is final and unreviewable and is turned over to the Same; Same; Fact-finding or investigation can only begin by identifying the phenomenon, event or
Ombudsman solely for “expeditious prosecution.” matter that is to be investigated.—Fact-finding or investigation can only begin by identifying the phenomenon,
Same; Same; Fact gathering, fact finding, indeed truth finding is, as much as investigation as event or matter that is to be investigated. Then it can only proceed if the fact-finder, or the authority under
preliminary investigation, also constitutionally conferred on the Ombudsman.—Fact gathering as basis for whom he works, identifies or selects the persons to be investigated.
preliminary investigation and not as preliminary investigation itself and basis for prosecution, is, seemingly, Same; Same; To support a claim of selective prosecution, a defendant must establish a violation of
the function respondents want to attribute to the Philippine Truth Commission to escape the obvious equal protection and show that the prosecution (1) had a discriminatory effect and (2) was motivated by a
unconstitutional conferment of Ombudsman power. That is no route out of the bind. Fact gathering, fact discriminatory purpose.—Although such discretion is broad, it is not without limit. In order to constitute
finding, indeed truth finding is, as much as investigation as preliminary investigation, also constitutionally denial of equal protection, selective enforcement must be deliberately based on unjustifiable or arbitrary
conferred on the Ombudsman. Section 12 of Article XI states: “Section 12. The Ombudsman and his Deputies, classification; the mere failure to prosecute all offenders is no ground for the claim of a denial of equal
as protectors of the people, shall act promptly on complaints filed in any form or manner against public protection. To support a claim of selective prosecution, a defendant must establish a violation of equal
officials or employees of the government, or any subdivision, agency or instrumentality thereof, including protection and show that the prosecution (1) had a discriminatory effect and (2) was motivated by
government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the a discriminatory purpose. First, he must show that “he has been singled out for prosecution while other
action taken and the result thereof.” similarly situated generally have not been proceeded against for the type of conduct forming the basis of the
SERENO, J., Dissenting Opinion: charge against him.” Second, he must prove that his selection for prosecution was invidious or in bad faith and
Philippine Truth Commission; Equal Protection Clause; Public Officers; The majority Decision was “based on impermissible considerations such as race, religion, or the desire to prevent the exercise
defeats the constitutional mandate on public accountability—it effectively tolerates impunity for graft and of constitutional rights.” In American constitutional history, it is the traditionally oppressed—racial or
corruption, and its invocation of the constitutional clause on equal protection of the laws is an unwarranted religious minorities and the politically disenfranchised—who have succeeded in making a case of unequal
misuse of the same and is a disservice to those classes of people for whom the constitutional guarantee was protection when their prejudiced status is shown to be the principal invidious or bad faith consideration for the
created as a succor.—The majority Decision defeats the constitutional mandate on public accountability; it selective prosecution. The standard for demonstrating selective prosecution therefore is demanding: a
effectively tolerates impunity for graft and corruption. Its invocation of the constitutional clause on equal “presumption of regularity supports prosecutorial decisions and in the absence of clear evidence to the
protection of the laws is an unwarranted misuse of contrary, courts presume that they have properly discharged their official functions.”
130 Same; Same; Presumption of Regularity; The fact that other administrations are not the subject of the
Philippine Truth Commission’s (PTC’s) investigative aim is not a case of selective prosecution that violates
1 SUPREME COURT REPORTS ANNOTATED equal protection—the Executive is given broad discretion to initiate criminal prosecution and enjoys clear
30 presumption of regularity and good faith in the performance thereof; The presumption of good faith must be
observed, especially when the
Biraogo vs. Philippine Truth Commission of 2010 132
the same and is a disservice to those classes of people for whom the constitutional guarantee was
1 SUPREME COURT REPORTS ANNOTATED
created as a succor. The majority Decision accomplished this by completely disregarding “reasonableness” and
all its jurisprudential history as constitutional justification for classification and by replacing the analytical test 32
of reasonableness with mere recitations of general case doctrines to arrive at its forced conclusion. By denying
the right of the President to classify persons in Executive Order No. (EO) 1 even if the classification is founded Biraogo vs. Philippine Truth Commission of 2010
on reason, the Decision has impermissibly infringed on the constitutional powers of the President. It wafts the action taken is pursuant to a constitutionally enshrined state policy such as the taking of positive and
smell of hope onto the air towards those who seek the affirmance of EO 1 by saying: “... [T]his is not a death effective measures against graft and corruption.—In the instant case, the fact that other administrations are not
knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the the subject of the PTC’s investigative aim is not a case of selective prosecution that violates equal protection.
executive issuance so as to include the earlier past administrations would allow it to pass the test of The Executive is given broad discretion to initiate criminal prosecution and enjoys clear presumption of
reasonableness and not be an affront to the Constitution... but the scent of hope, as will be demonstrated, is that regularity and good faith in the performance thereof. For petitioners to overcome that presumption, they must
which emanates from a red herring. Since Ferdinand Marcos’s presidency, no Court has stifled the powers of carry the burden of showing that the PTC is a preliminary step to selective prosecution, and that it is laden with
the Philippine presidency as has this Court through the majority Decision. a discriminatory effect and a discriminatory purpose. However, petitioner has sorely failed in discharging that
Same; Same; Prioritization per se is not classification.—At the outset, it must be emphasized that EO 1 burden. The presumption of good faith must be observed, especially when the action taken is pursuant to a
did not, for purposes of application of the laws on graft and corruption, create two classes—that of President constitutionally enshrined state policy such as the taking of positive and effective measures against graft and
Arroyo and that of other past administrations. Rather, it prioritized fact-finding on the administration of corruption. For this purpose, the President created the PTC. If a law neither burdens a fundamental right nor
President Arroyo while saying that the President could later expand the coverage of EO 1 to bring other past targets a suspect class, the Court must uphold the classification, as long as it bears a rational relationship to
some legitimate government end.
Same; Same; To strike down the Philippine Truth Commission’s (PTC’s) mandate to investigate the capacity to make distinctions between what to accept and what to reject; The public does not need sheltering
previous administration simply because other administrations are not immediately included is tantamount to from the “potentially prejudicial effects of truth-telling.”—Implicit in Justice Brion’s Concurring Opinion are
saying that a police investigation of a recent murder case is violative of equal protection because there are the roles the public is expected to take: that of passive observer, receiver of information and susceptible to the
other prior yet equally heinous murders that remain uninvestigated and unsolved by the police .—EO 1 branding of “truth” and its repetition; and that of a source of pressure. In the latter role, the Concurring
activities are at most initiatory investigations. There is no preliminary investigation – much less prosecution – Opinion envisions the Filipino people, having adjudged guilt according to what it was told by the PTC and the
to be conducted under the auspices of EO 1. The PTC is tasked to “collect, receive, review and evaluate media, wielding the threat of public disapproval against the Ombudsman and the judiciary so as to shift the
evidence related to or regarding the cases of large scale corruption,” tasks that constitutes nothing more than a burden to these bodies to demonstrate proof and the basis for their actions if they were to disagree with the
general inquiry into such reported cases in the previous administration. Similar to an initiatory police findings of the PTC. This is gross speculation. It does not follow that repetition of information guarantees the
investigation, the PTC is tasked with general fact-finding to uncover the truth of the events pertaining to an acceptance of its veracity; to make that logical leap in this instance is to insinuate that repetition would rob the
alleged unsolved crime. To strike down the PTC’s mandate to investigate the previous administration simply Filipino people of the capacity to make distinctions between what to accept and what to reject. Neither does it
because other administrations are not immediately included is tantamount to saying that a police investigation follow that the Ombudsman and the judiciary must inevitably accede to public clamor, or that the entry of
of a recent murder case is violative of equal protection because there are other prior yet equally heinous public opinion into the discussion would cause a “qualitative change in the criminal justice system” and
murders that remain uninvestigated and unsolved by the police. weaken “reliance on the law, the rules and jurisprudence.” The public does not need sheltering from the
Same; Same; What renders the plaint regarding an alleged violation of the equal protection clause “potentially prejudicial effects of truth-telling.” Nor is the public to be viewed as unwitting victims to “a noisy
ridiculous is that it is being raised at the inception stage for the determination of possible criminal liability, minority [who] can change the course of a case simply because of their noise and the media attention they get.”
where threat to liberty is most absent.—What renders the plaint regarding an alleged violation of the equal The Filipino people have a genuine stake in the addressing of abuses possibly committed by the past
protection clause ridiculous is that it is being raised at the incep- administration and are entitled to information on the same.
133 Same; To declare the Filipino public undeserving of the truth on the grounds of its supposed lack of
VOL. 637, DECEMBER 7, 2010 133 capacity to deal with the truth and its alleged susceptibility to the “priming” effect of the Philippine Truth
Commission’s (PTC’s) findings, while ignoring the public’s need to know the truth and to seek redress for
Biraogo vs. Philippine Truth Commission of 2010 wrongs, is to deny the public the means to move towards social justice.—While it is true that public opinion
tion stage for the determination of possible criminal liability, where threat to liberty is most absent. In will be influenced by the information that the public can access, it would be specious to claim that the possible
contrast, with respect to petitions to stop later and more freedom-threatening stages in the determination of turning of the tide of public opinion against those subject to investigation is tantamount to a conviction before
criminal liability such as in formal criminal investigations and prosecutions, Philippine courts instinctively the court of the Filipino people. To
reject the defense of a suspect or accused that the investigation is illegitimate because others who may have 135
also violated the relevant rule, are not being investigated. In Gallardo v. People, 456 SCRA 494 (2005), the VOL. 637, DECEMBER 7, 2010 135
Supreme Court held that there was no violation of the equal protection clause when the Ombudsman
recommended the filing of an information against a public officer, even if it had previously dismissed sixteen Biraogo vs. Philippine Truth Commission of 2010
(16) other cases of similar factual circumstances: declare the Filipino public undeserving of the truth on the grounds of its supposed lack of capacity to
Same; Official acknowledgment of the truth is extremely powerful in the healing process, especially in deal with the truth and its alleged susceptibility to the “priming” effect of the PTC's findings, while ignoring
an atmosphere previously dominated by official denial.—Truth commissions operate on the premise that the the public’s need to know the truth and to seek redress for wrongs, is to deny the public the means to move
truth – if faced squarely, documented thoroughly, and acknowledged officially – will reduce the likelihood that towards social justice.
a repetition of government abuses will recur in the future. Official acknowledgment of the truth is extremely Same; State Capture; Words and Phrases; State capture encompasses the state’s “capture” as evinced
powerful in the healing process, especially in an atmosphere previously dominated by official denial. Aside in the “formation of laws, rules, and decrees by a wider range of state institutions, including the executive,
from their cathartic value, truth commissions like the PTC can be useful in uncovering the causes and patterns ministries and state agencies, legislature, and the judiciary”; State capture alters the “rules of the game” in
that led to such corruption, if it indeed existed, so that it may be prevented in the future. The absence of any favor of those who have captured the state; The fundamental characteristic of state capture is that it is
form of accountability for public officials’ past misconduct of a grave nature and massive scale will promote a channeled through illicit, informal, and non-transparent means of providing private gains to public officials as
culture of impunity. If the present administration does not demonstrate that it can hold accountable persons incentives for these very officials to influence the formation of laws and prejudice the rules to these captors’
who committed acts of corruption, such inability may be interpreted as a “license to engage in further acts of narrow advantage.—This last point regarding situations wherein the former regime still possesses a certain
corruption” and embolden public officials to steal from the government coffers more often and in greater degree of influence over the system is especially salient in the light of state capture. According to the World
quantity. Bank, state capture may be treated as akin in essence to regulatory capture as it is used in economics literature:
Same; By ignoring the Filipino public’s experience as a witness to the frustration of attempts to hold state regulatory agencies are considered “captured” when they “regulate businesses in accordance with the
the past administration accountable for its reported misdeeds, and framing it instead as a group that stands private interests of the regulated as opposed to the public interest for which they were established.” State
ready to convict past officials at the bar of public opinion, the Concurring Opinion of Justice Brion turns capture, then, encompasses the state’s “capture” as evinced in the “formation of laws, rules, and decrees by a
social reality on its head. It minimizes the status of the Filipino people as a group wronged by the imbalance wider range of state institutions, including the executive, ministries and state agencies, legislature, and the
of power and the betrayal of public trust.—By ignoring the Filipino public’s experience as a witness to the judiciary.” State capture alters the “rules of the game” in favor of those who have captured the state. While
frustration of attempts to hold the past administration accountable for its reported misdeeds, and framing it state capture encompasses a variety of situations, its fundamental characteristic is that it is channeled through
instead as a group that stands ready to convict past officials at the bar of public opinion, the Concurring illicit, informal, and non-transparent means of providing private gains to public officials as incentives for these
Opinion turns social reality on its head. It minimizes the status of the Filipino people as a group wronged by very officials to influence the formation of laws and prejudice the rules to these captors’ narrow advantage. If
the imbalance of power and the betrayal of public trust. It ignores the need of this group to see these rectified. public officials are perceived to have been captured, the credibility of official processes—such as rendering
It ascribes decrees, forming laws, and shaping policies—will suffer. It is not difficult to see how state capture may render
134 traditional means such as prosecution completely ineffective against those who may have captured the state.
1 SUPREME COURT REPORTS ANNOTATED Same; Equal Protection Clause; Unlawful discrimination, as shown in American cases on equal
protection claims in criminal investigation and prosecution, is not inherently an argument of the powerful, but
34 that of the traditionally oppressed.—Unlawful discrimination, as shown in American cases on equal protection
claims in criminal investigation and prosecution, is not inherently an argument of the powerful, but that of the
Biraogo vs. Philippine Truth Commission of 2010 traditionally
an excess of strength to public opinion and grounds its logic on fear of the public acting as an angry 136
mob. It does not attribute the proper importance to the active, participatory role the Filipino people desire to
take in the process of dealing with the possible misdeeds of the past. 1 SUPREME COURT REPORTS ANNOTATED
Same; It does not follow that repetition of information guarantees the acceptance of its veracity—to 36
make that logical leap in this instance is to insinuate that repetition would rob the Filipino people of the
2 Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p. xxxiv, citing Miller,
Biraogo vs. Philippine Truth Commission of 2010 Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers of Government 1 (1963).
oppressed. This is because the politically powerful, as in the past administration, still contain all the 3 Cruz, Philippine Political Law, 2002 ed. p. 12.
advantages that such past formal political power begot. It is the height of incongruity that an administration 138
that held power for nine years, successfully evaded all congressional investigations, and effectively invoked all 138 SUPREME COURT REPORTS ANNOTATED
legal defenses from investigation for all those nine years will be extended the same immunity that the former
presidential office gave it. The Philippines will be the laughing stock of the world, incapable of correcting any Biraogo vs. Philippine Truth Commission of 2010
error, unable to erase the perception by many that it is a country where the law only serves the ends of the accommodate the call of situations and much more tailor itself to the whims and caprices of
powerful. government and the people who run it. 4
Same; Judicial Review; Invalidating the Philippine Truth Commission (PTC) is an unconstitutional
For consideration before the Court are two consolidated cases both of which essentially assail
5
denial of the legitimate exercise of executive power and a stinging reproach against the people’s sovereign
right; Rather than exercise judicial restraint, the majority has pushed the boundaries of judicial activism the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled “Creating
bordering on what former Chief Justice Puno once described as an imperial judiciary.—If the Court is to the Philippine Truth Commission of 2010.”
avoid illegitimacy in its actions as suggested by Professor Bickel, then it must ensure that its discharge of the The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner
duty to prevent abuse of the President’s executive power does not translate to striking down as invalid even a Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order
legitimate exercise thereof, especially when the exercise is in keeping with the will of the people. Invalidating No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the
the PTC is an unconstitutional denial of the legitimate exercise of executive power and a stinging reproach Constitution as it usurps the constitutional authority of the legislature to create a public office and
6
against the people’s sovereign right. Sadly, there is a wide fissure between the public’s hunger for governance to appropriate funds therefor. 7
justice through the successful delivery by President Aquino of his promise to get behind the stories on
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed
corruption of the former administration, and the Court’s confirmation of an alleged violation of former
President Arroyo’s equal protection right. To emphasize, it is not even former President Arroyo who is by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B.
officially raising this matter before the Court. Rather than exercise judicial restraint, the majority has pushed Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives.
the boundaries of judicial activism bordering on what former Chief Justice Puno once described as an imperial The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
judiciary. elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of
Same; When forgotten, history does have a tendency to repeat itself—unless an official and graft and corruption with his slogan, “Kung walang corrupt, walang mahirap.” The Filipino
comprehensive narrative of findings of fact on large-scale corruption that reportedly occurred during the people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the
previous administration is made public, the country may find the same alleged patterns of corruption good senator to the presidency.
repeating themselves.—When forgotten, history does have a tendency to repeat itself. Unless an official and
To transform his campaign slogan into reality, President Aquino found a need for a special
comprehensive narrative of findings of fact on large-scale corruption that reportedly occurred during the
previous administration is made public, the country may find the same alleged patterns of corruption repeating body to investigate reported cases of graft
_______________
themselves. Worse, public officials subject of the investigation—and who may actually be guilty—with
continued possession or access to power may spin these events and cause a revision of our history to
137 4 Id.
5 Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, Rollo, pp. 87-88.
VOL. 637, DECEMBER 7, 2010 137 6 Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
Biraogo vs. Philippine Truth Commission of 2010 7 Biraogo Petition, p. 5, Rollo, p. 7.
make those allegations of wrongdoing appear nothing more than unsubstantiated rumors whispered in 139
secret and perpetuated by bitter opponents. The PTC is a step towards national healing over a sordid past. The
Court must allow the nation to move forward and the people’s faith in a just and accountable government to be VOL. 637, DECEMBER 7, 2010 139
restored. Biraogo vs. Philippine Truth Commission of 2010
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and Prohibition. and corruption allegedly committed during the previous administration.
The facts are stated in the opinion of the Court. Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive
Johween O. Atienza and Manuel Angelo B. Ventura III for petitioners in G.R. No. 193036. Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent
MENDOZA, J.: provisions of said executive order read:
When the judiciary mediates to allocate constitutional boundaries, it does not assert any EXECUTIVE ORDER NO. 1
superiority over the other departments; it does not in reality nullify or invalidate an act of the CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
determine conflicting claims of authority under the Constitution and to establish for the parties in an principle that a public office is a public trust and mandates that public officers and employees, who are
actual controversy the rights which that instrument secures and guarantees to them. servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility,
— Justice Jose P. Laurel
1
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
The role of the Constitution cannot be overlooked. It is through the Constitution that the WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
fundamental powers of government are established, limited and defined, and by which these violation of this mandate;
powers are distributed among the several departments. The Constitution is the basic and
2
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
paramount law to which all other laws must conform and to which all persons, including the life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter
3 underprivileged sector of society;
what may be the tides of time. It cannot be simply made to sway and WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s
_______________ trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases
1 Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
evil it breeds; investigations, proceedings and hearings, including the presentation of evidence;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
concerning the reported cases of graft and purposes of this Order.
140 SECTION 3. Staffing Requirements.—x x x.
140 SUPREME COURT REPORTS ANNOTATED SECTION 4. Detail of Employees.—x x x.
SECTION 5. Engagement of Experts.—x x x
Biraogo vs. Philippine Truth Commission of 2010 SECTION 6. Conduct of Proceedings.—x x x.142
and corruption during the previous administration, and which will recommend the prosecution of the offenders
142 SUPREME COURT REPORTS ANNOTATED
and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Biraogo vs. Philippine Truth Commission of 2010
Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the SECTION 7. Right to Counsel of Witnesses/Resource Persons.—x x x.
Office of the President. SECTION 8. Protection of Witnesses/Resource Persons.—x x x.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony.—Any government official or
by virtue of the powers vested in me by law, do hereby order: personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth inspection, when required, shall be subject to administrative disciplinary action. Any private person who does
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and the same may be dealt with in accordance with law.
offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co- SECTION 10. Duty to Extend Assistance to the Commission.
principals, accomplices and accessories from the private sector, if any, during the previous administration; and —x x x.
thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of SECTION 11. Budget for the Commission.—The Office of the President shall provide the necessary
justice shall be served without fear or favor. funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties
The Commission shall be composed of a Chairman and four (4) members who will act as an independent and responsibilities as effectively, efficiently, and expeditiously as possible.
collegial body. SECTION 12. Office.—x x x.
SECTION 2. Powers and Functions.—The Commission, which shall have all the powers of an SECTION 13. Furniture/Equipment.—x x x.
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked SECTION 14. Term of the Commission.—The Commission shall accomplish its mission on or before
to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section December 31, 2012.
1, involving third level public officers and higher, their co-principals, accomplices and accessories from the SECTION 15. Publication of Final Report.—x x x.
private sector, if any, during the previous administration and thereafter submit its finding and SECTION 16. Transfer of Records and Facilities of the Commission.—x x x.
recommendations to the President, Congress and the Ombudsman. SECTION 17. Provision Concerning Mandate.—If and when in the judgment of the President there is
In particular, it shall: a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
a) Identify and determine the reported cases of such graft and corruption which it will investigate; cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale accordingly by way of a supplemental Executive Order.
corruption which it has chosen to investigate, and to this end require any agency, official or employee of the SECTION 18. Separability Clause.—If any provision of this Order is declared unconstitutional, the
Executive Branch, including government-owned or controlled corporations, to produce documents, books, same shall not affect the validity and effectivity of the other provisions hereof.
records and other papers;141 SECTION 19. Effectivity.—This Executive Order shall take effect immediately.
VOL. 637, DECEMBER 7, 2010 141 DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III143
Biraogo vs. Philippine Truth Commission of 2010
VOL. 637, DECEMBER 7, 2010 143
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters or Biraogo vs. Philippine Truth Commission of 2010
subjects being investigated by the Commission; By the President:
d) Upon proper request and representation, obtain information from the courts, including the (SGD.) PAQUITO N. OCHOA, JR.
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption Executive Secretary
cases filed with the Sandiganbayan or the regular courts, as the case may be; Nature of the Truth Commission
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC)
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
is a mere ad hoc body formed under the Office of the President with the primary task to
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of investigate reports of graft and corruption committed by third-level public officers and employees,
Court of the Philippines be admitted for that purpose; their co-principals, accomplices and accessories during the previous administration, and thereafter
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, to submit its finding and recommendations to the President, Congress and the Ombudsman.
by means of a special or interim report and recommendation, all evidence on corruption of public officers and Though it has been described as an “independent collegial body,” it is essentially an entity within
employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its the Office of the President Proper and subject to his control. Doubtless, it constitutes a public
investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and office, as an ad hoc body is one. 8
corruption under pertinent applicable laws; To accomplish its task, the PTC shall have all the powers of an investigative body under
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation
Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-
as it may require in the discharge of its functions and duties; judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between
i) Engage or contract the services of resource persons, professionals and other personnel determined by contending parties. All it can do is gather, collect and assess evidence of graft and corruption and
it as necessary to carry out its mandate; make recommendations. It may have subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from (b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot
such facts if probable cause exists as to warrant the filing of an information in our courts of law. legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of
Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions. the President to achieve economy, simplicity and efficiency does not include the power to create an entirely
new public office which was hitherto inexistent like the “Truth Commission.”
The PTC is different from the truth commissions in other countries which have been created
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the “Truth
as official, transitory and non-judicial fact-finding bodies “to establish the facts and context of Commission” with quasi-judicial powers duplicating, if not superseding, those of the Office of the
serious violations Ombudsman created under the 1987 Constitution and the Department of Justice created under the
_______________ Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
8 Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, 381 SCRA 48, citing F.R. Mechem, A Treatise On prosecution officials and personnel of the previous administration as if corruption is their peculiar species even
The Law of Public Offices and Officers. as it excludes those of the other administrations, past and present, who may be indictable.
144 (e) The creation of the “Philippine Truth Commission of 2010” violates the consistent and general
144 SUPREME COURT REPORTS ANNOTATED international practice of four decades wherein
_______________
Biraogo vs. Philippine Truth Commission of 2010
of human rights or of international humanitarian law in a country’s past.” They are usually 9 20100802-284444/Truth-body-told-Take-no prisoners> visited November 9, 2010.
146
established by states emerging from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice. 146 SUPREME COURT REPORTS ANNOTATED
Truth commissions have been described as bodies that share the following characteristics: (1) Biraogo vs. Philippine Truth Commission of 2010
they examine only past events; (2) they investigate patterns of abuse committed over a period of States constitute truth commissions to exclusively investigate human rights violations, which customary
time, as opposed to a particular event; (3) they are temporary bodies that finish their work with the practice forms part of the generally accepted principles of international law which the Philippines is mandated
submission of a report containing conclusions and recommendations; and (4) they are officially to adhere to pursuant to the Declaration of Principles enshrined in the Constitution.
sanctioned, authorized or empowered by the State. “Commission’s members are usually
10
(f) The creation of the “Truth Commission” is an exercise in futility, an adventure in partisan hostility,
empowered to conduct research, support victims, and propose policy recommendations to prevent a launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
recurrence of crimes. Through their investigations, the commissions may aim to discover and learn people that widespread poverty will altogether vanish if corruption is eliminated without even addressing the
more about past abuses, or formally acknowledge them. They may aim to prepare the way for other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
prosecutions and recommend institutional reforms.” 11
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of an
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo executive issuance or even a statute.” 13
war crime tribunals are examples of a retributory or vindicatory body set up to try and punish In their Consolidated Comment, the respondents, through the Office of the Solicitor
14
those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and General (OSG),essentially questioned the legal standing of petitioners and defended the assailed
Reconciliation Commission of South Africa, the principal function of which was to heal the executive order with the following arguments:
wounds of past violence and to prevent future conflict by providing a cathartic experience for 1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President’s
victims. executive power and power of control necessarily include the inherent power to conduct investigations to
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code
reconciliation than on judicial retribution, while the marching order of the PTC is the identification of 1987 (E.O. No. 292), Presidential Decree (P.D.) No. 1416 (as amended by P.D. No. 1772), R.A. No.
15 16
and punishment of perpetrators. As one writer puts it: 12 9970, and settled jurisprudence that authorize the President to create or form such bodies.
17
_______________ 2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.
9 International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November 20, 2010. 3] The Truth Commission does not duplicate or supersede the functions of the Office of the
10 Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner, UnspeakableTruths: Ombudsman (Ombudsman) and the Department of
Facing the Challenge of Truth Commissions. _______________
11 International Center for Transitional Justice, supra note 9.
12 Armando Doronila, Philippine Daily Inquirer, August 2, 2010. 13 Lagman Petition, pp. 50-52, Rollo, pp. 58-60.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/ 14 Rollo, pp. 111-216.
145 15 Otherwise known as the Administrative Code of 1987.
16 Granting Continuing Authority To The President Of The Philippines To Reorganize The National Government.
17 Otherwise known as the General Appropriations Act of 2010.
VOL. 637, DECEMBER 7, 2010 145
147
Biraogo vs. Philippine Truth Commission of 2010 VOL. 637, DECEMBER 7, 2010 147
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: “To those who talk about reconciliation, if they mean that they would like us to simply forget about the Biraogo vs. Philippine Truth Commission of 2010
wrongs that they have committed in the past, we have this to say: There can be no reconciliation without Justice (DOJ), because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate,
justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again.” supplant or erode the latter’s jurisdiction.
The Thrusts of the Petitions 4] The Truth Commission does not violate the equal protection clause because it was validly created for
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to laudable purposes.
declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the The OSG then points to the continued existence and validity of other executive orders and
arguments of the petitioners in both cases shows that they are essentially the same. The presidential issuances creating similar bodies to justify the creation of the PTC such as Presidential
petitioners-legislators summarized them in the following manner: Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a Committee on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and
public office and appropriate funds for its operation.
Presidential Agency on Reform and Government Operations (PARGO) by President Ferdinand E. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
Marcos. 18 substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress
From the petitions, pleadings, transcripts, and memoranda, the following are the principal can have a resort to the courts.”
issues to be resolved: Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges
1. Whether or not the petitioners have the legal standing to file their respective petitions and vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the
question Executive Order No. 1; validity of any official action which, to their mind, infringes on their prerogatives as legislators. 22
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the
usurping the powers of Congress to create and to appropriate funds for public offices, agencies and creation of the PTC and the budget for its operations. It emphasizes that the funds to be used for
23
commissions; the creation and operation of the commission are to be taken from those funds already
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the appropriated by Congress. Thus, the allocation and disbursement of funds for the commission will
DOJ; not entail congressional action but will simply be an exercise of the President’s power over
4. Whether or not Executive Order No. 1 violates the equal protection clause; and contingent funds.
5. Whether or not petitioners are entitled to injunctive relief. As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger
Essential requisites for judicial review of sustaining, any personal and direct injury attributable to the implementation of Executive Order
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the
Court needs to ascertain whether the requisites for a valid exercise of its power of judicial review Court to exercise judicial power and to wield the axe over presidential issuances in defense of the
are present. Constitution. The case of David v. Arroyo explained the deep-seated rules on locus standi. Thus:
24
_______________ 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-
_______________
18 OSG Consolidated Comment, p. 33, Rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos. 105965-70, March 20,
2001, 354 SCRA 651, 660-661.
22 Supra note 19, citing Pimentel Jr. v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
148 23 OSG Memorandum, p. 30, Rollo, p. 349.
24 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
148 SUPREME COURT REPORTS ANNOTATED 150
Biraogo vs. Philippine Truth Commission of 2010 150 SUPREME COURT REPORTS ANNOTATED
Like almost all powers conferred by the Constitution, the power of judicial review is subject
Biraogo vs. Philippine Truth Commission of 2010
to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
judicial power; (2) the person challenging the act must have the standing to question the validity of
provides that “every action must be prosecuted or defended in the name of the real party in interest .”
the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the the suit or the party entitled to the avails of the suit.” Succinctly put, the plaintiff’s standing is based on his
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of own right to the relief sought.
constitutionality must be the very lis mota of the case. 19
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public
Among all these limitations, only the legal standing of the petitioners has been put at issue. right” in assailing an allegedly illegal official action, does so as a representative of the general public. He may
Legal Standing of the Petitioners be a person who is affected no differently from any other person. He could be suing as a “stranger,” or in the
The OSG attacks the legal personality of the petitioners-legislators to file their petition for 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
failure to demonstrate their personal stake in the outcome of the case. It argues that the petitioners
and the securing of relief as a “citizen” or “taxpayer.
have not shown that they have sustained or are in danger of sustaining any personal injury Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The
attributable to the creation of the PTC. Not claiming to be the subject of the commission’s distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is
investigations, petitioners will not sustain injury in its creation or as a result of its proceedings. 20
in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the
The Court disagrees with the OSG in questioning the legal standing of the petitioners- expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by
legislators to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation the New York Supreme Court in People ex rel Case v. Collins: “In matter of mere public right, however…the
of the power of the Congress as a body to which they belong as members. This certainly justifies people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
their resolve to take the cudgels for Congress as an institution and present the complaints on the 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
usurpation of their power and rights as members of the legislature before the Court. As held
restrain the unlawful use of public funds to his injury cannot be denied.”
in Philippine Constitution Association v. Enriquez, 21
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,
19 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco, Jr. v. House later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial
of Representatives, 460 Phil. 830, 842; 415 SCRA 44, 133 (2003).
power to determine the validity of an executive or legislative action, he must show that he has sustained a
20 OSG Memorandum, p. 29, Rollo, p. 348.
21 G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520. direct injury as a result of that action, and it is not sufficient that he has a general interest common to all
149 members of the public.
This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera, it held that the person
VOL. 637, DECEMBER 7, 2010 149 who impugns the validity of a statute must
151
Biraogo vs. Philippine Truth Commission of 2010
“To the extent the powers of Congress are impaired, so is the power of each member thereof, since his VOL. 637, DECEMBER 7, 2010 151
office confers a right to participate in the exercise of the powers of that institution.
30 Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
Biraogo vs. Philippine Truth Commission of 2010 31 Biraogo Memorandum, p. 7, Rollo, p. 69.
have “a personal and substantial interest in the case such that he has sustained, or will sustain direct 32 Id., at p. 6, Rollo, p. 68.
injury as a result.” The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the 33 Id., at p. 9, Rollo, p. 71.
Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public 34 Id., at p. 10, Rollo, p. 72.
153
Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that “the rule on standing is a matter of VOL. 637, DECEMBER 7, 2010 153
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and
Biraogo vs. Philippine Truth Commission of 2010
legislators when the public interest so requires, such as when the matter is of transcendental
lic office, Section 31 is inconsistent with the principle of separation of powers enshrined in the
importance, of overreaching significance to society, or of paramount public interest.” 25
Constitution and must be deemed repealed upon the effectivity thereof. 35
Thus, in Coconut Oil Refiners Association, Inc. v. Torres, the Court held that in cases of
26
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office
paramount importance where serious constitutional questions are involved, the standing
lies within the province of Congress and not with the executive branch of government. They
requirements may be relaxed and a suit may be allowed to prosper even where there is no direct
maintain that the delegated authority of the President to reorganize under Section 31 of the
injury to the party claiming the right of judicial review. In the first Emergency Powers
Revised Administrative Code: 1) does not permit the President to create a public office, much less
Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several
27
a truth commission; 2) is limited to the reorganization of the administrative structure of the Office
executive orders although they had only an indirect and general interest shared in common with
of the President; 3) is limited to the restructuring of the internal organs of the Office of the
the public.
President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity,
The OSG claims that the determinants of transcendental importance laid down in CREBA v. 28
economy and efficiency. Such continuing authority of the President to reorganize his office is
36
ERC and Meralco are non-existent in
29
_______________ limited, and by issuing Executive Order No. 1, the President overstepped the limits of this
delegated authority.
25 Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, G.R. No. The OSG counters that there is nothing exclusively legislative about the creation by the
157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of Energy, 346 Phil. 321; 281 SCRA President of a fact-finding body such as a truth commission. Pointing to numerous offices created
330 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422. by past presidents, it argues that the authority of the President to create public offices within the
26 G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
27 84 Phil. 368, 373 (1949). Office of the President Proper has long been recognized. According to the OSG, the Executive,
37
28 “(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a just like the other two branches of government, possesses the inherent authority to create fact-
constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and, (3) the lack finding committees to assist it in the performance of its constitutionally mandated functions and in
of any other party with a more direct and specific interest in the questions being raised.”
the exercise of its administrative functions. This power, as the OSG explains it, is but an adjunct
38
29 G.R. No. 174697, July 8, 2010, 624 SCRA 556.
152 of the plenary powers wielded by the President under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution. 39
152 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010
35 Id., at pp. 10-11, Rollo, pp. 72-73.
this case. The Court, however, finds reason in Biraogo’s assertion that the petition covers matters 36 Lagman Memorandum, G.R. No 193036, pp. 10-11, Rollo, pp. 270-271.
of transcendental importance to justify the exercise of jurisdiction by the Court. There are 37 OSG Memorandum, p. 32, Rollo, p. 351.
constitutional issues in the petition which deserve the attention of this Court in view of their 38 Id., at p. 33, Rollo, p. 352.
seriousness, novelty and weight as precedents. Where the issues are of transcendental and 39 OSG Consolidated Comment, p. 24, Rollo, p. 144.
154
paramount importance not only to the public but also to the Bench and the Bar, they should be
resolved for the guidance of all. Undoubtedly, the Filipino people are more than interested to
30 154 SUPREME COURT REPORTS ANNOTATED
know the status of the President’s first effort to bring about a promised change to the country. The Biraogo vs. Philippine Truth Commission of 2010
Court takes cognizance of the petition not due to overwhelming political undertones that clothe the It contends that the President is necessarily vested with the power to conduct fact-finding
issue in the eyes of the public, but because the Court stands firm in its oath to perform its investigations, pursuant to his duty to ensure that all laws are enforced by public officials and
constitutional duty to settle legal controversies with overreaching significance to society. employees of his department and in the exercise of his authority to assume directly the functions
Power of the President to Create the Truth Commission of the executive department, bureau and office, or interfere with the discretion of his
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a officials. The power of the President to investigate is not limited to the exercise of his power of
40
public office and not merely an adjunct body of the Office of the President. Thus, in order that the31
control over his subordinates in the executive branch, but extends further in the exercise of his
President may create a public office he must be empowered by the Constitution, a statute or an other powers, such as his power to discipline subordinates, his power for rule making,
41
authorization vested in him by law. According to petitioner, such power cannot be adjudication and licensing purposes and in order to be informed on matters which he is entitled to
42
presumed since there is no provision in the Constitution or any specific law that authorizes the
32
know. 43
President to create a truth commission. He adds that Section 31 of the Administrative Code of
33
The OSG also cites the recent case of Banda v. Ermita, where it was held that the President
44
1987, granting the President the continuing authority to reorganize his office, cannot serve as basis has the power to reorganize the offices and agencies in the executive department in line with his
for the creation of a truth commission considering the aforesaid provision merely uses verbs such constitutionally granted power of control and by virtue of a valid delegation of the legislative
as “reorganize,” “transfer,” “consolidate,” “merge,” and “abolish.” Insofar as it vests in the
34
power to reorganize executive offices under existing statutes.
President the plenary power to reorganize the Office of the President to the extent of creating a Thus, the OSG concludes that the power of control necessarily includes the power to create
pub-
_______________
offices. For the OSG, the President may create the PTC in order to, among others, put a closure to
the reported large scale graft and corruption in the government. 45
The question, therefore, before the Court is this: Does the creation of the PTC fall within the According to the OSG, the power to create a truth commission pursuant to the above provision
ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. The said law granted the 48
Section 31 contemplates “reorganization” as limited by the following functional and structural President the continuing authority to reorganize the national government, including the power to
lines: (1) restructuring the internal organization of the group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and
_______________ classify functions, services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
40 OSG Memorandum, pp. 38-39, Rollo, pp. 357-358. several cases such as Larin v. Executive Secretary. 49
41 Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
42 Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104. The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to
43 Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445. create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416
44 G.R. No. 166620, April 20, 2010, 618 SCRA 448. was a delegation to then President Marcos of the authority to reorganize the administrative
45 Consolidated Comment, p. 45, Rollo, p. 165.
structure of the national government including the
155
_______________
VOL. 637, DECEMBER 7, 2010 155
47 The Veterans Federation of the Philippines v. Reyes, G.R. No. 155027, February 28, 2006, 483 SCRA 526, 564;
Biraogo vs. Philippine Truth Commission of 2010 Secretary of DOTC v. Mabalot, 428 Phil. 154, 164-165; 378 SCRA 128, 136-137 (2002); Mondano v. Silvosa, 97 Phil. 143
Office of the President Proper by abolishing, consolidating or merging units thereof or (1955).
transferring functions from one unit to another; (2) transferring any function under the Office of 48 OSG Memorandum, p. 56, Rollo, p. 375.
49 G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
the President to any other Department/Agency or vice versa; or (3) transferring any agency under 157
the Office of the President to any other Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of VOL. 637, DECEMBER 7, 2010 157
economy or redundancy of functions. These point to situations where a body or an office is already Biraogo vs. Philippine Truth Commission of 2010
existent but a modification or alteration thereof has to be effected. The creation of an office is power to create offices and transfer appropriations pursuant to one of the purposes of the decree,
nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the embodied in its last “Whereas” clause:
question is in the negative. WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in
To say that the PTC is borne out of a restructuring of the Office of the President under Section the organization of the national government.
31 is a misplaced supposition, even in the plainest meaning attributable to the term “restructure”— Clearly, as it was only for the purpose of providing manageability and resiliency during the
an “alteration of an existing structure.” Evidently, the PTC was not part of the structure of the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficioupon the convening
Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution.
Kawaning EIIB v. Hon. Executive Secretary, 46
In fact, even the Solicitor General agrees with this view. Thus:
But of course, the list of legal basis authorizing the President to reorganize any department or agency in ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says “it was enacted
to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of government, the legislative and
the executive branch does not have to end here. We must not lose sight of the very source of the power—that executive powers are fused, correct?
which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 SOLICITOR GENERAL CADIZ:Yes, Your Honor.
(otherwise known as the Administrative Code of 1987), “the President, subject to the policy in the Executive ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should
not be considered effective anymore upon the promulgation, adoption, ratification of the 1987 Constitution.
Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to SOLICITOR GENERAL CADIZ:Not the whole of P.D. [No.] 1416, Your Honor.
reorganize the administrative structure of the Office of the President.” For this purpose, he may transfer the ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed repealed, at
functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor. 50
SCRA 312 (2000)], we ruled that reorganization “involves the reduction of personnel, consolidation of offices,
or abolition thereof by reason of economy or redundancy of functions.” It takes place when there is an While the power to create a truth commission cannot pass muster on the basis of P.D. No.
alteration of the existing structure of government offices or units therein, including the lines of control, 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17,
authority and responsibility between them. The Article VII of the
_______________ _______________
46 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda,supra. 50 TSN, September 28, 2010, pp. 205-207.
156 158
156 SUPREME COURT REPORTS ANNOTATED 158 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed.
subject to the President’s continuing authority to reorganize. [Emphasis Supplied]
Section 17 reads:
In the same vein, the creation of the PTC is not justified by the President’s power of control. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer shall ensure that the laws be faithfully executed. (Emphasis supplied).
had done in the performance of his duties and to substitute the judgment of the former with that of As correctly pointed out by the respondents, the allocation of power in the three principal
the latter. Clearly, the power of control is entirely different from the power to create public
47
branches of government is a grant of all powers inherent in them. The President’s power to
offices. The former is inherent in the Executive, while the latter finds basis from either a valid conduct investigations to aid him in ensuring the faithful execution of laws—in this case,
delegation from Congress, or his inherent duty to faithfully execute the laws. fundamental laws on public accountability and transparency—is inherent in the President’s powers
The question is this, is there a valid delegation of power from Congress, empowering the as the Chief Executive. That the authority of the President to conduct investigations and to create
President to create a public office? bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority. As explained in the landmark case of Marcos v.
51
only an allotment or allocations of existing funds already appropriated. Accordingly, there is no
Manglapus: 52
usurpation on the part of the Executive of the power of Congress to appropriate funds. Further,
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored there is no need to specify the amount to be earmarked for the operation of the commission
the separation of legislative, executive and judicial powers by their actual distribution among three distinct because, in the words of the Solicitor General, “whatever funds the Congress has provided for the
branches of government with provision for checks and balances. Office of the President will be the very source of the funds for the commission.” Moreover, since 55
It would not be accurate, however, to state that “executive power” is the power to enforce the laws, for the
the amount that would be allocated to the PTC shall be subject to existing auditing rules and
President is head of state as well as head of government and whatever powers inhere in such positions pertain
to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the regulations, there is no impropriety in the funding.
execution of the laws is only one of the powers of the President. It also grants the President other powers that Power of the Truth Commission to Investigate
do not involve the execution of any provision of law, e.g., his power over the country’s foreign relations. The President’s power to conduct investigations to ensure that laws are faithfully executed is
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the well recognized. It flows from the faithful-execution clause of the Constitution under Article VII,
exercise of specificpowers of the President, it maintains intact what is traditionally considered as within the Section 17 thereof. As the Chief Executive, the president represents the government as a whole
56
scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the and sees to it that all laws are enforced by the officials and employees of his department. He has
specific powers enumerated in the Constitution. In the authority to directly assume the functions of the executive department. 57
_______________
Invoking this authority, the President constituted the PTC to primarily investigate reports of
51 OSG Memorandum, p. 37, Rollo, p. 356. graft and corruption and to recommend the appropriate action. As previously stated, no quasi-
52 G.R. 88211, September 15, 1989, 177 SCRA 688. judicial powers have been vested in the said body as it cannot adjudicate rights of persons who
159
come before it. It has been said that “Quasi-judicial pow-
VOL. 637, DECEMBER 7, 2010 159 _______________
Biraogo vs. Philippine Truth Commission of 2010 55 Consolidated Comment, p. 48; Rollo, p. 168.
other words, executive power is more than the sum of specific powers so enumerated. 56 Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
It has been advanced that whatever power inherent in the government that is neither legislative nor that the laws be faithfully executed.
judicial has to be executive. x x x. 57 Ople v. Torres, 354 Phil. 948, 967; 293 SCRA 141, 150 (1998).
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. 161
As stated above, the powers of the President are not limited to those specific powers under the VOL. 637, DECEMBER 7, 2010 161
Constitution. One of the recognized powers of the President granted pursuant to this
53
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the Biraogo vs. Philippine Truth Commission of 2010
obvious need to ascertain facts and determine if laws have been faithfully executed. Thus, ers involve the power to hear and determine questions of fact to which the legislative policy is to
in Department of Health v. Camposano, the authority of the President to issue Administrative
54 apply and to decide in accordance with the standards laid down by law itself in enforcing and
Order No. 298, creating an investigative committee to look into the administrative charges filed administering the same law.” In simpler terms, judicial discretion is involved in the exercise of
58
against the employees of the Department of Health for the anomalous purchase of medicines was these quasi-judicial power, such that it is exclusively vested in the judiciary and must be clearly
upheld. In said case, it was ruled: authorized by the legislature in the case of administrative agencies.
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be The distinction between the power to investigate and the power to adjudicate was delineated
doubted. Having been constitutionally granted full control of the Executive Department, to which respondents by the Court in Cariño v. Commission on Human Rights. Thus: 59
belong, the President has the obligation to ensure that all executive officials and employees faithfully comply “Investigate,” commonly understood, means to examine, explore, inquire or delve or probe into, research
with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not on, study. The dictionary definition of “investigate” is “to observe or study closely: inquire into systematically:
affected by the fact that the investigating team and the PCAGC had the same composition, or that the former “to search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry.” The purpose of
used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied] investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application
allow an inquiry into matters which the President is entitled to know so that he can be properly of the law to the facts established by the inquiry.
The legal meaning of “investigate” is essentially the same: “(t)o follow up step by step by patient inquiry
advised and guided in the performance of his duties relative to the execution and enforcement of
or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out
the laws of the land. And if history is to be revisited, this was also the objective of the by careful inquisition; examination; the taking of evidence; a legal inquiry;” “to inquire; to make an
investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano investigation,” “investigation” being in turn described as “(a)n administrative function, the exercise of which
Commission, the ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the
_______________ discovery and collection of facts concerning a certain matter or matters.”
“Adjudicate,” commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
53 Id., at p. 691. resolve, rule on, settle. The dictionary defines the term as “to settle finally (the rights and duties of the parties
54 496 Phil. 886, 896-897; 457 SCRA 438, 450 (2005). to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge.” And
160 “adjudge” means “to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or
160 SUPREME COURT REPORTS ANNOTATED grant judicially in a case of controversy x x.”
_______________
Biraogo vs. Philippine Truth Commission of 2010
Melo Commission and the Zeñarosa Commission. There being no changes in the government 58 Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156; 408 SCRA 678, 687 (2003).
59 G.R. No. 96681, December 2, 1991, 204 SCRA 483.
structure, the Court is not inclined to declare such executive power as non-existent just because the 162
direction of the political winds have changed.
162 SUPREME COURT REPORTS ANNOTATED
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it to say that there will be no appropriation but Biraogo vs. Philippine Truth Commission of 2010
In the legal sense, “adjudicate” means: “To settle in the exercise of judicial authority. To determine 65 G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
finally. Synonymous with adjudge in its strictest sense;” and “adjudge” means: “To pass on judicially, to 164
decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry 164 SUPREME COURT REPORTS ANNOTATED
of a judgment.” [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of Biraogo vs. Philippine Truth Commission of 2010
justice, or even a quasi-judicial agency or office. The function of receiving evidence and The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared
such, the act of receiving evidence and arriving at factual conclusions in a controversy must be with a body likewise tasked to investigate the commission of crimes.
accompanied by the authority of applying the law to the factual conclusions to the end that the Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are
controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
or modes of review as may be provided by law. Even respondents themselves admit that the
60
Commission and the Zeñarosa Commission, its findings would, at best, be recommendatory in
commission is bereft of any quasi-judicial power. 61
nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ whether or not to reject the recommendation. These offices, therefore, are not deprived of their
or erode their respective powers. If at all, the investigative function of the commission will mandated duties but will instead be aided by the reports of the PTC for possible indictments for
complement those of the two offices. As pointed out by the Solicitor General, the recommendation violations of graft laws.
to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding Violation of the Equal Protection Clause
investigation.” The actual prosecution of suspected offenders, much less adjudication on the
62
Although the purpose of the Truth Commission falls within the investigative power of the
merits of the charges against them, is certainly not a function given to the commission. The
63
President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in
phrase, “when in the course of its investigation,” under Section 2(g), highlights this fact and gives view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III
credence to a contrary interpretation from that of the petitioners. The function of determining (Bill of Rights) of the 1987 Constitution. Section 1 reads:
probable cause for the filing of the appropriate complaints before the courts remains to be with the Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
DOJ and the Ombudsman. 64 any person be denied the equal protection of the laws.
_______________ The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same class such that
60 Id., at p. 492. the intent of singling out the “previous administration” as its sole object makes the PTC an
61 TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, Rollo, p. 339. “adventure in partisan hostility.” Thus, in order to be accorded with validity, the commission
66
62 OSG Consolidated Comment, p. 55, Rollo, p. 175.
63 Id., at p. 56, Rollo, p. 176.
must also cover reports of graft and corruption in virtually all administrations previous to that of
64 Id. former President Arroyo. 67
163 _______________
VOL. 637, DECEMBER 7, 2010 163
66 Lagman Petition, pp. 43, 50-52, Rollo, pp. 51, 50-60.
Biraogo vs. Philippine Truth Commission of 2010 67 Lagman Memorandum, G.R. 193036, pp. 28-29, Rollo, pp. 347-348.
165
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but
is shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v. VOL. 637, DECEMBER 7, 2010 165
Galicia, it was written:
65
Biraogo vs. Philippine Truth Commission of 2010
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman
Act is not exclusive but is shared with other similarly authorized government agencies such as the PCGG The petitioners argue that the search for truth behind the reported cases of graft and corruption
and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary must encompass acts committed not only during the administration of former President Arroyo but
investigation on charges against public employees and officials is likewise concurrently shared with the also during prior administrations where the “same magnitude of controversies and
Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains anomalies” were reported to have been committed against the Filipino people. They assail the
68
concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints classification formulated by the respondents as it does not fall under the recognized exceptions
against local elective officials. [Emphasis supplied]. because first, “there is no substantial distinction between the group of officials targeted for
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate investigation by Executive Order No. 1 and other groups or persons who abused their public office
criminal cases under Section 15 (1) of R.A. No. 6770, which states: for personal gain; and second, the selective classification is not germane to the purpose of
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any Executive Order No. 1 to end corruption.” In order to attain constitutional permission, the
69
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper petitioners advocate that the commission should deal with “graft and grafters prior and subsequent
or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
its primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the to the Arroyo administration with the strong arm of the law with equal force.” 70
investigation of such cases. [Emphases supplied] Position of respondents
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of According to respondents, while Executive Order No. 1 identifies the “previous
a preliminary investigation or the determination of the existence of probable cause. This is administration” as the initial subject of the investigation, following Section 17 thereof, the PTC
categorically out of the PTC’s sphere of functions. Its power to investigate is limited to obtaining will not confine itself to cases of large scale graft and corruption solely during the said
facts so that it can advise and guide the President in the performance of his duties relative to the administration. Assuming arguendo that the commission would confine its proceedings to
71
execution and enforcement of the laws of the land. In this regard, the PTC commits no act of officials of the previous administration, the petitioners argue that no offense is committed against
usurpation of the Ombudsman’s primordial duties. the equal protection clause for “the segregation of the transactions of public officers during the
_______________ previous administration as possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the Executive Order seeks to
correct.” To distinguish the Arroyo administration from past administrations, it recited the
72
The equal protection clause is aimed at all official state actions, not just those of the
following: legislature. Its inhibitions cover all the departments
79
_______________ _______________
68 Lagman Petition, p. 31, Rollo, p. 39. 74 The Philippine Judges Association v. Hon. Pardo, G.R. No. 105371, November 11, 1993, 227 SCRA 703, 711.
69 Id., at pp. 28-29, Rollo, pp. 36-37. 75 Id., at p. 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, No. L-59431, July 25, 1984,
70 Id., at p. 29, Rollo, p. 37. 130 SCRA 654; Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. No. 7842, July 14,
71 OSG Memorandum, p. 88; Rollo, p. 407. 1989, 175 SCRA 343, 375.
72 OSG Consolidated Comment. p. 68, Rollo, p. 188. 76 Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am. Jur, 2d, Vol. 16 (b), p. 302.
166 77 Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
78 Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
166 SUPREME COURT REPORTS ANNOTATED 79 See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
168
Biraogo vs. Philippine Truth Commission of 2010
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the 168 SUPREME COURT REPORTS ANNOTATED
previous administration which have eroded public confidence in public institutions. There is, therefore, an
Biraogo vs. Philippine Truth Commission of 2010
urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate cases against those involved, if of the government including the political and executive departments, and extend to all actions of a
warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the state denying equal protection of the laws, through whatever agency or whatever guise is taken. 80
Government and in their public servants. It, however, does not require the universal application of the laws to all persons or things
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the without distinction. What it simply requires is equality among equals as determined according to a
reality that unlike with administrations long gone, the current administration will most likely bear the valid classification. Indeed, the equal protection clause permits classification. Such classification,
immediate consequence of the policies of the previous administration. however, to be valid must pass the test of reasonableness.The test has four requisites: (1) The
Third. The classification of the previous administration as a separate class for investigation lies in the
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is
reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, not limited to existing conditions only; and (4) It applies equally to all members of the same
are more easily established in the regime that immediately precede the current administration. class. “Superficial differences do not make for a valid classification.”
81 82
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide For a classification to meet the requirements of constitutionality, it must include or embrace
closure to issues that are pivotal to national life or even as a routine measure of due diligence and good all persons who naturally belong to the class. “The classification will be regarded as invalid if all
83
housekeeping by a nascent administration like the Presidential Commission on Good Government (PCGG), the members of the class are not similarly treated, both as to rights conferred and obligations
created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill- imposed. It is not necessary that the classification be made with absolute symmetry, in the sense
gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and that the members of the class should possess the same characteristics in equal degree. Substantial
the Saguisag Commission created by former President Joseph Estrada under Administrative Order No, 53, to
similarity will suffice; and as long as this is achieved, all those covered by the classification are to
form an ad-hocand independent citizens’ committee to investigate all the facts and circumstances surrounding
“Philippine Centennial projects” of his predecessor, former President Fidel V. Ramos. [Emphases supplied]
73
be treated equally. The mere fact that an individual belonging to a class differs from the other
Concept of the Equal Protection Clause members, as long as that class is substantially distinguishable from all others, does not justify the
One of the basic principles on which this government was founded is that of the equality of non-application of the law to him.” 84
right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of The classification must not be based on existing circumstances only, or so constituted as to
the laws is embraced in the concept of due process, as every unfair discrimination preclude addition to the number included
_______________
_______________
73 OSG Memorandum, pp. 90-93, Rollo, pp. 409-412. 80 See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
81 Beltran v. Secretary of Health, 512 Phil 560, 583; 476 SCRA 168, 194 (2005).
167
82 Cruz, Constitutional Law, 2003 ed., p. 128.
VOL. 637, DECEMBER 7, 2010 167 83 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
84 Cruz, Constitutional Law, 2003 ed., pp. 135-136.
Biraogo vs. Philippine Truth Commission of 2010 169
offends the requirements of justice and fair play. It has been embodied in a separate clause, VOL. 637, DECEMBER 7, 2010 169
however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process Biraogo vs. Philippine Truth Commission of 2010
clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
sharper weapon to cut it down is the equal protection clause. 74 circumstances and conditions. It must not leave out or “underinclude” those that should otherwise
“According to a long line of decisions, equal protection simply requires that all persons or fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union and 85
things similarly situated should be treated alike, both as to rights conferred and responsibilities reiterated in a long line of cases, 86
imposed.” It “requires public bodies and institutions to treat similarly situated individuals in a
75 The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition
similar manner.” “The purpose of the equal protection clause is to secure every person within a
76
against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation
state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the
express terms of a statue or by its improper execution through the state’s duly constituted circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not
authorities.” “In other words, the concept of equal justice under the law requires the state to
77
require that things which are different in fact be treated in law as though they were the same. The equal
govern impartially, and it may not draw distinctions between individuals solely on differences that protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation
are irrelevant to a legitimate governmental objective.” 78 which is limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as Though the OSG enumerates several differences between the Arroyo administration and other
in the other departments of knowledge or practice, is the grouping of things in speculation or practice because past administrations, these distinctions are not substantial enough to merit the restriction of the
they agree with one another in certain particulars. A law is not invalid because of investigation to the “previous administration” only. The reports of widespread corruption in the
_______________
Arroyo administration cannot be taken as basis for distinguishing said administration from earlier
85 No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974). administrations which were also blemished by similar widespread reports of impropriety. They are
86 Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No. L-27113, November 19, 1974, not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put
61 SCRA 93, 110-111; Anuncension v. National Labor Union, No. L-26097, November 29, 1977, 80 SCRA 350, 372-373; Villegas v. Hiu Chiong
Tsai Pao Ho, No. L-29646, November 10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec, No. L-52245, January 22, 1980, 95 SCRA 392, it, “Superficial differences do not make for a valid classification.” 88
404; Ceniza v. Comelec, No. L-52304, January 28, 1980, 95 SCRA 763, 772-773; Himagan v. People, G.R. No. 113811, October 7, 1994, 237 The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of
SCRA 538; The Conference of Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 677; JMM Promotion
and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319, 331–332; and Tiu v. Court of Appeals, G.R. No. the intended investigation to the previous administration only. The OSG ventures to opine that “to
127410, January 20, 1999, 301 SCRA 278, 288-289. See also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (1957); Vera v. Cuevas, Nos. L- include other past administrations, at this point, may unnecessarily overburden the commission
33693-94, May 31, 1979, 90 SCRA 379, 388; and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781,
115852, 115873, and 115931, August 25, 1994, 235 SCRA 630, 684. and lead it to lose its effectiveness.” The reason given is specious. It is without doubt irrelevant to
89
170 the legitimate and noble objective of the PTC to stamp out or “end corruption and the evil it
170 SUPREME COURT REPORTS ANNOTATED breeds.” 90
_______________
Biraogo vs. Philippine Truth Commission of 2010
simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the 88 Cruz, Constitutional Law, 2003 ed., p. 128.
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid 89 OSG, Memorandum, p. 89, Rollo, p. 408.
classification is that it be reasonable, which means that the classification should be based on substantial 90 6th Whereas clause, Executive Order No. 1
distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not 172
be limited to existing conditions only; and that it must apply equally to each member of the class. This Court 172 SUPREME COURT REPORTS ANNOTATED
has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary. [Citations omitted] Biraogo vs. Philippine Truth Commission of 2010
Applying these precepts to this case, Executive Order No. 1 should be struck down as The probability that there would be difficulty in unearthing evidence or that the earlier reports
violative of the equal protection clause. The clear mandate of the envisioned truth commission is involving the earlier administrations were already inquired into is beside the point. Obviously,
to investigate and find out the truth “concerning the reported cases of graft and corruption during deceased presidents and cases which have already prescribed can no longer be the subjects of
the previous administration” only. The intent to single out the previous administration is plain,
87
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of
patent and manifest. Mention of it has been made in at least three portions of the questioned previous administrations, given the body’s limited time and resources. “The law does not require
executive order. Specifically, these are: the impossible” (Lex non cogit ad impossibilia). 91
“WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth Given the foregoing physical and legal impossibility, the Court logically recognizes the
concerning the reported cases of graft and corruption during the previous administration, and which will unfeasibility of investigating almost a century’s worth of graft cases. However, the fact remains
recommend the prosecution of the offenders and secure justice for all; that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate
SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH
of searching for the truth, must not exclude the other past administrations. The PTC must, at least,
COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and have the authority to investigate all past administrations. While reasonable prioritization is
offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co- permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often
principals, accomplices and accessories from the private sector, if any, during the previous administration; and quoted language of Yick Wo v. Hopkins, 92
thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of Though the law itself be fair on its face and impartial in appearance, yet, if applied and
justice shall be served without fear or favor. administered by public authority with an evil eye and an unequal hand, so as practically to make
SECTION 2. Powers and Functions.—The Commission, which shall have all the powers of an unjust and illegal discriminations between persons in similar circumstances, material to their
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis
to conduct a supplied]
_______________ It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The
Court, however, is of the considered view that although its focus is restricted, the constitutional
87 7th Whereas clause, Executive Order No. 1.
171
guarantee of equal protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which all other laws must
VOL. 637, DECEMBER 7, 2010 171 conform and in accordance with
_______________
Biraogo vs. Philippine Truth Commission of 2010
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, 91 Lee, Handbook of Legal Maxims, 2002 Ed., p.
92 118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35 <accessed on December
if any, during the previous administration and thereafter submit its finding and recommendations to the
4, 2010>.
President, Congress and the Ombudsman.” [Emphases supplied] 173
In this regard, it must be borne in mind that the Arroyo administration is but just a member of
a class, that is, a class of past administrations. It is not a class of its own. Not to include past VOL. 637, DECEMBER 7, 2010 173
administrations similarly situated constitutes arbitrariness which the equal protection clause cannot Biraogo vs. Philippine Truth Commission of 2010
sanction. Such discriminating differentiation clearly reverberates to label the commission as a which all private rights determined and all public authority administered. Laws that do not
93
vehicle for vindictiveness and selective retribution. conform to the Constitution should be stricken down for being unconstitutional. While the thrust 94
of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order
No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies
earlier administrations in the guise of “substantial distinctions” would only confirm the that the commission does not only confine itself to cases of large scale graft and corruption
petitioners’ lament that the subject executive order is only an “adventure in partisan hostility.” In committed during the previous administration. The OSG points to Section 17 of Executive Order
104
the case of US v. Cyprian, it was written: “A rather limited number of such classifications have
95
No. 1, which provides:
routinely been held or assumed to be arbitrary; those include: race, national origin, “SECTION 17. Special Provision Concerning Mandate.—If and when in the judgment of the President
gender, political activity or membership in a political party, union activity or membership in a there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
labor union, or more generally the exercise of first amendment rights.” investigation of cases and instances of graft and corruption during the prior administrations, such mandate may
be so extended accordingly by way of a supplemental Executive Order.
To reiterate, in order for a classification to meet the requirements of constitutionality, it must
The Court is not convinced. Although Section 17 allows the President the discretion to expand
include or embrace all persons who naturally belong to the class. “Such a classification must not
96
the scope of investigations of the PTC so as to include the acts of graft and corruption committed
be based on existing circumstances only, or so constituted as to preclude additions to the number
in other past administrations, it does not guarantee that they would be covered in the future. Such
included within a class, but must be of such a nature as to embrace all those who may thereafter be
expanded mandate of the commission will still depend on the whim and caprice of the President. If
in similar circumstances and conditions. Furthermore, all who are in situations and circumstances
he would decide not to include them, the section would then be meaningless. This will only fortify
which are relative to the discriminatory legislation and which are indistinguishable from those of
the fears of the petitioners that the Executive Order No. 1 was “crafted to tailor-fit the prosecution
the members of the class must be brought under the influence of the law and treated by it in the
of officials and personalities of the Arroyo administration.” 105
same way as are the members of the class.”97
_______________ The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan, that the “PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does
106
93 Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila Prince Hotel vs. not violate the equal protection clause.” The decision, however, was devoid of any discussion on
GSIS, 335 Phil. 82, 101; 267 SCRA 408, 430 (1997). how such conclusory statement was arrived at, the principal issue in said case being only the
94 Id., at p. 632. sufficiency of a cause of action.
95 756 F. Supp. 388, N. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42; also
http://in.findacase.com/research/wfrmDocViewer. aspx/xq/fac. A final word
19910130_0000002.NIN.htm/qx <accessed December 5, 2010> The issue that seems to take center stage at present is – whether or not the Supreme Court, in
96 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367. the exercise of its constitutionally ma-
97 Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368. _______________
174
174 SUPREME COURT REPORTS ANNOTATED 104 OSG Consolidated Comment, p. 66, Rollo, p.186.
105 Lagman Memorandum, p. 30; Rollo, p. 118.
Biraogo vs. Philippine Truth Commission of 2010 106 G.R. No. 86926, October 15, 1991, 202 SCRA 680.
The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law 176
under the equal protection clause.” “Legislation is not unconstitutional merely because it is not
98
176 SUPREME COURT REPORTS ANNOTATED
all-embracing and does not include all the evils within its reach.” It has been written that a
99
Biraogo vs. Philippine Truth Commission of 2010
regulation challenged under the equal protection clause is not devoid of a rational predicate simply
because it happens to be incomplete. In several instances, the underinclusiveness was not
100 dated power of Judicial Review with respect to recent initiatives of the legislature and the
considered a valid reason to strike down a law or regulation where the purpose can be attained in executive department, is exercising undue interference. Is the Highest Tribunal, which is expected
future legislations or regulations. These cases refer to the “step by step” process. “With regard to
101 to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine
equal protection claims, a legislature does not run the risk of losing the entire remedial scheme of separation of powers? Time and again, this issue has been addressed by the Court, but it seems
simply because it fails, through inadvertence or otherwise, to cover every evil that might that the present political situation calls for it to once again explain the legal basis of its action lest
conceivably have been attacked.” 102 it continually be accused of being a hindrance to the nation’s thrust to progress.
In Executive Order No. 1, however, there is no inadvertence. That the previous administration The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution,
was picked out was deliberate and intentional as can be gleaned from the fact that it was is vested with Judicial Power that “includes the duty of the courts of justice to settle actual
underscored at least three times in the assailed executive order. It must be noted that Executive controversies involving rights which are legally demandable and enforceable, and to determine
Order No. 1 does not even mention any particular act, event or report to be focused on unlike the whether or not there has been a grave of abuse of discretion amounting to lack or excess of
investigative commissions created in the past. “The equal protection clause is violated by jurisdiction on the part of any branch or instrumentality of the government.”
purposeful and intentional discrimination.” 103 Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is
_______________ the power to declare a treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also
98 Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371. includes the duty to rule on the constitutionality of the application, or operation of presidential
99 Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370. decrees, proclamations, orders, instructions, ordinances, and other regulations. These provisions,
100 Clements v. Fashing, 457 US 957.
101 See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the Equal
however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the
Protection Clause, address a problem one step at a time, or even select one phase of one field and apply a remedy there, two co-equal bodies of government, on the other. Many times the Court has been accused of
neglecting the others. [Jeffeson v. Hackney, 406 US 535]. asserting superiority over the other departments.
102 McDonald v. Board of Election Com’rs of Chicago, 394 US 802 cited in Am Jur 2d, Footnote No. 9. To answer this accusation, the words of Justice Laurel would be a good source of
103 Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
175
enlightenment, to wit: “And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or
VOL. 637, DECEMBER 7, 2010 175 invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it
Biraogo vs. Philippine Truth Commission of 2010
by the Constitution to determine conflicting claims of authority under the Constitution and to Abad, J., See Separate Dissenting Opinion.
establish for Perez, J., See Separate Opinion (concurring).
177 Sereno, J., See Dissenting Opinion.
_______________
VOL. 637, DECEMBER 7, 2010 177
Biraogo vs. Philippine Truth Commission of 2010 110 Republic v. Southside Homeowners Association, Inc., G.R. No. 156951, September 22, 2006, 502 SCRA 587.
the parties in an actual controversy the rights which that instrument secures and guarantees to 179
them.” 107
VOL. 637, DECEMBER 7, 2010 179
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a
co-equal body but rather simply making sure that any act of government is done in consonance Biraogo vs. Philippine Truth Commission of 2010
with the authorities and rights allocated to it by the Constitution. And, if after said review, the
Court finds no constitutional violations of any sort, then, it has no more authority of proscribing SEPARATE OPINION
the actions under review. Otherwise, the Court will not be deterred to pronounce said act as void
and unconstitutional. CORONA, C.J.:
It cannot be denied that most government actions are inspired with noble intentions, all geared Of Truth and Truth Commissions
towards the betterment of the nation and its people. But then again, it is important to remember The fundamental base upon which a truth commission is created is the right to the
this ethical principle: “The end does not justify the means.” No matter how noble and worthy of truth. While the right to the truth is yet to be established as a right under customary law or as a
1 2
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply general principle of international law, it has nevertheless emerged as a “legal concept at the
3
irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot
108
national, regional and international levels, and relates to the obligation of the state to provide
just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its information to victims or to their families or even society as a whole about the circumstances
enshrined principles. surrounding serious violations of human rights.” 4
“The Constitution must ever remain supreme. All must bow to the mandate of this law. A truth commission has been generally defined as a “body set up to investigate a past history
5
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.”109 of violations of human rights in a particular country ...,” and includes four elements:
6
Lest it be misunderstood, this is not the death knell for a truth commission as nobly _______________
envisioned by the present administration. Perhaps a revision of the executive issuance so as to
include the earlier past administrations would allow it to pass the test of reasonableness and 1 PROMOTION AND PROTECTION OF HUMAN RIGHTS (Study on the Right to the Truth): Report of the Office of the United
Nations High Commissioner for Human Rights, United Nations Economic and Social Council (E/CN.4/2006/91), 8 February
not be an affront to the Constitution. Of all the branches of the government, it is the judiciary 2006.
which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or 2 See Yasmin Naqvi, The Right to the Truth in International Law: Fact or Fiction?, International Review of the Red
obstacle to its attainment. It must, however, be Cross (2006), 88:862:254-268.
_______________ 3 Ibid., p. 268.
4 Ibid., p. 245.
5 But see Eric Brahm, What is a Truth Commission and Why Does it Matter?, Peace and Conflict Review (Spring 2009),
107 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936). 3:2:1-14, which proposes that “Mark Freeman’s (2006) typology of human rights investigations as the definition offering the
108 Cruz, Philippine Political Law, 2002 ed., pp. 12-13. most analytical clarity and the strongest potential to move the field forward.” Freeman [ Truth Commissions and Procedural
109 Id. Fairness (2006), New York: Cambridge University Press; E.H.R.L.R., 2008, 2, 294-297] defines a truth commission as an “ad
178 hoc, autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of
(1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe
178 SUPREME COURT REPORTS ANNOTATED
violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making
Biraogo vs. Philippine Truth Commission of 2010 recommendations for their redress and future prevention.”
180
emphasized that the search for the truth must be within constitutional bounds for “ours is still a
government of laws and not of men.” 110 180 SUPREME COURT REPORTS ANNOTATED
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared Biraogo vs. Philippine Truth Commission of 2010
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the “... First, a truth commission focuses on the past. Second, a truth commission is not focused on a specific
Constitution. event, but attempts to paint the overall picture of certain human rights abuses, or violations of international
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out humanitarian law, over a period of time. Third, a truth commission usually exists temporarily and for a pre-
the provisions of Executive Order No. 1. defined period of time, ceasing to exist with the submission of a report of its findings. Finally, a truth
SO ORDERED. commission is always vested with some sort of authority, by way of its sponsor, that allows it greater access to
Del Castillo and Villarama, Jr., JJ., concur. information, greater security or protection to dig into sensitive issues, and a greater impact with its report.” 7
Corona (C.J.), See Separate Opinion (concurring). As reported by Amnesty International, there are at least 33 truth commissions established in
8
Carpio, J., See Dissenting Opinion. 28 countries from 1974 to 2007 and this includes the Philippines, which created the Presidential
Carpio-Morales, J., Please see Dissenting Opinion. Committee on Human Rights (PCHR) in 1986 under the post-Marcos administration of Pres.
Velasco, Jr., J., I certify that Justice Velasco left his concurring vote. (Sgd. C.J. Corona) Corazon C. Aquino.
Nachura, J., See Concurring & Dissenting Opinion. The Philippine Experience
Leonardo-De Castro, J., See Separate Concurring Opinion. Notably, Pres. Corazon C. Aquino created not one but two truth commissions. Aside from the 9
Brion, J., See Separate Opinion (concurring). PCHR, which was created to address human rights violations, the Presidential Commission on
Peralta, J., See Separate Concurring Opinion. Good Government or PCGG was also established. The PCGG was tasked with assisting the
Bersamin, J., See my Separate Concurring Opinion. President in the “recovery of all in-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether located in the continuing authority to reorganize the administrative structure of the Office of the President. For this purpose,
Philippines or abroad, including the takeover or sequestration of all business enterprises and he may take any of the following actions:
entities owned or controlled by them, during his administration, directly or through nominees, by (1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
taking
_______________
abolishing, consolidating, or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
6 Priscilla B. Hayner, Fifteen Truth Commissions – 1974 to 1994: A Comparative Study, Human Rights Quarterly (Nov.
(3) Transfer any agency under the Office of the President to any other department or agency as well as
1994), 16:4:600.
7 Ibid., 604. transfer agencies to the Office of the President from other departments or agencies.” (Emphasis supplied)
8 http://www.amnesty.org/en/library/asset/POL30/009/2007/en/7988f852-d38a-11dd-a329- This provision pertains to the President’s continuing delegated power to reorganize the Office
2f46302a8cc6/pol300092007en.html, viewed on 9 November 2010. of the President. The well-settled principle is that the President has the power to reorganize the
9 Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?, The
International Journal of Transitional Justice, Vol. 2, 2008, 322.
offices and agencies in the executive department in line with his constitutionally granted power of
181 control over executive offices and by virtue of his delegated legislative power to reorganize them
under existing stat-
VOL. 637, DECEMBER 7, 2010 181 _______________
Biraogo vs. Philippine Truth Commission of 2010
16 Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152; 243 SCRA 196, 201 (1995) citing Am Jur 2d on Public
undue advantage of their public office and/or using their powers, authority, influence, connections Officers and Employees.
or relationship,” among others. Unlike the present embattled and controversial Truth
10
183
Commission, however, the PCGG was created by Pres. Corazon C. Aquino pursuant to her
VOL. 637, DECEMBER 7, 2010 183
legislative powers under Executive Order No. 1, which in turn, was sanctioned by Proclamation
11
No. 3. 12
Biraogo vs. Philippine Truth Commission of 2010
And unlike the PCGG, the present Truth Commission suffers from both legal and utes. Needless to state, such power must always be in accordance with the Constitution, relevant
17
constitutional infirmities and must be struck down as unconstitutional. laws and prevailing jurisprudence. 18
Power to Create Public Offices: Inherently Legislative In creating the Truth Commission, did the President merely exercise his continuing authority
The separation of powers is a fundamental principle in our system of government. This 13
to reorganize the executive department? No.
principle is one of the cornerstones of our constitutional democracy and it cannot be eroded Considering that the President was exercising a delegated power, his actions should have
without endangering our government. The 1987 Constitution divides governmental power into
14
conformed to the standards set by the law, that is, that the reorganization be in the interest of
three co-equal branches: the executive, the legislative and the judicial. It delineates the powers of “simplicity, economy and efficiency.” Were such objectives met? They were not. The Truth
the three branches: the legislature is generally limited to the enactment of laws, the executive Commission clearly duplicates and supplants the functions and powers of the Office of the
department to the enforcement of laws and the judiciary to their interpretation and application to Ombudsman and/or the Department of Justice, as will be discussed in detail later. How can the
cases and controversies. Each branch is independent and supreme within its own sphere and the
15
creation of a new commission with the same duplicative functions as those of already existing
encroachment by one branch on another is to be avoided at all costs. offices result in economy or a more efficient bureaucracy? Such a creation becomes even more
19
_______________ questionable considering that the 1987 Constitution itself mandates the Ombudsman to investigate
graft and corruption cases. 20
10 Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No. 75885, May
27, 1987, 150 SCRA 181, 202.
The Truth Commission in the Light of the Equal Protection Clause
11 Promulgated on February 28, 1986, creating the Presidential Commission on Good Government. Equal protection is a fundamental right guaranteed by the Constitution. Section 1, Article III
12 Promulgated on March 25, 1986, promulgating the Provisional Constitution (also known as the Freedom of the 1987 Constitution reads:
Constitution). Article II, Section 1 thereof stated that the President shall continue to exercise legislative power until a “... nor shall any person be denied the equal protection of the laws.”
legislature is elected and convened under a new constitution x x x.
13 Angara v. Electoral Commission, 68 Phil. 139, 156 (1936).
It is a right afforded every man. The right to equal protection does not require a universal
14 Secretary of Justice v. Lantion, G.R. No. 139465, 17 October 2000, 343 SCRA 377. application of the laws to all persons or things
15 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 29 August 2007, 531 SCRA 583. _______________
182
17 Banda v. Ermita, G.R. No. 166620, April 20, 2010, 618 SCRA 488.
182 SUPREME COURT REPORTS ANNOTATED 18 Ibid.
Biraogo vs. Philippine Truth Commission of 2010 19 Buklod ng Kawaniang EIIB v. Sec. Zamora, 413 Phil. 281, 295; 360 SCRA 718.
20 Office of the Ombudsman v. Samaniego, G.R. No. 175573, 11 September 2008, 564 SCRA 567.
The power under scrutiny in this case is the creation of a public office. It is settled that, except 21 Chamber of Real Estate and Builders’ Associations, Inc. v. Executive Secretary Alberto Romulo (G.R. No. 160756,
for the offices created by the Constitution, the creation of a public office is primarily a legislative 2010, 614 SCRA 605).
function. The legislature decides what offices are suitable, necessary or convenient for the 184
administration of government. 16
184 SUPREME COURT REPORTS ANNOTATED
The question is whether Congress, by law, has delegated to the Chief Executive this power to
Biraogo vs. Philippine Truth Commission of 2010
create a public office.
In creating the Truth Commission, Executive Order No. 1 (E.O. No. 1) points to Section 31, without distinction. It requires simply that all persons or things similarly situated should be
21
Chapter 10, Book III of E.O. No. 292 or the Administrative Code of 1987 as its legal basis: treated alike, both as to rights conferred and responsibilities imposed. 22
“Section 31. Continuing Authority of the President to Reorganize his Office.—The President, subject to In certain cases, however, as when things or persons are different in fact or circumstance, they
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have may be treated in law differently. In Victoriano vs. Elizalde Rope Workers Union, the Court
23 24
declared:
“The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice because Biraogo vs. Philippine Truth Commission of 2010
they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very tration; and thereafter recommend the appropriate action to be taken to ensure that the full measure of justice
idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no shall be served without fear or favor.
manner determines the matter of constitutionality. All that is required of a valid classification is that it be Section 2. Powers and Functions.—The Commission, which shall have the powers of an investigative
reasonable, which means that the classification should be based on substantial distinctions which make for real body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
only; and that it must apply equally to each member of the class. This Court has held that the standard is third level public officers and higher, their co-principals, accomplices and accessories from the private sector,
satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not if any during the previous administration and thereafter submit its findings and recommendations to the
palpably arbitrary.” President, Congress and the Ombudsman. x x x” (Emphasis supplied)
Thus, for a classification to be valid it must pass the test of reasonableness, which requires
25 Notwithstanding Section 17, which provides:
that: If and when in the judgment of the President there is a need to expand the mandate of the Commission
as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during
(1) it be based on substantial distinctions;
the prior administration, such mandate may be so extended accordingly by way of supplemental Executive
(2) it must be germane to the purpose of the law; Order.” (Emphasis supplied),
(3) it must not be limited to present conditions; and such expanded mandate of the Truth Commission will still depend on the whim and caprice of
(4) it must apply equally to all members of the same class. the President. If the President decides not to expand the coverage of the investigation, then the
All four requisites must be complied with for the classification to be valid and constitutional. Truth Commission’s sole directive is the investigation of officials and employees of the Arroyo
_______________
administration.
Given the indubitably clear mandate of E.O. No. 1, does the identification of the Arroyo
22 Quinto v. Comelec (G.R. No. 189698, 2009, 606 SCRA 258).
23 Abakada Guro v. Hon. Cesar V. Purisima (G.R. No. 166715, 2008, 562 SCRA 251). administration as the subject of the Truth Commission’s investigation pass the jurisprudential test
24 59 SCRA 54 (1974). of reasonableness? Stated differently, does the mandate of E.O. No. 1 violate the equal protection
25 League of Cities of the Philippines v. COMELEC (G.R. No. 176951; G.R. No. 177499; 2008; G.R. No. 178056, 571 clause of the Constitution? Yes.
SCRA 263 (2008).
185
I rule in favor of petitioners.
(1) No Substantial Distinction—
VOL. 637, DECEMBER 7, 2010 185 There is no substantial distinction between the corruption which occurred during the past
Biraogo vs. Philippine Truth Commission of 2010 administration and the corruption of the administrations prior to it. Allegations of graft and
The constitutionality of E.O. No. 1 is being attacked on the ground that it violates the equal corruption in the government are unfortunately prevalent regardless of who the Presi-
187
protection clause.
Petitioners argue that E.O. No. 1 violates the equal protection clause as it deliberately vests VOL. 637, DECEMBER 7, 2010 187
the Truth Commission with jurisdiction and authority to solely target officials and employees of
Biraogo vs. Philippine Truth Commission of 2010
the Arroyo Administration. Moreover, they claim that there is no substantial distinction of graft
26
dent happens to be. Respondents’ claim of widespread systemic corruption is not unique only to
reportedly committed under the Arroyo administration and graft committed under previous
the past administration.
administrations to warrant the creation of a Truth Commission which will investigate for
(2) Not Germane to the Purpose of the Law—
prosecution officials and employees of the past administration. 27
The purpose of E.O. No. 1 (to put an end to corruption in the government) is stated clearly in
Respondents, on the other hand, argue that the creation of the Truth Commission does not
the preamble of the aforesaid order:
violate the equal protection clause. According to them, while E.O. No. 1 names the previous “WHEREAS, the President’s battle-cry during his campaign for the Presidency in the last elections “kung
administration as the initial subject of the investigation, it does not confine itself to cases of graft walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the
and corruption committed solely during the past administration. Section 17 of E.O. No. 1 clearly evil it breeds; xxx.”
speaks of the President’s power to expand its coverage to previous administrations. Moreover, In the light of the unmistakable purpose of E.O. No. 1, the classification of the past regime as
respondents argue that the segregation of the transactions of public officers during the previous separate from the past administrations is not germane to the purpose of the law. Corruption did not
administration as possible subjects of investigation is a valid classification based on substantial occur only in the past administration. To stamp out corruption, we must go beyond the façade of
distinctions and is germane to the evils which the executive order seeks to correct. 28
each administration and investigate all public officials and employees alleged to have committed
On its face, E.O. No. 1 clearly singles out the previous administration as the Truth graft in any previous administration.
Commission’s sole subject of investigation. (3) E.O. No. 1 does Not Apply to Future Conditions—
“Section 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH As correctly pointed out by petitioners, the classification does not even refer to present
COMMISSION, hereinafter referred to as the “COMMISSION”, which shall primarily seek and find the truth conditions, much more to future conditions vis-â-vis the commission of graft and corruption. It is
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people committed by public officers and employees, their co-
limited to a particular past administration and not to all past administrations. 29
principals, accomplices and accessories from the private sector, if any during the previous adminis- We go back to the text of the executive order in question.
_______________ “x x x
Whereas, there is a need for a separate body dedicated solely to investigating and finding out the truth
26 Par. 69, Lagman, et al’s Petition. concerning the reported cases if graft and corruption during the previous administration, and which will
27 Par. 67, Lagman, et al’s Petition. recommend the prosecution of the offenders and secure justice for all;
28 OSG Memorandum, pp. 88-90. xxx
186
Section 1. Creating of a Commission.—There is hereby created the PHILIPPINE TRUTH
186 SUPREME COURT REPORTS ANNOTATED COMMISSION, hereinafter referred to as the “COM-
_______________
29 Par. 73, Lagman, et al’s Petition. 31 Section 2. xxx g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
188 authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the
188 SUPREME COURT REPORTS ANNOTATED Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent
Biraogo vs. Philippine Truth Commission of 2010 applicable laws xxx.
32 Id.
MISSION”, which shall primarily seek and find the truth on, and toward this end investigate reports of 33 Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
graft and corruption, x x x if any, during the previous administration; xxx that the laws be faithfully executed.
Section 2. Power and Functions.—The Commission, which shall have all the powers of an investigative 190
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption x x x, if any, during the previous 190 SUPREME COURT REPORTS ANNOTATED
administration and thereafter submit its findings and recommendations to the President, Congress and the Biraogo vs. Philippine Truth Commission of 2010
Ombudsman. x x x”
Ombudsman v. Galicia the power of the Ombudsman to conduct preliminary investigations
34
The above-quoted provisions show that the sole subject of the investigation will be public
is not exclusive but shared with other similarly authorized government agencies.
officers and employees of the previous administration only, that is, until such time if and when the
I take a different view. The operative word is “authorized”.
President decides to expand the Truth Commission’s mandate to include other administrations (if
Indeed, the power of control and supervision of the President includes the power to discipline
he does so at all).
which in turn implies the power to investigate. No Congress or Court can derogate from that
35
(4) E.O. No. 1 Does Not Apply to the Same Class—
power but the Constitution itself may set certain limits. And the Constitution has in fact carved
36 37
Lastly, E.O. No. 1 does not apply to all of those belonging to the same class for it only applies
out the preliminary investigatory aspect of the control power and allocated the same to the
to the public officers and employees of the past administration. It excludes from its purview the
following:
graft and the grafters of administrations prior to the last one. Graft is not exclusive to the previous
(a) to Congress over presidential appointees who are impeachable officers (Article XI,
presidency alone, hence there is no justification to limit the scope of the mandate only to the
Sections 2 and 3);
previous administration.
(b) to the Supreme Court over members of the courts and the personnel thereof (Article VIII,
Fact-Finding or Investigation?
Section 6); and
The nature of the powers and functions allocated by the President to the Truth Commission by
(c) to the Ombudsman over any other public official, employee, office or agency (Article XI,
virtue of E.O. No. 1 is investigatory, with the purposes of determining probable cause of the
30
Section 13 (1)).
commission of
_______________
However, even as the Constitution has granted to the Ombudsman the power to investigate
other public officials and employees, such power is not absolute and exclusive. Congress has the
30 Section 2. xxx b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale power to further define the powers of the Ombudsman and, impliedly, to authorize other offices to
corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, conduct such investigation over their respective officials and personnel. 38
including government-owned or controlled corporations, to produce documents, books, records and other papers xxx.
189 _______________
VOL. 637, DECEMBER 7, 2010 189
34 568 SCRA 327 (2008)
Biraogo vs. Philippine Truth Commission of 2010 35 Joson v. Executive Secretary, et al., G.R. No. 131255, May 20, 1998, 290 SCRA 279; Villaluz v. Zaldivar, et al. (En
“graft and corruption under pertinent applicable laws” and referring such finding and evidence to Banc), G.R. No. L-22754, December 31, 1965, 15 SCRA 710.
36 Rufino v. Endriga, G.R. No. 139554, July 21, 2006, 496 SCRA 13.
the proper authorities for prosecution. 31
37 Ang-Angco v. Hon. Natalio Castillo, et al., G.R. No. L-17169, November 30, 1963, 9 SCRA 619.
The respondents pass off these powers and functions as merely fact-finding, short of 38 Article XI states:
investigatory. I do not think so. Sugar-coating the description of the Truth Commission’s Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx
processes and functions so as to make it “sound harmless” falls short of constitutional (8) x x x exercise such other powers or perform such functions or duties as may be provided by law.
requirements. It has in its hands the vast arsenal of the government to intimidate, harass and 191
humiliate its perceived political enemies outside the lawful prosecutorial avenues provided by law
VOL. 637, DECEMBER 7, 2010 191
in the Ombudsman or the Department of Justice.
The scope of the investigatory powers and functions assigned by the President to the Truth Biraogo vs. Philippine Truth Commission of 2010
Commission encompasses all “public officers and employees, their co-principals, accomplices and The Constitution has vested in Congress alone the power to grant to any office
accessories from the private sector, if any, during the previous administration.” 32
concurrent jurisdiction with the Ombudsman to conduct preliminary investigation of cases
There is no doubt in my mind that what the President granted the Truth Commission is of graft and corruption.
the authority to conduct preliminary investigation of complaints of graft and corruption against In a myriad of cases, this Court has recognized the concurrent jurisdiction of other bodies vis-
his immediate predecessor and her associates. à-vis the Ombudsman to conduct preliminary investigation of complaints of graft and corruption
The respondents see nothing wrong with that. They believe that, pursuant to his power of as authorized by law, meaning, for any other person or agency to be able to conduct such
control and general supervision under Article VII of the Constitution, the President can create
33
investigations, there must be a law authorizing him or it to do so.
an ad-hoc committee like the Truth Commission to investigate graft and corruption cases. And the In Ombudsman v. Galicia (cited in the ponencia) as well as Ombudsman v. Estandarte, the 39
President can endow it with authority parallel to that of the Ombudsman to conduct preliminary Court recognized the concurrent jurisdiction of the Division School Superintendent vis-à-vis the
investigations. Citing Ombudsman to conduct preliminary investigation of complaints of graft and corruption committed
_______________ by public school teachers. Such concurrent jurisdiction of the Division School Superintendent was
granted by law, specifically RA 4670 or the Magna Carta for Public School Teachers. 40
Likewise, in Ombudsman v. Medrano the Court held that by virtue of RA 4670 the
41
President the authority to create a committee with concurrent investigatory jurisdiction of this
Department of Education Investigating Committee has concurrent jurisdiction with the nature.
Ombudsman to conduct a preliminary investigation of complaints against public school teachers. The President acted in violation of the Constitution and without authority of law when he
Even the Sangguniang Panlungsod has concurrent jurisdiction with the Ombudsman to look created a Truth Commission under E.O. No. 1 to exercise concurrent jurisdiction with the
into complaints against the punong Ombudsman to conduct the preliminary investigation of complaints of graft and corruption against
_______________ public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration.
39 G.R. No. 168670, April 13, 2007, 521 SCRA 155. Investigation or Quasi-Adjudication?
40 See also Emin v. De Leon (G.R. No. 139794, February 27, 2002, 378 SCRA 143) on the concurrent authority of the
Civil Service Commission and the DEPED Investigating Committee under RA 4670. See further Puse v. Santos-Puse (G.R. Respondents argue that the Truth Commission is merely an investigative and fact-finding
No. 183678, March 15, 2010) where the Court held that the concurrent jurisdiction of the DEPED and CSC to cause body tasked to gather facts, draw conclusions therefrom and recommend the appropriate actions or
preliminary investigation is also shared by the Board of Professional Teachers under RA 7836 or Philippine Teachers measures to be taken. Petitioners, however, argue that the Truth Commission is vested with quasi-
Professionalization Act of 1994.
41 G.R. No. 177580, October 17, 2008, 569 SCRA 747.
judicial powers. Offices with such awesome powers
_______________
192
192 SUPREME COURT REPORTS ANNOTATED 45 See Review Center Association of the Philippines v. Executive Secretary Eduardo Ermita, et al., G.R. No. 180046,
April 2, 2009, 583 SCRA 428; Bermudez v. Executive Secretary Torres, G.R. No. 131429, August 4, 1999, 311 SCRA 733.
Biraogo vs. Philippine Truth Commission of 2010 46 KMU v. Director General, et al., G.R. No. 167798, April 19, 2006, 487 SCRA 623.
barangay. Such concurrent authority is found in RA 7160 or the Local Government Code.
42
194
The Department of Justice is another agency with jurisdiction concurrent with the 194 SUPREME COURT REPORTS ANNOTATED
Ombudsman to conduct preliminary investigation of public officials and employees. Its 43
concurrent jurisdiction is based on the 1987 Administrative Code. Biraogo vs. Philippine Truth Commission of 2010
Certainly, there is a law, the Administrative Code, which authorized the Office of the cannot be legally created by the President through mere executive orders.
President to exercise jurisdiction concurrent with the Ombudsman to conduct preliminary Petitioners are correct.
investigation of graft and corruption cases. However, the scope and focus of its preliminary The definition of investigation was extensively discussed in Cariño v. Commission on Human
investigation are restricted. Under the principle that the power to appoint includes the power to Rights: 47
remove, each President has had his or her own version of a presidential committee to investigate “Investigate,” commonly understood, means to examine, explore, inquire or delve or probe into, research
graft and corruption, the last being President Gloria Macapagal Arroyo’s Presidential Anti-Graft on, study. The dictionary definition of “investigate” is “to observe or study closely: inquire into systematically:
“to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry.” The purpose of
Commission (PAGC) under E.O. No. 268. The PAGC exercised concurrent authority with the
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated
Ombudsman to investigate complaints of graft and corruption against presidential appointees who is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application
are not impeachable officers and non-presidential appointees in conspiracy with the latter. It is in of the law to the facts established by the inquiry.
this light that DOH v. Camposano, et al. as cited in the ponencia should be understood. At that
44
The legal meaning of “investigate” is essentially the same: “(t)o follow up step by step by patient inquiry
time, the PCAGC (now defunct) had no investigatory power over non-presidential appointees; or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out
hence the President created an ad hoc committee to investigate both the principal respondent who by careful inquisition; examination; the taking of evidence; a legal inquiry;” “to inquire; to make an
was a presidential appointee and her co-conspirators who were non-presidential appointees. The investigation,” “investigation” being in turn described as “(a)n administrative function, the exercise of which
PAGC (now also defunct), however, was authorized to investigate both presidential appointees ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters.” (Italics in the original)
48
and non-presidential appointees who were in conspiracy with each other.
_______________ The exercise of quasi-judicial power goes beyond mere investigation and fact-finding. Quasi-
judicial power has been defined as
42 See Ombudsman v. Rolson Rodriguez, G.R. No. 172700, July 23, 2010, 625 SCRA 299, citing Laxina, Sr. v. “… the power of the administrative agency to adjudicate the rights of persons before it. It is the power
Ombudsman, G.R. No. 153155, 30 September 2005, 471 SCRA 542. to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance
43 Sevilla Decin v. SPO1 Melzasar Tayco, et al., G.R. No. 149991, February 14, 2007, 515 SCRA 655; Honasan II v. with the standards laid down by the law itself in enforcing and administering the same law. The
The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004, 427 SCRA 46. administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is
44 G.R. No. 157684. April 27, 2005, 457 SCRA 438. essentially of an executive or administrative nature, where the power to act in such manner is incidental to or
193 reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out
VOL. 637, DECEMBER 7, 2010 193 their quasi-judicial func-
_______________
Biraogo vs. Philippine Truth Commission of 2010
However, although pursuant to his power of control the President may supplant and directly 47 G.R. No. 96681, 2 December 1991, 204 SCRA 483.
48 Id., pp. 495-496.
exercise the investigatory functions of departments and agencies within the executive 195
department, his power of control under the Constitution and the Administrative Code is confined
45
VOL. 637, DECEMBER 7, 2010 195
only to the executive department. Without any law authorizing him, the President cannot
46
legally create a committee to extend his investigatory reach across the boundaries of the executive Biraogo vs. Philippine Truth Commission of 2010
department to “public officers and employees, their co-principals, accomplices and accessories tions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts,
from the private sector, if any, during the previous administration” without setting apart those who hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and
are still in the executive department from those who are not. Only the Ombudsman has the exercise of discretion in a judicial nature.” (Emphasis supplied)
49
investigatory jurisdiction over them under Article XI, Section 13. There is no law granting to the
Despite respondents’ denial that the Truth Commission is infused with quasi-judicial powers, Hence, the Truth Commission is vested with quasi-judicial discretion in the discharge of its
it is patent from the provisions of E.O. No. 1 itself that such powers are indeed vested in the Truth functions.
Commission, particularly in Section 2, paragraphs (b) and (g): As a mere creation of the executive and without a law granting it the power to investigate
“b) Collect, receive, review, and evaluate evidence related to or regarding the cases of large scale person and agencies outside the executive department, the Truth Commission can only perform
corruption which it has chosen to investigate, … administrative functions, not quasi-judicial functions. “Administrative agencies are not considered
xxx courts; they are neither part of the judicial system nor are they deemed judicial tribunals.” 53
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
Executive Order No. 1 and the Philippine Truth Commission of 2010, being contrary to the
by means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its Constitution, should be nullified.
investigation the Commission finds that there is reasonable ground to believe they are liable for graft and I therefore vote that the petitions be GRANTED.
corruption under pertinent applicable laws;
x x x” DISSENTING OPINION
The powers to “evaluate evidence” and “find reasonable ground to believe that someone is
liable for graft and corruption” are not merely fact-finding or investigatory. These are quasi- CARPIO, J.:
judicial in nature because they actually go into the weighing of evidence, drawing up of legal The two petitions before this Court seek to declare void Executive Order No. 1, Creating the
conclusions from them as basis for their official action and the exercise of discretion of a judicial Philippine Truth Commission of 2010 (EO 1), for being unconstitutional.
or quasi-judicial nature. In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a Filipino citizen and as a
The evaluation of the sufficiency of the evidence is a quasi-judicial/judicial function. It taxpayer, filed a petition under Rule 65 for
involves an assessment of the evidence which is an exercise of judicial discretion. We have _______________
defined discretion
_______________ 52 Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, 2 October 2, 1990, 190 SCRA
226. This is an En Banccase that had been reiterated in two other En Banc cases, namely, Olivas v. Office of the
49 Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30 November 2006, 509 SCRA 332, 369-370. Ombudsman (G.R. No. 102420, 20 December 1994) and Uy v. Office of the Ombudsman (G.R. Nos. 156399-400, 27 June
196 2008, 556 SCRA 73). Thus it cannot be said to have been overturned by Balangauan v. Court of Appeals, Special Nineteenth
Division, Cebu City (G.R. No. 174350, 13 August 2008, 562 SCRA 184) a decision of the Court through the Third Division
196 SUPREME COURT REPORTS ANNOTATED wherein the Court declared: “It must be remembered that a preliminary investigation is not a quasi-judicial proceeding…. (p.
203)”
Biraogo vs. Philippine Truth Commission of 2010 53 Meralco v. Energy Regulatory Board, G.R. No. 145399, 17 March 2006, 485 SCRA 19.
“as the ability to make decisions which represent a responsible choice and for which an understanding of what 198
is lawful, right or wise may be presupposed.” 50
198 SUPREME COURT REPORTS ANNOTATED
It is the “the act or the liberty to decide, according to the principles of justice and one’s ideas
of what is right and proper under the circumstances, without willfulness or favor.” 51 Biraogo vs. Philippine Truth Commission of 2010
Likewise, the power to establish if there is reasonable ground to believe that certain persons prohibition and injunction. Biraogo prays for the issuance of a writ of preliminary injunction and
are liable for graft and corruption under pertinent applicable laws is quasi-judicial in nature temporary restraining order to declare EO 1 unconstitutional, and to direct the Philippine Truth
because it is akin to the discretion exercised by a prosecutor in the determination of probable cause Commission (Truth Commission) to desist from proceeding under the authority of EO 1.
during a preliminary investigation. It involves a judicial (or quasi-judicial) appraisal of the facts In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A.
for the purpose of determining if a violation has in fact been committed. Datumanong, and Orlando B. Fua, Sr. (Lagman, et al.), as Members of the House of
“Although such a preliminary investigation is not a trial and is not intended to usurp the function of the Representatives, filed a petition under Rule 65 for certiorari and prohibition. Petitioners
trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts Lagman, et al. pray for the issuance of a temporary restraining order or writ of preliminary
concerning the commission of the crime with the end in view of determining whether or not an information injunction to declare void EO 1 for being unconstitutional.
may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial
The Powers of the President
appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when
the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail the creation of the
investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial Truth Commission. They claim that President Benigno S. Aquino III (President Aquino) has no
when there is opportunity to be heard and for, the production and weighing of evidence, and a decision is power to create the Commission. Petitioners’ objections are mere sound bites, devoid of sound
rendered thereon. legal reasoning.
The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a On 30 July 2010, President Aquino issued EO 1 pursuant to Section 31, Chapter 10, Title III,
preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. While Book III of Executive Order No. 292 (EO 292). Section 31 reads: 1
the investigating officer, strictly speaking is not a “judge,” by the nature of his
_______________
“Section 31. Continuing Authority of the President to Reorganize his Office.—The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall
50 Manotoc v. Court of Appeals, G.R. No. 130974, 16 August 2006, 499 SCRA 21.
51 Philippine Long Distance Telephone Co. Inc. v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No. 162783, 14 July 2005, 463 SCRA have continuing authority to reorganize the administrative structure of the Office of the President . For
418. this purpose, he may take any of the following actions:
197 (1) Restructure the internal organization of the Office of the President Proper, including the
VOL. 637, DECEMBER 7, 2010 197 immediate Offices, the Presidential Spe-
_______________
Biraogo vs. Philippine Truth Commission of 2010
functions he is and must be considered to be a quasi judicial officer.” 52 1 Also known as the Administrative Code of 1987. One of EO 1’s WHEREAS clauses reads: “WHEREAS, Book III, Chapter 10, Section 31
of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.”
199 4 Emphasis supplied. President Aquino took his oath in Filipino.
201
VOL. 637, DECEMBER 7, 2010 199
VOL. 637, DECEMBER 7, 2010 201
Biraogo vs. Philippine Truth Commission of 2010
cial Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating or Biraogo vs. Philippine Truth Commission of 2010
merging units thereof or transferring functions from one unit to another; “Moreover, petitioner cannot claim that his investigation as acting general manager is for the purpose of
(2) Transfer any function under the Office of the President to any other Department or Agency as well as removing him as such for having already been relieved, the obvious purpose of the investigation is merely to
transfer functions to the Office of the President from other Departments and Agencies; and gather facts that may aid the President in finding out why the NARIC failed to attain its objectives, particularly
(3) Transfer any agency under the Office of the President to any other department or agency as well as in the stabilization of the prices of rice and corn. His investigation is, therefore, not punitive, but merely an
transfer agencies to the Office of the President from other departments or agencies.” (Emphasis supplied) inquiry into matters which the President is entitled to know so that he can be properly guided in the
The law expressly grants the President the “continuing authority to reorganize the performance of his duties relative to the execution and enforcement of the laws of the land. In this sense,
administrative structure of the Office of the President,” which necessarily includes the power the President may authorize the appointment of an investigator of petitioner Rodriguez in his capacity as
to create offices within the Office of the President Proper. The power of the President to acting general manager even if under the law the authority to appoint him and discipline him belongs to the
NARIC Board of Directors. The petition for prohibition, therefore, has no merit.” (Boldfacing and 5
reorganize the Office of the President Proper cannot be disputed as this power is expressly granted
italicization supplied)
to the President by law. Pursuant to this power to reorganize, all Presidents under the 1987
The Power to Find Facts
Constitution have created, abolished or merged offices or units within the Office of the President
The power to find facts, or to conduct fact-finding investigations, is necessary and proper,
Proper, EO 1 being the most recent instance. This Court explained the rationale behind the
and thus inherent in the President’s power to execute faithfully the law. Indeed, the power to find
President’s continuing authority to reorganize the Office of the President Proper in this way:
facts is inherent not only in Executive power, but also in Legislative as well as Judicial power. The
“x x x The law grants the President this power in recognition of the recurring need of every President to
reorganize his office “to achieve simplicity, economy and efficiency.” The Office of the President is the nerve Legislature cannot sensibly enact a law without knowing the factual milieu upon which the law is
center of the Executive Branch. To remain effective and efficient, the Office of the President must be to operate. Likewise, the courts cannot render justice without knowing the facts of the case if the
capable of being shaped and reshaped by the President in the manner he deems fit to carry out his issue is not purely legal. Petitioner Lagman admitted this during the oral arguments:
directives and policies. After all, the Office of the President is the command post of the President. This is ASSOCIATE JUSTICE CARPIO:
the rationale behind the President’s continuing authority to reorganize the administrative structure of the Office x x x The power to fact-find is inherent in the legislature, correct? I mean, before you can pass a
of the President.” (Emphasis supplied)
2 law, you must determine the facts. So, it’s essential that you have to determine the facts to pass a law,
_______________ and therefore, the power to fact-find is inherent in legislative power, correct?
CONGRESSMAN LAGMAN:
2 Domingo v. Zamora, 445 Phil. 7, 13; 397 SCRA 56, 60 (2003). Yes, Your Honor.
200 ASSOCIATE JUSTICE CARPIO:
And it is also inherent in judicial power, we must know the facts to render a decision, correct?
200 SUPREME COURT REPORTS ANNOTATED CONGRESSMAN LAGMAN:
Biraogo vs. Philippine Truth Commission of 2010 Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
The Power To Execute Faithfully _______________
the Laws
Section 1, Article VI of the 1987 Constitution states that “[t]he executive power is vested in 5 Rodriguez, et al. v. Santos Diaz, et al., 119 Phil. 723, 727-728; 10 SCRA 441, 444-445 (1964).
the President of the Philippines.” Section 17, Article VII of the 1987 Constitution states that 202
“[t]he President shall have control of all the executive departments, bureaus and offices. He shall 202 SUPREME COURT REPORTS ANNOTATED
ensure that the laws be faithfully executed.” Before he enters office, the President takes the
3
following oath prescribed in Section 5, Article VII of the 1987 Constitution: “I do solemnly swear Biraogo vs. Philippine Truth Commission of 2010
And it is also inherent in executive power that [the] President has to know the facts so that he
that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve
can faithfully execute the laws, correct?
and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the CONGRESSMAN LAGMAN:
service of the Nation. So help me God.” 4
Yes, Your Honor, in that context (interrupted).
Executive power is vested exclusively in the President. Neither the Judiciary nor the ASSOCIATE JUSTICE CARPIO:
Legislature can execute the law. As the Executive, the President is mandated not only to execute So (interrupted)
the law, but also to execute faithfully the law. CONGRESSMAN LAGMAN:
To execute faithfully the law, the President must first know the facts that justify or require the Your Honor, in that context, the legislature has the inherent power to make factual inquiries in
execution of the law. To know the facts, the President may have to conduct fact-finding aid of legislation. In the case of the Supreme Court and the other courts, the power to inquire into
facts [is] in aid of adjudication. And in the case of the Office of the President, or the President
investigations. Otherwise, without knowing the facts, the President may be blindly or
himself [has the power] to inquire into the facts in order to execute the laws. 6
negligently, and not faithfully and intelligently, executing the law.
Being an inherent power, there is no need to confer explicitly on the President, in the
Due to time and physical constraints, the President cannot obviously conduct by himself the
Constitution or in the statutes, the power to find facts. Evangelista v. Jarencio underscored the 7
fact-finding investigations. The President will have to delegate the fact-finding function to one or
importance of the power to find facts or to investigate:
more subordinates. Thus, the President may appoint a single fact-finding investigator, or a “It has been essayed that the lifeblood of the administrative process is the flow of fact[s], the gathering,
collegial body or committee. In recognizing that the President has the power to appoint an the organization and the analysis of evidence. Investigations are useful for all administrative functions, not
investigator to inquire into facts, this Court held: only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing,
_______________ for determining general policy, for recommending legislation, and for purposes no more specific than
illuminating obscure areas to find out what if anything should be done. An administrative agency may be
3 Emphasis supplied.
authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in (2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries and Assistant
proceedings whose sole purpose is to obtain information upon which future Executive Secretaries;
_______________ (3) The Common Staff Support System embraces the offices or units under the general categories of development and
management, general government administration and internal administration; and
(4) The Presidential Special Assistants/Advisers System includes such special assistants or advisers as may be
6 TSN, 7 September 2010, pp. 56-57.
7 No. L-29274, 27 November 1975, 68 SCRA 99, 104. needed by the President.” (Emphasis supplied)
203 10 Section 22(4), Id.
11 Section 47(2), Chapter 6, Book V of EO 292 provides:
VOL. 637, DECEMBER 7, 2010 203 Section 47. Disciplinary Jurisdiction.—
xxx
Biraogo vs. Philippine Truth Commission of 2010 (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have
action of a legislative or judicial nature may be taken and may require the attendance of witnesses in jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their
proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, jurisdiction. x x x. (Emphasis supplied)
and to report findings to appropriate bodies and make recommendations for actions.” (Emphasis supplied) 205
The Power to Create a Public Office VOL. 637, DECEMBER 7, 2010 205
The creation of a public office must be distinguished from the creation of an ad hoc fact-
Biraogo vs. Philippine Truth Commission of 2010
finding public body.
The power to create a public office is undeniably a legislative power. There are two ways by vestigate complaints against incumbent officials or employees in the Judiciary.
which a public office is created: (1) by law, or (2) by delegation of law, as found in the President’s The creation of such ad hoc investigating bodies, as well as the appointment of ad
authority to reorganize his Office. The President as the Executive does not inherently possess the hoc investigators, does not result in the creation of a public office. In creating ad hocinvestigatory
power to reorganize the Executive branch. However, the Legislature has delegated to the President bodies or appointing ad hoc investigators, executive and judicial officials do not create public
the power to create public offices within the Office of the President Proper, as provided in Section offices but merely exercise a power inherent in their primary constitutional or statutory functions,
31(1), Chapter 10, Title III, Book III of EO 292. which may be to execute the law, to exercise disciplinary authority, or both. These fact-finding
Thus, the President can create the Truth Commission as a public office in his Office pursuant bodies and investigators are not permanent bodies or functionaries, unlike public offices or their
to his power to reorganize the Office of the President Proper. In such a case, the President is
8 occupants. There is no separate compensation, other than per diems or allowances, for those
exercising his delegated power to create a public office within the Office of the President Proper. designated as members of ad hoc investigating bodies or as ad hocinvestigators.
There is no dispute that the President possesses this delegated power. Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the President’s power to
In the alternative, the President can also create the Truth Commission as an ad hoc body to reorganize his Office or create the Truth Commission. PD 1416, as amended, delegates to the
conduct a fact-finding investigation pursuant to the President’s inherent power to find facts as President “continuing authority to reorganize the National Government,” which 12
_______________
basis to execute faithfully the law. The creation of such ad hoc fact-finding body is
indisputably necessary and proper for the President to execute faithfully the law. In such a case, 12 Paragraph 1 of PD 1416, as amended, provides:
members of the Truth Commission may be appointed as Special Assistants or Advisers of the 1. The President of the Philippines shall have continuing authority to reorganize the National
President, and then assigned to conduct a fact-finding investiga-
9 Government. In exercising this authority, the President shall be guided by generally acceptable principles of good
_______________ government and responsive national development, including but not limited to the following guidelines for a more
efficient, effective, economical and development-oriented governmental framework:
(a) More effective planning, implementation, and review functions;
8 Section 31, Chapter 10, Title III, Book III of EO 292, quoted on page 2. (b) Greater decentralization and responsiveness in the decision-making process;
9 Section 22, Chapter 8, Title II, Book III of EO 292 reads: (c) Further minimization, if not elimination, of duplication or overlapping of purposes, functions, activities, and
Section 22. Office of the President Proper.—(1) The Office of the President Proper shall consist of the Private Office, programs;
the Executive Of- (d) Further development of as standardized as possible ministerial, sub-ministerial and corporate organizational
204 structures;
(e) Further development of the regionalization process; and
204 SUPREME COURT REPORTS ANNOTATED
(f) Further rationalization of the functions of and administrative relationship among government entities.
Biraogo vs. Philippine Truth Commission of 2010 206
tion. The President can appoint as many Special Assistants or Advisers as he may need. There is 10
206 SUPREME COURT REPORTS ANNOTATED
no public office created and members of the Truth Commission are incumbents already holding
Biraogo vs. Philippine Truth Commission of 2010
public office in government. These incumbents are given an assignment by the President to be
members of the Truth Commission. Thus, the Truth Commission is merely an ad hoc body means the Executive, Legislative and Judicial branches of government, in addition to the
assigned to conduct a fact-finding investigation. independent constitutional bodies. Such delegation can exist only in a dictatorial regime, not under
The creation of ad hoc fact-finding bodies is a routine occurrence in the Executive and even a democratic government founded on the separation of powers. The other powers granted to the
in the Judicial branches of government. Whenever there is a complaint against a government President under PD 1416, as amended, like the power to transfer appropriations without conditions
official or employee, the Department Secretary, head of agency or head of a local government unit and the power to standardize salaries, are also contrary to the provisions of the 1987
usually creates a fact-finding body whose members are incumbent officials in the same Constitution. PD 1416, which was promulgated during the Martial Law regime to facilitate the
13
department, agency or local government unit. This is also true in the Judiciary, where this Court
11 transition from the presidential to a parlia-
_______________
routinely appoints a fact-finding investigator, drawn from incumbent Judges or Justices (or even
retired Judges or Justices who are appointed consultants in the Office of the Court Administrator), For purposes of this Decree, the coverage of the continuing authority of the President to reorganize shall be
to in- interpreted to encompass all agencies, entities, instrumentalities, and units of the National Government, including all
_______________ government-owned or controlled corporations, as well as the entire range of the powers, functions, authorities,
administrative relationships, and related aspects pertaining to these agencies, entities, instrumentalities, and units.
fice, the Common Staff Support System, and the Presidential Special Assistants/Advisers System;
2. For this purpose, the President may, at his discretion, President is appropriating, or is empowered to appropriate, funds from the unappropriated funds in
take the following actions:
(a) Group, coordinate, consolidate or integrate departments, bureaus, offices, agencies, instrumentalities and
the National Treasury. Clearly, there is absolutely no language in EO 1 appropriating, or
functions of the government; empowering the President to appropriate, unappropriated funds in the National Treasury.
(b) Abolish departments, offices, agencies or functions which may not be necessary, or create those which are Section 11 of EO 1 merely states that the Office of the President shall fund the operations of
necessary, for the efficient conduct of government functions services and activities; the Truth Commission. Under EO 1, the funds to be spent for the operations of the Truth
(c) Transfer functions, appropriations, equipment, properties, records and personnel from one department, bureau,
office, agency or instrumentality to another; Commission have already been appropriated by Congress to the Office of the President under the
(d) Create, classify, combine, split, and abolish positions; current General Appropriations Act. The budget for the Office of the President under the annual
(e) Standardize salaries, materials and equipment; General Appropriations Act always contains a Contingent Fund that can fund the operations of ad
18
(f) Create, abolish, group, consolidate, merge, or integrate entities, agencies, instrumentalities, and units of the
National Government, as well as expand, amend, change, or otherwise modify their powers, functions and
hoc investigating bodies like the Truth Commission. In this case, there is no appropriation but
authorities, including, with respect to government-owned or controlled corporations, their corporate life, merely a disbursement by the President of funds that Congress had already appropriated for the
capitalization, and other relevant aspects of their charters; and Office of the President.
(g) Take such other related actions as may be necessary to carry out the purposes and objectives of this Decree. The Truth Commission Is Not A
(Emphasis supplied)
13 Paragraph 1 (c) and (e), PD 1416, as amended. Quasi-Judicial Body
207 While petitioners Lagman, et al. insist that the Truth Commission is a quasi-judicial body,
they admit that there is no specific provision
VOL. 637, DECEMBER 7, 2010 207 _______________
Biraogo vs. Philippine Truth Commission of 2010
mentary form of government under the 1973 Constitution, is now functus officio and deemed
14 16 Section 29(1), Article VI, 1987 Constitution.
17 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 14 July
repealed upon the ratification of the 1987 Constitution. 1989, 175 SCRA 343.
The President’s power to create ad hoc fact-finding bodies does not emanate from the 18 See Special Provision No. 2, General Appropriations Act of 2010 or Republic Act No. 9970.
President’s power of control over the Executive branch. The President’s power of control is the 209
power to reverse, revise or modify the decisions of subordinate executive officials, or substitute VOL. 637, DECEMBER 7, 2010 209
his own decision for that of his subordinate, or even make the decision himself without waiting for
the action of his subordinate. This power of control does not involve the power to create a public
15 Biraogo vs. Philippine Truth Commission of 2010
office. Neither does the President’s power to find facts or his broader power to execute the laws in EO 1 that states that the Truth Commission has quasi-judicial powers. 19
give the President the power to create a public office. The President can exercise the power to find ASSOCIATE JUSTICE CARPIO:
facts or to execute the laws without creating a public office. Okay. Now. Let’s tackle that issue. Where in the Executive Order is it stated that [the Truth
Commission] has a quasi-judicial power? Show me the provision.
CONGRESSMAN LAGMAN:
Objections to EO 1 There is no exact provision.
There is no language in EO 1 granting the Truth Commission quasi-judicial power, whether
There Is No Usurpation of Congress’ Power To Appropriate Funds expressly or impliedly, because the Truth Commission is not, and was never intended to be, a
Petitioners Lagman, et al. argue that EO 1 usurps the exclusive power of Congress to quasi-judicial body. The power of the President to create offices within the Office of the President
appropriate funds because it gives the President the power to appropriate funds for the operations Proper is a power to create only executive or administrative offices, not quasi-judicial offices or
of the Truth Commission. Petitioners Lagman, et al. add that no particular source of funding is bodies. Undeniably, a quasi-judicial office or body can only be created by the Legislature. The
identified and that the amount of funds to be used is not specified. Truth Commission, as created under EO 1, is not a quasi-judicial body and is not vested with any
Congress is exclusively vested with the “power of the purse,” recognized in the constitutional quasi-judicial power or function.
provision that “no money shall be paid out of the Treasury except in pursuance of an appropriation The exercise of quasi-judicial functions involves the determination, with respect to the matter
made by in controversy, of what the law is, what the legal rights and obligations of the contending parties
_______________ are, and based thereon and the facts obtaining, the adjudication of the respective rights and
obligations of the parties. The tribunal, board or officer exercising quasi-judicial functions must
20
14 The clause states: “WHEREAS, the transition towards the parliamentary form of government will necessitate be clothed with the power to pass judgment on the controversy. In short, quasi-judicial power is
21
flexibility in the organization of the national government.”
15 Aurillo, Jr. v. Rabi, 441 Phil. 117; 392 SCRA 595 (2002); Drilon v. Lim, G.R. No. 112497, 4 August 1994, 235 SCRA
the power of an administrative body to adjudicate the rights and obligations of parties under its
135; Mondano v. Silvosa, etc., et al., 97 Phil. 143 (1955). jurisdiction in a manner that is final and binding, unless there is a
208 _______________
208 SUPREME COURT REPORTS ANNOTATED
19 TSN, 7 September 2010, p. 61.
Biraogo vs. Philippine Truth Commission of 2010 20 Doran v. Executive Judge Luczon, Jr., G.R. No. 151344, 26 September 2006, 503 SCRA 106.
21 Id.
law.” The specific purpose of an appropriation law is to authorize the release of unappropriated
16
210
public funds from the National Treasury. 17
Section 11 of EO 1 merely states that “the Office of the President shall provide the necessary 210 SUPREME COURT REPORTS ANNOTATED
funds for the Commission to ensure that it can exercise its powers, execute its functions, and Biraogo vs. Philippine Truth Commission of 2010
perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.” proper appeal. In the recent case of Bedol v. Commission on Elections, this Court declared:
22
Section 11 does not direct the National Treasurer to release unappropriated funds in the National “Quasi-judicial or administrative adjudicatory power on the other hand is the power of the
Treasury to finance the operations of the Truth Commission. Section 11 does not also say that the administrative agency to adjudicate the rights of persons before it. It is the power to hear and determine
questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid
down by the law itself in enforcing and administering the same law. The administrative body exercises its
quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or Biraogo vs. Philippine Truth Commission of 2010
administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the should be. The Truth Commission is free to come out with its own findings and recommendations,
performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial free from any interference or pressure from the President. Of course, as EO 1 expressly provides,
functions the administrative officers or bodies are required to investigate facts or ascertain the existence of the President, Congress and the Ombudsman are not bound by such findings and
facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and recommendations.
exercise of discretion in a judicial nature.” (Emphasis supplied)
23
There Is No Usurpation of the Powers
Under EO 1, the Truth Commission primarily investigates reports of graft and corruption and of the Ombudsman
recommends the appropriate actions to be taken. Thus, Section 2 of EO 1 states that the Truth Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive jurisdiction to
Commission is “primarily tasked to conduct a thorough fact-finding investigation of reported investigate graft and corruption cases, the Truth Commission encroaches on this exclusive power
cases of graft and corruption and thereafter submit its findings and recommendations to the of the Ombudsman.
President, Congress and the Ombudsman.” The President, Congress and the Ombudsman are not There are three types of fact-finding investigations in the Executive branch. First, there is the
bound by the findings and recommendations of the Truth Commission. Neither are the parties purely fact-finding investigation the purpose of which is to establish the facts as basis for future
subject of the fact-finding investigation bound by the findings and recommendations of the Truth executive action, excluding the determination of administrative culpability or the determination of
Commission. probable cause. Second, there is the administrative investigation to determine administrative
Clearly, the function of the Truth Commission is culpabilities of public officials and employees. Third, there is the preliminary investigation whose
merely investigative and recommendatory in nature. The Truth Commission has no power to sole purpose is to determine probable cause as to the existence and perpetrator of a crime. These
adjudicate the rights and obligations of the persons who come before it. Nothing whatsoever in three types of fact-finding investigations are separate and distinct investigations.
EO 1 gives the Truth Commission quasi-judicial power, expressly or impliedly. In A purely fact-finding investigation under the Office of the President is the first type of fact-
_______________
finding investigation. Such fact-finding investigation has three distinct objectives. The first is to
improve administrative procedures and efficiency, institute administrative measures to prevent
22 G.R. No. 179830, 3 December 2009, 606 SCRA 554, citing Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30
November 2006, 509 SCRA 332. corruption, and recommend policy options—all with the objective of enabling the President to
23 Id., at pp. 570-571. execute faithfully the law. The second is to recommend to Congress possible legislation in
211 response to new conditions brought to light in the fact-finding investigation. The third is to
VOL. 637, DECEMBER 7, 2010 211 recommend to the head of office the filing of a formal administrative charge, or the filing of a
criminal complaint before the prosecutor.
Biraogo vs. Philippine Truth Commission of 2010 Under the third objective, the fact-finding investigation is merely a gathering and evaluation
short, the Truth Commission is not a quasi-judicial body because it does not exercise the quasi- of facts to determine whether there is suffi-
judicial power to bind parties before it with its actions or decisions. 213
The creation of the Truth Commission has three distinct purposes since it is tasked to submit
VOL. 637, DECEMBER 7, 2010 213
its findings to the President, Congress and the Ombudsman. The Truth Commission will submit its
findings to the President so that the President can faithfully execute the law. For example, the Biraogo vs. Philippine Truth Commission of 2010
Truth Commission may recommend to the President that Department Secretaries should personally cient basis to proceed with a formal administrative charge, or the filing of a criminal complaint
approve disbursements of funds in certain contracts or projects above a certain amount and not before the prosecutor who will conduct a preliminary investigation. This purely fact-finding
delegate such function to their Undersecretaries. The Truth Commission will also submit its
24
investigation does not determine administrative culpability or the existence of probable cause. The
findings to Congress for the possible enactment by Congress of remedial legislation. For example, fact-finding investigation comes before an administrative investigation or preliminary
Congress may pass a law penalizing Department Secretaries who delegate to their investigation, where administrative culpability or probable cause, respectively, is determined.
Undersecretaries the approval of disbursement of funds contrary to the directive of the President. On the other hand, an administrative investigation follows, and takes up, the recommendation
Lastly, the Truth Commission will submit its findings to the Ombudsman for possible further of a purely fact-finding investigation to charge formally a public official or employee for possible
investigation of those who may have violated the law. The Ombudsman may either conduct a misconduct in office. Similarly, a preliminary investigation is an inquiry to determine whether
further investigation or simply ignore the findings of the Truth Commission. Incidentally, the there is sufficient ground to believe that a crime has been committed and that the respondent is
Ombudsman has publicly stated that she supports the creation of the Truth Commission and that probably guilty of such crime, and should be held for trial. A preliminary investigation’s sole
26
she will cooperate with its investigation. 25
purpose is to determine whether there is probable cause to charge a person for a crime.
That EO 1 declares that the Truth Commission “will act as an independent collegial body” Section 15 of Republic Act No. 6770 provides:
27
cannot invalidate EO 1. This provision merely means that the President will not dictate on the “SEC. 15. Powers, Functions and Duties.—The Office of the Ombudsman shall have the following
members of the Truth Commission on what their findings and recommendations powers, functions and duties: x x x
_______________ (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper
24 Section 65, Chapter 13, Book IV of EO 292 merely provides: or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
Section 65. Approval of other types of Government Contracts.—All other types of government contracts which are not exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of
within the coverage of this Chapter shall, in the absence of a special provision, be executed with the approval of the Secretary Government, the investigation of such cases; x x x” (Emphasis supplied)
or by the head of the bureau or office having control of the appropriation against which the contract would create a charge. The Ombudsman has “primary jurisdiction over cases cognizable by the Sandiganbayan.”
Such contracts shall be processed and approved in accordance with existing laws, rules and regulations.
25 http://www.mb.com.ph/node/270641/ombud, accessed on 19 November 2010.
The cases cognizable by the Sandiganbayan are criminal cases as well as quasi-criminal cases like
212 the
_______________
212 SUPREME COURT REPORTS ANNOTATED
26 Section 1, Rule 112, Rules of Court. To repeat, Honasan II categorically ruled that “the Constitution, Section 15 of the
27 “An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for Other
Purposes.” Also known as “The Ombudsman Act of 1989.”
Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give
214 the Ombudsman exclusive jurisdiction to investigate offenses committed by public officials
and employees.”
214 SUPREME COURT REPORTS ANNOTATED
The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary
Biraogo vs. Philippine Truth Commission of 2010 investigation to determine if there is probable cause to charge a public officer or employee with an
forfeiture of unexplained wealth. “[I]n the exercise of this primary jurisdiction” over cases
28 offense, not to the conduct of a purely administrative fact-finding investigation that does
cognizable by the Sandiganbayan, the Ombudsman “may take over x x x the investigation of such _______________
cases” from any investigatory agency of the Government. The cases covered by the “primary
jurisdiction” of the Ombudsman are criminal or quasi-criminal cases but not administrative 29 Section 13(1), Article XI, Constitution.
30 G.R. No. 159747, 13 April 2004, 427 SCRA 46.
cases.Administrative cases, such as administrative disciplinary cases, are not cognizable by the 31 Id., at p. 70.
Sandiganbayan. With more reason, purely fact-finding investigations conducted by the Executive 216
branch are not cognizable by the Sandiganbayan. 216 SUPREME COURT REPORTS ANNOTATED
Purely fact-finding investigations to improve administrative procedures and efficiency, to
institute administrative measures to prevent corruption, to provide the President with policy Biraogo vs. Philippine Truth Commission of 2010
options, to recommend to Congress remedial legislation, and even to determine whether there is not involve the determination of probable cause. The Truth Commission is a purely fact-finding
32
basis to file a formal administrative charge against a government official or employee, do not fall body that does not determine the existence of probable cause. There is no accused or even a
under the “primary jurisdiction” of the Ombudsman. These fact-finding investigations do not suspect before the Truth Commission, which merely conducts a general inquiry on reported cases
involve criminal or quasi-criminal cases cognizable by the Sandiganbayan. of graft and corruption. No one will even be under custodial investigation before the Truth
If the Ombudsman has the power to take-over purely fact-finding investigations from the Commission. Thus, the claim that the Truth Commission is usurping the investigatory power of
33
President or his subordinates, then the President will become inutile. The President will be wholly the Ombudsman, or of any other government official, has no basis whatsoever.
dependent on the Ombudsman, waiting for the Ombudsman to establish the facts before the In criminal fact-finding investigations, the law expressly vests in the Philippine National
President can act to execute faithfully the law. The Constitution does not vest such power in the Police (PNP) and the National Bureau of Investigation (NBI) investigatory powers. Section 24 of
Ombudsman. No statute grants the Ombudsman such power, and if there were, such law would be Republic Act No. 6975 provides:
34
unconstitutional for usurping the power of the President to find facts necessary and proper to his “Section 24. Powers and Functions.—The PNP shall have the following powers and duties:
faithful execution of the law. (a) x x x
Besides, if the Ombudsman has the exclusive power to conduct fact-finding investigations, xxx
(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice,
then even the Judiciary and the Legislature cannot perform their fundamental functions without the and assist in their prosecution;
action or x x x. (Emphasis supplied)
_______________
Section 1 of Republic Act No. 157 also provides:
“Section 1. There is hereby created a Bureau of Investigation under the Department of Justice which shall
28 Republic Act No. 8249, entitled “An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending For the have the following functions:
Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefor, and For Other Purposes.” Approved on 5
February 1997.
(a) To undertake investigation of crimes and other offenses against the laws of the Philippines, upon
215 its own initiative and as public interest may require;
x x x.” (Emphasis supplied)
VOL. 637, DECEMBER 7, 2010 215 _______________
Biraogo vs. Philippine Truth Commission of 2010
32 Id.
approval of the Ombudsman. While the Constitution grants the Office of the Ombudsman the 33 People vs. Morial, 415 Phil. 310; 363 SCRA 96 (2001).
power to “[i]nvestigate on its own x x x any act or omission of any public official, employee, 34 An Act Establishing The Philippine National Police Under A Reorganized Department of Interior and Local
office or agency,” such power is not exclusive. To hold that such investigatory power is
29 Government And For Other Purposes. Also known as the Philippine National Police Law or the Department of Interior and
Local Government Act of 1990.
exclusive to the Ombudsman is to make the Executive, Legislative and Judiciary wholly 217
dependent on the Ombudsman for the performance of their Executive, Legislative and Judicial
functions. VOL. 637, DECEMBER 7, 2010 217
Even in investigations involving criminal and quasi-criminal cases cognizable by the Biraogo vs. Philippine Truth Commission of 2010
Sandiganbayan, the Ombudsman does not have exclusive jurisdiction to conduct preliminary The PNP and the NBI are under the control of the President. Indisputably, the President can at
investigations. In Honasan II v. The Panel of Investigating Prosecutors of the Department of any time direct the PNP and NBI, whether singly, jointly or in coordination with other government
Justice, this Court held:
30
bodies, to investigate possible violations of penal laws, whether committed by public officials or
“In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the private individuals. To say that the Ombudsman has the exclusive power to conduct fact-finding
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate
offenses committed by public officers or employees. The authority of the Ombudsman to investigate
investigations of crimes involving public officials and employees is to immobilize our law-
offenses involving public officers or employees is concurrent with other government investigating agencies enforcement agencies and allow graft and corruption to run riot. The fact-finding arm of the
such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary Department of Justice (DOJ) to investigate crimes, whether committed by public or private parties,
jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating is the NBI. The DOJ Proper does not conduct fact-finding investigations of crimes, but only
35
agency of the government, the investigation of such cases.” (Emphasis supplied)
31
preliminary investigations.
The Truth Commission and bring relevant documents, before such fact-finding body. The fact-finding body may even rely
Has Subpoena Powers only on official records of the government. To require every administrative fact-finding body to
Section 2 of EO 1 provides that the Truth Commission shall have all the powers of an have coercive or contempt powers is to invalidate all administrative fact-finding bodies created by
investigative body under Section 37, Chapter 9, Book I of EO 292, which reads: the Executive, Legislative and Judicial branches of government.
“Sec. 37. Powers Incidental to Taking of Testimony.—When authority to take testimony or receive The Name “Truth Commission”
evidence is conferred upon any administrative officer or any non-judicial person, committee, or other Cannot Invalidate EO 1
body, such authority shall include the power to administer oaths, summon witnesses, and require the There is much ado about the words “Truth Commission” as the name of the fact-finding body
production of documents by a subpoena duces tecum.” (Emphasis supplied)
created under EO 1. There is no law or rule prescribing how a fact-finding body should be
Section 2(e) of EO 1 confers on the Truth Commission the power to “[i]nvite or subpoena
named. In fact, there is no law or rule prescribing how permanent government commissions,
witnesses and take their testimonies and for that purpose, administer oaths or affirmation as the
offices, or entities should be named. There is40
case may be.” _______________
_______________
SEC. 1. Subpoena and Subpoena duces tecum.—Subpoena is a process directed to a person requiring him to attend and
35 Section 3, Chapter I, Title III, Book IV of EO 292 provides: to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of his
Section 3. Powers and Functions.—To accomplish its mandate, the Department (DOJ) shall have the following powers deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it
and functions: is called a subpoena duces tecum. (Emphasis supplied)
(1) x x x 39 Section 9, Rule 21 of the Rules of Court provides:
(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; SEC. 9. Contempt.—Failure by any person without adequate cause to obey a subpoena served upon him shall be
x x x. deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience
218 thereto shall be punished in accordance with the applicable law or Rule. (Emphasis supplied)
40 In sharp contrast, Section 26(1), Article VI of the Constitution provides: “Every bill passed by the Congress shall
218 SUPREME COURT REPORTS ANNOTATED embrace only one subject which shall be expressed in the title thereof.” Thus, the title of a bill must express the subject of the
Biraogo vs. Philippine Truth Commission of 2010 bill.
220
Thus, the Truth Commission, a body authorized to take testimony, can administer oaths and issue
subpoena and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of EO 292. In fact, 220 SUPREME COURT REPORTS ANNOTATED
this power to administer oaths and to issue subpoena and subpoena duces tecum is a power of Biraogo vs. Philippine Truth Commission of 2010
every administrative fact-finding investigative body created in the Executive, Legislative or also no law or rule prohibiting the use of the words “Truth Commission” as the name of a
Judicial branch. Section 37, Chapter 9, Book I of EO 292 grants such power to every fact- fact-finding body. Most fact-finding bodies are named, either officially or unofficially, after the
finding body so created. chairperson of such body, which by itself, will not give any clue as to the nature, powers or
The Truth Commission functions of the body. Thus, the name Feliciano Commission or Melo Commission, by itself, does
Has No Contempt Powers not indicate what the commission is all about. Naming the present fact-finding body as the “Truth
Section 9 of EO 1 provides: Commission” is more descriptive than naming it the Davide Commission after the name of its
“Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony.—Any government official or
chairperson.
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for The name of a government commission, office or entity does not determine its nature, powers
inspection, when required, shall be subject to administrative disciplinary action. Any private person who does or functions. The specific provisions of the charter creating the commission, office or entity
the same may be dealt with in accordance with law.” determine its nature, powers or functions. The name of the commission, office or entity is not
There is no provision in EO 1 that gives the Truth Commission the power to cite persons for important and may even be misleading. For example, the term Ombudsman connotes a male
contempt. As explained by Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to official but no one in his right mind will argue that a female cannot be an Ombudsman. In fact, the
obey the subpoena, take oath or give testimony is a public officer, he can be charged with present Ombudsman is not a man but a woman. In the private sector, the name of a corporation
“defiance of a lawful order,” which should mean insubordination if his superior had ordered him
36 37 may not even indicate what the corporation is all about. Thus, Apple Corporation is not in the
to obey the subpoena of the Truth Commission. If the person is not a public officer or employee, business of selling apples or even oranges. An individual may be named Honesto but he may be
he can only be dealt with in accordance with law, which should mean that the Truth Commission anything but honest. All this tells us that in determining the nature, powers or functions of a
could file a petition with the proper court to cite such private person in contempt pursuant to commission, office or entity, courts should not be fixated by its name but should examine
Sections 1 and 9 of Rule 21 of the Rules of Court.
38 39 what it is tasked or empowered to do.
_______________ In any event, there is nothing inherently wrong in the words “Truth Commission” as the name
of a fact-finding body. The primary purpose of every fact-finding body is to establish the facts.
36 TSN, 28 September 2010, pp. 41-42. The facts lead to, or even constitute, the truth. In essence, to establish the facts is to establish the
37 Section 46(25), Chapter 7, Book V, EO 292.
38 Section 1, Rule 21 of the Rules of Court provides:
truth. Thus, the name “Truth Commission” is as appropriate as the name “Fact-Finding
219 Commission.” If the name of the commission created in EO 1 is changed to “Fact-Finding
Commission,” the nature, powers and functions of the commission will remain exactly the same.
VOL. 637, DECEMBER 7, 2010 219 This simply shows that the name of the commission created under EO 1 is not important, and any
Biraogo vs. Philippine Truth Commission of 2010 esoteric discourse on the ramifications of the name “Truth Commission” is merely an academic
However, the mere fact that the Truth Commission, by itself, has no coercive power to compel exercise. Of course, the name “Truth Commission” is more
any one, whether a government employee or a private individual, to testify before the Commission 221
does not invalidate the creation by the President, or by the Judiciary or Legislature, of a purely VOL. 637, DECEMBER 7, 2010 221
administrative fact-finding investigative body. There are witnesses who may voluntarily testify,
43 The Majority Opinion of the Agrava Board recommended for prosecution 26 named individuals, including Gen.
Biraogo vs. Philippine Truth Commission of 2010 Fabian Ver. The Minority Opinion of Chairperson Corazon Agrava recommended for prosecution only 7 named individuals,
appealing than the worn-out name “Fact-Finding Commission.” Courts, however, cannot excluding Gen. Ver.
44 Excluding those charged as “John Does.”
invalidate a law or executive issuance just because its draftsman has a flair for catchy words and a 45 One of the accused died during the trial and three remained at large.
disdain for trite ones. Under the law, a fact-finding commission by any other name is a fact- 223
finding commission. 41
VOL. 637, DECEMBER 7, 2010 223
The Public Will Not Be Deceived that
Findings of Truth Commission Are Final Biraogo vs. Philippine Truth Commission of 2010
The fear that the public will automatically perceive the findings of the Truth Commission as strations even as its primary task is to investigate the Arroyo administration. EO 1 does not
the “truth,” and any subsequent contrary findings by the Ombudsman or Sandiganbayan as the confine the mandate of the Truth Commission solely to alleged acts of graft and corruption during
“untruth,” is misplaced. First, EO 1 is unequivocally clear that the findings of the Truth the Arroyo Administration.
Commission are neither final nor binding on the Ombudsman, more so on the Sandiganbayan Section 17 of EO 1 is the same as Section 2(b) of Executive Order No. 1 dated 28 February
which is not even mentioned in EO 1. No one reading EO 1 can possibly be deceived or misled 1986 issued by President Corazon Aquino creating the Presidential Commission on Good
that the Ombudsman or the Sandiganbayan are bound by the findings of the Truth Commission. Government (PCGG Charter). Section 2(b) of the PCGG Charter provides:
Second, even if the Truth Commission is renamed the “Fact-Finding Commission,” the same “Section 2. The Commission shall be charged with the task of assisting the President in regard
argument can also be raised—that the public may automatically perceive the findings of the Fact- to the following matters:
Finding Commission as the unquestionable “facts,” and any subsequent contrary findings by the (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos,
Ombudsman or Sandiganbayan as “non-factual.” This argument is bereft of merit because the his immediate family, relatives, subordinates and close associates xxx.
public can easily read and understand what EO 1 expressly says—that the findings of the Truth (b) The investigation of such cases of graft and corruption as the President may assign to
Commission are not final or binding but merely recommendatory. the Commission from time to time.
Third, the Filipino people are familiar with the Agrava Board, a fact-finding body that
42
x x x x.” (Emphasis supplied)
investigated the assassination of former Senator Benigno S. Aquino, Jr. The people know that the Thus, under Section 2(b) of the PCGG Charter, the President can expand the investigation of
findings of the Agrava Board were not binding on the then Tanodbayan or the Sandiganbayan. The the PCCG even as its primary task is to recover the ill-gotten wealth of the Marcoses and
Agrava Board recommended for prosecution 26 their cronies. Both EO 1 and the PCGG Charter have the same provisions on the scope of their
_______________ investigations. Both the Truth Commission and the PCGG are primarily tasked to conduct specific
investigations, with their mandates subject to expansion by the President from time to time. This
41 With apologies to William Shakespeare. These are the lines in Romeo and Juliet: “What’s in a name? That which we
Court has consistently upheld the constitutionality of the PCGG Charter. 46
call a rose by any other name would smell as sweet.”
42 Created by Presidential Decree No. 1886 dated 14 October 1983 Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the
222 investigation of acts of graft and corruption that may have taken place during the Arroyo
222 SUPREME COURT REPORTS ANNOTATED
administration. If time allows, the President may extend the mandate of the Truth Commission to
_______________
Biraogo vs. Philippine Truth Commission of 2010
named individuals but the Tanodbayan charged 40 named individuals before the Sandiganbayan.
43 44 46 Virata v. Sandiganbayan, G.R. No. 86926, 15 October 1991, 202 SCRA 680; Presidential Commission on Good
Government (PCGG) v. Peña, 293 Phil. 93; 159 SCRA 556 (1988); and Baseco v. Presidential Commission on Good
On the other hand, the Sandiganbayan convicted only 16 of those charged by the Tanodbayan and Government (PCGG), 234 Phil. 180; 150 SCRA 181 (1987).
acquitted 20 of the accused. 45
224
Fourth, as most Filipinos know, many persons who undergo preliminary investigation and are
224 SUPREME COURT REPORTS ANNOTATED
charged for commission of crimes are eventually acquitted by the trial courts, and even by the
appellate courts. In short, the fear that the public will be misled that the findings of the Truth Biraogo vs. Philippine Truth Commission of 2010
Commission is the unerring gospel truth is more imagined than real. investigate other administrations prior to the Arroyo administration. The prioritization of
EO 1 Does Not Violate such work or assignment does not violate the equal protection clause because the
The Equal Protection Clause prioritization is based on reasonable grounds.
Petitioners Lagman, et al. argue that EO 1 violates the equal protection clause because the First, the prescriptive period for the most serious acts of graft and corruption under the
investigation of the Truth Commission is limited to alleged acts of graft and corruption during the Revised Penal Code is 20 years, 15 years for offenses punishable under the Anti-Graft and
47
Arroyo administration. Corrupt Practices Act, and 12 years for offenses punishable under special penal laws that do not
48
A reading of Section 17 of EO 1 readily shows that the Truth Commission’s investigation is expressly provide for prescriptive periods. Any investigation will have to focus on alleged acts of
49
not limited to the Arroyo administration. Section 17 of EO 1 provides: graft and corruption within the last 20 years, almost half of which or 9 years is under the Arroyo
“Section 17. Special Provision Concerning Mandate.—If and when in the judgment of the President there is administration.
a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation While it is true that the prescriptive period is counted from the time of discovery of the
of cases and instances of graft and corruption during the prior administrations, such mandate may be
offense, the “reported cases” of “large scale corruption” involving “third level public officers
50 51
extended accordingly by way of a supplemental Executive Order.” (Emphasis supplied)
and higher,” which the Truth Commission will investigate, have already been widely reported in
52
The President can expand the mandate of the Truth Commission to investigate alleged graft
media, and many of these reported cases have even been investigated by the House of
and corruption cases of other past admini-
_______________ Representatives or the Senate. Thus, the prescriptive periods of these “reported cases” of “large
scale corruption” may have already began to run since these anomalies are publicly known and
may be deemed already discovered. These prescriptive periods refer to the criminal acts of public
53
officials under penal laws, and not to the recovery of ill-gotten wealth which under the Melo Commission focused on extra-judicial killings, and the Zeñarosa Commission focused on
Constitution is imprescriptible. 54
private armies.
Second, the Marcos, Ramos and Estrada administrations were already investigated by their Significantly, the PCGG Charter even specifies the persons to be investigated for the recovery
successor administrations. This alone is of ill-gotten wealth. Thus, Section 2(a) of the PCGG Charter provides:
_______________ Section 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:
47 Article 90, in relation to Articles 211-A and 217, of the Revised Penal Code. (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
48 Section 11, RA No. 3019. immediate family, relatives, subordinates and close associates, whether located in the Philippines or
49 Section 1, Act No. 3326. abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by
50 Section 2, EO 1. them, during his administration, directly or through nominees, by taking undue advantage of their public office
51 Section 2(b), EO 1.
and/or using their powers, authority, influence, connections or relationship.
52 Id.
53 See People v. Duque, G.R. No. 100285, 13 August 1992, 212 SCRA 607. (b) x x x.” (Emphasis supplied)
54 Section 15, Article XI, Constitution. The PCGG Charter has survived all constitutional attacks before this Court, including the
225 claim that its Section 2(a) violates the equal protection clause. In Virata v. Sandiganbayan, this 57
VOL. 637, DECEMBER 7, 2010 225 Court categorically ruled that the PCGG Charter “does not violate the equal
_______________
Biraogo vs. Philippine Truth Commission of 2010
incontrovertible proof that the Arroyo administration is not being singled out for .equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws.”
investigation or prosecution.
Third, all the past Presidents, with the exception of Presidents Ramos, Estrada and Arroyo, are 57 G.R. No. 86926, 15 October 1991, 202 SCRA 680.
already dead. The possible witnesses to alleged acts of graft and corruption during the Presidencies 227
of the deceased presidents may also be dead or unavailable. In fact, the only living President VOL. 637, DECEMBER 7, 2010 227
whose administration has not been investigated by its successor administration is President
Biraogo vs. Philippine Truth Commission of 2010
Arroyo.
Fourth, the more recent the alleged acts of graft and corruption, the more readily available protection clause and is not a bill of attainder or an ex post facto law.” 58
will be the witnesses, and the more easily the witnesses can recall with accuracy the relevant This specific focus of fact-finding investigations is also true in the United States. Thus, the
events. Inaction over time means the loss not only of witnesses but also of material documents, not Roberts Commission focused on the Pearl Harbor attack, the Warren Commission focused on the
59 60
to mention the loss of public interest. assassination of President John F. Kennedy, and the 9/11 Commission focused on the 11 61
Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating September 2001 terrorist attacks on the United States. These fact-finding commissions were
other past administrations. There is also the constraint on the enormous resources needed to
55
created with specific focus to assist the U.S. President and Congress in crafting executive and
investigate other past administrations. Just identifying the transactions, locating relevant legislative responses to specific acts or events of grave national importance. Clearly, fact-finding
documents, and looking for witnesses would require a whole bureaucracy. investigations by their very nature must have a specific focus.
These are not only reasonable but also compelling grounds for the Truth Commission to Graft and corruption cases before the Arroyo administration have already been investigated by
prioritize the investigation of the Arroyo administration. To prioritize based on reasonable and the previous administrations. President Corazon Aquino created the Presidential Commission on
even compelling grounds is not to discriminate, but to act sensibly and responsibly. Good Government to recover the ill-gotten wealth of the Marcoses and their cronies. President 62
In any event, there is no violation of the equal protection clause just because the authorities Joseph Estrada created the Saguisag Commission to investigate the Philippine Centennial projects
focus their investigation or prosecution on one particular alleged law-breaker, for surely a person of President Fidel Ramos. The glaring acts of corruption during the Estrada administration have
63
accused of robbery cannot raise as a defense that other robbers like him all over the country are already been investigated resulting in the conviction of President Estrada for plunder. Thus, it
not being prosecuted. By the very nature of an in-
56
stands to reason that the Truth Commission should give priority to the alleged acts of graft and
_______________ corruption during the Arroyo administration.
The majority opinion claims that EO 1 violates the equal protection clause because the Arroyo
55 Section 14 of EO 1 provides that “the Commission shall accomplish its mission on or before December 31, 2012.” administration belongs to a class of past administrations and the other past administrations are not
56 In People v. dela Piedra, 403 Phil. 31, 54; 350 SCRA 163, 181-182 (2001), the Court stated, “The prosecution of one included
guilty person while others _______________
226
226 SUPREME COURT REPORTS ANNOTATED 58 Id., at p. 698. (Emphasis supplied)
59 Created by President Franklin Roosevelt.
Biraogo vs. Philippine Truth Commission of 2010 60 Created by President Lyndon Johnson.
vestigation or prosecution, there must be a focus on particular act or acts of a person or a group of 61 Created through law by the U.S. Congress.
62 Executive Order No. 1, dated 28 February 1986.
persons. 63 Administrative Order No. 53 – Creating an Ad-hoc and Independent Citizens’ Committee to Investigate All the Facts
Indeed, almost every fact-finding body focuses its investigation on a specific subject matter — and Circumstances Surrounding Philippine Centennial Projects, Including its Component Activities, dated 24 February 1999.
whether it be a specific act, incident, event, situation, condition, person or group of persons. This 228
specific focus results from the nature of a fact-finding investigation, which is a necessary and 228 SUPREME COURT REPORTS ANNOTATED
proper response to a specific compelling act, incident, event, situation, or condition involving a
person or group of persons. Thus, the fact-finding commissions created under the previous Arroyo Biraogo vs. Philippine Truth Commission of 2010
administration had specific focus: the Feliciano Commission focused on the Oakwood mutiny, the in the investigation of the Truth Commission. Thus, the majority opinion states:
“In this regard, it must be borne in mind that the Arroyo administration is but just a member of a poverished, marginalized, illiterate, peasants, farmers, minors, adults or seniors.
class, that is, a class of past administrations. It is not a class of its own. Not to include past Classifying the “earlier past administrations” in the last 111 years as just one class is not
administrations similarly situated constitutes arbitrariness which the equal protection clause cannot germane to the purpose of investigating possible acts of graft and corruption. There are
sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for
prescriptive periods to prosecute crimes. There are administrations that have already been
vindictiveness and selective retribution.
xxx investigated by their successor administrations. There are also administrations that have been
x x x The PTC [Philippine Truth Commission], to be true to its mandate of searching the truth, subjected to several Congressional investigations for alleged large-scale anomalies. There are past
must not exclude the other past administrations. The PTC must, at least, have the authority to Presidents, and the officials in their administrations, who are all dead. There are past Presidents
investigate all past administrations. While reasonable prioritization is permitted, it should not be arbitrary who are dead but some of the officials in their administrations are still alive. Thus, all the “earlier
lest it be struck down for being unconstitutional. past administrations” cannot be classified as just one single class—“a class of past
xxx administrations”—because they are not all similarly situated.
x x x To exclude the earlier administrations in the guise of “substantial distinctions” would only On the other hand, just because the Presidents and officials of “earlier past administrations”
confirm the petitioners' lament that the subject executive order is only an “adventure in partisan
are now all dead, or the prescriptive periods under the penal laws have all prescribed, does not
hostility.” x x x.
xxx mean that there can no longer be any investigation of these officials. The State’s right to recover
To reiterate, in order for a classification to meet the requirements of constitutionality, it must the ill-gotten wealth of these officials is imprescriptible. Section 15, Article XI of the 1987
64
include or embrace all persons who naturally belong to the class.“Such a classification must not be based Constitution provides:
on existing circumstances only, or so constituted as to preclude additions to the number included within a _______________
class, but must be of such a nature as to embrace all those who may hereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory 64 Even prior to the 1987 Constitution, public officials could not acquire ownership of their ill-gotten wealth by
legislation and which are indistinguishable from those of the members of the class must be brought under the prescription. Section 11 of Republic Act No. 1379, or the Law on Forfeiture of Ill-Gotten Wealth enacted on 18 June 1956,
influence of the law and treated by it in the same way as are the members of the class.” (Emphasis supplied) provides:
Section 11. Laws on prescription.—The laws concerning acquisitive prescription and limitation of actions cannot be
The majority opinion goes on to suggest that EO 1 could be amended “to include the earlier invoked by, nor shall they benefit the respondent, in respect of any property unlawfully acquired by him.
past administrations” to allow it “to Under Article 1133 of the New Civil Code, “[m]ovables possessed through a crime can never be acquired through
229 prescription by the offender.” And under Article 1956 of the Spanish Civil Code of 1889, “ownership of personal property
stolen or taken by robbery cannot be acquired by prescription by the thief or robber, or his accomplices, or accessories, unless
VOL. 637, DECEMBER 7, 2010 229 the crime or misdemeanor or the penalty therefor and the action to enforce the civil liability arising from the crime or
misdemeanor are barred by prescription.”
Biraogo vs. Philippine Truth Commission of 2010 231
pass the test of reasonableness and not be an affront to the Constitution.”
The majority opinion’s reasoning is specious, illogical, impractical, impossible to comply, and VOL. 637, DECEMBER 7, 2010 231
contrary to the Constitution and well-settled jurisprudence. To require that “earlier past Biraogo vs. Philippine Truth Commission of 2010
administrations” must also be included in the investigation of the Truth Commission, with the “Section 15. The right of the State to recover properties unlawfully acquired by public officials or
Truth Commission expressly empowered “to investigate all past administrations,” before there employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or
can be a valid investigation of the Arroyo administration under the equal protection clause, is to estoppel.” (Emphasis supplied)
prevent absolutely the investigation of the Arroyo administration under any circumstance. Legally and morally, any ill-gotten wealth since the Presidency of Gen. Emilio Aguinaldo can
While the majority opinion admits that there can be “reasonable prioritization” of past still be recovered by the State. Thus, if the Truth Commission is required to investigate
administrations to be investigated, it not only fails to explain how such reasonable prioritization “earlier past administrations” that could still be legally investigated, the Truth Commission
can be made, it also proceeds to strike down EO 1 for prioritizing the Arroyo administration in the may have to start with the Presidency of Gen. Emilio Aguinaldo.
investigation of the Truth Commission. And while admitting that there can be a valid classification A fact-finding investigation of “earlier past administrations,” spanning 111 years
based on substantial distinctions, the majority opinion inexplicably makes any substantial punctuated by two world wars, a war for independence, and several rebellions ─ would obviously
distinction immaterial by stating that “[t]o exclude the earlier administrations in the guise of be an impossible task to undertake for an ad hoc body like the Truth Commission. To insist that
“substantial distinctions” would only confirm the petitioners’ lament that the subject “earlier past administrations” must also be investigated by the Truth Commission, together with
executive order is only an ‘adventure in partisan hostility.’ ” the Arroyo administration, is utterly bereft of any reasonable basis other than to prevent absolutely
The “earlier past administrations” prior to the Arroyo administration cover the Presidencies the investigation of the Arroyo administration. No nation on this planet has even attempted to
of Emilio Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas, Elpidio assign to one ad-hoc fact-finding body the investigation of all its senior public officials in the past
Quirino, Ramon Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos, Corazon 100 years.
Aquino, Fidel Ramos, and Joseph Estrada, a period spanning 102 years or more than a century. The majority opinion’s overriding thesis—that “earlier past administrations” belong to only
All these administrations, plus the 9-year Arroyo administration, already constitute the universe of one class and they must all be included in the investigation of the Truth Commission, with the
all past administrations, covering a total period of 111 years. All these “earlier past Truth Commission expressly empowered “to investigate all past administrations”—is even
administrations” cannot constitute just one class of administrations because if they were to the wrong assertion of discrimination that is violative of the equal protection clause. The logical
constitute just one class, then there would be no other class of administrations. It is like saying that and correct assertion of a violation of the equal protection clause is that the Arroyo administration
since all citizens are human beings, then all citizens belong to just one class and you cannot is being investigated for possible acts of graft and corruption while other past administrations
classify them as disabled, im- similarly situated were not.232
230
232 SUPREME COURT REPORTS ANNOTATED
230 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
Biraogo vs. Philippine Truth Commission of 2010
Thus, in the leading case of United States v. Armstrong, decided in 1996, the U.S. Supreme
65 _______________
Court ruled that “to establish a discrimination effect in a race case, the claimant must show that
similarly situated individuals of a different race were not prosecuted.” Applied to the present
66 70 197 Phil. 407, 423; 111 SCRA 433, 444 (1982). This ruling was reiterated in City of Manila v. Laguio, Jr., 495 Phil.
289; 455 SCRA 308 (2005); Mejia v. Pamaran, 243 Phil. 600; 160 SCRA 457 (1998); Bautista v. Juinio, 212 Phil. 307; 127
petitions, petitioners must establish that similarly situated officials of other past administrations SCRA 329 (1984); and Calubaquib v. Sandiganbayan, 202 Phil. 817; 117 SCRA 493 (1982).
were not investigated. However, the incontrovertible and glaring fact is that the Marcoses and 234
their cronies were investigated and prosecuted by the PCGG, President Fidel Ramos and his
234 SUPREME COURT REPORTS ANNOTATED
officials in the Centennial projects were investigated by the Saguisag Commission, and President
Joseph Estrada was investigated, prosecuted and convicted of plunder under the Arroyo Biraogo vs. Philippine Truth Commission of 2010
administration. Indisputably, the Arroyo administration is not being singled out for itself a violation of the equal protection clause, the very constitutional guarantee that it seeks to
investigation or prosecution because other past administrations and their officials were also enforce.
investigated or prosecuted. The majority opinion’s requirement that “earlier past administrations” in the last 111 years
In United States v. Armstrong, the U.S. Supreme Court further stated that “[a] selective- should be included in the investigation of the Truth Commission to comply with the equal
prosecution claim asks a court to exercise judicial power over a “special province” of the protection clause is a recipe for all criminals to escape prosecution. This requirement is like saying
Executive,” citing Hecker v. Chaney which held that a decision whether or not to indict “has
67 68
that before a person can be charged with estafa, the prosecution must also charge all persons who
long been regarded as the special province of the Executive Branch, inasmuch it is the in the past may have committed estafa in the country. Since it is impossible for the prosecution to
Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully charge all those who in the past may have committed estafa in the country, then it becomes
executed.’ ” These U.S. cases already involved the prosecution of cases before the grand jury or
69
impossible to prosecute anyone for estafa.
the courts, well past the administrative fact-finding investigative phase. This Court has categorically rejected this specious reasoning and false invocation of the equal
In the present case, no one has been charged before the prosecutor or the courts. What protection clause in People v. dela Piedra, where the Court emphatically ruled:
71
petitioners want this Court to do is invalidate a mere administrative fact-finding investigation by “The prosecution of one guilty person while others equally guilty are not prosecuted, however, is
the Executive branch, an investigative phase prior to preliminary investigation. not, by itself, a denial of the equal protection of the laws. x x x
_______________ x x x The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a
Zamboangueña, the guilty party in appellant’s eyes, was not, is insufficient to support a conclusion that the
65 517 U.S. 456, decided 13 May 1996. The U.S. Supreme Court reiterated this ruling in United States v. Bass, 536 U.S. prosecution officers denied appellant equal protection of the laws.
862 (2002), a per curiam decision. There is also common sense practicality in sustaining appellant’s prosecution.
66 517 U.S. 456, 465. While all persons accused of crime are to be treated on a basis of equality before the law, it does not
67 Id., at p. 464. follow that they are to be protected in the commission of crime. It would be unconscionable, for
68 470 U.S. 821 (1985). instance, to excuse a defendant guilty of murder because others have murdered with impunity.
69 Id., at p. 832. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration
233
of the guilty at the expense of society . . . . Protection of the law will be extended to all persons
VOL. 637, DECEMBER 7, 2010 233 equally in the pursuit of their lawful occupations, but no person has the right to demand protection of
the law in the commission of a crime. (People v. Montgomery, 117 P.2d 437 [1941])
Biraogo vs. Philippine Truth Commission of 2010 _______________
Clearly, if courts cannot exercise the Executive’s “special province” to decide whether or not to
indict, which is the equivalent of determination of probable cause, with greater reason courts 71 403 Phil. 31; 350 SCRA 163 (2001).
cannot exercise the Executive’s “special province” to decide what or what not to investigate for
235
administrative fact-finding purposes.
For this Court to exercise this “special province” of the President is to encroach on the VOL. 637, DECEMBER 7, 2010 235
exclusive domain of the Executive to execute the law in blatant violation of the finely crafted Biraogo vs. Philippine Truth Commission of 2010
constitutional separation of power. Any unwarranted intrusion by this Court into the exclusive Likewise,
domain of the Executive or Legislative branch disrupts the separation of power among the three [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted
co-equal branches and ultimately invites re-balancing measures from the Executive or Legislative into a defense for others charged with crime, the result would be that the trial of the district attorney
branch. for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and
A claim of selective prosecution that violates the equal protection clause can be raised the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794
[1958]).” (Emphasis supplied)
72
only by the party adversely affected by the discriminatory act.In Nunez v.
Sandiganbayan, this Court declared:
70
The Court has reiterated this “common sense” ruling in People v. Dumlao and in Santos v. 73
‘x x x Those adversely affected may under the circumstances invoke the equal protection clause only if People, for to hold otherwise is utter nonsense as it means effectively granting immunity to all
74
they can show that the governmental act assailed, far from being inspired by the attainment of the common criminals.
weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason.’ Indeed, it is a basic statutory principle that non-observance of a law by disuse is not a ground
x x x. (Emphasis supplied) to escape prosecution for violation of a law. Article 7 of Civil Code expressly provides:
Here, petitioners do not claim to be adversely affected by the alleged selective prosecution Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
under EO 1. Even in the absence of such a claim by the proper party, the majority opinion strikes excused by disuse, or custom or practice to the contrary.
down EO 1 as discriminatory and thus violative of the equal protection clause. This is a gratuitous x x x.” (Emphasis supplied)
act to those who are not before this Court, a discriminatory exception to the rule that only those A person investigated or prosecuted for a possible crime cannot raise the defense that he is
“adversely affected” by an alleged selective prosecution can invoke the equal protection being singled out because others who may have committed the same crime are not being
clause. Ironically, such discriminatory exception is a violation of the equal protection investigated or prosecuted. Such person cannot even raise the defense that after several
clause. In short, the ruling of the majority is in decades he is the first and only one being investigated or prosecuted for a specific crime. The
law expressly states that disuse of a law, or custom or practice allowing violation of a law, will in the Executive branch, transactions that may need to be reviewed, revived, corrected,
never justify the violation of the law or its non-observance. terminated or completed. If this Court can do so, then it can also prevent the House of
A fact-finding investigation in the Executive or Judicial branch, even if limited to specific Representatives or the Senate from conducting an investigation, in aid of legislation, on the
government officials—whether incumbent, resigned or retired—does not violate the equal financial transactions of the Arroyo administration, on the ground of violation of the equal
protection clause. If an anomaly is reported in a government transaction and a fact-finding protection clause. Unless, of course, the House or the Senate attempts to do the impossible—
_______________ conduct an investigation on the financial transactions of “earlier past administrations” since the
Presidency of General Emilio Aguinaldo. Indeed, under the majority opinion, neither the House
72 Id., at pp. 54-56; pp. 181-183. nor the Senate can conduct any investigation on any administration, past or present, if “earlier past
73 G.R. No. 168918, 2 March 2009, 580 SCRA 409.
74 G.R. No. 173176, 26 August 2008, 563 SCRA 341. administrations” are not included in the legislative investigation.
236 In short, the majority opinion’s requirements that EO 1 should also include “earlier past
administrations,” with the Truth Commis-
236 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010
investigation is conducted, the investigation by necessity must focus on the public officials 78 See Spouses Aduan v. Levi Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; UCPB v. Looyuko, G.R. No.
156337, 28 September 2007, 534 SCRA 322; First Women’s Credit Corporation v. Perez, G.R. No. 169026, 15 June 2006,
involved in the transaction. It is ridiculous for anyone to ask this Court to stop the investigation of 490 SCRA 774; and Dupasquier v. Court of Appeals, 403 Phil. 10; 350 SCRA 146 (2001).
such public officials on the ground that past public officials of the same rank, who may have been 238
involved in similar anomalous transactions in the past, are not being investigated by the same fact-
238 SUPREME COURT REPORTS ANNOTATED
finding body. To uphold such a laughable claim is to grant immunity to all criminals, throwing out
of the window the constitutional principle that “[p]ublic office is a public trust” and that “[p]ublic
75
Biraogo vs. Philippine Truth Commission of 2010
officials and employees must at all times be accountable to the people.” 76
sion empowered “to investigate all past administrations,” to comply with the equal protection
When the Constitution states that public officials are “at all times” accountable to the people, clause, is a requirement that is not only illogical and impossible to comply, it also allows the
it means at any time public officials can be held to account by the people. Nonsensical claims, impunity to commit graft and corruption and other crimes under our penal laws. The majority
like the selective prosecution invoked in People v. dela Piedra, are unavailing. Impossible opinion completely ignores the constitutional principle that public office is a public trust and that
conditions, like requiring the investigation of “earlier past administrations,” are disallowed. All public officials are at all times accountable to the people.
these flimsy and dilatory excuses violate the clear command of the Constitution that public A Final Word
officials are accountable to the people “at all times.” The incumbent President was overwhelmingly elected by the Filipino people in the 10 May
The majority opinion will also mean that the PCGG Charter—which tasked the PCGG to 2010 elections based on his announced program of eliminating graft and corruption in
recover the ill-gotten wealth of the Marcoses and their cronies—violates the equal protection government. As the Solicitor General explains it, the incumbent President has pledged to the
clause because the PCCG Charter specifically mentions the Marcoses and their cronies. The electorate that the elimination of graft and corruption will start with the investigation and
majority opinion reverses several decisions of this Court upholding the constitutionality of the
77
prosecution of those who may have committed large-scale corruption in the previous
PCCG Charter, endangering over two decades of hard work in recovering ill-gotten wealth administration. During the election campaign, the incumbent President identified graft and
79
Ominously, the majority opinion provides from hereon every administration a cloak of corruption as the major cause of poverty in the country as depicted in his campaign theme “ kung
immunity against any investigation by its successor administration. This will institutionalize walang corrupt, walang mahirap.” It was largely on this campaign pledge to eliminate graft and
impunity in transgressing anti-corruption and other penal laws. Sadly, the majority opinion makes corruption in government that the electorate overwhelmingly voted for the incumbent President.
it impossible to bring good governance to our government. The Filipino people do not want to remain forever at the bottom third of 178 countries ranked in
_______________ terms of governments free from the scourge of corruption. 80
Neither the Constitution nor any existing law prevents the incumbent President from
75 Section 1, Article XI, Constitution. redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s
76 Id.
77 Supra, note 46. campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article
237 II of the Constitution, that:
_______________
VOL. 637, DECEMBER 7, 2010 237
Biraogo vs. Philippine Truth Commission of 2010 79 Memorandum for Respondents, p. 91.
80 The 2010 Transparency International Corruption Index ranks the Philippines at 134 out of 178
The Truth Commission is only a fact-finding body to provide the President with facts so that countries. See http://www.transparency.org/policy_
he can understand what happened in certain government transactions during the previous research/surveys_indices/cpi/2010/results, accessed on 13 November 2010.
administration.There is no preliminary investigation yet and the Truth Commission will never 239
conduct one. No one is even being charged before the prosecutor or the Ombudsman. This Court VOL. 637, DECEMBER 7, 2010 239
has consistently refused to interfere in the determination by the prosecutor of the existence of
probable cause in a preliminary investigation. With more reason should this Court refuse to
78 Biraogo vs. Philippine Truth Commission of 2010
interfere in the purely fact-finding work of the Truth Commission, which will not even determine “Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.” (Emphasis supplied)
whether there is probable cause to charge any person of a crime.
The incumbent President’s campaign pledge also reiterates the constitutional principle that
Before the President executes the law, he has the right, and even the duty, to know the facts to
“[p]ublic office is a public trust” and that “[p]ublic officers and employees must at all times be
81
assure himself and the public that he is correctly executing the law. This Court has no power to
accountable to the people.” 82
prevent the President from knowing the facts to understand certain government transactions
This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will
Biraogo vs. Philippine Truth Commission of 2010
of the Filipino people to start the difficult task of putting an end to graft and corruption in
ing offices, nor by authority of a stale law governing reorganization of the national government;
5
government, denies the President his basic constitutional power to determine the facts in his
3. There is no transgression of the legislative power to appropriate public funds since what
faithful execution of the law, and suppresses whatever truth may come out in the purely fact-
is involved is only an allotment or allocation of existing funds that have already been appropriated
finding investigation of the Truth Commission. This Court, in invoking the equal protection clause
and which shall equally be subject to auditing rules;
to strike down a purely fact-finding investigation, grants immunity to those who violate anti-
4. The Truth Commission does not duplicate, supersede or erode the powers and functions
corruption laws and other penal laws, renders meaningless the constitutional principle that public
of the Office of the Ombudsman and the Department of Justice, since its investigative function
office is a public trust, and makes public officials unaccountable to the people at any time.
complements the two offices’ investigative power which is not exclusive. This investigative
Ironically, this Court, and even subordinates of the President in the Executive
function is not akin to the conduct of preliminary investigation of certain cases, over which the
branch, routinely create all year round fact-finding bodies to investigate all kinds of complaints
Ombudsman exercises primary jurisdiction; and
against officials and employees in the Judiciary or the Executive branch, as the case may be. The
5. EO No. 1 violates the equal protection clauseenshrined in the Constitution, for it 6
previous President created through executive issuances three purely fact-finding commissions
singles out the previous administration as the sole subject of investigation.
similar to the Truth Commission. Yet the incumbent President, the only official mandated by the
Sustaining only the fifth ground—that the EO violates the equal protection clause,
Constitution to execute faithfully the law, is now denied by this Court the power to create the
the ponencia disposes:
purely fact-finding Truth Commission.
“WHEREFORE, the petition is (sic) GRANTED. Executive Order No. 1 is hereby declared
History will record the ruling today of the Court’s majority as a severe case of judicial UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
overreach that made the incumbent President a diminished Executive in an affront to a co-equal As also prayed for, the respondents are enjoined from implementing (sic) and operating the Truth
branch of government, crippled our already challenged justice system, and crushed the Commission.” (underscoring supplied)
7
_______________ I submit that the petitions should be DISMISSED.
It bears noting at the outset that none of the petitioners properly raises the issue of equal
81 Section 1, Article XI, Constitution. protection of the laws.
82 Id.
240 Petitioners in G.R. No. 193036, with legal standing as legislators, cannot properly assert
the equal protection claim of
240 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010
5 PRESIDENTIAL DECREE NO. 1416 (June 9, 1975), as amended by PRESIDENTIAL DECREE NO. 1772 (January 15, 1982).
hopes of the long suffering Filipino people for an end to graft and corruption in government. 6 CONSTITUTION, Art. III, Sec. 1.
Accordingly, I vote to DISMISS the petitions. 7 Ponencia, p. 41.
242
DISSENTING OPINION 242 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
CARPIO-MORALES, J.:
the previous administration. While legislators have locus standi in certain cases, their legal
Assailed for being unconstitutional in the present consolidated cases is Executive Order (EO)
standing as such is recognized only insofar as the assailed issuance affects their functions as
No. 1 of July 30, 2010 that created the Philippine Truth Commission of 2010 (Truth Commission).
legislators. In the absence of a claim that the issuance in question violated the rights of petitioner-
In issue is whether EO No. 1 violates the Constitution in three ways, viz., (i) for usurping the
legislators or impermissibly intruded into the domain of the Legislature, they have no legal
power of Congress to create public office and appropriate public funds, (ii) for intruding into the
standing to institute the present action in their capacity as members of Congress. 8
independence of the Office of the Ombudsman, and (iii) for infringing on the equal protection
No doubt, legislators are allowed to sue to question the validity of any official action upon a
clause with its limited scope of investigation.
claim of usurpation of legislative power. That is why, not every time that a Senator or a
9
The ponencia submits the following findings and conclusions which have been synthesized:
Representative invokes the power of judicial review, the Court automatically clothes them
1. The Truth Commission is an ad hoc body formed under the Office of the President. It has
with locus standi. The Court examines first, as the ponencia did, if the petitioner raises an issue
10
all the powers of an investigative body under the Administrative Code. It is a fact-finding body,
1
pertaining to an injury to Congress as an institution or a derivative injury to members
and not a quasi-judicial body;2. The President has the power to create a new office like the Truth
thereof, before proceeding to resolve that particular issue.
11
Commission. The power inheres in his powers as Chief Executive and springs from the
The peculiarity of the locus standi of legislators necessarily confines the adjudication of their
constitutional duty to faithfully execute the laws. Otherwise stated, the President has the power to
2
petition only on matters that tend to impair the exercise of their official functions. In one case, the
conduct investigations to aid him in ensuring that laws are faithfully executed. It does not emanate
Court ruled:
from the President’s power of control under the Constitution, nor by virtue of the power to
3
“We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
reorganize under the Administrative Code which pertains to certain modifications of exist-
4
The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the
_______________
country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-
transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of
1 EXECUTIVE ORDER NO. 292 (July 25, 1987), Book I, Chapter 9, Sec. 37. their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is
2 CONSTITUTION, Art. VII, Secs. 1 & 7 (2nd sentence), respectively.
intended to complement national criminal
3 Id., Sec. 7 (1st sentence). _______________
4 EXECUTIVE ORDER NO. 292 (July 25, 1987), Book III, Title III, Chapter 10, Sec. 31.
241
8 Vide Bagatsing v. Committee on Privatization, PNCC, 316 Phil. 414; 246 SCRA 334 (1995).
VOL. 637, DECEMBER 7, 2010 241 9 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007, 531 SCRA 583.
10 Vide e.g., Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146,
where the Court found that Sen. Ma. Ana Consuelo Madrigal had no legal standing.
11 Ponencia, pp. 13-14, citing Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506. abandoned. Being a summation of the parties’ previous pleadings, the Memoranda alone may be considered by the Court in
243 deciding or resolving the petition.”
16 Ponencia, p. 16.
VOL. 637, DECEMBER 7, 2010 243 17 It can be argued that the danger of otherwise resolving one issue not raised by the proper party, which issue
Biraogo vs. Philippine Truth Commission of 2010 is personal to him, is the effect of foreclosing certain defenses known only to him. If the issue concerning the “injured non-
party” is defeated, it then becomes the “law of the case” (videBanco de Oro-EPCI, Inc. v. Tansipek, G.R. No. 181235, July 22,
laws and courts. Sufficient remedies are available under our national laws to protect our citizens against 2009, 593 SCRA 456 on “law of the case”). The injured party can no longer resurrect the
human rights violations and petitioners can always seek redress for any abuse in our domestic courts. 245
As regards Senator Pimentel, it has been held that ‘to the extent the powers of Congress are impaired, so
is the power of each member thereof, since his office confers a right to participate in the exercise of the powers VOL. 637, DECEMBER 7, 2010 245
of that institution. Thus, legislators have the standing to maintain inviolate the prerogatives, powers and Biraogo vs. Philippine Truth Commission of 2010
privileges vested by the Constitution in their office and are allowed to sue to question the validity of any
official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the Such barriers notwithstanding, the claim of breach of the equal protection clause fails to
power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this hurdle the higher barrier of merit.
case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to Equal Protection of the Laws
the Senate to allow it to exercise such authority.Senator Pimentel, as member of the institution, certainly The ponencia holds that the previous administration has been denied equal protection of the
has the legal standing to assert such authority of the Senate.” (emphasis and underscoring supplied)
12
laws. To it, “[t]o restrict the scope of the commission’s investigation to said particular
Breach of the equal protection clause, as presently raised by petitioner-legislators on behalf of administration constitutes arbitrariness which the equal protection clause cannot sanction.” 18
the Executive Department of the immediate past administration, has nothing to do with the I find nothing arbitrary or unreasonable in the Truth Commission’s defined scope of
impairment of the powers of Congress. Thus, with respect to the issue in Pimentel, Jr. v. Exec. investigation.
Secretary Ermita that did not involve any impairment of the prerogatives of Congress, some
13
In issues involving the equal protection clause, the test developed by jurisprudence is that
Senators who merely invoked their status as legislators were not granted standing. of reasonableness, which has four requisites: (1) The classification rests on substantial
Moreover, petitioner-legislators cannot take the cudgels for the previous administration/s, distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions
unless they admit that they are maintaining a confidential relation with it/them or acting as only; and (4) It applies equally to all members of the same class. 19
advocates of the rights of a non-party who seeks access to their market or function. 14
The classification rests on
_______________ substantial distinction
Reasonableness should consider the nature of the truth commission which, as found by
12 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622, 631-632.
13 509 Phil. 567; 472 SCRA 587 (2005).
the ponencia, emanates from the power of the President to conduct investigations to aid him in
14 Vide White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 431-432, which ensuring the faithful execution of laws. The ponencia explains that the Executive Department is
reads: given much leeway in ensuring that our laws are faithfully executed. It adds:
American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke “It should be stressed that the purpose of allowing ad hocinvestigating bodies to exist is to allow an
the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. inquiry into matters which the President is entitled to know so that he can be properly advised and guided in
In Griswold v. Connecticut, the United States
the per-
244 _______________
244 SUPREME COURT REPORTS ANNOTATED
issue in a later case, even if he can present arguments more illuminating than that of the current “uninjured” petitioner.
Biraogo vs. Philippine Truth Commission of 2010
The petitioner in G.R. No. 192935, Louis Biraogo, does not raise the issue of equal 18 Ponencia, p. 36.
19 Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385.
protection. His Memorandum mentions nothing about equal protection clause. While 15
246
the ponencia “finds reason in Biraogo’s assertion that the petition covers matters of transcendental
importance,” not even his successful invocation of transcendental importance can push the Court
16 246 SUPREME COURT REPORTS ANNOTATED
into resolving an issue which he never raised in his petition. Biraogo vs. Philippine Truth Commission of 2010
On the foregoing score alone, the ponencia should not have dealt with the issue of equal formance of his duties relative to the execution and enforcement of the laws of the land. And if history is to be
protection. 17
revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
_______________ PARGO, the Feliciano Commission, the Melo Commission, and the Zeñarosa Commission . There being no
changes in the government structure, the Court is not inclined to declare such executive power as non-existent
Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as just because the direction of the political winds ha[s] changed.” (underscoring supplied)
20
accessories as well as to plead the constitutional protections available to their patients. The Court held that: This Court could not, in any way, determine or dictate what information the President
would be needing in fulfilling the duty to ensure the faithful execution of laws on public
The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are accountability. This sweeping directive of the ponencia to include all past administrations in the
considered in a suit involving those who have this kind of confidential relation to them.
An even more analogous example may be found in Craig v. Boren,wherein the United States Supreme Court held that a probe tramples upon the prerogative of a co-equal branch of government.
licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme The group or class, from which to elicit the needed information, rests on substantial
prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court distinction that sets the class apart.
explained that the vendors had standing “by acting as advocates of the rights of third parties who seek access to their market or
function.”
Proximity and magnitude of incidents
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the Fairly recent events like the exigencies of transition and the reported large-scale corruption
latter, the overbreadth doctrine comes into play. x x x (emphasis and underscoring supplied) explain the determined need to focus on no other period but the tenure of the previous
15 Consequently, A.M. No. 99-2-04-SC (effective March 15, 1999) directs: “No new issues may be raised by a party in administration.
the Memorandum. Issues raised in previous pleadings but not included in the Memorandum shall be deemed waived or
The proximity and magnitude of particular contemporary events like the Oakwood mutiny and
Maguindanao massacre similarly justified the defined scope of the Feliciano Commission and the
Zeñarosa Commission, respectively. As applied to the two commissions whose objective The distinction is not discriminatory
the ponencia itself recognizes, the same test of reasonableness rejects the absurd proposition to I find it contradictory for the ponencia to state, on the one hand, that the Truth Commission
widen their respective scopes to include allincidents of rebellion/mutiny and election-related would be labeled as a “vehicle for vindictiveness and selective retribution” and declare, on the
24
violence since the First Republic. Certainly, it is far removed not just from the present time but other, that “its power to investigate is limited to obtaining facts x x x and its findings “would at
also from logic and experience. best be recommendatory in nature[,] [a]nd x x x [the concerned agencies] have a wide degree of
This explained need for specific information removes the arbitrariness from recognizing the latitude to decide whether or not to reject the recommendation.” 25
previous administration as a distinct class of its own. After precisely explaining that “fact-finding is not adjudication,” the ponencia relates it to
26
_______________ retribution which it depicts, in the context of truth commissions, as a “retributory body set up to
try and punish those responsible for the crimes.” The ponencia jumps into conclusion but lands
27
20 Ponencia, pp. 24-25. nowhere for it has no ground on which to stand.
247 _______________
VOL. 637, DECEMBER 7, 2010 247
24 Ponencia, p. 36.
Biraogo vs. Philippine Truth Commission of 2010 25 Id., at p. 29.
Without a complete and definitive report 26 Id., at p. 27, vide id., at p. 7.
27 Id., at p. 8.
The ponencia brushes aside the proffered reasons for limiting the investigation to the previous
249
administration since “earlier administrations have also been blemished by similar widespread
reports of impropriety.” 21 VOL. 637, DECEMBER 7, 2010 249
The ponencia employs the premise that previous administrations have all been blemished by Biraogo vs. Philippine Truth Commission of 2010
reports of improprieties similar to those of the previous administration. Whether reports of such
22
Further, the Court should not concern itself with the nebulous concept of “partisan hostility,” a
nature exist is not borne by the pleadings submitted by petitioners who allege unequal protection. relatively redundant term that eludes exact definition in a political world of turncoatism. Had the
Without any factual basis, the statement is inconclusive and, at best, arguable. assailed issuance provided exemption to former members of the previous administration who have
Assuming arguendo that comparable reports of large-scale graft and corruption existed during joined the prevailing political party, I would not hesitate to declare EO No. 1 void.
administrations previous to the last, petitioners do not allege that information regarding these Far from being discriminatory, E.O No. 1 permits the probing of current administration
reported activities is not yet available in the Executive Department. On the contrary, respondents officials who may have had a hand in the reported graft and corruption committed during the
disclose that the Presidential Commission on Good Government and the Saguisag Commission previous administration, regardless of party affiliation. The classification notably rests not on
have already probed into certain anomalous transactions that occurred during the Marcos and personalities but on period, as shown by the repeated use of the phrase “during the previous
Ramos administrations, respectively. During past administrations, parallel functions had been administration.” 28
discharged by the Integrity Board, Presidential Complaints and Action Commission (PCAC), The ponencia treats adventures in “partisan hostility” as a form of undue discrimination.
Presidential Committee on Administrative Performance Efficiency (PCAPE), and Presidential Without defining what it is, the ponencia gives life to a political creature and transforms it into a
Anti-Graft Committee (PAGCOM, later replaced by the Presidential Committee on Administering legal animal. By giving legal significance to a mere say-so of “partisan hostility,” it becomes
Performance Efficiency), that were created by former Presidents Quirino, Magsaysay, Garcia and unimaginable how the Court will refuse to apply this novel doctrine in the countless concerns of
Macapagal, respectively. Not to mention the plunder
23
the inherently political branches of government under an invocation of equal protection. And to
_______________
think, the present matter only involves the gathering of information.
21 Id., at p. 37.
To knowingly classify per se is not synonymous to intentional discrimination, which brings
22 “x x x reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical me to the next point that the classification is germane to the purpose of the law.
sensibilities of the people x x x;” vide EXECUTIVE ORDER NO. 1 (July 30, 2010), Sec. 1. The classification is germane
23 Respondents’ Memorandum, Annex 1, citing EXECUTIVE ORDER NO.318 (May 25, 1950) and EXECUTIVE ORDER to the purpose of the law
NO. 1 (December 30, 1953); videExecutive Order No. 306 (July 15, 1958), EXECUTIVE ORDER NO. 378 (February 18, 1960)
later repealed by EXECUTIVE ORDER NO. 457 (December 29, 1961). I entertain no doubt that respondents consciously and deliberately decided to focus on the
248 corrupt activities reportedly committed during the previous administration. For respondents to
admit that the selection was inadvertent is worse. The ponencia, however, is quick to ascribe
248 SUPREME COURT REPORTS ANNOTATED
intentional discrimination from the mere fact that the classification was intentional.
Biraogo vs. Philippine Truth Commission of 2010 _______________
committed during the Estrada administration, the facts of which—already judicially ascertained, at
that—are contained in public records. 28 EXECUTIVE ORDER NO. 1 (July 30, 2010), Secs. 1-2 & 7th whereas clause.
250
The Executive Department’s determination of the futility or redundancy of investigating other
administrations should be accorded respect. Respondents having manifested that pertinent and 250 SUPREME COURT REPORTS ANNOTATED
credible data are already in their hands or in the archives, petitioners’ idea of an all- Biraogo vs. Philippine Truth Commission of 2010
encompassing de novo inquiry becomes tenuous as it goes beyond what the Executive Department
Good faith is presumed. I find it incomprehensible how the ponencia overturns that
needs.
presumption. Citing an array of foreign jurisprudence, the ponencia, in fact, recognizes that mere
The exclusion of other past administrations from the scope of investigation by the Truth
under-inclusiveness or incompleteness is not fatal to the validity of a law under the equal
Commission is justified by the substantial distinction that complete and definitive reports covering
protection clause. Thus the ponencia pontificates:
their respective periods have already been rendered. The same is not true with the immediate past “The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law under the
administration. There is thus no undue favor or unwarranted partiality. To include everybody all equal protection clause.” “Legislation is not unconstitutional merely because it is not all-embracing and does
over again is to insist on a useless act. not include all the evils within its reach.” It has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply because it happens to be incomplete. In several itself the power to ascertain and impose on the President the best or complete way of obtaining
instances, the underinclusiveness was not considered valid reason to strike down a law or regulation where the information to eradicate corruption. Policy choices on the practicality or desirability of data-
purpose can be attained in future legislations or regulations. These cases refer to the “step by step” process. gathering that is responsive to the needs of the Executive Department in discharging the duty to
“With regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme
faithfully execute the laws are best left to the sound discretion of the President.
simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.” Most enlightening as to how the classification is germane to the purpose of the law is knowing
In Executive Order No. 1, however, there is no clear indicia of inadvertence. That the previous first what is the purpose of the law.
administration was picked out was deliberate and intentional as can be gathered from the fact that it was According to the ponencia, the objective of E.O. No. 1 is the “stamping out [of] acts of graft
stressed three times in the assailed executive order. “The equal protection clause is voided by purposeful and and corruption.” 33
intentional discrimination.” (emphasis and underscoring supplied)
29
I differ.
According to the ponencia itself, the E.O.’s failure to include all evils within its reach, even The purpose of E.O. No. 1 is the gathering of needed information to aid the President in the
by design, is not vulnerable to an equal protection challenge. How the ponencia arrives at a implementation of public accountability laws. Briefly stated, E.O. No. 1 aims to provide data for
contrary conclusion puzzles. the President.
Within our own jurisprudential shores, the Court expounded in Quinto v. Comelec on those 30
The ponencia, in fact, has earlier explained: “It should be stressed that the purpose of
classifications which, albeit not all-inclusive, remain germane to the purpose of the law. allowing ad hocinvestigating bodies to exist is to allow an inquiry into matters which the President
“Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the is entitled to know so that he can be properly advised and guided in the performance of his duties
Legislature need not address every manifestation of the evil at once; it may proceed “one step at a time.” In ad- relative to the execution and enforcement of the laws of the land.” 34
_______________
The long-term goal of the present administration must not be confused with what E.O. No. 1
29 Ponencia, p. 39. intends to achieve within its short life. The opening clauses and provisions of E.O No. 1 are
30 G.R. No. 189698, February 22, 2010, 613 SCRA 385. replete with phrases like “an urgent call for the determination of the truth,” “dedicated solely to
251
investigating and finding out the truth,” and “primarily seek and find the truth.”
VOL. 637, DECEMBER 7, 2010 251 The purpose of E.O. No. 1 is to produce a report which, insofar as the Truth Commission is
Biraogo vs. Philippine Truth Commission of 2010
concerned, is the end in itself. The purpose
_______________
dressing a societal concern, it must invariably draw lines and make choices, thereby creating some
inequity as to those included or excluded. Nevertheless, as long as “the bounds of reasonable choice” are not
32 Quinto v. Commission on Elections, supra.
exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the 33 Ponencia, p. 37.
legislative aim would have been more fully achieved by expanding the class . Stated differently, the fact that a 34 Id., at p. 24.
legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. 253
There is no constitutional requirement that regulation must reach each and every class to which it might be
applied; that the Legislature must be held rigidly to the choice of regulating all or none. VOL. 637, DECEMBER 7, 2010 253
Thus, any person who poses an equal protection challenge must convincingly show that the law creates a Biraogo vs. Philippine Truth Commission of 2010
classification that is “palpably arbitrary or capricious.” He must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as reasons for the enactment, such that the of the report is another matter which is already outside the control of E.O. No. 1.
constitutionality of the law must be sustained even if the reasonableness of the classification is “fairly Once the report containing the needed information is completed, the Truth Commission is
debatable.” In the case at bar, the petitioners failed—and in fact did not even attempt—to discharge this heavy dissolved functus officio. At that point, the endeavor of data-gathering is accomplished, and E.O
burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the No. 1 has served its purpose. It cannot be said, however, that it already eradicated graft and
following thesis: corruption. The report would still be passed upon by government agencies. Insofar as the
“. . . [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is Executive Department is concerned, the report assimilates into a broader database that advises and
unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we guides the President in law enforcement.
must find that there is no reasonably rational reason for the differing treatment. (underscoring
To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to the
supplied)
fallacious and artificial conclusion that respondents are stamping out corrupt acts of the previous
The “one step at a time” approach is thus not unconstitutional. E.O. No. 1 is not the first, but
administration only, as if E.O. No. 1 represents the entire anti-corruption efforts of the Executive
the latest, step in a series of initiatives undertaken by Presidents, as earlier illustrated. Neither will
Department.
it be the last step. E.O. No. 1 contains a special provision concerning the expansion of mandate.
31
To state that the purpose of E.O. No. 1 is to eradicate graft and corruption begs the question.
There being no constitutional violation in a step-by-step approach, the present and future
What is there to eradicate in the first place, if claims of graft and corruption are yet to be verified
administrations may release supplementary or comparable issuances.
_______________ by the Truth Commission? Precisely, by issuing E.O. No. 1, respondents saw the need to verify
raw data before initiating the law enforcement mechanism, if warranted.
31 EXECUTIVE ORDER NO. 1 (July 30, 2010), Sec. 17. Special Provision Concerning Mandate.—If and when in the The classification is not limited
judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include to existing conditions only
the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so The Truth Commission is an ad hoc body formed under the Office of the President. The
extended accordingly by way of a supplemental Executive Order.
252
nature of an ad hoc body is that it is limited in scope. Ad hoc means for the particular end or case
at hand without consideration of wider application. An ad hoc body is inherently temporary. E.O.
35
252 SUPREME COURT REPORTS ANNOTATED No. 1 provides that the Truth Commission “shall accomplish its mission on or before December
Biraogo vs. Philippine Truth Commission of 2010 31, 2012.” 36
_______________
The wisdom behind the issuance of the E.O. No. 1 is “outside the rubric of judicial
scrutiny.” Analogous to Quinto’s instructions, this Court cannot and should not arrogate unto
32
35 <http://www.merriam-webster.com/dictionary/ad+hoc> [visited: November 10, 2010].
36 EXECUTIVE ORDER NO. 1 (July 30, 2010), Sec. 14. 37 Ponencia, p. 33.
254 38 Id., at p. 26.
39 Id., at p. 29.
254 SUPREME COURT REPORTS ANNOTATED 256
Biraogo vs. Philippine Truth Commission of 2010 256 SUPREME COURT REPORTS ANNOTATED
That the classification should not be limited to existing conditions only, as applied in the
Biraogo vs. Philippine Truth Commission of 2010
present case, does not mean the inclusion of future administrations. Laws that are limited in
authorities from prosecution of a criminal case, just because not all of those who are probably
duration (e.g., general appropriations act) do not circumvent the guarantee of equal protection by
guilty thereof were charged.” 40
not embracing all that may, in the years to come, be in similar conditions even beyond the
Verily, where there is claim of breach of the due process and equal protection clauses,
effectivity of the law.
considering that they are not fixed rules but rather broad standards, there is a need for proof of
The requirement not to limit the classification to existing conditions goes into the operational
such persuasive character as would lead to such a conclusion. Absent such a showing, the
details of the law. The law cannot, in fine print, enumerate extant items that exclusively compose
presumption of validity must prevail. 41
the classification, thereby excluding soon-to-exist ones that may also fall under the classification.
Finally, even assuming arguendo that all prior administrations should be included within the
In the present case, the circumstance of available reports of large-scale anomalies that fall
scope of investigation of the Truth Commission, E.O. No 1 is saved by a separability
under the classification (i.e., committed during the previous administration) makes one an
clause, considering that the remaining portions can stand independently of the assailed portions
42
“existing condition.” Those not yet reported or unearthed but likewise fall under the same class
and constitute a complete, intelligible and valid law which carries out the intent of the law. There 43
must not be excluded from the application of the law. There is no such exclusionary clause in E.O.
is thus no basis for denying the other provisions of their continued force and enjoining the
No. 1.
operation of the Truth Commission.
The ratiocination on this third requisite so as to include previous administrations already goes
I, therefore, submit that there exists a “reasonable foundation or rational basis” for 44
into the “classifications,” not the “conditions.” The ponenciarewrites the rule leading to the absurd
defining the subject of the special fact-finding investigation by the Truth Commission.
requirement that the classification should not be limited to the existing “classification” only.
For the foregoing reasons, I vote to DISMISS the petitions.
The classification applies equally _______________
to all members of the same class
Petitioners concede, by their failure to allege otherwise, that the classification applies equally 40 Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July 30, 2008, 560 SCRA 518, 539.
to all members within the same class (i.e., all reports of large-scale graft and corruption during the 41 British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511, 570.
previous administration). By this implied admission, this fourth requirement meets no objection. 42 EXECUTIVE ORDER NO. 1 (July 30, 2010), Sec. 18. Separability Clause.—If any provision of this Order is declared
unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.
Petitioners’ only insistent contention, as sustained by the ponencia, is that all prior 43 Vide Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 298-299; Executive
administrations belong to the same class, citing that equal protection simply requires that all Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, 482 SCRA 673.
persons or things similarly 44 Ambros v. Commission on Audit (COA), G.R. No. 159700, June 30, 2005, 462 SCRA 572, 597.
255 257
VOL. 637, DECEMBER 7, 2010 255 VOL. 637, DECEMBER 7, 2010 257
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
situated should be treated alike, both as to rights conferred and responsibilities imposed.37
Petitioners do not espouse the view that no one should be investigated. What they advocate is CONCURRING AND DISSENTING OPINION
that all administrations should be investigated or, more accurately, all reports of large-scale graft
and corruption during the tenure of past administrations should be subjected to investigation. NACHURA, J.:
Discrimination presupposes prejudice. I find none. Before us are two (2) consolidated petitions:
First, no one complains of injury or prejudice. Petitioners do not seek the lifting of their 1. G.R. No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo (Biraogo),
own obligations or the granting of their own rights that E.O. No. 1 imposes or disallows. As earlier in his capacity as a citizen and taxpayer, assailing Executive Order (E.O.) No. 1, entitled “Creating
expounded, petitioner-legislators cannot plausibly invoke the equal protection claims of other the Philippine Truth Commission of 2010” for violating Section 1, Article VI of the 1987
persons, while petitioner Biraogo did not invoke it at all. Constitution; and
Second, petitioners do not allege that previous administrations, other than the immediate past 2. G.R. No. 193036 is a petition for certiorari and prohibition filed by petitioners Edcel C.
administration, have been denied the right to appear before or be examined by the Truth Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr., in their
Commission. Neither do petitioners identify the specific fact-finding obligations exclusively capacity as members of the House of Representatives, similarly bewailing the unconstitutionality
imposed upon the immediate past administration by the Truth Commission whose primary duty is of E.O. No. 1.
merely to “investigate reports of graft and corruption and to recommend the appropriate action.” 38
First, the all too familiar facts leading to this cause celebre.
Third, assuming that there already exists an imposition of obligation from the mere On May 10, 2010, Benigno Simeon C. Aquino III was elected President of the Philippines.
recommendation for prosecution (as one of the possible appropriate measures) by the Truth Oft repeated during his campaign for the presidency was the uncompromising slogan, “Kung
Commission, the act of not recommending the prosecution of all those who could be probably walang corrupt, walang mahirap.”
guilty of graft and corruption is not violative of the equal protection clause. Even in the succeeding Barely a month after his assumption to office, and intended as fulfillment of his campaign
stage of preliminary investigation, which is already “out of the Truth Commission’s sphere of promise, President Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:
functions,” jurisprudence instructs that the right to equal protection of the laws “may not be
39
EXECUTIVE ORDER NO. 1
perversely used to justify desistance by the CREATING THE PHILIPPINE
_______________ TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
principle that a public office is a public trust and mandates that public officers and employees, who are ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of
servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, Court of the Philippines be admitted for that purpose;
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives; g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious by means of a special or interim report and recommendation, all evidence on corruption of public officers and
violation of this mandate;258 employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and
258 SUPREME COURT REPORTS ANNOTATED corruption under pertinent applicable laws;260
Biraogo vs. Philippine Truth Commission of 2010 260 SUPREME COURT REPORTS ANNOTATED
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and Biraogo vs. Philippine Truth Commission of 2010
underprivileged sector of society; h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation
trust and confidence in the Government and its institutions; as it may require in the discharge of its functions and duties;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large i) Engage or contract the services of resource person, professional and other personnel determined by it
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases as necessary to carry out its mandate;
against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
and confidence in the Government and in their public servants; efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung investigations, proceedings and hearings, including the presentation of evidence;
walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
evil it breeds; and purposes of this Order.
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth SECTION 3. Staffing Requirements.—The Commission shall be assisted by such assistants and
concerning the reported cases of graft and corruption during the previous administration, and which will personnel as may be necessary to enable it to perform its functions, and shall formulate and establish its
recommend the prosecution of the offenders and secure justice for all; organization structure and staffing pattern composed of such administrative and technical personnel as it may
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the deem necessary to efficiently and effectively carry out its functions and duties prescribed herein, subject to the
Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the approval of the Department of Budget and Management. The officials of the Commission shall in particular
Office of the President. include, but not limited to, the following:
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, a. General Counsel
by virtue of the powers vested in me by law, do hereby order: b. Deputy General Counsel
SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH c. Special Counsel
COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth d. Clerk of the Commission
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and SECTION 4. Detail of Employees.—The President, upon recommendation of the Commission, shall
offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their detail such public officers or personnel from other department or agencies which may be required by the
co-principals, accomplices and accessories from the private sector, if any, during the previous administration; Commission. The detailed officers and personnel may be paid honoraria and/or allowances as may be
and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure authorized by law, subject to pertinent accounting and auditing rules and procedures.
of justice shall be served without fear or favor.259 SECTION 5. Engagement of Experts.—The Truth Commission shall have the power to engage the
services of experts as consultants or advisers as it may deem necessary to accomplish its mission.
VOL. 637, DECEMBER 7, 2010 259 SECTION 6. Conduct of Proceedings.—The proceedings of the Commission shall be in accordance
Biraogo vs. Philippine Truth Commission of 2010 with the rules promulgated by the Commission. Hearings or proceedings of the Commission shall be open to
The Commission shall be composed of a Chairman and four (4) members who will act as an independent the public. However, the Commission, motu proprio, or upon the request of the person testifying, hold an
collegial body. executive or closed-door hearing where matters of national security or public safety are involved or when the
SECTION 2. Powers and Functions.—The Commission, which shall have all the powers of an personal safety of the wit-
261
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked
to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section VOL. 637, DECEMBER 7, 2010 261
1, involving third level public officers and higher, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration and thereafter submit its finding and recommendation Biraogo vs. Philippine Truth Commission of 2010
to the President, Congress and the Ombudsman. In particular, it shall: ness warrants the holding of such executive or closed-door hearing. The Commission shall provide the rules
a) Identify and determine the reported cases of such graft and corruption which it will investigate; for such hearing.
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale SECTION 7. Right to Counsel of Witnesses/Resources Persons.—Any person called to testify before the
corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Commission shall have the right to counsel at any stage of the proceedings.
Executive Branch, including government-owned or controlled corporation, to produce documents, books, SECTION 8. Protection of Witnesses/Resource Persons.—The Commission shall always seek to assure
records and other papers; the safety of the persons called to testify and, if necessary make arrangements to secure the assistance and
c) Upon proper request and representation, obtain information and documents from the Senate and the cooperation of the Philippine National Police and other appropriate government agencies.
House of Representatives records of investigations conducted by committees thereof relating to matters or SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony.—Any government official or
subjects being investigated by the Commission; personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
d) Upon proper request and representation, obtain information from the courts, including the appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption inspection, when required, shall be subject to administrative disciplinary action. Any private person who does
cases filed with the Sandiganbayan or the regular courts, as the case may be; the same may be dealt with in accordance with law.
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or SECTION 10. Duty to Extend Assistance to the Commission.—The departments, bureaus, offices,
affirmations as the case may be; agencies or instrumentalities of the Government, including government-owned and controlled corporations, are
hereby directed to extend such assistance and cooperation as the Commission may need in the exercise of its
powers, execution of its functions and discharge of its duties and responsibilities with the end in vies of (1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2) TO APPROPRIATE
accomplishing its mandate. Refusal to extend such assistance or cooperation for no valid or justifiable reason PUBLIC FUNDS.
or adequate cause shall constitute a ground for disciplinary action against the refusing official or personnel. II.
SECTION 11. Budget for the Commission.—The Office of the President shall provide the necessary EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH
and responsibilities as effectively, efficiently, and expeditiously as possible. COMMISSION TO OFFICIALS AND EMPLOYEES OF THE “PREVIOUS ADMINISTRATION” (THE
SECTION 12. Office.—The Commission may avail itself of such office space which may be available ADMINISTRATION OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO).
in government buildings accessible to the public space after coordination with the department or agencies in III.
control of said building or, if not available, lease such space as it may require from private owners. EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS OF THE
SECTION 13. Furniture/Equipment.—The Commission shall also be entitled to use such equipment or OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND
furniture from the Office of the President which are available. In the absence thereof, it may request for the SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE “OMBUDSMAN ACT OF 1989.”
purchase of such furniture or equipment by the Office of the President. 262 Expectedly, in its Memorandum, the OSG traverses the contention of petitioners and upholds
262 SUPREME COURT REPORTS ANNOTATED the constitutionality of E.O. No. 1 on the strength of the following arguments: 264
Biraogo vs. Philippine Truth Commission of 2010 264 SUPREME COURT REPORTS ANNOTATED
SECTION 14. Term of the Commission.—The Commission shall accomplish its mission on or before Biraogo vs. Philippine Truth Commission of 2010
December 31, 2012. I.
SECTION 15. Publication of Final Report.—On or before December 31, 2012, the Commission shall
PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH
render a comprehensive final report which shall be published upon the directive of the president. Prior thereto,
also upon directive of the President, the Commission may publish such special interim reports it may issue THE ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL
from time to time. STANDING TO ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.
SECTION 16. Transfer of Records and Facilities of the Commission.—Upon the completion of its II.
work, the records of the Commission as well as its equipment, furniture and other properties it may have EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO.
acquired shall be returned to the Office of the President. 1 DOES NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE
SECTION 17. Special Provision Concerning Mandate.—If and when in the judgment of the President AND TO APPROPRIATE FUNDS FOR ITS OPERATIONS.
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the III.
investigation of cases and instances of graft and corruption during the prior administrations, such mandate may
THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR
be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause.—If any provision of this Order is declared unconstitutional, the NATION-BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND
same shall not affect the validity and effectivity of the other provisions hereof. CONSEQUENCES OF CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS
Section 19. Effectivity.—This Executive Order shall take effect immediately. FOR THEIR REDRESS AND FUTURE PREVENTION. ALTHOUGH ITS INVESTIGATION
DONE in the City of Manila, Philippines, this 30th day of July 2010. MAY CONTRIBUTE TO SUBSEQUENT PROSECUTORIAL EFFORTS, THE COMMISSION
(SGD.) BENIGNO S. AQUINO III WILL NOT ENCROACH BUT COMPLEMENT THE POWERS OF THE OMBUDSMAN AND
By the President: THE DOJ IN INVESTIGATING CORRUPTION.
(SGD.) PAQUITO N. OCHOA, JR. IV.
Executive Secretary
EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE
Without delay, petitioners Biraogo and Congressmen Lagman, Albano, Datumanong, and Fua
THE EQUAL PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE
filed their respective petitions decrying the constitutionality of the Truth Commission, primarily,
AND LAUDABLE PURPOSES.
for being a usurpation by the President of the legislative power to create a public office.
In resolving these issues, the ponencia, penned by the learned Justice Jose Catral Mendoza,
In compliance with our Resolution, the Office of the Solicitor General (OSG) filed its
concludes that:
Consolidated Comment to the petitions. Motu proprio, the Court heard oral arguments on
1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only
September 7 and 28,
263
because of the transcendental importance of the issues involved, while petitioner Members of the
House of Representatives have standing to question the validity of any official action which
VOL. 637, DECEMBER 7, 2010 263 allegedly infringes on their prerogatives as legislators;
Biraogo vs. Philippine Truth Commission of 2010 2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the
2010, where we required the parties, thereafter, to file their respective memoranda. President’s power to reorganize under the Administrative Code of 1987; 265
In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1 violates VOL. 637, DECEMBER 7, 2010 265
Section 1, Article VI of the 1987 Constitution because it creates a public office which only
Biraogo vs. Philippine Truth Commission of 2010
Congress is empowered to do. Additionally, “considering certain admissions made by the OSG
during the oral arguments,” the petitioner questions the alleged intrusion of E.O. No. 1 into the 3. However, the President’s power to create the herein assailed Truth Commission is
independence of the Office of the Ombudsman mandated in, and protected under, Section 5, justified under Section 17, Article VII of the Constitution, albeit what may be created is merely
1
Article XI of the 1987 Constitution. an ad hoc Commission;
Holding parallel views on the invalidity of the E.O., petitioner Members of the House of 4. The Truth Commission does not supplant the Ombudsman or the Department of Justice
Representatives raise the following issues: (DOJ) nor erode their respective powers; and
I. 5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 VIOLATES clause enshrined in Section 1, Article III of the Constitution.
THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF THE CONGRESS I agree with the ponencia that, given our liberal approach in David v. Arroyo and subsequent
2
cases, petitioners have locus standi to raise the question of constitutionality of the Truth
Commission’s creation. I also concur with Justice Mendoza’s conclusion that the Truth No department of the government of the Philippine Islands may legally exercise any of the powers
Commission will not supplant the Office of the Ombudsman or the DOJ, nor impermissibly conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no such
encroach upon the latter’s exercise of constitutional and statutory powers. explicit prohibitions. But it is fairly implied by the division of the government into three departments. The
effect is the same whether the prohibition is expressed or not. It has repeatedly been announced by this court
I agree with the ponencia that the President of the Philippines can create an ad
that each of the branches of the Government is in the main independent of the others. The doctrine is too firmly
hoc investigative body. But more than that, I believe that, necessarily implied from his power of imbedded in Philippine institutions to be debatable.
control over all executive departments and his constitutional duty to faithfully execute the laws, as It is beyond the power of any branch of the Government of the Philippine islands to exercise its functions
well as his statutory authority under the Administrative Code of 1987, the President may create a in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law.
public office. The Governor-General must find his powers and duties in the fundamental law. An Act of the Philippine
However, I find myself unable to concur with Justice Mendoza’s considered opinion that E.O. Legislature must comply with the grant from Congress. The jurisdiction of this court and other courts is
No. 1 breaches the constitutional guarantee of equal protection of the laws. derived from the constitutional provisions.
Let me elucidate. xxx
_______________ The Organic Act vests “the supreme executive power” in the Governor-General of the Philippine Islands.
In addition to specified functions, he is given “general supervisions and control of all the departments and
bureaus of the government of the Philippine Islands as far is not inconsistent with the provisions of this Act.”
1 SEC. 17. The President shall have control of all the executive departments, bureau and offices. He shall ensure that
the laws be faithfully executed. He is also made “responsible for the faithful execution of the laws of the Philippine islands and of the United
2 G.R. No. 171396, May 3, 2006, 489 SCRA 160. States operative within the Philippine Islands.” The authority of the Governor-General is made secure by the
266 important proviso “that all executive functions of Government must be directly under the governor-General or
within one of the executive departments under the supervision and control of the governor-general.” By the
266 SUPREME COURT REPORTS ANNOTATED Administrative Code, “the governor-general, as Chief executive of the islands, is charged with the executive
Biraogo vs. Philippine Truth Commission of 2010 control of the Philippine Government, to be exercised in person or through the Secretaries of Departments, or
other proper agency, according to law.”
The Truth Commission is a Public Office 268
The first of two core questions that confront the Court in this controversy is whether the
President of the Philippines can create a public office. A corollary, as a consequence of statements 268 SUPREME COURT REPORTS ANNOTATED
made by the Solicitor General during the oral argument, is whether the Truth Commission is a Biraogo vs. Philippine Truth Commission of 2010
public office. These “lines of demarcation” have been consistently recognized and upheld in all subsequent
A public office is defined as the right, authority, or duty, created and conferred by law, by Organic Acts applied to the Philippines, including the present fundamental law, the 1987
which for a given period, either fixed by law or enduring at the pleasure of the creating power, an Constitution.
individual is invested with some sovereign power of government to be exercised by him for the Section 1, Article VII of the 1987 Constitution vests executive power in the President of the
5
benefit of the public. Public offices are created either by the Constitution, by valid statutory
3
Philippines. On the nature of the executive power, Justice Isagani A. Cruz writes:
enactments, or by authority of law. A person who holds a public office is a public officer. “Executive power is briefly described as the power to enforce and administer the laws, but it is
Given the powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that actually more than this. In the exercise of this power, the President of the Philippines assumes a
the Truth Commission is a public office, and the Chairman and the Commissioners appointed plenitude of authority, and the corresponding awesome responsibility, that makes him, indeed, the
thereto, public officers. most influential person in the land.” 6
As will be discussed hereunder, it is my respectful submission that the President of the In National Electrification Administration v. Commission on Audit, this Court said that, as the
7
Philippines has ample legal authority to create a public office, in this case, the Truth Commission. administrative head of the government, the President is vested with the power to execute,
This authority flows from the President’s constitutional power of control in conjunction with his administer and carry out laws into practical operation. Impressed upon us, then, is the fact that
constitutional duty to ensure that laws be faithfully executed, coupled with provisions of a valid executive power is the power of carrying out the laws into practical operation and enforcing their
statutory enactment, E.O. No. 292, otherwise known as the Administrative Code of 1987. due observance.
E.O. No. 1 and the Executive Power Relevant to this disquisition are two specific powers that flow from this “plenitude of
Central to the resolution of these consolidated petitions is an understanding of the “lines of authority.” Both are found in Section 17, Article VII of the Constitution. They are commonly 8
demarcation” of the powers of government, i.e., the doctrine of separation of powers. The referred to as the power of control and the take care clause.
landmark case of Government of the Philippine Islands v. Springer has mapped out this legal
4
Section 17 is a self-executing provision. The President’s power of control is derived directly
doctrine: from the Constitution and not from any implementing legislation. On the other hand, the power to
9
_______________
take care that the laws be faithfully executed makes the President a dominant figure in the
administration of the government. The law he is sup-
3 Fernandez v. Sto. Tomas, 312 Phil. 235, 247; 242 SCRA 192, 201 (1995).
_______________
4 50 Phil. 259 (1927).
267
5 Section 1. The executive power shall be vested in the President of the Philippines.
VOL. 637, DECEMBER 7, 2010 267 6 Cruz, Philippine Political Law (2005 ed.), p. 182.
7 G.R. No. 143481, February 15, 2002, 377 SCRA 223 .
Biraogo vs. Philippine Truth Commission of 2010 8 Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that
“The Government of the Philippines Islands is an agency of the Congress of the United States. The the laws be faithfully executed.
powers which the Congress, the principal, has seen fit to entrust to the Philippine Government, the agent, are 9 Cruz, Philippine Political Law (2005 ed.), p. 213.
distributed among three coordinate departments, the executive, the legislative, and the judicial. It is true that 269
the Organic Act contains no general distributing clause. But the principle is clearly deducible from the grant of VOL. 637, DECEMBER 7, 2010 269
powers. It is expressly incorporated in our Administrative Code. It has time and again been approvingly
enforced by this court. Biraogo vs. Philippine Truth Commission of 2010
posed to enforce includes the Constitution itself, statutes, judicial decisions, administrative rules 15 G.R. No. L-30852, February 26, 1988, 158 SCRA 158.
271
and regulations and municipal ordinances, as well as the treaties entered into by our
government. At almost every cusp of executive power is the President’s power of control and his
10
VOL. 637, DECEMBER 7, 2010 271
constitutional obligation to ensure the faithful execution of the laws.
Biraogo vs. Philippine Truth Commission of 2010
Demonstrating the mirabile dictu of presidential power and obligation, we declared in Ople v.
the functions, that he has assumed for himself. Even the ponencia admits that this can be done.
Torres: 11
“As head of the Executive Department, the President is the Chief Executive. He represents the When this power of control is juxtaposed with the constitutional duty to ensure that laws be
government as a whole and sees to it that all laws are enforced by the officials and employees of his faithfully executed, it is obvious that, for the effective exercise of the take care clause, it may
department. He has control over the executive department, bureaus and offices. This means that he has the become necessary for the President to create an office, agency or commission, and charge it with
authority to assume directly the functions of the executive department, bureau and office, or interfere with the the authority and the power that he has chosen to assume for himself. It will not simply be an
discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the exercise of the power of control, but also a measure intended to ensure that laws are faithfully
enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative executed.
power over bureaus and offices under his control to enable him to discharge his duties effectively.” To reiterate, the take care clause is the constitutional mandate for the President to ensure that
Mondano v. Silvosa, defines the power of control as “the power of an officer to alter, modify,
12
laws be faithfully executed. Dean Vicente G. Sinco observed that the President’s constitutional
or set aside what a subordinate officer had done in the performance of his duties, and to substitute obligation of ensuring the faithful execution of the laws “is a fundamental function of the
the judgment of the former for that of the latter.” It includes the authority to order the doing of an executive head [involving] a two-fold task, [i.e.,] the enforcement of laws by him and the
act by a subordinate, or to undo such act or to assume a power directly vested in him by law. 13
enforcement of laws by other officers under his direction.” 16
In this regard, Araneta v. Gatmaitan is instructive: 14
As adverted to above, the laws that the President is mandated to execute include the
“If under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban Constitution, statutes, judicial decisions, administrative rules and regulations and municipal
fishing by trawl, then the President of the Philippines may exercise the same power and authority because of
the following: (a) The President shall have control of all the executive departments, bureaus or offices pursuant ordinances. Among the constitutional provisions that the President is obliged to enforce are the
to Section 10(1), Article VII, of the Constitution; following General Principles and State Policies of the 1987 Philippine Constitution:
_______________ Section 4, Article II: The prime duty of government is to serve and protect the people x x x
Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and property, and
10 Id., at p. 216. promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
11 354 Phil. 948; 293 SCRA 141 (1998). democracy.
12 97 Phil. 143 (1955).
13 Cruz, Philippine Political Law (2005 ed.), pp. 211-212.
Section 9, Article II: The State shall promote a just and dynamic social order that will ensure the prosperity
14 101 Phil. 328 (1957). and independence of the nation and free the people from poverty through policies that provide adequate social
270 services, promote full employment, a rising standard of living, and an improved quality of life for all.
_______________
270 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010 16 Sinco, Philippine Political Law (10th ed.), p. 260.
272
(b) Executive Orders may be issued by the President under Section 63 of the Revised Administrative
Code “governing the general performance of duties by public employees or disposing of issues of general 272 SUPREME COURT REPORTS ANNOTATED
concern;” and (c) Under Section 74 of the Revised Administrative Code, “All executive functions of the
Government of the Republic of the Philippines shall be directly under the Executive Department, subject to the Biraogo vs. Philippine Truth Commission of 2010
supervision and control of the President of the Philippines in matters of general policy.” Section 13, Article II: The State values the dignity of every human person and guarantees full respect for
Our ruling in City of Iligan v. Director of Lands echoes the same principle in this wise:
15 human rights.
“Since it is the Director of Lands who has direct executive control among others in the lease, sale or any form Section 27, Article II: The State shall maintain honesty and integrity in the public service and take positive
of concession or disposition of the land of the public domain subject to the immediate control of the Secretary and effective measures against graft and corruption.
of Agriculture and Natural Resources, and considering that under the Constitution the President of the Section 28, Article II: Subject to reasonable conditions prescribed by law, the State adopts and implements
Philippines has control over all executive departments, bureaus and offices, etc., the President of the a policy of full public disclosure of all its transactions involving public interest.
Philippines has therefore the same authority to dispose of the portions of the public domain as his subordinates, Closer to home, as head of the biggest bureaucracy in the country, the President must also see
the Director of Lands, and his alter-ego the Secretary of Agriculture and Natural Resources.” to the faithful execution of Section 1, Article XI of the Constitution, which reads: “Public office is
From these cited decisions, it is abundantly clear that the overarching framework in the a public trust. Public officers and employees must at all times be accountable to the people; serve
President’s power of control enables him to assume directly the powers of any executive them with utmost responsibility, integrity, loyalty and efficiency; act with patriotism and justice;
department, bureau or office. Otherwise stated, whatever powers conferred by law upon and lead modest lives.”
subordinate officials within his control are powers also vested in the President of the Philippines. These are constitutional provisions the enforcement of which is inextricably linked to the
In contemplation of law, he may directly exercise the powers of the Secretary of Foreign Affairs, spirit and objective of E.O. No. 1.
the Secretary of National Defense, the Commissioner of Customs, or of any subordinate official in Although only Section 1, Article XI, is cited in the Whereas clauses of E. O. No. 1, the
the executive department. Thus, he could, for example, take upon himself the investigatory President is obliged to execute the other constitutional principles as well. Absent any law that
functions of the Department of Justice, and personally conduct an investigation. If he decides to do provides a specific manner in which these constitutional provisions are to be enforced, or prohibits
so, he would be at liberty to delegate a portion of this investigatory function to a public officer, or any particular mode of enforcement, the President could invoke the doctrine of necessary
a panel of public officers, within his Office and under his control. There is no principle of law that implication, i.e., that the express grant of the power in Section 17, Article VII, for the President to
proscribes his doing so. In this context, the President may, therefore, create an agency within his faithfully execute the laws, carries with it the grant of all other powers necessary, proper, or
Office to exercise the functions, or part of incidental to the effective and efficient exercise of the expressly granted power. Thus, if a Truth
17
_______________ Commission is deemed the necessary vehicle for the faithful execution of the constitutional
mandate on public accountability, then the power to create the same would necessarily be implied,
and reasonably derived, from the basic power granted in the Constitution. Accordingly, the take Hence, the primary articulated policy in the Executive Branch is the organization and maintenance
care clause, in harmony with the President’s power of control, along with the pertinent provisions of the Departments to insure their capacity to plan and implement programs in accordance with
of the Administrative Code of 1987, established national policies. 20
_______________ With these Administrative Code provisions in mind, we note the triptych function of the Truth
Commission, namely: (1) gather facts; (2) investigate; and (3) recommend, as set forth in Section 1
17 See Marcos v. Manglapus, G.R. No. 88211, September 15, 1989, 178 SCRA 760. of E.O. No. 1:
273 “SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH
VOL. 637, DECEMBER 7, 2010 273 COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that
Biraogo vs. Philippine Truth Commission of 2010 shock and offend the moral and ethical sensibilities of the people, committed by the public officers and
would justify the issuance of E.O. No. 1 and the creation of the Truth Commission. employees, their co-
_______________
Further to this discussion, it is cogent to examine the administrative framework of Executive
Power, as outlined in the Administrative Code.
20 Section 2, Chapter 1, Book IV of the 1987 Administrative Code.
Quite logically, the power of control and the take care clause precede all others in the 275
enumeration of the Powers of the President. Section 1, Book III, Title I simply restates the
VOL. 637, DECEMBER 7, 2010 275
constitutional provision, to wit:
“SECTION 1. Power of Control.—The President shall have control of all the executive departments, Biraogo vs. Philippine Truth Commission of 2010
bureaus, and offices. He shall ensure that the laws be faithfully executed.” principals, accomplices and accessories from the private sector, if any, during the previous administration; and
Next in the enumeration is the ordinance power of the President which defines executive thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full
orders, thus: measure of justice shall be served without fear or favor.” (emphasis and numbering supplied)
“SEC. 2. Executive Orders.—Acts of the President providing for rules of a general or permanent It is plain to see that the Truth Commission’s fact-finding and investigation into “reports of
character in implementation or execution of constitutional or statutory powers shall be promulgated in large scale corruption by the previous administration” involve policy-making on issues of
executive orders.” fundamental concern to the President, primarily, corruption and its linkage to the country’s social
At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of the and economic development.
President, which include the residual power, viz.: On this point, I differ from the ponencia, as it reads the President’s power to reorganize in a
“SEC. 19. Powers Under the Constitution.—The President shall exercise such other powers as are
different light, viz.:
provided for in the Constitution.
“The question, therefore, before the Court is this: Does the creation of the Truth Commission fall within
SEC. 20. Residual Powers.—Unless Congress provides otherwise, the president shall exercise such
the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section
other powers and functions vested in the President which are provided for under the laws and which are not
31 contemplates “reorganization” as limited by the following functional and structural lines: (1) restructuring
specifically enumerated above, or which are not delegated by the President in accordance with law.”
the internal organization of the Office of the President Proper by abolishing, consolidating or merging units
In addition, pursuant to the organizational structure of the Executive Department, one of the
18
thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the
powers granted to the President is his continuing authority to reorganize his Office: 19
President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the
_______________ President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.
18 See Chapter 8, Title II, Book III of the Administrative Code. These point to situations where a body or an office is already existent by a modification or alteration thereof
19 Section 31, Chapter 10, Title III, Book III of the Administrative Code. has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision.
274 Accordingly, the answer is in the negative.
274 SUPREME COURT REPORTS ANNOTATED xxx
xxx [T]he creation of the Truth Commission is not justified by the president’s power of control. Control
Biraogo vs. Philippine Truth Commission of 2010 is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
“SEC. 31. Continuing Authority of the President to Reorganize his Office.—The President, performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power
subject to the policy in the Executive Office and in order to achieve simplicity, economy and of control is entirely different from the power to create public offices. The former is inherent in the Executive,
efficiency, shall have continuing authority to reorganize the administrative structure of the Office while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully
of the President. For this purpose, he may take any of the following actions: execute the laws.”
276
(1) Restructure the internal organization of the Office of the President Proper, including the
immediate Offices, the Presidential Special Assistants/Advisers System and the Common 276 SUPREME COURT REPORTS ANNOTATED
staff Support System, by abolishing, consolidating or merging units thereof or transferring Biraogo vs. Philippine Truth Commission of 2010
functions from one unit to another; I am constrained to disagree because, contrary to the ponencia’s holding, the President’s
(2) Transfer any function under the Office of the President to any other Department or power to reorganize is not limited by the enumeration in Section 31 of the Administrative Code.
Agency as well as transfer functions to the Office of the President from other Departments As previously discussed, the President’s power of control, in conjunction with his
and Agencies; and constitutional obligation to faithfully execute the laws, allows his direct assumption of the powers
(3) Transfer any agency under the Office of the President to any other department or agency and functions of executive departments, bureaus and offices. To repeat, the overarching
21
as well as transfer agencies to the Office of the President from other departments or framework in the President’s power of control enables him to assume directly the functions of an
agencies. executive department. On the macro level, the President exercises his power of control by directly
Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The assuming all the functions of executive departments, bureaus or offices. On the micro level, the
Executive Branch) that “[t]he Executive Branch shall have such Departments as are necessary for President may directly assume certain or specific,not all, functions of a Department. In the milieu
the functional distribution of the work of the President and for the performance of their functions.”
under which the Truth Commission is supposed to operate, pursuant to E.O. No. 1, only the “In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon. Ronaldo d. Zamora, in his
investigatory function of the DOJ for certain crimes is directly assumed by the President, then capacity as the Executive Secretary, et. al., this Court has had occasion to also delve on the
delegated to the Truth Commission. After all, it is axiomatic that the grant of broad powers President’s power to reorganize the Office of the President under Section 31 (2) and (3) of
includes the grant of a lesser power; in this case, to be exercised—and delegated—at the Executive Order No. 292 and the power to reorganize the Office of the President Proper. The
President’s option. Court has there observed:
My conclusion that the transfer of functions of a Department to the Office of the President “x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office of the
falls within the President’s power of reorganization is reinforced by jurisprudence. President Proper by abolishing, consolidating or merging units, or by transferring functions from
In Larin v. Executive Secretary, the Court sustained the President’s power to reorganize
22
one unit to another. In contrast, under Section 31(2) and (3) of EO 292, the President’s power to
under Section 20, Book III of E.O. 292, in relation to PD No. 1416, as amended by PD No. 1772: reorganize offices outside the Office of the President Proper but still within the Office of the
“Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states: President is limited to merely transferring functions or agencies from the Office of the President to
“Sec. 20. Residual Powers.—Unless Congress provides otherwise, the President shall exercise such Departments or Agencies, and vice versa.”
other powers and functions vested in the President which are provided for under the laws and which are not The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292
specifically enumerated above or which are not delegated by the President in accordance with law.
_______________
(Administrative code of 1987), above-referred to, reads thusly:
Sec. 31. Continuing Authority of the President to Reorganize his Office.—The
21 Ople v. Torres, 354 Phil. 949; 293 SCRA 141 (1998). President, subject to the policy in the Executive Office and in order to achieve simplicity,
22 G.R. No. 112745, October 16, 1997, 280 SCRA 713. economy and efficiency, shall have continuing authority to reorganize the administrative
277 structure of the Office of the President. For this purpose, he may take any of the following
VOL. 637, DECEMBER 7, 2010 277 actions:
(1) Restructure the internal organization of the Office of the President Proper,
Biraogo vs. Philippine Truth Commission of 2010 including the immediate Offices, the Presidential Special Assistants/Advisers
This provision speaks of such other powers vested in the president under the law. What law System and the Common staff Support System, by abolishing, consolidating or
then gives him the power to reorganize? It is Presidential decree No. 1772 which amended merging units thereof or transferring functions from one unit to another;
Presidential Decree no. 1416. These decrees expressly grant the President of the Philippines the (2) Transfer any function under the Office of the President to any other Department
continuing authority to reorganize the national government, which includes the power to group, or Agency as well as transfer functions to the Office of the President from other
consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify Departments and Agencies; and
functions, services and activities and to standardize salaries and materials. The validity of these (3) Transfer any agency under the Office of the President to any other department
two decrees are unquestionable. The 1987 Constitution clearly provides that “all laws, decrees, or agency as well as transfer agencies to the Office of the President from other
executive orders, proclamations, letters of instructions and other executive issuances not departments or agencies.
inconsistent with this Constitution shall remain operative until amended, repealed or revoked.” So The first sentence of the law is an express grant to the President of a continuing authority to
far, there is yet not law amending or repealing said decrees.” reorganize the administrative structure of the Office of the President. The succeeding numbered
Subsequently, Buklod ng Kawaning EIIB v. Zamora, affirmed the holding in Larin and
23
paragraphs are not in the nature of
explicitly recognized the President’s authority to transfer functions of other Departments or 279
Agencies to the Office of the President, consistent with his powers of reorganization, to wit:
VOL. 637, DECEMBER 7, 2010 279
“But of course, the list of legal basis authorizing the President to reorganize any department or agency in
the executive branch does not have to end here. We must not lose sight of the very sources of the power—that Biraogo vs. Philippine Truth Commission of 2010
which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 provisos that unduly limit the aim and scope of the grant to the President of the power to
(otherwise known as the Administrative Code of 1987), “the President, subject to the policy in the Executive reorganize but are to be viewed in consonance therewith. Section 31(1) of Executive order No.
Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to
reorganize the administrative structure of the Office of the president.” For this purpose, he may transfer the
292 specifically refers to the President’s power to restructure the internal organization of the
functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre, we Office of the President Proper, by abolishing, consolidating or merging units hereof or transferring
ruled that reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by functions from unit to another, while Section 31(2) and (3) concern executive offices outside the
reason of economy or redundancy of functions.” It takes place when there is an alteration of the existing Office of the President Proper allowing the President to transfer any function under the
structure of government or units therein, including the lines of control, authority and responsibility between Office of the President to any other Department or Agency and vice versa, and the transfer
them. xxx” (emphasis supplied) of any agency under the Office of the President to any other department or agency and vice
Then, and quite significantly, in Bagaoisan v. National Tobacco Administration, this Court 24
versa.” (Emphasis supplied)
clarified the nature of the grant to the Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as
_______________
amended by P.D. No. 1772, the abstraction of the Truth Commission, as fortified by the
President’s power to reorganize found in paragraph 2, Section 31 of the Administrative Code, is
23 G.R Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
24 G.R. No. 152845, August 5, 2003, 408 SCRA 337.
demonstrably permitted.
278 That the Truth Commission is a derivative of the reorganization of the Office of the President
should brook no dissent. The President is not precluded from transferring and re-aligning the fact-
278 SUPREME COURT REPORTS ANNOTATED
finding functions of the different Departments regarding certain and specific issues, because
Biraogo vs. Philippine Truth Commission of 2010 ultimately, the President’s authority to reorganize is derived from the power-and-duty nexus
President of the power to reorganize the administrative structure of the Office of the President, fleshed out in the two powers granted to him in Section 17, Article VII of the Constitution.25
thus: I earnestly believe that, even with this Court’s expanded power of judicial review, we still
cannot refashion, and dictate on, the policy determination made by the President concerning what
function, of whichever Department, regarding specific issues, he may choose to directly assume things or persons are different in fact or circumstances, they may be treated in law differently. On
and take cognizance of. To do so would exceed the boundaries of judicial authority and encroach this score, this Court has previously intoned that:
on an executive prerogative. It would violate the principle of separation of powers, the “The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
constitutional guarantee that no branch of government should arrogate unto itself those functions in the other departments of knowledge or practice, is the grouping of things in speculation or practice because
and powers vested by the Constitution in the other branches. 26 they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very
_______________ idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality. All that is required of a valid classification should be based
on substantial distinctions which make for real differences; that it must be germane to the purpose of the law;
25 Sinco, Philippine Political Law, p. 261,
26 See Tañada v. Angara, 338 Phil. 546; 272 SCRA 18 (1997), where the Court did not “review the wisdom of the that it must not be limited to existing conditions only; and that it must apply equally to each member of the
President and the Senate in enlisting class. This Court has held that the standard is satisfied if the classification or distinction is based on a
280 reasonable foundation or rational basis and is not palpably arbitrary.” 28
Thus, when a statute or executive action is challenged on the ground that it violates the equal
280 SUPREME COURT REPORTS ANNOTATED
protection clause, the standards of judicial review are clear and unequivocal:
Biraogo vs. Philippine Truth Commission of 2010 _______________
In fine, it is my submission that the Truth Commission is a public office validly created by the
President of the Philippines under authority of law, as an adjunct of the Office of the President — 27 British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511.
28 Victoriano v. Elizalde Rope Workers’ Union, 158 Phil. 60; 59 SCRA 54 (1974).
to which the President has validly delegated the fact-finding and investigatory powers [of the 282
Department of Justice] which he had chosen to personally assume. Further, it is the product of the
President’s exercise of the power to reorganize the Office of the President granted under the 282 SUPREME COURT REPORTS ANNOTATED
Administrative Code. Biraogo vs. Philippine Truth Commission of 2010
This conclusion inevitably brings to the threshold of our discussion the matter of the “It is an established principle in constitutional law that the guaranty of the equal protection of the laws is
“independence” of the Truth Commission, subject of an amusing exchange we had with the not violated by a legislation based on a reasonable classification. Classification, to be valid, must: (1) rest on
Solicitor General during the oral argument, and to which the erudite Justice Arturo D. Brion substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only;
devoted several pages in his Separate Concurring Opinion. The word “independent,” as used in E. and (4) apply equally to all members of the same class.” 29
O. No. 1, cannot be understood to mean total separateness or full autonomy from the Office of the Further, in a more recent decision, we also declared:
President. Being a creation of the President of the Philippines, it cannot be totally dissociated from “In consonance thereto, we have held that “in our jurisdiction, the standard and analysis of equal
protection challenges in the main have followed the ‘rational basis’ test, coupled with a
its creator. By the nature of its creation, the Truth Commission is intimately linked to the Office of
deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a
the President, and the Executive Order, as it were, is the umbilical cord that binds the Truth showing of a clear and unequivocal breach of the Constitution.” x x x.
Commission to the Office of the President. Under this test, a legislative classification, to survive an equal protection challenge, must be shown to
The word “independent,” used to describe the Commission, should be interpreted as an rationally further a legitimate state interest. The classifications must be reasonable and rest upon some ground
expression of the intent of the President: that the Truth Commission shall be accorded the fullest of difference having a fair and substantial relation to the object of the legislation. Since every law has in its
measure of freedom and objectivity in the pursuit of its mandate, unbound and uninhibited in the favor the presumption of constitutionality, the burden of proof is on the one attacking the constitutionality of
performance of its duties by interference or undue pressure coming from the President. Our the law to prove beyond reasonable doubt that the legislative classification is without rational basis. The
exchange during the oral argument ended on this note: that while the Truth Commission is, presumption of constitutionality can be overcome only by the most explicit demonstration that a classification
is a hostile and oppressive discrimination against particular persons and classes, and that there is no
technically, subject to the power of control of the President, the latter has manifested his intention,
conceivable basis which might support it.” 30
as indicated in the Executive Order, not to exercise the power over the acts of the Commission.
_______________
The “rational basis” test is one of three “levels of scrutiny” analyses developed by courts in
reviewing challenges of unconstitutionality against statutes and executive action. Carl Cheng, in
the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused by the said international body.” his dissertation, “Important Right and the Private Attorney General Doctrine,” enlightens us, 31
The issue passed upon by the Court was limited to determining whether there had been a grave abuse of discretion amounting thus:
to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes. “[I]n the area of equal protection analysis, the judiciary has developed a ‘level of scrutiny’ analysis for
281 resolving the tensions inherent in judicial re-
_______________
VOL. 637, DECEMBER 7, 2010 281
Biraogo vs. Philippine Truth Commission of 2010 29 Coconut Oil Refiners Association v. Torres, 503 Phil. 42, 53-54; 465 SCRA 47, 75-76 (2005).
30 British American Tobacco, v. Camacho, et al., supra note 27.
31 California Law Review 1929, December 1985.
283
E.O. No. 1 and the Equal Protection Clause
VOL. 637, DECEMBER 7, 2010 283
Enshrined in Section 1, Article III of the Philippine Constitution is the assurance that all Biraogo vs. Philippine Truth Commission of 2010
persons shall enjoy the equal protection of the laws, expressed as follows: view. When engaging in this analysis, a court subjects the legislative or executive action to one of three levels
“Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor of scrutiny, depending on the class of persons and the rights affected by the action. The three levels
shall any person be denied the equal protection of the laws.” (emphasis supplied) are rational basis scrutiny, intermediate scrutiny, and strict scrutiny. If a particular legislative or executive
The equality guaranteed under this clause is equality under the same conditions and among act does not survive the appropriate level of scrutiny, the act is held to be unconstitutional. If it does survive, it
persons similarly situated; it is equality among equals, not similarity of treatment of persons who is deemed constitutional. The three tensions discussed above and, in turn, the three judicial responses to each,
are classified based on substantial differences in relation to the object to be accomplished. When 27 run parallel to these three levels of scrutiny. In response to each tension, the court applies a specific level of
scrutiny.”
He goes on to explain these “levels of scrutiny,” as follows:
“The first level of scrutiny, rational basis scrutiny, requires only that the purpose of the legislative or A curfew law, requiring all persons under age eighteen to be off the streets between the hours of midnight
executive act not be invidious or arbitrary, and that the act’s classification be reasonably related to the purpose. and 6 a.m., presumably has as its objective the prevention of street crime by minors; this is “over-inclusive”
Rational basis scrutiny is applied to legislative or executive acts that have the general nature of economic or since the class of criminal minors (the objective class) is completely included in the class of people under age
social welfare legislation. While purporting to set limits, rational basis scrutiny in practice results in complete eighteen (the statutory class), but many people under age eighteen are not part of the class of criminal minors.
judicial deference to the legislature or executive. Thus, a legislative or executive act which is subject to A city ordinance that bans streetcar vendors in a heavily visited “tourist quarter” of the city in order to
rational basis scrutiny is for all practical purposes assured of being upheld as constitutional. alleviate sidewalk and street congestion is “under-inclusive”. All streetcar vendors (the statutory class)
The second level of scrutiny, intermediate scrutiny, requires that the purpose of the legislative or contribute toward sidewalk and street congestion, but the class of people causing sidewalk and street
executive act be an important governmental interest and that the act’s classification be significantly related to congestion (the objective class) surely includes many others as well.
the purpose. Intermediate scrutiny has been applied to classifications based on gender and illegitimacy. The It is rare if not virtually impossible for a statutory class and an objective class to coincide perfectly.”
40
rationale for this higher level of scrutiny is that gender and illegitimacy classifications historically have And, as the ponencia itself admits, “under-inclusion” or “over-inclusion, per se, is not enough
resulted from invidious discrimination. However, compared to strict scrutiny, intermediate scrutiny’s reason to invalidate a law for violation of the equal protection clause, precisely because perfection
presumption of invidious discrimination is more readily rebutted, since benign motives are more likely to in classification is not required. 41
underlie classifications triggering intermediate scrutiny.
Thus, in the determination of whether the classification is invidious or arbitrary, its relation to
The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the legislative or executive act’s
purpose be a compelling state interest and that the act’s classification be narrowly tailored to the purpose. the purpose must be examined. Under the rational basis test, the presence of any plausible
Strict scrutiny is triggered in two situations: (1) where the act infringes on a fundamental right; and (2) where legitimate objective for the classification, where the classification serves to accomplish that
the act’s classification is based on race or national origin. While strict scrutiny purports to be only a very close objective to any degree, no matter how tiny, would validate the classification. To be invalidated on
judicial examination of legislative or executive acts, for all practical purposes, an act subject to strict scrutiny constitutional grounds, the test requires that the classification must have one of the following
is assured of being held unconstitutional.” (Citations omitted.) traits: (1) it has absolutely no conceivable legitimate purpose; or (2) it is so unconnected to any
284 conceivable objective, that it is absurd, utterly arbitrary, whimsical, or even perverse. 42
284 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010 40 Id., at pp. 302-302.
It is noteworthy that, in a host of cases, this Court has recognized the applicability of the 41 Id., at p. 303.
foregoing tests. Among them are City of Manila v. Laguio, Jr., Central Bank Employees32 42 Id.
286
Association v. Bangko Sentral ng Pilipinas, and British American Tobacco v. Camacho, et al., in
33 34
all of which the Court applied the minimum level of scrutiny, or the rational basis test. 286 SUPREME COURT REPORTS ANNOTATED
It is important to remember that when this Court resolves an equal protection challenge Biraogo vs. Philippine Truth Commission of 2010
against a legislative or executive act, “[w]e do not inquire whether the [challenged act] is wise or Given the foregoing discussion on this constitutional guarantee of equal protection, we now
desirable xxx. Misguided laws may nevertheless be constitutional. Our task is merely to determine confront the question: Does the mandate of Executive Order No. 1, for the Truth Commission to
whether there is ‘some rationality in the nature of the class singled out.’ ” 35
investigate “graft and corruption during the previous administration,” violate the equal protection
Laws classify in order to achieve objectives, but the classification may not perfectly achieve clause?
the objective. Thus, in Michael M. v. Supreme Court of Sonoma County, the U.S. Supreme Court
36 37
I answer in the negative.
said that the relevant inquiry is not whether the statute is drawn as precisely as it might have been, First, because Executive Order No. 1 passes the rational basis test.
but whether the line chosen [by the legislature] is within constitutional limitations. The equal To repeat, the first level of scrutiny known as the rational basis test, requires only that
protection clause does not require the legislature to enact a statute so broad that it may well be the purpose of the legislative or executive act not be invidious or arbitrary, and that the
incapable of enforcement. 38
act’s classification be reasonably related to the purpose. The classification must be shown to
It is equally significant to bear in mind that when a governmental act draws up a classification, rationally further a legitimate state interest. In its recent equal protection jurisprudence, the Court
43
it actually creates two classes: one consists of the people in the “statutory class” and the other has focused primarily upon (1) the “rationality” of the government’s distinction, and (2) the
consists precisely of those people necessary to achieve the objective of the governmental action “purpose” of that distinction.
(the “objective class”). It could happen that—
39
To the point, we look at the definition of an executive order and the articulated purpose of
_______________
E.O. No. 1.
32 G.R. No. 118127, April 12, 2005, 455 SCRA 308.
An executive order is an act of the President providing for rules in implementation or
33 487 Phil. 531; 446 SCRA 299 (2004). execution of constitutional or statutory powers. From this definition, it can easily be gleaned that
44
34 Supra note 27. E.O. No. 1 is intended to implement a number of constitutional provisions, among others, Article
35 Prince Eric Fuller v. State of Oregon, 417 U.S., 40, 94 S.Ct.2116, 40 L.Ed.2d 577. XI, Section 1. In fact, E.O. No. 1 is prefaced with the principle that “public office is a public trust”
36 Calvin Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
37 450 U.S. 464, 101 S.Ct. 1200, U.S. Cal., 1981, March 23, 1981. and “public officers and employees, who are servants of the people, must at all time be
38 Id. accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency,
39 Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301. act with patriotism and justice, and lead modest lives.”
285
What likewise comes to mind, albeit not articulated therein, is Article II, Section 27, of the
VOL. 637, DECEMBER 7, 2010 285 1987 Constitution, which declares that “[t]he State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and corruption.” In addition,
Biraogo vs. Philippine Truth Commission of 2010
the immediately following section provides:
“The “statutory class” may include “more” than is necessary in the classification to achieve the objective. _______________
If so, the law is “over-inclusive.” The classification may also include “less” than is necessary to achieve the
objective. If so, the statute is “under-inclusive.”
43 Id., at p. 299.
44 Section 2, Book III, Title I, Administrative Code.
287 Commission’s inquiry. The phrase does not really create a separate class; it merely lays down the
VOL. 637, DECEMBER 7, 2010 287 pertinent period of inquiry. The limited period of inquiry, ostensibly (but only initially) excluding
administrations prior to the immediate past administration, is not, per se, an intentional and
Biraogo vs. Philippine Truth Commission of 2010 invidious discrimination anathema to a valid classification. Even granting that the phrase creates a
“[s]ubject to reasonable conditions prescribed by law, the State adopts and implements a class, E.O. No. 1 has not, as yet, been given any room for application, since barely a few days
policy of full public disclosure of all its transactions involving public interest.” There is also
45
from its issuance, it was subjected to a constitutional challenge. We cannot allow the furor
Article XI, Section 1, which sets the standard of conduct of public officers, mandating that generated by this contro-
“[p]ublic officers and employees must, at all times, be accountable to the people, serve them with 289
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead
VOL. 637, DECEMBER 7, 2010 289
modest lives.” There is, therefore, no gainsaying that the enforcement of these provisions, i.e., the
fight against corruption, is a compelling state interest. Biraogo vs. Philippine Truth Commission of 2010
Not only does the Constitution oblige the President to ensure that all laws be faithfully versy over the creation of the Truth Commission to be an excuse to apply the strict scrutiny test,
executed, but he has also taken an oath to preserve and defend the Constitution. In this regard,
46 47
there being no basis for a facial challenge, nor for an “as-applied” challenge.
the President’s current approach to restore public accountability in government service may be To reiterate for emphasis, the determination of the perceived instances of graft and corruption
said to involve a process, starting with the creation of the Truth Commission. that ought to claim priority of investigation is addressed to the executive, as it involves a policy
It is also no secret that various commissions had been established by previous Presidents, each decision. This determination must not to be overthrown simply because there are other instances of
specifically tasked to investigate certain reports and issues in furtherance of state interest. Among graft and corruption which the Truth Commission should also investigate. In any event, Section
49
the latest of such commissions is the Zeñarosa Commission, empowered to investigate the 17 of E.O. No. 1 responds to this objection, when it provides:
existence of private armies, as well as the Maguindanao Massacre. 48 “SECTION 17. Special Provision Concerning Mandate.—If and when in the judgment of the President
Under E.O. No. 1, the President initially classified the investigation of reports of graft and there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
corruption during the previous administration because of his avowed purpose to maintain the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may
be so extended accordingly by way of a supplemental Executive Order.”
public trust that is characteristic of a public office. The first recital (paragraph) of E.O. No. 1 does
It may also be pointed out that E.O. No. 1 does not confer a right nor deprive anyone of the
not depart therefrom. The succeeding recitals (paragraphs) enumerate the causality of maintaining
exercise of his right. There is no right conferred nor liability imposed that would constitute a
public office as a public trust with corruption as “among the most despicable acts of defiance of
burden on fundamental rights so as to justify the application of the strict scrutiny test. A fact-
this principle and notorious violation of this mandate.” Moreover, the President views corruption
finding investigation of certain acts of public officers committed during a specific period hardly
as “an evil and scourge
_______________ merits this Court’s distraction from its regular functions. If we must exercise the power of judicial
review, then we should use the minimum level of scrutiny, the rational basis test.
45 CONSTITUTION, Section 28, Article II. On more than one occasion, this Court denied equal protection challenges to statutes without
46 CONSTITUTION, Section 17, Article VII. evidence of a clear and intentional discrimination. The pervasive theme in these rulings is a claim
50
47CONSTITUTION, Section, 5, Article VII. of
49 See Annex “A” of the Respondent’s Memorandum. _______________
288
288 SUPREME COURT REPORTS ANNOTATED 49 See: Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 59 L. Ed. 628 (1915)
50 See People v. Dumlao, G.R. No. 168198, March 2, 2009, 580 SCRA 409 citing Santos v. People and People v. Dela
Biraogo vs. Philippine Truth Commission of 2010 Piedra.
which seriously affects the political, economic, and social life of a nation.” Thus, the incumbent 290
President has determined that the first phase of his fight against graft and corruption is to have 290 SUPREME COURT REPORTS ANNOTATED
reports thereof during the previous administration investigated. There is then a palpable relation
between the supposed classification and the articulated purpose of the challenged executive order. Biraogo vs. Philippine Truth Commission of 2010
The initial categorization of the issues and reports which are to be the subject of the Truth discriminatory prosecution, not simply a claim of discriminatory investigation. In People v.
Commission’s investigation is the President’s call. Pursuing a system of priorities does not Piedra, we explained:
51
translate to suspect classification resulting in violation of the equal protection guarantee. In his “The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by
itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the
assignment of priorities to address various government concerns, the President, as the Chief
statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the
Executive, may initially limit the focus of his inquiry and investigate issues and reports one at a statute, is not without more a denial of the equal protection of the laws. The unlawful administration by
time. As such, there is actually no differential treatment that can be equated to an invalid officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated
classification. alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or
E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because there is a claimed purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or
inequality on its face or in the manner it is to be applied. On its face, there is actually no class person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be
created. The ponencia harps on three provisions in the executive order directing the conduct of an inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of
investigation into cases of large scale graft and corruption “during the previous administration.” “clear and intentional discrimination.”Appellant has failed to show that, in charging appellant in court, that
there was a "clear and intentional discrimination" on the part of the prosecuting officials.
On that basis, the ponencia concludes that there is invidious discrimination, because the executive
The discretion of who to prosecute depends on the prosecution’s sound assessment whether the evidence
order is focused only on the immediate past administration. before it can justify a reasonable belief that a person has committed an offense. The presumption is that the
I disagree. While the phrase “previous administration” alludes to persons, which may, indeed, prosecuting officers regularly performed their duties, and this presumption can be overcome only by
be a class within the equal protection paradigm, it is important to note that the entire phrase is proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to
“during the previous administration,” which connotes a time frame that limits the scope of the overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission
of a crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is insufficient to support a offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their
conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common co-principals, accomplices and accessories from the private sector, if any, during the previous administration;
sense practicality in sustaining appellant's prosecution. and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure
While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow of justice shall be served without fear or favor.
that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a 3. Section 2
defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement SECTION 2. Powers and Functions.—The Commission, which shall have all the powers of an
of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked
Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section
_______________ 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration and thereafter submit its finding and recommendation
51 G.R. No. 121777, January 24, 2001, 350 SCRA 163. to the President, Congress and the Ombudsman.
291 293
VOL. 637, DECEMBER 7, 2010 291 VOL. 637, DECEMBER 7, 2010 293
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
but no person has the right to demand protection of the law in the commission of a crime. Second, petitioners do not even attempt to overthrow the presumption of constitutionality of
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted
into a defense for others charged with crime, the result would be that the trial of the district attorney for
executive acts. They simply hurl pastiche arguments hoping that at least one will stick.
nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the In any imputed violations of the equal protection clause, the standard of judicial review is
enforcement of law would suffer a complete breakdown.” (emphasis supplied.) always prefaced by a presumption of constitutionality:
Evidently, the abstraction of the President’s power to directly prosecute crimes, hand in hand “As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate
with his duty to faithfully execute the laws, carries with it the lesser power of investigation. To branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored
principle that statute is presumed to be valid. This presumption is rooted in the doctrine of separation of
what extent, then, should this Court exercise its review powers over an act of the President powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each
directing the conduct of a fact-finding investigation that has not even commenced? These are other’s acts. Hence, to doubt is to sustain. The theory is that before the act was done or the law was enacted,
clearly issues of wisdom and policy. Beyond what is presented before this Court, on its face, the earnest studies were made by Congress, or the President, or both, to insure that the Constitution would not be
rest remains within the realm of speculation. breached. This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has
It bears stressing that by tradition, any administration’s blueprint for governance covers a shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other
wide range of priorities. Contrary to the ponencia’s conclusion, such a roadmap for governance words, before a statute or a portion thereof may be declared unconstitutional, it must be shown that the statute
obviously entails a “step by step” process in the President’s system of priorities. or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or
Viewed in this context, the fact that the “previous administration” was mentioned thrice in hesitation in the mind of the Court.” 53
E.O. No. 1, as pointed out by the ponencia, is not “purposeful and intentional discrimination” Clearly, the acts of the President, in the exercise of his or her power, is preliminarily presumed
which violates the equal protection clause. Such a circumstance does not demonstrate a “history of constitutional such that the party challenging the constitutionality thereof (the executive act) on
purposeful unequal treatment, or relegated to such a position of political powerlessness as to equal protection grounds bears the heavy burden of showing that the official act is arbitrary and
command extraordinary protection from the majoritarian political process.” It simply has to be 52 capricious. 54
taken in the light of the President’s discretion to determine his government’s priorities. Indeed, laws or executive orders, must comply with the basic requirements of the
It, therefore, remains unclear how the equal protection clause is violated merely because the Constitution, and as challenged herein, the equal protection of the laws. Nonetheless, only in clear
E.O. does not specify that reports of large scale graft and corruption in other prior administrations cases of invalid classification violative of the equal protection clause will this Court strike down
should like- such laws or official actions.
_______________
_______________
53 Coconut Oil Refiners Association, Inc., et al. v. Hon. Ruben Torres, et al. , 503 Phil. 42, 53-54; 465 SCRA 47, 62-63
52 State v. Hatori, 92 Hawaii 217, 225 [1999] citing State v. Sturch, 82 Hawaii 269, 276 [1996].
(2005).
292
54People v. Dela Piedra, 403 Phil. 31; 350 SCRA 163 (2001).
292 SUPREME COURT REPORTS ANNOTATED 294
Biraogo vs. Philippine Truth Commission of 2010 294 SUPREME COURT REPORTS ANNOTATED
wise be investigated. Notably, the investigation of these reports will not automatically lead to Biraogo vs. Philippine Truth Commission of 2010
prosecution, as E.O. No. 1 only authorizes the investigation of certain reports with an Third, petitioner Members of the House of Representatives are not proper parties to challenge
accompanying recommended action. The following provisions of the executive order are too clear the constitutionality of E.O. No. 1 on equal protection grounds. Petitioner Members of the House
to brook objection: of Representatives cannot take up the lance for the previous administration. Under all three levels
1. 5th Whereas Clause of scrutiny earlier discussed, they are precluded from raising the equal protection of the laws
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale challenge. The perceptive notation by my esteemed colleague, Justice Carpio-Morales, in her
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases
against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith
dissent, comes to life when she observes that petitioner Members of the House of Representatives
and confidence in the Government and in their public servants; cannot vicariously invoke violation of equal protection of the laws. Even assuming E.O. No. 1
2. Section 1 does draw a classification, much less an unreasonable one, petitioner Members of the House of
SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH Representatives, as well as petitioner Biraogo, are not covered by the supposed arbitrary and
COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth unreasonable classification.
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
If we applied both intermediate and strict scrutiny, the nakedness of petitioners’ arguments 1 of the Constitution, defining “judicial power,” which specifically empowers the courts to determine whether
are revealed because they do not claim violation of any of their fundamental rights, nor do they cry or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the
discrimination based on race, gender and illegitimacy. Petitioners’ equal protection clause government, incorporates in the fundamental law the ruling in Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege
challenge likewise dissolves when calibrated against the purpose of E.O. No. 1 and its supposed
of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
classification of the administration which the Truth Commission is tasked to investigate. Nowhere powers underlying our system of government, the Executive is supreme within his own sphere.
in the pleadings of petitioners and their claim of violation of separation of powers and usurpation However, the separation of powers, under the Constitution, is not absolute. What is more, it goes
of legislative power by the executive is it established how such violation or usurpation translates to hand in hand with the system of checks and balances, under which the Executive is supreme, as
violation by E.O. No. 1 of the equal protection of the laws. Thus, no reason exists for the majority regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him
to sustain the challenge of equal protection if none of the petitioners belong to the class, claimed by the Basic Law, and the authority to determine whether or not he has so acted is vested in the
by the majority to be, discriminated against. Judicial Department, which, in this respect, is, in turn, constitutionally supreme.
Finally, I wish to address the proposition contained in Justice Brion’s concurrence—the In the exercise of such authority, the function of the Court is merely to check—not to supplant—
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
creation of the Truth Commission has a reasonable objective, albeit accomplished through
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.”
unreasonable means. According to him, E.O. No. 1 is objectionable on due process grounds as
It is for the foregoing reasons that I vote to DISMISS the petitions. 297
well. He propounds that the “truth-telling” function of the Truth Commission violates due process
because it primes the public to accept the findings of the Commission as actual and gospel VOL. 637, DECEMBER 7, 2010 297
truth.295 Biraogo vs. Philippine Truth Commission of 2010
VOL. 637, DECEMBER 7, 2010 295
Biraogo vs. Philippine Truth Commission of 2010 CONCURRING OPINION
Considering all the foregoing discussion, I must, regrettably, disagree with the suggestion.
Peculiar to our nation is a verbose Constitution. Herein enshrined are motherhood statements— LEONARDO-DE CASTRO, J.:
exhortations for public officers to follow. A quick perusal of E.O. No. 1 bears out a similar I concur in the result of the ponencia of Justice Jose Catral Mendoza and join the separate
intonation. Although the Solicitor General may have made certain declarations, read as admissions opinions of my colleagues, Chief Justice Renato C. Corona, Justice Arturo D. Brion and Justice
by the other Members of this Court, these cannot bind the Supreme Court in interpreting the Jose Portugal Perez. I vote to declare Executive Order No. 1 (EO No. 1) unconstitutional, as a
constitutional grant of executive power. The matter is simply a failure of articulation which cannot well-intentioned, but ill-devised, presidential issuance that transgresses the boundaries of
be used to diminish the power of the executive. On the whole, the erroneous declarations of the executive power and responsibility set by the Constitution and our laws.
Solicitor General, preempting and interpreting the President’s exercise of executive power beyond While I agree with the majority consensus that equal protection is an issue that must be
the articulated purpose of E.O. No. 1, are not equivalent to the wrongful exercise by the President resolved in these consolidated petitions, the weightier legal obstacles to the creation of the
of executive power. Philippine Truth Commission (the Commission) by executive order deserve greater attention in
Let me then close this dissertation with Marcos v. Manglapus which trailblazed and
55 this discussion.
redefined the extent of judicial review on the powers of the co-equal branches of government, in If the Commission created by EO No. 1 were a living person, it would be suffering from the
particular, executive power: most acute identity crisis. Is it an independent body? Is it a mere ad hoc fact-finding body under
“Under the Constitution, judicial power includes the duty to “determine whether or not there has been a the control of the President? And in either case, what legal repercussion does its creation have on
grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or our constitutionally and statutorily developed system for investigating and prosecuting graft and
instrumentality of the Government.” xxx corruption cases?
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial Indeed, from the answers to these questions, it becomes evident that those who have designed
inquiry into areas which the Court, under previous constitutions, would have normally left to the political this constitutional anomaly designated as a “truth commission” have painted themselves into a
departments to decide. But nonetheless there remain issues beyond the Court’s jurisdiction the determination
legal corner with no escape.
which is exclusively for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President’s recognition of a foreign government, no matter If the Commission is an office independent of the President, then its creation by executive fiat is
how premature or improvident such action may appear. We cannot set aside a presidential pardon though it unconstitutional.
may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution The concept of a “truth commission” in other jurisdictions has a primordial characteristic—
under the guise of resolving a dispute brought before us because the power is reserved to the people. independence. As a body created to investigate and report on the “truth” of historical events
_______________ (ordinarily involving State violations of human rights en masse) in a country in transition from an
authoritarian regime to a democratic one or from a conflict situation to one of peace, the freedom
55 G.R. No. 88211, September 15, 1989, 177 SCRA 668, 695-697.
296 of the members of the truth
298
296 SUPREME COURT REPORTS ANNOTATED
298 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
There is nothing in the case before us that precludes our determination thereof on the political question Biraogo vs. Philippine Truth Commission of 2010
doctrine. The deliberation of the Constitutional Commission cited by petitioners show that the framers commission from any form of influence is paramount to ensure the credibility of any findings it
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual may make.
controversies before them. When political questions are involved, the Constitution limits the determination to Thus, “truth commissions” have been described in this wise:
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the “Truth commissions are non-judicial, independent panels of inquiry typically set up to establish the
part of the official whose action is being questioned. If grave abuse is not established, the Court will not facts and context of serious violations of human rights or of international humanitarian law in a country’s past.
substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for Commissions’ members are usually empowered to conduct research, support victims, and propose policy
the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section
recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to continuing authority to reorganize the administrative structure of the Office of the President. For this
discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way purpose, he may take any of the following actions:
for prosecutions and recommend institutional reforms. Most commissions focus on victims’ needs as a path (1) Restructure the internal organization of the Office of the President Proper, including the
toward reconciliation and reducing conflict about what occurred in the past.” (Emphases supplied.
1
immediate Offices, the Presidential Special Assistants/Advisers System and the Common Support System, by
Notably, the Office of the United Nations High Commissioner for Human Rights likewise lists abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
operational independence as one of the core principles in the establishment of a truth commission: (2) Transfer any function under the Office of the President to any other Department or Agency as well
“The legitimacy and public confidence that are essential for a successful truth commission process depend as transfer functions to the Office of the President from other Departments and Agencies; and
on the commission’s ability to carry out its work without political interference. Once established, the (3) Transfer any agency under the Office of the President to any other department or agency as well
commission should operate free of direct influence or control by the Government, including in its as transfer agencies to the Office of the President from other Departments or Agencies.” (Emphases
research and investigations, budgetary decision-making, and in its report and recommendations . Where supplied.)
financial oversight is needed, operational independence should be preserved. Political authorities should give There is nothing in EO No. 1 that indicates that the Commission is a part of the executive
clear signals that the commission will be operating independently.” (Emphases supplied.)
2
department or of the Office of the President Proper. Indeed, it is Justice Carpio who suggests that
With due respect, I disagree with Justice Antonio T. Carpio’s opinion that the naming of the the President may appoint the commissioners of the Philippine Truth Commission as presidential
body created by EO No. 1 as the “Philippine Truth Commission” was a mere attempt to be novel, special assistants or advisers in order that the Commission be subsumed in the Office of the
to depart from the tired and repetitious scheme of naming a commission after President Proper and to clearly place EO No. 1 within the ambit of Section 31. To my mind, the
_______________ fact that the commissioners are proposed to be appointed as presidential advisers is an indication
that the Philippine Truth Commission was initially planned to be independent of the President and
1 From the website of the International Center for Transitional Justice, http://ictj.org/en/tj/138.html, accessed on the subsequent appointment of the commissioners as presidential advisers will be merely curative
December 6, 2010.
2 Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the United Nations High Commissioner for of the patent defect in the creation of the Commission by an Executive Order, as an independent
Human Rights, United Nations, New York and Geneva (2006) at p. 6. body.
299 I agree with Justice Brion that what EO No. 1 sought to accomplish was not a mere
VOL. 637, DECEMBER 7, 2010 299 reorganization under the delegated legislative authority of the President. The creation of the
Philippine Truth Commission did not involve any restructuring of the Office of the President
Biraogo vs. Philippine Truth Commission of 2010 Proper nor the transfer of any function or office from the Office of the
its appointed head/leader or of calling it a “fact-finding” body. Obviously, the title given to the 301
Commission is meant to convey the message that it is independent of the Office of the President. VOL. 637, DECEMBER 7, 2010 301
Those who dissent from the majority position gloss over the fact that EO No. 1 itself expressly
states that the Commission’s members shall “act as an independent collegial body.” During oral 3 Biraogo vs. Philippine Truth Commission of 2010
arguments, the Solicitor General confirmed that what EO No. 1 intended is for the Commission to President to the various executive departments and vice-versa. The Commission is an entirely new
be an independent body over which the President has no power of control. The Solicitor General
4
specie of public office which, as discussed in the concurring opinions, is not exercising inherently
further claimed that one of the functions of the Commission is “truth-telling.” Verily, the creation executive powers or functions but infringing on functions reserved by the Constitution and our
of the Philippine Truth Commission and its naming as such were done as a deliberate reference to laws to other offices.
the tradition of independent truth commissions as they are conceived in international law, albeit If the Commission is under the control and supervision of the President, and not an inde-
adapted to a particular factual situation in this jurisdiction. pendent body, the danger that the Commission
If this Philippine Truth Commission is an office independent of the President and not subject may be used for partisan political ends is real
to the latter’s control and supervision, then the creation of the Commission must be done by and not imagined.
legislative action and not by executive order. It is undisputed that under our constitutional For the sake of argument, let us accept for the moment the propositions of our dissenting
framework only Congress has the power to create public offices and grant to them such functions colleagues that:
and powers as may be necessary to fulfill their purpose. Even in the international sphere, the (a) The Commission is not a separate public office independent of the President;
creation of the more familiar truth commissions has been done by an act of legislature. 5
(b) The Commission is an executive body (or a part of the Office of the President Proper)
Neither can the creation of the Commission be justified as an exercise of the delegated that may be created by the President through an executive order under Section 31; and
legislative authority of the President to reorganize his office and the executive department under (c) The Commission is merely an ad hoc fact-finding body intended to apprise the President
Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987. of facts that will aid him in the fulfillment of his duty to ensure the faithful execution of
_______________ the laws.
If the foregoing statements are true, then what EO No. 1 created is a body under the control
3 Section 1, EO No. 1. and supervision of the President. In fact, if the commissioners are to be considered special advisers
4 TSN, September 28, 2010, pp. 209-215, cited in the seperate Opinion of Justice Brion.
5 To cite a few examples: The South Africa "Truth and Reconciliation C ommission" was established ubder the
to the President, the Commission would be a body that serves at the pleasure of the President.
Promotion of National Unity and Reconciliation Act 34 of 1995 passed by that country's parliament. The "National Unity and Proponents who support the creation of the Commission in the manner provided for under EO No.
Reconciliation Commission" in Rwanda was officially set up in 1999 by an act of the Transitional National Assembly. 1 should drop all arguments regarding the purported independence and objectivity of the
300 proceedings before it.
300 SUPREME COURT REPORTS ANNOTATED Indeed, EO No. 1 itself is replete with provisions that indicate that the existence and
operations of the Commission will be dependent on the Office of the President. Its budget shall be
Biraogo vs. Philippine Truth Commission of 2010
provided by the Office
The acts of reorganization authorized under said provision are limited to the following: 302
“SEC. 31. Continuing Authority of the President to Reorganize his Office.—The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have 302 SUPREME COURT REPORTS ANNOTATED
10 345 Phil. 962; 280 SCRA 713 (1997).
Biraogo vs. Philippine Truth Commission of 2010 11 Id., at p. 974; 724-725.
of the President and therefore it has no fiscal autonomy. The reports of the Commission shall be
6 12 352 Phil. 888; 290 SCRA 279 (1998).
304
published upon the directive of the President. Further, if we follow the legal premises of our
7
dissenting colleagues to their logical conclusion, then the Commission as a body created by 304 SUPREME COURT REPORTS ANNOTATED
executive order may likewise be abolished (if it is part of the Presidential Special
Biraogo vs. Philippine Truth Commission of 2010
Assistants/Advisers System of the Office of the President Proper) or restructured by executive
“The power of the President over administrative disciplinary cases against elective local officials is
order. EO No. 1 may be amended, modified, and repealed all by executive order. More derived from his power of general supervision over local governments. Section 4, Article X of the 1987
importantly, if the Commission is subject to the power of control of the President, he may reverse, Constitution provides:
revise or modify the actions of the Commission or even substitute his own decision for that of the Sec. 4. The President of the Philippines shall exercise general supervision over local governments.
Commission. Provinces with respect to component cities and municipalities, and cities and municipalities with
Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically respect to component barangays shall ensure that the acts of their component units are within the
“neutral” so as to assure a completely impartial conduct of its purported fact-finding mandate. I scope of their prescribed powers and functions.”
further concur with Chief Justice Corona that attempts to “sugar coat” the Philippine Truth The power of supervision means "overseeing or the authority of an officer to see that the subordinate
officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may
Commission’s functions as “harmless” deserve no credence.
take such action or step as prescribed by law to make them perform their duties. ThePresident’s power of
The purported functions to be served by the Commission, as the concurring opinions viv- general supervision means no more than the power of ensuring that laws are faithfully executed, or that
idly illustrate, will subvert the functions of the Ombudsman and the constitutional and statu- subordinate officers act within the law.Supervision is not incompatible with discipline. And the power to
tory developed criminal justice system. discipline and ensure that the laws be faithfully executed must be construed to authorize the President to
First, it is apparent on the face of EO No. 1 that in general “it is primarily tasked to conduct a order an investigation of the act or conduct of local officials when in his opinion the good of the public
thorough fact-finding investigation of reported cases of graft and corruption [of such scale and service so requires.” (Emphases ours.)
13
magnitude that shock and offend the moral and ethical sensibilities of the people], involving third Still on the same point, Department of Health v. Camposano likewise discussed that:
14
level public officers and higher, their co-principals, accomplices and accessories from the private “The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be
sector, if any, during the previous administration.” I agree with the Chief Justice’s proposition that
8 doubted. Having been constitutionally granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that all executive officials and employees
there is no law authorizing the President to create a
_______________
faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such
validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or
that the former used the offices and facilities of the latter in conducting the inquiry.” (Emphases supplied.)
15
6 Section 11 of EO No. 1. _______________
7 Section 15 of EO No. 1.
8 Section 2, EO No. 1 with phrase in brackets supplied from Section 1.
303 13 Id., at pp. 913-914; pp. 301-302.
14 496 Phil. 886; 457 SCRA 438 (2005).
VOL. 637, DECEMBER 7, 2010 303 15 Id., at pp. 896-897; p. 450.
305
Biraogo vs. Philippine Truth Commission of 2010
body to investigate persons outside the executive department in relation to graft and corruption VOL. 637, DECEMBER 7, 2010 305
cases, concurrently with the Office of the Ombudsman which has such express legal authority. Biraogo vs. Philippine Truth Commission of 2010
Indeed, even in jurisprudence, the instances when the power of the President to investigate and Second, the functions of the Commission, although ostensibly only recommendatory, are
create ad hoc committees for that purpose were upheld have been usually related to his power of basically prosecutorial in nature and not confined to objective fact finding. EO No. 1 empowers
control and discipline over his subordinates or his power of supervision over local government the Commission to, among others:
units. “SECTION 2. x x x.
In Ganzon v. Kayanan, a case involving the investigation of a mayor, we held that the power
9
xxxx
of the President to remove any official in the government service under the Revised (b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
Administrative Code and his constitutional power of supervision over local governments were the corruption which it has chosen to investigate, and to this end require any agency, official or employee of the
bases for the power of the President to order an investigation of any action or the conduct of any Executive Branch, including government-owned or controlled corporations, to produce documents, books,
records and other papers;
person in the government service, and to designate the official committee, or person by whom
xxxx
such investigation shall be conducted. (g) Turn over from time to time, for expeditious prosecution to the appropriate prosecutorial
In Larin v. Executive Secretary, where the petitioner subject of the investigation was an
10
authorities, by means of a special or interim report and recommendation, all evidence on corruption of public
Assistant Commissioner in the Bureau of Internal Revenue, we held that: officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the
“Being a presidential appointee, he comes under the direct disciplining authority of the President. This is course of its investigation the Commission finds that there is reasonable ground to believe that they are liable
in line with the well settled principle that the “power to remove is inherent in the power to appoint” conferred for graft and corruption under pertinent applicable laws.” (Emphasis ours.)
to the President by Section 16, Article VII of the Constitution. Thus, it is ineluctably clear that I agree with Justice Perez that the aforementioned functions run counter to the very purpose
Memorandum Order No. 164, which created a committee to investigate the administrative charge for the creation of the Office of the Ombudsman, to constitutionalize a politically independent
against petitioner, was issued pursuant to the power of removal of the President. x x x. (Emphases11
office responsible for public accountability as a response to the negative experience with
supplied.)
presidential commissions. His discussion on the constitutional history of the Office of the
In a similar vein, it was ruled in Joson v. Executive Secretary, that: 12
_______________ Ombudsman and the jurisprudential bases for its primary jurisdiction over cases cognizable by the
Sandiganbayan (i.e., specific offenses, including graft and corruption, committed by public
9 104 Phil. 483 (1958). officials as provided for in Presidential Decree No. 1606, as amended) is apropos indeed.
I likewise find compelling Justice Brion’s presentation regarding the Commission’s “truth- discerning, will be able to determine if we voted on points of law and if any one of us was merely
telling” function’s potential implications on due process rights and the right to a fair trial and the pandering to the appointing power.
likelihood of duplication of, or interference with, the investigatory or adjudicatory functions of the Needless to say, this Court will fully support the present administration’s initiatives on
Ombudsman and the courts. I need not repeat Justice Brion’s comprehensive and lucid discussion transparency and accountability if implemented within the bounds of the Constitution and the laws
here. However, I do find that the President professes he wishes to faithfully execute. Unfortunately, in this instance, EO No.
306 1 fails this ultimate legal litmus test.308
306 SUPREME COURT REPORTS ANNOTATED 308 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
it fitting to echo here former Chief Justice Claudio Teehankee, Sr.’s dissenting opinion SEPARATE OPINION
in Evangelista v.Jarencio, the oft-cited authority for the President’s power to investigate, where
16
BRION, J.:
he stated that: I concur, through this Separate Opinion, with the conclusion that the Executive Order No. 1
“The thrust of all this is that the State with its overwhelming and vast powers and resources can and (EO 1 or EO) creating the Truth Commission is fatally defective and thus should be struck down.
must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the I base my conclusion:
constitutional guarantees of the individual’s right to privacy, silence and due process and against self-
incrimination and unreasonable search and seizure. x x x.” (Emphases ours.)
17
(1) On due process grounds;
The constitutional mandate for public accountability and the present administration’s noble (2) On the unconstitutional impact of the EO on the established legal framework of the
purpose to curb graft and corruption simply cannot justify trivializing individual rights equally criminal justice system;
protected under the Constitution. This Court cannot place its stamp of approval on executive (3) On the violation of the rule on separation of powers;
action that is constitutionally abhorrent even if for a laudable objective, and even if done by a (4) On the violations of the personal rights of the investigated persons and their
President who has the support of popular opinion on his side. For the decisions of the Court to constitutional right to a fair trial; and 1
have value as precedent, we cannot decide cases on the basis of personalities nor on something as (5) On the violation of the equal protection clause.
fickle and fleeting as public sentiment. It is worth repeating that our duty as a Court is to uphold Two inter-related features of the EO primarily contribute to the resulting violations.
the rule of law and not the rule of men. The first is the use of the title Truth Commission, which, as used in the EO, is fraught with hidden
Concluding Statement and prejudicial implications beyond the seemingly simple truth that purportedly characterizes the
Section 1, Article VIII of the 1987 Constitution provides: Commission. The second relates to the truth-telling
_______________
“Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights 1 CONSTITUTION, Article III, Section 1 and 14, which states:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse denied the equal protection of the laws.
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.
Government.” (2) In all criminal prosecutions, the accused shall be presumed 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
16 160-A Phil. 753; 68 SCRA 99 (1975). of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
17 Id., at p. 776; p. 116. absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.
307 309
VOL. 637, DECEMBER 7, 2010 307 VOL. 637, DECEMBER 7, 2010 309
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
Undeniably, from the foregoing, judicial review is not only a power but a constitutional function of the Truth Commission under the terms of the EO. Together, these features radiate
duty of the courts. The framers of our Constitution found an imperative need to provide for an outwards with prejudicial effects, resulting in the above violations.
expanded scope of review in favor of the “non-political” courts as a vital check against possible The full disclosure of the truth about irregular and criminal government activities, particularly
abuses by the political branches of government. For this reason, I cannot subscribe to Justice about graft and corruption, is a very worthy ideal that those in government must fully support; the
Maria Lourdes Sereno’s view that the Court’s exercise of its review power in this instance is ideal cannot be disputed, sidetracked or much less denied. It is a matter that the Constitution itself
tantamount to supplanting the will of the electorate. A philosophical view that the exercise of such is deeply concerned about as shown by Article XI on Accountability of Public Officers.
power by the Judiciary may from a certain perspective be “undemocratic” is not legal authority for This concern, however, co-exists with many others and is not the be-all and end-all of the
this Court to abdicate its role and duty under the Constitution. It also ignores the fact that it is the Charter. The means and manner of addressing this constitutional concern, for example, rate very
people by the ratification of the Constitution who has given this power and duty of review to the highly in the hierarchy of constitutional values, particularly their effect on the structure and
Judiciary. operations of government and the rights of third parties.
The insinuations that the members of the majority are impelled by improper motives, being The working of government is based on a well-laid and purposeful constitutional plan,
countermajoritarian and allowing graft and corruption to proliferate with impunity are utterly essentially based on the doctrine of separation of powers, that can only be altered by the ultimate
baseless. Not only are these sort of ad hominem attacks and populist appeals to emotion fallacious, sovereign – the people. Short of this sovereign action, not one of the departments of government –
they are essentially non-legal arguments that have no place in a debate regarding constitutionality. neither the Executive, nor the Legislature, and nor the Judiciary – can modify this constitutional
At the end of the day, Justices of this Court must vote according to their conscience and their plan, whether directly or indirectly.
honest belief of what the law is in a particular case. That is what gives us courage to stand by our Concern for the individual is another overriding constitutional value. Significantly, the
actions even in the face of the harshest criticism. Those who read our opinions, if they are truly Constitution does not distinguish between the guilty and the innocent in its coverage and grant of
rights and guarantees. In fact, it has very specific guarantees for all accused based on its general be published. Witnesses or resource persons are given the right to counsel, as well as security
14 15
concern for every Filipino’s life, liberty, security and property. The Constituion, too, ensures that protection to be provided by government police agencies. 16
persons of the same class, whether natural or juridical, are treated equally, and that the government The Rules of Procedure of the Philippine Truth Commission of 2010 (Rules), promulgated
does not discriminate in its actions. pursuant to Section 2(j) of EO 1, further flesh out the operations of the Commission. Section 4 17
All these, this Court must zealously guard. We in the Court cannot ever allow a disturbance of assures that “due process shall at all times be observed in the application of the
the equilibrium of the constitutional structure in favour of one or the other branch, especially in _______________
favour of the Judiciary. Much less can we pre-judge any potential accused, even in the name of
truth-telling, retribution, national healing or social 6 EO 1, Section 1, par. 2.
7 Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5.
310
8 Id., Sections 12, 13.
310 SUPREME COURT REPORTS ANNOTATED 9 Id., Section 11.
10 Id., Section 2 (b).
Biraogo vs. Philippine Truth Commission of 2010 11 Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6.
justice. The justice that the Constitution envisions is largely expressed and embodied in the 12 Id., Section 6.
13 Id., Section 2.
Constitution itself and this concept of justice, more than anything else, the Judiciary must serve 14 Id., Section 15.
and satisfy. In doing this, the Judiciary must stand as a neutral and apolitical judge and cannot be 15 Id., Section 7.
an advocate other than for the primacy of the Constitution. 16 Id., Section 8.
17 Resolution 001, “Rules of Procedure of the Philippine Truth Commission,” September 20, 2010.
These, in brief, reflect the underlying reasons for the cited grounds for the invalidity of E.O. 1. 312
312 SUPREME COURT REPORTS ANNOTATED
I. The EO And The “Truth” Commission.
Biraogo vs. Philippine Truth Commission of 2010
A. The Terms of the EO and the Rules; Rules.” It provides for formal complaints that may be filed before it, and that after evaluation, the
18
Nature of the “Truth Commission” parties who appear responsible under the complaints shall be provided copies of the complaints
The Philippine Truth Commission (Truth Commission or Commission) is a body “created” by and supporting documents, and be required to comment on or file counter-affidavits within ten
the President of the Philippines by way of an Executive Order (EO 1 or EO) entitled “Executive (10) days. The Rules declare that the Commission is not bound by the technical rules of
19
Order No. 1, Creating the Philippine Truth Commission of 2010.” The Truth Commission’s evidence, reiterate the protection afforded to witnesses provided under the EO, and confirm that
20 21
express and avowed purpose is— 2
hearings shall be open to the public. 22
“to seek and find the truth on, and toward this end, investigate reports of graft and corruption of such B. The Title “Truth Commission” and Due Process
scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by Both the parties’ memoranda dwelt on the origins and nature of the term “Truth Commission,”
public officials and employees, their co-principals, accomplices and accessories from the private sector, if with both using their reading of the term’s history and usages to support their respective
any, during the previous administration, and thereafter recommend the appropriate action to be taken positions. What comes across in available literature is that no nation has a lock on the meaning of
23
thereon to ensure that the full measure of justice shall be served without fear or favor.”
the term; there is only a long line of practice that attaches the term to a body established upon
Under these terms and by the Solicitor General’s admissions and representations, the Truth
restoration of democracy after a period of massive violence and repression. The term truth 24
Commission has three basic functions, namely, fact-finding, policy recommendation, and truth-
3 4
commission has been specifically used as a title for the body investigating the human rights
telling, all
5
_______________ violations that attended past violence and repression,
25 26
_______________
2 Executive Order No. 1, “Creating the Philippine Truth Commission of 2010,” Section 1.
3 TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75, 123-126. 18 Rules, Rule 4, Section 1(b).
4 Id., at p. 182. 19 Id., Rule 4, Section 1(b), paragraph 2.
5 Id., at pp. 58-60. 20 Rules, Rule 4, Section 2.
311 21 EO 1, Section 8.
22 Rules, Rule 5.
VOL. 637, DECEMBER 7, 2010 311 23 Petitioner Lagman’s Petition for Certiorari, Rollo, pp. 34-43; Respondents’ Memorandum, id., at pp. 322-323.
24 See Mark Freeman, Truth Commissions and Procedural Fairness(2006).
Biraogo vs. Philippine Truth Commission of 2010 25 Freeman, supra note 24 at pp. 12-13 citing Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth
with respect to reported massive graft and corruption committed by officials and employees of the Commissions (2nd ed., 2004), p. 14.
26 Freeman, supra note 24 at 14 [Freeman points out that Hayner omitted the element in the definition that “truth
previous administration. commissions focus on severe acts of violence or repression.” He stated further that “[s]uch acts may take many forms, ranging
The EO defines the Truth Commission as an “independent collegial body” with a Chairman from arbitrary detention to torture to enforced disappearance to summary execution.”
and four members; and provides for the staff, facilities and budgetary support it can rely on, all
6 7 8 9 313
of which are sourced from or coursed through the Office of the President. It specifically empowers VOL. 637, DECEMBER 7, 2010 313
the Truth Commission to “collect, receive, review and evaluate evidence.” It defines how the 10
Commission will operate and how its proceedings will be conducted. Notably, its hearings shall
11 Biraogo vs. Philippine Truth Commission of 2010
be open to the public, except only when they are held in executive sessions for reasons of national and in some instances for a body working for reconciliation in society. 27
security, public safety or when demanded by witnesses’ personal security concerns. It is tasked to 12 The traditional circumstances that give rise to the use of a truth commission along the lines of
submit its findings and recommendations on graft and corruption to the President, Congress and established international practice are not present in the Philippine setting. The Philippines has a
the Ombudsman, and submit special interim reports and a comprehensive final report which shall
13 new democratically-elected President, whose election has been fully accepted without protest by
all presidential candidates and by the people. A peaceful transition of administration took place,
where Congress harmoniously convened, with the past President now sitting as a member of the prism of its title and its truth-telling function—is considered a means of achieving the objective of
House of Representatives. While charges of human rights violations may have been lodged against fighting graft and corruption, it would be invalid if it unreasonably or oppressively affects parties,
the government during the past administration, these charges are not those addressed by EO whether they be government or private.
1. Rather, EO 1 focuses entirely on graft and corruption. Significantly, reconciliation does not
28
C. The Commission’s Functions
appear to be a goal—either in the EO, in the pleadings filed by the parties, or in the oral As worded, the EO establishes the Commission as an investigative body tasked to act on cases
arguments—thus, removing a justification for any massive information campaign aimed at healing of graft and corruption committed during the previous administration. This is an area that the law
divisions that may exist in the nation. has assigned to the primary jurisdiction of the Ombudsman to investigate and prosecute. If 32
As a matter of law, that a body called a Truth Commission is tasked to investigate past probable cause exists, these same cases fall under the exclusive jurisdiction of the
instances of graft and corruption would not per se be an irregularity that should cause its Sandiganbayan whose decisions are
33
invalidation. The use of the word “truth” is not ordinarily a ground for objection. Not even the _______________
Constitution itself defines or tells us what truth is; the Charter, fleshed out by the statutes, can only
outline the process of arriving at the truth. After the Constitution and the statutes, however, have are necessary for the protection of such interests. (Barbier vs. Connolly, 113 U.S. 27; Kidd vs. Pearson, 128 U.S. 1.) To justify
the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally,
laid down the prescribed procedure, then that procedure must be observed in securing the truth. as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably
Any deviation could be a violation depending on the attendant circumstances. necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under
_______________ the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is
27 Theresa Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little? Too Late? 15 not final or conclusive, but is subject to the supervision of the court.
Ariz. J. Int'l & Comp. L. 833, 843-844 (1998). See also Priscilla Hayner, Fifteen Truth Commissions 1974 to 1994: A
Comparative Study, 16 HUM. RTS. Q. 597, 600, 607 (1994). 32 Republic Act No. 6770, Section 15, par. 1, November 17, 1989, “An Act Providing For the Functional and Structural
28 An attempt has been made during the oral arguments to characterize massive graft and corruption as a violation of Organization of the Office of the Ombudsman, and For Other Purposes,” See also Ombudsman v. Enoc, G.R. Nos. 145957-68,
human rights, but this characterization does not appear to be based on the settled definition of human rights (TSN, Sept. 7, January 25, 2002, 374 SCRA 691. See also Ombudsman v. Breva, G.R. No. 145938, February 10, 2006, 482 SCRA 182.
2010, p. 83-84). 33 Presidential Decree No. 1606, December 10, 1978, “Revising Presidential Decree No. 1486, Creating a Special Court
314 to be known as Sandiganbayan and for other purposes,” as amended by Republic Act No. 8249, February 5, 1997, “An Act
Further Defining the Jurisdiction of the Sandiganbayan, Amending For The Purpose Presidential Decree No. 1606, As
314 SUPREME COURT REPORTS ANNOTATED Amended, Providing Funds Therefor, And For Other Purposes.” See also PCGG v. Hon. Emmanuel G. Peña, etc., et al., G.R.
No. L-77663, April 12, 1988, 159 SCRA 556.
Biraogo vs. Philippine Truth Commission of 2010 316
No international law can also prevent a sovereign country from using the term as the title of a
body tasked to investigate graft and corruption affecting its citizens within its borders. At the same 316 SUPREME COURT REPORTS ANNOTATED
time, international law cannot be invoked as a source of legitimacy for the use of the title when it Biraogo vs. Philippine Truth Commission of 2010
is not based on the internationally-recognized conditions of its use. appealable to the Supreme Court. 34
No local law likewise specifically prohibits or regulates the use of the term “truth Whether a Commission can engage in fact-finding, whose input can aid the President in policy
commission.” Apart from the procedural “deviation” above adverted to, what may render the use formulation, is not a disputed issue. What is actively disputed is whether the Truth Commission
of the term legally objectionable is the standard of reason, applicable to all government actions, as shall undertake its tasks in a purely investigative fact-finding capacity or in the exercise of quasi-
applied to the attendant circumstances surrounding the use in the EO of the title Truth judicial powers. This issue impacts on the level of fairness that should be observed (and the
Commission. The use of this standard is unavoidable since the title Truth Commission is used in a
29
standard of reason that should apply), and thus carries due process implications. Equally important
public instrument that defines the Commission’s functions and affects both the government and to the issue of due process are the function of truth-telling and the effects of this function when
private parties. The Commission’s work affects third parties as it is specifically tasked to
30
considered with the title “Truth Commission.”
investigate and prosecute officials and employees of the previous administration. This line of work C.1. The Truth-Telling Function
effectively relates it to the processes of the criminal justice system. The Solicitor General fully verbalized the truth-telling function when he declared that it is a
In the simplest due process terms, the EO—as a governmental action—must have means of letting the people know the truth in the allegations of graft and corruption against the
a reasonable objective and must use equally reasonable means to achieve this objective. When 31
past administration. The Solicitor General, in response to the questions of J. Sereno, said:
35
the EO—viewed from the Justice Sereno: . . .I go now to the truth-telling part of the commission. In other words, can you describe to us
_______________ the truth telling and truth seeking part of the commission?
Solicitor General Cadiz: Your Honor, of course our people will find closure if aside from the truth finding of
29 See Villanueva v. Court of Appeals, G.R. No. 110921, January 28, 1998, 285 SCRA 180; Fabia v. Intermediate facts, those who have been found by the body to have committed graft and corruption will be
Appellate Court, G.R. No. L-66101 November 21, 1984, 133 SCRA 364; Lacoste v. Hernandez, G.R. No. L-63796-97, May prosecuted by the Ombudsman. It is. . .Your Honor, there is a crime committed and therefore punishment
21, 1984, 129 SCRA 373; Lu v. Yorkshire Insurance, 43 Phil. 633 (1922); People v. Macasinag, G.R. No. L-18779, August 18, must be meted out. However, Your Honor, truth-telling part, the mere narration of facts, the telling of the
1922, 43 Phil. 674 (1922); Correa v. Mateo, 55 Phil. 79 (1930); People v. Macasinag, 43 Phil. 674 (1922). truth, will likewise I think to a certain degree, satisfy our people.
30 See Joaquin G. Bernas, S.J. The 1987 Constitution Of The Republic Of The Philippines: A Commentary (2009 ed.), p. 34 Id. at pp. 561-562, citing Presidential Decree No. 1606, Section 7, which provides that “decisions and final orders [of the Sandiganbayan]
118. shall be subject of review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules of Court.”
31 See Id., at p. 119, citing U.S. v. Toribio, 15 Phil. 85 (1910), which quoted Lawton v. Steel: 35 TSN, September 28, 2010, pp. 58-60, 147.
[T]he State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily 317
vested in the legislature to determine, not only what the interests of the public require, but what measures
315 VOL. 637, DECEMBER 7, 2010 317
VOL. 637, DECEMBER 7, 2010 315 Biraogo vs. Philippine Truth Commission of 2010
Justice Sereno: Are you saying therefore the truth-telling, that the narration like the other narrations in the
Biraogo vs. Philippine Truth Commission of 2010 past commissions has an independent value apart from the recommendations to indict which particular
persons?
Solicitor General Cadiz: I agree Your Honor. And it is certainly, as the EO says, it’s a Truth Commission the
narration of facts by the members of the Commission, I think, will be appreciated by the people Biraogo vs. Philippine Truth Commission of 2010
independent of the indictment that is expected likewise. [Emphasis supplied.] standards of fairness must be observed. In the investigative function, the standard depends on
41
His statement is justified by the EO’s mandate to seek and find the truth under Section 1; the whether the tasks performed are purely investigative or are quasi-judicial, but this distinction is not
opening to the public of the hearing and proceedings under Section 6; and the publication of the very relevant to the discussions of this opinion. In truth-telling, on the other hand, the level of the
Commission’s final report under Section 15 of the EO. 36 required fairness would depend on the objective of this function and the level of finality attained
C.2. Legal Implications of Truth-Telling with respect to this objective. 42
Truth-telling, as its name connotes, does not exist solely for the sake of “truth”; the “telling” In the first forum, no element of finality characterizes the Commission’s reports since—from
side is equally important as the Solicitor General impressed upon this Court during the oral the perspective of the EO’s express purposes of prosecution and policy formulation—they are
arguments. Thus, to achieve its objectives, truth-telling needs an audience to whom the truth
37 merely recommendatory and are submitted for the President’s, Congress’ and the Ombudsman’s
shall be told. This requirement opens up the reality that EO 1 really speaks in two forums.
38 consideration. Both the President and Congress may reject the reports for purposes of their
The first forum, as expressly provided in the EO, is composed of the persons to be respective policy formulation activities; the Ombudsman may likewise theoretically and nominally
investigated and the recipients of the Commission’s reports who are expected to act on these reject them (although with possibly disastrous results as discussed below).
reports, specifically, the President (who needs investigative and policy formulation assistance); In the second forum, a very high element of finalityexists as the information communicated
Congress (who may use the Commission’s information for its through the hearings, proceedings and the reports are directly “told” the people as the “truth” of
_______________ the graft and corruption that transpired during the previous administration. In other words, the
Commission’s outputs are already the end products, with the people as the direct consumers. In
36 The Dissent of J. Sereno itself echoes and reechoes with the truth-telling intent of the Truth Commission and even this sense, the element of fairness that must exist in the second forum must approximate the rights
speaks of “the need to shape collective memory as a way for the public to confront injustice and move towards a more just of an accused in a criminal trial as the consequence of truth-telling is no less than a final
society” (p. 27, dissent). It proceeds to claim that this Separate Opinion “eliminates the vital role of the Filipino people in
constructing collective memories of injustices as basis for redress.” J. Sereno’s Dissenting Opinion, pp. 27-28. “conviction” before the bar of public opinion based on the “truth” the Commission “finds.” Thus,
37 TSN, September 28, 2010, pp. 146-147. if the Commission is to observe the rights of due process as Rule 1, Section 4 of its Rules
38 See e.g. Bilbija, et al., eds., The Art of Truth Telling About Authoritarian Rule (2005), p. 14. guarantees, then the right of investigated persons to cross-examine witnesses against them, the 43
318
right against self-incrimination, and all the rights attendant to a fair trial must be
44
318 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010 41 See Freeman, supra note 24, pp. 88-155.
own legislative purposes); and the Ombudsman as the investigative and prosecutory constitutional 42 See Freeman, id., at p. 88.
office to which, under the EO, the Commission must forward its interim and final reports. The
39 43 CONSTITUTION, Article III, Section 14 (2), supra note 1.
44 CONSTITUTION, Article III, Section 17.
Commission’s hearings and proceedings are important venues for this forum, as this is where the 320
investigated persons can defend themselves against the accusations made. The element of policy
formulation, on the other hand, is present through the Commission’s interim and final reports from 320 SUPREME COURT REPORTS ANNOTATED
which appropriate remedial policy measures can be distilled. The element of truth-telling—in the Biraogo vs. Philippine Truth Commission of 2010
sense of communicating to the public the developments as they happen and through observed. The rights of persons under investigation under Section 12 of the Bill of Rights of the
the interim and final reports—exists but only plays a secondary role, as the public is not a direct Constitution must likewise be respected.
45
participant in this forum.
The second forum—not as explicitly defined as the first but which must implicitly and
II. The EO’s Legal Infirmities.
necessarily be there—is that shared with the general public as the audience to whom the President
(through the EO and the Truth Commission) wishes to tell the story of the allegedly massive graft
and corruption during the previous administration.This is the distinct domain of truth-telling as A. The Title “Truth Commission” + The Truth-Telling Function = Violation Of Due Process
the Solicitor General himself impliedly admits in his quoted arguments. Section 6 of the EO fully
40 A.1. The Impact of the Commission’s “Truth”
supports truth-telling, as it opens up the Commission’s hearings or proceedings to the public (and The first problem of the EO is its use of the title “Truth Commission” and its objective of
hence, to the mass media), subject only to an executive session “where matters of national security truth-telling; these assume that what the Truth Commission speaks of is the “truth” because of its
or public safety are involved or when the personal safety of the witness warrants the holding of title and of its truth-telling function; thus, anything other than what the Commission reports would
such executive or closed-door session hearing.” either be a distortion of the truth, or may even be an “untruth.”
These separate forums are not distinguished merely for purposes of academic study; they are This problem surfaced during the oral arguments on queries about the effect of the title “Truth
there, plainly from the terms of the EO, and carry clear distinctions from which separate legal Commission” on the authority of the duly constituted tribunals that may thereafter rule on the
consequences arise. matters that the Commission shall report on. Since the Commission’s report will constitute the
46
Both forums involve third parties, either as persons to be investigated or as part of the general “truth,” any subsequent contrary finding by the Ombudsman would necessarily be suspect as an
47
public (in whose behalf criminal complaints are nominally brought and who are the recipients of “untruth;” it is up then to the Ombudsman to convince the public that its findings are true.
the Commission’s truth-telling communications) so that, at the very least, To appreciate the extent of this problem, it must be considered that the hearings or
_______________ proceedings, where charges of graft and corruption shall be aired, shall be open to the public. The
Commission’s report shall likewise be published. These features cannot but mean full media
48
39 CONSTITUTION, Article XI, Sections 12 and 13. coverage.
40 Supra note 35. Based on common and usual Philippine experience with its very active media exemplified by
319 the recent taking of Chinese and Cana-
VOL. 637, DECEMBER 7, 2010 319 _______________
45 CONSTITUTIOn, Article III, Section 12. extended public debate heavily influenced by the Commission’s “truthful” conclusions. Thus,
46 TSN, September 28, 2010, pp. 149-151.
47 The Commission is bound to furnish the Ombudsman a copy of its partial and final reports for the Ombudsman’s
when and if the Ombudsman finds the evidence from the report unconvincing or below the level
consideration and action, under Sec. 2 of the EO. that probable cause requires, it stands to incur the public ire, as the public shall have by then been
48 EO 1, Section 16. fully informed of the “facts” and the “truth” in the Commission’s report that the Ombudsman shall
321 appear to have disregarded.
VOL. 637, DECEMBER 7, 2010 321 This consequence does not seem to be a serious concern for the framers and defenders of the
EO, as the Commission’s truth-telling function by then would have been exercised and fully
Biraogo vs. Philippine Truth Commission of 2010
served. In the Solicitor General’s words “Your Honor, there is crime committed and therefore
dian hostages at the Luneta, a full opening to the media of the Commission’s hearings, punishment must be meted out. However, your Honor, truth-telling part, the mere narration of
proceedings and reports means a veritable media feast that, in the case of the Truth Commission, facts, the telling of the truth, will likewise I think to a certain degree satisfy our people.” On the
shall occur on small but detailed daily doses, from the naming of all the persons under question
investigation all the way up to the Commission’s final report. By the time the Commission report 323
is issued, or even before then, the public shall have been saturated with the details of the charges
VOL. 637, DECEMBER 7, 2010 323
made through the publicly-aired written and testimonial submissions of witnesses, variously
viewed from the vantage points of straight reporting, three-minute TV news clips, or the slants Biraogo vs. Philippine Truth Commission of 2010
and personal views of media opinion writers and extended TV coverage. All these are highlighted of whether truth-telling has an independent value separate from the indictment—he said: “And it is
as the power of the media and the environment that it creates can never be underestimated. certainly, as the EO says, it’s a Truth Commission the narration of facts by the members of the
Hearing the same “truth” on radio and television and seeing it in print often enough can Commission, I think, will be appreciated by the people independent of the indictment that is
affect the way of thinking and the perception, even of those who are determined, in their expected likewise.” 52
conscious minds, to avoid bias. 49
In other words, faced with the findings of the Commission, the Ombudsman who enters a
As expected, this is a view that those supporting the validity of the EO either dismisses as an contrary ruling effectively carries the burden of proving that its findings, not those of the
argument that merely relies on a replaceable name, or with more general argument couched under
50
Commission, are correct. To say the least, this resulting reversal of roles is legally strange since
the question “Who Fears the Truth.” 51
the Ombudsman is the body officially established and designated by the Constitution to investigate
The dismissive argument, to be sure, would have been meritorious if only the name Truth graft and other crimes committed by public officers, while the Commission is a mere “creation” of
Commission had not been supported by the Commission’s truth-telling function; or, if the name the Executive Order. The Ombudsman, too, by statutory mandate has primary jurisdiction over the
“Truth Commission” were a uniquely Filipino appellation that does not carry an established investigation and prosecution of graft and corruption, while the Commission’s role is merely
meaning under international practice and usage. Even if it were to be claimed that the EO’s use of recommendatory.
the name is unique because the Philippines’ version of the Truth Commission addresses past graft Thus, what the EO patently expresses as a primary role for the Commission is negated in
and corruption and not violence and human rights violations as in other countries, the name Truth actual application by the title Truth Commission and its truth-telling function. Expressed in
Commission, however, cannot simply terms of the forums the EO spawned, the EO’s principal intent to use the Truth Commission as
_______________ a second forum instrument is unmasked; the first forum—the officially sanctioned forum for the
prosecution of crimes—becomes merely a convenient cover for the second forum.
49 See generally Malcolm Gladwell, Blink (2005); see also, Cardozo, The Nature of the Judicial Process, pp. 167-180,
and as quoted elsewhere in this Separate Opinion, infra note 55.
A.3. Truth-telling and the Courts
50 J. Carpio’s Dissenting Opinion, pp. 19-211. The effects of truth-telling could go beyond those that affect the Ombudsman. If the
51 J. Sereno’s Dissenting Opinion, pp. 25- 29. Ombudsman concurs with the Commission and brings the recommended graft and corruption
322 charges before the Sandiganbayan—a constitutionally-established court—this court itself would be
322 SUPREME COURT REPORTS ANNOTATED subject to the same truth-telling challenge if it decides to acquit the accused. For that matter, even
this Court, will be perceived to have sided with an “untruth” when and if it goes against the
Biraogo vs. Philippine Truth Commission of 2010 Commission’s report. Thus, the authority, independence, and even the
be dissociated from its international usage. The term connotes abuses of untold proportions in the _______________
past by a repressive undemocratic regime—a connotation that may be applicable to the allegations
of graft and corruption, but is incongruous when it did not arise from a seriously troubled regime; 52 TSN, September 28, 2010, p. 59.
even the present administration cannot dispute that it assumed office in a peaceful transition of 324
power after relatively clean and peaceful elections. 324 SUPREME COURT REPORTS ANNOTATED
The “Who Fears the Truth?” arguments, on the other hand, completely miss the point of this
Separate Opinion. This Opinion does not dispute that past graft and corruption must investigated Biraogo vs. Philippine Truth Commission of 2010
and fully exposed; any statement to the contrary in the Dissent are unfounded rhetoric written integrity of these constitutional bodies—the Ombudsman, the Sandiganbayan, and the Supreme
solely for its own partisan audience. What this Opinion clearly posits as legally objectionable is Court—would have been effectively compromised, to the prejudice of the justice system. All
the government’s manner of “telling;” any such action by government must be made according to these, of course, begin with the premise that the Truth Commission has the mandate to find the
the norms and limits of the Constitution to which all departments of government—including the “truth,” as it name implies, and has a truth-telling function that it can fully exercise through its
Executive—are subject. Specifically, the Executive cannot be left unchecked when its methods own efforts and through the media.
grossly violate the Constitution. This matter is discussed in full below. A.4. Truth-telling and the Public.
A.2. Truth-telling and the Ombudsman A.4.1. Priming and Other Prejudicial Effects.
To return to the scenario described above, it is this scenario that will confront the Ombudsman At this point in the political development of the nation, the public is already a very critical
when the Commission’s report is submitted to it. At that point, there would have been a full and audience who can examine announced results and can form its own conclusions about the
culpability or innocence of the investigated persons, irrespective of what conclusions investigative Thus, Justice Cardozo accepted that “subconscious loyalties” to the “spirit” of the group, i.e.,
commissions may arrive at. This is a reality that cannot be doubted as the public has been exposed the core beliefs within, is a major factor that affects the decision of a judge. In the context of EO 1,
in the past to these investigative commissions. that “spirit” or core belief is what a generally trusted government’s repeated invocation of “truth”
57
The present Truth Commission operating under the terms of the EO, however, introduces apparently aims to reach. This goal assumes significance given the Solicitor General’s statement
a new twist that the public and the country have not met before. For the first time, a Truth that truth-telling is an end in itself. Read with what Justice Cardozo said, this goal translates to the
Commission, tasked with a truth-telling function, shall speak on the “truth” of what acts of graft more concrete and currently understandable aim – to establish the “truth” as part of
and corruption were actually committed and who the guilty parties are. This official the accepted public belief; the EO’s aim is achieved irrespective of what the pertinent
communication from a governmental body—the Truth Commission—whose express mandate is to adjudicatory bodies may conclude, as even they could be influenced by the generally accepted
find and “tell the truth” cannot but make a difference in the public perception. “truth.”
At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a Further on, Justice Cardozo, speaking in the context of the development of case law in
mechanism for “priming” the public, even the Ombudsman and the courts, to the Commission’s
53
common law, went on to say, quoting Henderson: 58
way of thinking. Pervasively repeated as an official government pronouncement, the “When an adherent to a systematic faith is brought continuously in touch with influences and exposed to
Commission’s influence can go beyond the level of priming and can affect the public desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing
environment as well as the thinking of both the decision makers in the criminal justice system store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom
emerging clearly into consciousness. In the meantime, the formulas of the old faith are retained and repeated
and the public in general.
_______________
by force of habit, until one day the realization comes that conduct and sympathies and fundamental desires
have become so inconsistent with the logical framework that it must be discarded. Then begins the task of
building up and rationalizing a new faith.”
53 See Gladwell, supra note 49, pp. 49-73. _______________
325
VOL. 637, DECEMBER 7, 2010 325 56 Id., at pp. 175-176.
57 According to a recent SWS Survey conducted from October 20-29, 2010 http://www.mb.com.ph/articles/287833/80-
Biraogo vs. Philippine Truth Commission of 2010 filipinos-still-trust-aquino-despite-ratings-dip [last visited November 17, 2010].
Otherwise stated, the Commission’s publicly announced conclusions cannot but assume the 58 Supra note 55, pp. 178-179, citing Foreign Corporations in American Constitutional Law, p. 164 cf. Powell “The
Changing Law of Foreign Corporations,” 33 Pol. Science Quarterly, p. 569.
appearance of truth once they penetrate and effectively color the public’s perception, through
327
repetition without significant contradiction as official government findings. These conclusions
thus graduate to the level of “truth” in self-fulfillment of the name the Commission bears; the VOL. 637, DECEMBER 7, 2010 327
subtle manipulation of the Commission’s name and functions, fades in the background or simply Biraogo vs. Philippine Truth Commission of 2010
becomes explainable incidents that cannot defeat the accepted truth. Although written in another context, this statement—relating to how one’s belief is supplanted
A very interesting related material about the effect of core beliefs on the decision-making of by another—runs parallel to how the belief system of an individual judge can be subtly affected by
judges is the point raised by United States Supreme Court Associate Justice Benjamin N. inconsistent influences and how he ultimately succumbs to a new belief.
Cardozo in his book The Nature of the Judicial Process where he said:
54 55
Without doubt, the process of converting to a new belief is an unavoidable and continuous
“… Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not
process that every decision maker undergoes as the belief system he started with, changes and
even the faintest, among the judges whom I have known. But every day there is borne in on me a new
conviction of the inescapable relation between the truth without us and the truth within. The spirit of the age, evolves through in-court experiences and exposure to outside influences. Such exposure cannot be
as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or faulted, particularly when brought on by the media working pursuant to its exercise of the
education or occupation or fellowship have given us place. No effort or revolution of the mind will overthrow freedoms of the press and speech, and speaking in the course of the clash of ideas in the public
utterly and at all times the empire of the subconscious loyalties. “Our beliefs and opinions,” says James Harvey forum. The same exposure, however, is not as neutral and fault-free when it is precipitated by the
Robinson, “like our standards of conduct come to us insensibly as products of our companionship with our government acting as a catalytic agent to hasten the achievement of its own ends, in this case, the
fellow men, not as results of our personal experience and the inferences we individually make from our own disclosure of the “truth” regarding the alleged graft and corruption during the previous regime.
observations. We are constantly misled by our extraordinary faculty of ‘rationalizing’—that is, of devising In the context of the EO, the Executive can investigate within the limits of its legal parameters
plausible arguments by accepting what is imposed upon us by the traditions of the group to which we belong.
and can likewise publicize the results of its investigations to the full limit of allowable
We are abjectly credulous by nature, and instinctively accept the verdict of the group. We are suggestible not
merely when under the spell of an excited mob, or a fervent revival, but we are ever and always listening to the transparency. But in so doing, it cannot act as catalyst by labelling the action of the Commission it
still small voice of the herd, and are ever ready to defend and justify the instructions and warnings, and accept has created as officially-sanctioned and authoritative truth-telling before the officially-designated
them as the mature results of our own bodies—the Ombudsman and the courts—have spoken. While the emergence of truth is a basic
_______________ and necessary component of the justice system, the truth-seeking and truth-finding processes
cannot be speeded up through steps that shortcut and bypass processes established by the
54 Born May 24, 1870, New York; died July 9, 1938, Port Chester, NY. US Supreme Court—1932-1938. He was also a Judge of NY Court
of Appeals from 1914 to 1932, and was its Chief Judge in the last 6 years of his term with the Court of Appeals.
Constitution and the laws. As heretofore mentioned, the international experiences that gave rise to
See http://www.courts.state.ny.us/history/cardozo. the title Truth Commission were transitional situations where, for peculiar reasons (such as the
htm [last visited December 2, 2010].
55 Benjamin N. Cardozo, The Nature of the Judicial Process, (1921).
temporary absence of an established judicial system or the need to speed up the transition to
326 democratic rule), the use of ad hoc commissions were called for. In the Philippine setting, the
326 SUPREME COURT REPORTS ANNOTATED closest similar situation would be the immediate aftermath of the 1986 EDSA Revolution as the
country struggled in the transition from authoritarian martial law regime into a full-fledged
Biraogo vs. Philippine Truth Commission of 2010 democracy. To be sure, the shortcut to the emergence of truth, fashioned under the terms of EO
reasoning.” This was written, not of judges specially, but of men and women of all classes.” [Emphasis 56
1, finds no justification
supplied] 328
328 SUPREME COURT REPORTS ANNOTATED
undertaken in the manner outlined in the EO and its implementing rules, is not a means that
this Court can hold as reasonable and valid, when viewed from the prism of due process. From
Biraogo vs. Philippine Truth Commission of 2010 this vantage point, the Commission is not only a mislabelled body but one
after the 1987 Constitution and its rights, freedoms and guarantees have been fully put in place. 330
A.4.2. The Effects on the Judicial System 330 SUPREME COURT REPORTS ANNOTATED
To fully appreciate the potential prejudicial effects of truth-telling on the judicial system, the
effects of media exposure—from the point of view of what transpires and the circumstances Biraogo vs. Philippine Truth Commission of 2010
present under truth-telling and under the present justice system—deserve examination. whose potential outputs must as well be discarded for being unacceptable under the norms of the
Under the present justice system, the media may fully report, as they do report, all the details Constitution.
of a reported crime and may even give the suspects detailed focus. These reports, however, are not B. Distortion Of Existing Legal Framework
branded as the “truth” but as matters that will soon be brought to the appropriate public The EO and its truth-telling function must also be struck down as they distort the
authorities for proper investigation and prosecution, if warranted. In the courts, cases are handled constitutional and statutory plan of the criminal justice system without the authority of
on the basis of the rules of evidence and with due respect for the constitutional rights of the law and with an unconstitutional impact on the system.
accused, and are reported based on actual developments, subject only to judicial requirements to B.1. The Existing Legal Framework
ensure orderly proceedings and the observance of the rights of the accused. Only after the courts The Constitution has given the country a well-laid out and balanced division of powers,
have finally spoken shall there be any conclusive narrative report of what actually transpired and distributed among the legislative, executive and judicial branches, with specially established
how accused individuals may have participated in committing the offense charged. At this point, offices geared to accomplish specific objectives to strengthen the whole constitutional structure.
any public report and analysis of the findings can no longer adversely affect the constitutional The Legislature is provided, in relation with the dispensation of justice, the authority to create
rights of the accused as they had been given all the opportunities to tell their side in court under courts with defined jurisdictions below the level of the Supreme Court; to define the required 60
the protective guarantees of the Constitution. qualifications for judges; to define what acts are criminal and what penalties they shall
61
In contrast, the circumstances that underlie Commission reports are different. The “truth” that carry; and to provide the budgets for the courts.
62 63
the Commission shall publicize shall be based on “facts” that have not been tested and admitted The Executive branch is tasked with the enforcement of the laws that the Legislature shall
according to the rules of evidence; by its own express rules, the technical rules of evidence do not pass. In the dispensation of justice, the Executive has the prerogative of appointing justices and
apply to the Commission. The reported facts may have also been secured under circumstances
59 judges, and the authority to investigate and prosecute crimes through a Depart-
64
_______________
violative of the rights of the persons investigated under the guarantees of the Constitution.
Thus, what the Commission reports might not at all pass the tests of
_______________ 60 CONSTITUTION, Article VIII, Section 2. See also Bernas, supra note 30, p. 959.
61 Id., Article VIII, Section 7 (2).
62 People v. Maceren, G.R. No. L-32166 October 18, 1977, 79 SCRA 450, 461 citing 1 Am. Jur. 2nd, sec. 127, p.
59 Rules, Rule 4, Section 2. 938; Texas Co. v. Montgomery, 73 F. Supp. 527: It has been held that “to declare what shall constitute a crime and how it shall
329 be punished is a power vested exclusively in the legislature, and it may not be delegated to any other body or agency.”
63 CONSTITUTION, Article VIII, Section 5.
VOL. 637, DECEMBER 7, 2010 329 64 CONSTITUTION, Article VIII, Section 8.
331
Biraogo vs. Philippine Truth Commission of 2010
guilt that apply under the present justice system, yet they will be reported with the full support of VOL. 637, DECEMBER 7, 2010 331
the government as the “truth” to the public. As fully discussed below, these circumstances all
Biraogo vs. Philippine Truth Commission of 2010
work to the active prejudice of the investigated persons whose reputations, at the very least, are
ment of Justice constituted in accordance the Administrative Code. Specifically provided and
65
blackened once they are reported by the Commission as participants in graft and corruption, even
established by the Constitution, for a task that would otherwise fall under the Executive’s
if the courts subsequently find them innocent of these charges.
investigatory and prosecutory authority, is an independent Ombudsman for the purpose of acting
A.5. Truth-telling: an unreasonable means to a reasonable objective.
on, investigating and prosecuting allegedly criminal acts or omissions of public officers and
Viewed from the above perspectives, what becomes plainly evident is an EO that, as a means
employees in the exercise of their functions. While the Ombudsman’s jurisdiction is not exclusive,
of fighting graft and corruption, will effectively and prejudicially affect the parties inter-acting
it is primary; it takes precedence and overrides any investigatory and prosecutory action by the
with the Truth Commission. The EO will erode the authority and even the integrity of the
Department of Justice. 66
Ombudsman and the courts in acting on matters brought before them under the terms of the
The Judiciary, on the other hand, is given the task of standing in judgment over the criminal
Constitution; its premature and “truthful” report of guilt will condition the public’s mind to reject
cases brought before it, either at the first instance through the municipal and the regional trial
any finding other than those of the Commission.
courts, or on appeal or certiorari, through the appellate courts and ultimately to the Supreme
Under this environment, the findings or results of the second forum described above
Court. An exception to these generalities is the Sandiganbayan, a special statutorily-created court
67
overwhelm the processes and whatever may be the findings or results of the first forum. In other
with the exclusive jurisdiction over criminal acts committed by public officers and employees in
words, the findings or results of the second forum—obtained without any assurance of the
the exercise of their functions. Underlying all these is the Supreme Court’s authority to
68
observance of constitutional guarantees—would not only create heightened expectations and exert
promulgate the rules of procedure applicable to courts and their proceedings, to appoint all 69
unwanted pressure, but even induce changed perceptions and bias in the processes of the first
officials and employees of the Judiciary other than judges, and to exercise supervision over all
70
forum in the manner analogous to what Justice Cardozo described above. The first casualties, of
courts and judiciary employees. 71
course, are the investigated persons and their basic rights, as fully explained elsewhere in this
In the usual course, an act allegedly violative of our criminal laws may be brought to the
Opinion.
attention of the police authorities for unilateral fact-finding investigation. If a basis for a
While EO 1 may, therefore, serve a laudable anti-graft and corruption purpose and may have
complaint exists, then the matter is brought before the prosecutor’s office for formal investigation,
been launched by the President in good faith and with all sincerity, its truth-telling function,
through an inquest or a preliminary investigation, to determine
_______________ whether probable cause exists cannot be defeated, rendered suspect, or otherwise eroded by any
prior process whose results are represented to be the “truth” of the alleged criminal acts. The
65 REVISED ADMINISTRATIVE CODE, Book II, Chapter II, Section 22. Ombudsman may be bound by the findings of a court, particularly those of this Court, but not of
66 Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004,
427 SCRA 46. See also Ombudsman v. Enoc, supra note 32. any other body, most especially a body outside the regular criminal justice system. Neither can the
67 See Batas Pambansa Blg. 129, “An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and For Other strictly judicial aspect of the justice system be saddled with this type of fact-finding, as the
Purposes.” determination of the guilt or innocence of an accused lies strictly and solely with the courts. Nor
68 Republic Act No. 8249, supra note 33, Section 4.
69 CONSTITUTION, Article VIII, Section 5 (5).
can the EO cloak its intent of undercutting the authority of the designated authorities to rule on the
70 Id., Article VIII, Section 5 (6). merits of the alleged graft and corruption through a statement that its findings are
71 Id., Article VIII, Section 6. recommendatory; as has been discussed above, this express provision is negated in actual
332 application by the title Truth Commission and its truth-telling function.
332 SUPREME COURT REPORTS ANNOTATED A necessary consequence of the deviation from the established constitutional and statutory
plan is the extension of the situs of the justice system from its constitutionally and statutorily
Biraogo vs. Philippine Truth Commission of 2010 designated loca-
if probable cause exists to justify the filing of a formal complaint or information before the _______________
courts. Aside from those initiated at the instance of the aggrieved private parties, the fact-finding
investigation may be made at the instance of the President or of senior officials of the Executive 75 CONSTITUTION, Article III, Section 7.
branch, to be undertaken by police authorities, by the investigatory agencies of the Department of 76 Id., Article III, Section 4.
Justice, or by specially constituted or delegated officials or employees of the Executive branch; the 334
preliminary investigation for the determination of probable cause is a task statutorily vested in the 334 SUPREME COURT REPORTS ANNOTATED
prosecutor’s office. Up to this point, these activities lie within the Executive branch of
72
Biraogo vs. Philippine Truth Commission of 2010
government and may be called its extrajudicial participation in the justice system.
tions (equivalent to the above-described first forum), since the Commission will investigate
By specific authority of the Constitution and the law, a deviation from the above general
matters that are bound to go to the justice system. In other words, the Commission’s activities,
process occurs in the case of acts allegedly committed by public officers and employees in the
including its truth-telling function and the second forum this function creates, become the prelude
performance of their duties where, as mentioned above, the Ombudsman has primary jurisdiction.
to the entry of criminal matters into the Ombudsman and into the strictly judicial aspect of the
While the Executive branch itself may undertake a unilateral fact-finding, and the prosecutor’s
system.
office may conduct preliminary investigation for purposes of filing a complaint or information
In practical terms, this extension undermines the established order in the judicial system by
with the courts, the Ombudsman’s primary jurisdiction gives this office precedence and
directly bringing in considerations that are extraneous to the adjudication of criminal cases, and by
dominance once it decides to take over a case. 73
co-mingling and confusing these with the standards of the criminal justice system. The result,
Whether a complaint or information emanates from the prosecutor’s office or from the
unavoidably, is a qualitative change in the criminal justice system that is based, not on a
Ombudsman, jurisdiction to hear and try the case belongs to the courts, mandated to determine—
legislative policy change, but on an executive fiat.
under the formal rules of evidence of the Rules of Court and with due observance of the
Because of truth-telling and its consequence of actively bringing in public opinion as a
constitutional rights of the accused—the guilt or innocence of the accused. A case involving
consideration, standards and usages other than those strictly laid down or allowed by the
criminal acts or omissions of public officers and employees in the performance of duties falls at
Constitution, by the laws and by the Rules of Court will play a part in the criminal justice system.
the first instance within the exclusive jurisdiction of the Sandiganbayan, subject to higher 74
For example, public comments on the merits of cases that are still sub judice may become rampant
recourse to the Supreme Court. This is the strictly judicial aspect of the criminal justice system.
_______________ as comments on a truth commission’s findings, not on the cases pending before the courts. The
commission’s “truthful” findings, made without respect for the rules on evidence and the rights of
72 REVISED ADMINISTRATIVE CODE, Chapter I, Title III, Book IV. See also Honasan II v. Panel of the accused, would become the standards of public perception of and reaction to cases, not the
Investigators, supra note 66. evidence as found by the courts based on the rules of evidence.
73 Ibid. See Section 15, par. 1, Republic Act No. 6770. Once the door is opened to the Truth Commission approach and public opinion enters as a
74 For officials in Salary Grade 27 and beyond.
333
consideration in the judicial handling of criminal cases, then the rules of judging would have
effectively changed; reliance on the law, the rules and jurisprudence would have been weakened to
VOL. 637, DECEMBER 7, 2010 333 the extent that judges are on the lookout, not only for what the law and the rules say, but also for
Biraogo vs. Philippine Truth Commission of 2010 what the public feels about the case. In this eventuality, even a noisy minority can change the
Under the above processes, our laws have delegated the handling of criminal cases to the course of a case simply because of their noise and the media attention they get. (Such tactics have
justice system and there the handling should solely lie, supported by all the forces the law can been attempted in the immediate past where pressure has been brought to bear on this Court
muster, until the disputed matter is fully resolved. The proceedings—whether before the through street demonstrations bordering on anarchy, the marshalling of opinions locally and
Prosecutor’s Office, the Ombudsman, or before the courts—are open to the public and are thereby internationally, and highly partisan media com-
335
made transparent; freedom of information and of the press guarantee media participation,
75 76
consistent with the justice system’s orderly proceedings and the protection of the rights of parties. VOL. 637, DECEMBER 7, 2010 335
The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed
Biraogo vs. Philippine Truth Commission of 2010
purpose of “assisting” the Ombudsman, directly disrupts the established order, as the Constitution
ments.) The primacy of public opinion may, without doubt, appeal to some but this is simply not
and the law do not envision a situation where fact-finding recommendations, already labelled as
the way of a Judiciary constitutionally-designed to follow the rule of law.
“true,” would be submitted to the Ombudsman by an entity within the Executive branch. This
arrangement is simply not within the dispensation of justice scheme, as the determination of
Another consequent adverse impact could be erosion of what the Constitution has very sultants) to undertake fact-finding investigation for its use pursuant to the vast powers and
79
carefully fashioned to be a system where the interpretation of the law and the dispensation of responsibilities of the Presidency, but it cannot create a separate body, in the way and under the
justice are to be administered apoliticallyby the Judiciary. Politics always enters the picture once terms it created the Truth Commission, without offending the Constitution.
public opinion begins to be a significant consideration. At this point, even politicians—ever The following indicators, however, show that the President was not simply appointing
attuned to the public pulse—may register their own statements in the public arena on the merits of presidential assistants or assistants when he constituted the Truth Commission as an investigating
the cases even while matters are sub judice. The effects could be worse where the case under or fact-finding body.
consideration carries its own political dimensions, as in the present case where the target involves First, the President “created” the Truth Commission; the act of creation goes beyond the mere
the misdeeds of the previous administration. naming, designation or appointment of assistants and consultants. There is no need to “create”—
Whether the Judiciary shall involve, or be involved, in politics, or whether it should consider, i.e., to constitute or establish something out of nothing, or to establish for the first time —if only 80
or be affected by, political considerations in adjudication, has been firmly decided by the the designation or appointment of a presidential assistant or consultant is intended. To “create” an
Constitution and our laws in favour of insulation through provisions on the independence of the office, too, as the petitioners rightfully claim, is a function of the Legislature under the
Judiciary—the unelected branch of government whose standard of action is the rule of law rather constitutional division of powers. Note in this regard, and as more fully discussed below, that
81
than the public pulse. This policy has not been proven to be unsound. Even if it is unsound, any what the Revised Administrative Code, through its Section 31, allows the President is to
change will have to be effected through legitimate channels—through the sovereignty that can “reorganize,” not to create a public office within the Executive department.
change the Constitution, to the extent that the Judiciary’s and the Ombudsman’s independence and Second, the Truth Commission, as created by the EO, appears to be a separate body that is 82
the exercise of judicial discretion are concerned, and through the Congress of the Philippines, with clearly beyond being merely a group of people tasked by the President to accomplish a specific
respect to other innovations that do not require constitutional changes. task within his immediate office; its members do not operate in the way that presidential assistants
To be sure, the President of the Philippines, through an executive or administrative order and and consultants usually do.
without authority of law, cannot introduce changes or innovations into the justice system and It is not insignificant that the Commission has its own Rules of Procedure that it issued on its
significantly water down the authoritative power of the courts and of duly designated own on the authority of the EO. Note that these are not the rules of the Office of the President but
constitutional bodies in dispensing justice. The nobility of the President’s intentions is not enough of another body, although one constituted by the President.
to render his act legal. As has been said often enough, ours is a government of laws, not of _______________
men.336
79 REVISED ADMINISTRATIVE CODE, Chapter 9 (D), Title II, Book III.
336 SUPREME COURT REPORTS ANNOTATED 80 BLACK’S LAW DICTIONARY (5th ed., 1979), p. 330.
81 Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, 726, citing
Biraogo vs. Philippine Truth Commission of 2010 Isagani Cruz, The Law on Public Officers (1999 ed.), p. 4.
C. Limits of the Exercise of Executive Power in the Justice System 82 EO 1, Section 1.
While the Executive participates in the dispensation of justice under our constitutional and 338
statutory system through its investigatory and prosecutory arms and has every authority in law to 338 SUPREME COURT REPORTS ANNOTATED
ensure that the law is enforced and that violators are prosecuted, even these powers have limits.
Biraogo vs. Philippine Truth Commission of 2010
The independence of the Ombudsman and its freedom from interference from all other
departments of government in the performance of its functions is a barrier that cannot be breached, The Commission has its own complete set of officers, beginning from the Chair and members
directly or indirectly, except only as the Constitution and the laws may allow. No such exception of the Commission; it has its own consultants, experts, and employees, although the latter are
has been allowed or given to the President other than through the prosecution the Department of merely drawn from the Executive department; and it even has provisions for its own budget,
83
Justice may undertake when the Ombudsman has not asserted its primary jurisdiction. The
77 although these funds ride on and are to be drawn from the budget of the Office of the President.
concurrent jurisdiction given to the Department of Justice to prosecute criminal cases, incidentally, Third, the Commission has its own identity, separate and distinct from the Office of the
is a grant specific to that office, not to any other office that the Executive may create through an
78 President, although it still falls within the structural framework of that office. The Commission
executive order. undertakes its own “independent” investigation that, according to the Solicitor General, will not
84
The Executive can, without doubt, recommend that specific violators be prosecuted and the be controlled by the Office of the President; and it communicates on its own, under its own name,
85
basis for this recommendation need not even come from the Department of Justice; the basis may to other branches of government outside of the Executive branch.
be the findings of the Office of the President itself independently of its Department of Justice. Lastly, the Commission as an office has been vested with functions that not even the Office of
Notably, the other branches of government may also, and do in fact, make recommendations to the the President possesses by authority of law, and which the President, consequently, cannot
Ombudsman in the way that Congress, in the course of its fact-finding for legislative purposes, delegate. Specifically, the Commission has its truth-telling function, because it has been given the
unearths anomalies that it reports to the Ombudsman. Even the Supreme Court recommends that task to disclose the “truth” by the President, thus giving its report the imprimatur of truth well
Judiciary officials and employees found administratively liable be also criminally prosecuted. ahead of any determination in this regard by the constitutional bodies authorized to determine the
The Executive can also designate officials and employees of the Executive Department (or existence of probable cause and the guilt or culpability of individuals.
even appoint presidential assistants or con- If the President cannot give the official label of truth independently of the courts in a fact-
_______________ finding in a criminal case, either by himself or through the Department of Justice, it only follows
that he cannot delegate this task to any assistant, consultant, or subordinate, even granting that he
77 Honasan II v. Panel of Investigators, supra note 66. can order a fact-finding investigation based on the powers of his office. This truth-telling function
78 See Honasan II v. Panel of Investigators, supra note 66. See alsoRULES OF COURT, Rule 112, Sections 2 and 4. differentiates the Truth Commission from other commissions constituted in the past such as the
337 Agrava, Feliciano and Melo Commissions; the pronouncements of the latter bodies did not carry
VOL. 637, DECEMBER 7, 2010 337 the imprimatur of truth, and were mere preliminary findings for the President’s consid-
_______________
Biraogo vs. Philippine Truth Commission of 2010
83 EO 1, Sections 3 and 5. _______________
84 EO 1, Section 1.85 TSN, September 28, 2010, p. 166.
339 (2008) citing Transitional Justice and Rule of Law Interest Group, American Society of International Law, Statement of
VOL. 637, DECEMBER 7, 2010 339 Purpose,http://www.asil.org/interest-groups-view.cfm?groupid=32.
Biraogo vs. Philippine Truth Commission of 2010 89 Isagani Cruz, Philippine Political Law (1998 ed.) p. 79. See alsoBernas, supra note 30, pp. 676-677, stating: “Thus,
eration. An exact recent case to drive home this point is the Chinese hostage incident where the any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress.”
Office of the President modified the Report submitted by a duly-constituted group headed by 90 Ibid. See also Canonizado v. Aguirre, G.R. No. 133132, January 25, 2000, 323 SCRA 312; Buklod ng Kawaning EIIB
v. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.
Secretary Leila de Lima. Apparently, the findings of the De Lima committee did not carry the
86
341
imprimatur of truth and were merely recommendatory; otherwise the Office of the President would
not have modified its findings and recommendations. VOL. 637, DECEMBER 7, 2010 341
Still on the point of the President’s authority to delegate tasks to a body he has constituted, in Biraogo vs. Philippine Truth Commission of 2010
no case can the President order a fact-finding whose results will operate to undercut the authority executive, settlement of legal controversies to the judiciary.” This means that the President
91
and integrity of the Ombudsman in a reported violation of the criminal laws by a public servant. cannot, under the present Constitution and in the guise of “executing the laws,” perform an act
The President’s authority—outside of the instance when the Department of Justice acts in default that would impinge on Congress’ exclusive power to create laws, including the power to create a
of the Ombudsman—is to bring to the attention of, or make recommendations to, the public office.
Ombudsman violations of the law that the Executive branch uncovers in the course of law In the present case, the exclusive authority of Congress in creating a public office is not
enforcement. This authority should be no different from that which Congress and the Supreme questioned. The issue raised regarding the President’s power to create the Truth Commission boils
Court exercise on the same point. down to whether the Constitution allows the creation of the Truth Commission by the President or
Given all the possibilities open to the President for a legitimate fact-finding intervention— by an act of Congress.
namely, through fact-finding by the Department of Justice or by the Office of the President itself, D.1 The Section 31 Argument.
utilizing its own officials, employees, consultants or assistants—the President is not wanting in EO 1, by its express terms, is premised on “Book III, Chapter 10, Section 31 of Executive
92
measures within the parameters allowed by law to fight graft and corruption and to address Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, which
specific instances that come to his attention. To be sure, the Philippine situation right now is far gives the President the continuing authority to reorganize the Office of the President. The Solicitor
from the situations in South Africa, Rwanda, and South America, where quick transitional 87
General, of course, did not steadfastly hold on to this view; in the course of the oral arguments and
justice had to be achieved because these
88
in his Memorandum, he invoked other bases for the President’s authority to issue EO 1. In the
_______________
process, he likewise made various claims, not all of them consistent with one another, on the
nature of the Truth Commission that EO 1 created.
86 See http://www.gmanews.tv/story/201465/full-text-iirc-report-on-august-23-2010-rizal-park-hostage-taking-incident,
[last visited November 17, 2010]. Section 31 shows that it is a very potent presidential power, as it empowers him to (1) to re-
87 See Jonathan Horowitz, Racial (Re) Construction: The Case of the South African Truth and Reconciliation organize his own internal office; (2) transfer any function or office from the Office of the
Commission, 17 NAT'L BLACK L.J. 67 (2003); Evelyn Bradley, In Search for Justice—A Truth and Reconciliation Commission President to the various executive departments; and (3) transfer any function or office from the
for Rwanda, 7 J. INT'L L. & PRAC. 129 (1998). various executive departments to the Office of the President.
88 See Catherine O’Rourke, The Shifting Signifier of “Community in Transitional Justice: A Feminist Analysis,” 23 Wis.
J.L. GENDER & Soc'y 269 To reorganize presupposes that an office is or offices are already existing and that (1) a
340 reduction is effected, either of staff or of its functions, for transfer to another or for abolition
340 SUPREME COURT REPORTS ANNOTATED
because of redundancy; (2) offices are merged resulting in the retention of one as the dominant
office; (3) two offices are abolished resulting in the emergence of
Biraogo vs. Philippine Truth Commission of 2010 _______________
countries were coming from a period of non-democratic rule and their desired justice systems were
not yet fully in place. This reality removes any justification for the President to resort to extralegal 91 Bernas, supra note 30, p. 678.
92 EO 1, 8th and last Whereas Clause.
(or even illegal) measures and to institutions and mechanisms outside of those already in place, in
342
proceeding against grafters in the previous administration.
If the President and Congress are dissatisfied with the Ombudsman’s performance of duty, the 342 SUPREME COURT REPORTS ANNOTATED
constitutionally-provided remedy is to impeach the Ombudsman based on the constitutionally- Biraogo vs. Philippine Truth Commission of 2010
provided grounds for removal. The remedy is not through the creation of a parallel office that a new office carrying the attributes of its predecessors as well as their responsibilities; or (4) a new
either duplicates or renders ineffective the Ombudsman’s actions. By the latter action, the office is created by dividing the functions and staff of an existing office. Buklod ng Kawaning
President already situates himself and the Executive Department into the justice system in a EIIB v. Hon. Executive Secretaryaddresses this point when it said:
manner that the Constitution and the law do not allow. “[R]eorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by reason
D. The President has no Authority Either Under the Constitution or Under the Laws to Create of economy or redundancy of functions. It takes place when there is an alteration of the existing structure of
the Truth Commission. government offices or units therein, including the lines of control, authority and responsibility between them.” 93
Under the 1987 Constitution, the authority to create offices is lodged exclusively in Congress. These traditional concepts of reorganization do not appear to have taken place in the
This is a necessary implication of its “plenary legislative power.” Thus, except as otherwise
89 90
establishment of the Truth Commission. As heretofore mentioned, by its plain terms, it was
provided by the Constitution or statutory grant, no public office can be created except by “created” and did not simply emerge from the functions or the personality of another office,
Congress; any unauthorized action in this regard violates the doctrine of separation of powers. whether within or outside the Office of the President. Thus, it is a completely new body that the
In essence, according to Father Joaquin Bernas, “separation of powers means that legislation President constituted, not a body that appropriated the powers of, or derived its powers from, the
belongs to Congress, execution to the
investigatory and prosecutory powers of the Department of Justice or any other investigatory body Prior to the EDSA Revolution of 1986 (and the 1987 Constitution), President Marcos
within the Executive branch. exercised legislative powers and issued PD 1416, as amended by PD 1772, which, by its express
From the Solicitor General’s Memorandum, it appears that the inspiration for the EO came terms, allowed the President to reorganize and/or create offices within the National Government.
from the use and experiences of truth commissions in other countries that were coming from This was sanctioned in the exercise of the President’s martial law powers and on the basis of
“determinate periods of abusive rule or conflict” for purposes of making “recommendations for Article XVII, Section 3(2) of the 1973 Constitution. 98
[the] redress and future prevention” of similar abusive rule or conflict. It is a body to establish the
94
Upon the adoption of the 1987 Constitution, and the re-introduction of the presidential form of
“truth of what abuses actually happened in the past;” the Solicitor General even suggests that the government, the “separation of legislative and executive powers” was restored. Similarly
99
“doctrine of separation of powers and the extent of the powers of co-equal branches of government recognized were the limits on the exercise of the carefully carved-out and designated powers of
should not be so construed as to restrain the Executive from uncovering the truth about betrayals each branch of government. Thus, Congress regained the exclusive power to create public offices;
of public trust, from addressing their enabling conditions, and from preventing their PD 1416, as amended by PD 1776—a creation of the legal order under President Marcos—lost its
recurrence.” By these perorations, the Solicitor General unwittingly strengthens the view that no
95
authority as a justification for the creation of an office by the President.
reorganization ever took place when the Truth Commission was created; what the Presi- That PD 1416, as amended by PD 1776, has been overtaken and rendered an obsolete law, is
_______________ not a new position taken within this Court. In his separate concurring opinion in Banda v.
Executive Secretary, Justice Antonio T. Carpio pointedly posited that the ruling in Larin v.
100
93 Buklod ng Kawaning EIIB v. Hon. Executive Secretary, supra note 81. Executive Secretary (reiterated in Buklod ng Kawaning EIIB v. Hon. Sec. Zamora and Tondo
101 102
94 Solicitor General’s Memorandum, Rollo, p. 332.
95 Id., at p. 324. Medical Center Employees
343 _______________
VOL. 637, DECEMBER 7, 2010 343 98 Aquino v. COMELEC, No. L-40004, January 31, 1975, 62 SCRA 275.
99 Gonzales v. PAGCOR, G.R. No. 144891, May 27, 2004, 429 SCRA 533, 545.
Biraogo vs. Philippine Truth Commission of 2010 100 G.R. No. 166620, April 20, 2010, 618 SCRA 488.
dent “created” was a new office that does not trace its roots to any existing office or function from 101 Supra note 96.
the Office of the President or from the executive departments and agencies he controls. 102 Supra note 81.
Thus, the President cannot legally invoke Section 31 to create the Truth Commission. The 345
requirements for the application of this Section are simply not present; any insistence on the use of VOL. 637, DECEMBER 7, 2010 345
this Section can only lead to the invalidity of EO 1.
Biraogo vs. Philippine Truth Commission of 2010
D.2. The PD 1416 and Residual Pow-
Association v. Court of Appeals ), which relied on Section 20, Chapter 7, Book II of the
103
ers Argument
Administrative Code of 1987 in relation with P.D. 1416, cannot validate Executive Order No. 378
Independently of the EO’s express legal basis, the Solicitor-General introduced a new basis of
assailed in that case because “P.D. 1416, as amended, with its blending of legislative and
authority, theorizing that “the power of the President to reorganize the executive branch” is
executive powers, is a vestige of an autrocratic era, totally anachronistic to our present-day
justifiable under Presidential Decree (PD) No. 1416, as amended by PD No. 1772, based on the
constitutional democracy.” 104
President’s residual powers under Section 20, Title I, Book III of E.O. No. 292.” He cites in this
Thus, the present and firmly established legal reality is that under the 1987 Constitution and
regard the case of Larin v. Executive Secretary and according to him:
96
“x x x This provision speaks of such other powers vested in the President under the law. What law then which the Revised Administrative Code, the President cannot create a public office except to the extent
gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. that he is allowed by Section 31, Chapter 10, Book III of the Revised Administrative Code. As
1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the discussed above, even this narrow window cannot be used as the President did not comply with the
national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, requirements of Section 31.
to transfer functions, to create and classify functions, services and activities and to standardize salaries and D.3. The Authority of the President under the
materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that Faithful Execution Clause
“all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not Article VII, Section 17 of the 1987 Constitution directs and authorizes the President to
inconsistent with this Constitution shall remain operative until amended, repealed or revoked.” So far, there is
faithfully execute the laws and the potency of this power cannot be underestimated. Owing
yet no law amending or repealing said decrees.” [Emphasis supplied]
97
perhaps to the latitude granted to the President under this constitutional provision, the Solicitor
Unfortunately, even the invocation of the transitory clause of the 1987 Constitution (regarding
General posited that the President’s power to create the Truth Commission may be justified under
the validity of laws and decrees not
_______________ this general grant of authority. In particular, the Solicitor General argues that the “President’s
power to conduct investigations to aid him in ensuring the faithful execution of laws—in this case,
96 G.R. No. 112745, October 16, 1997, 280 SCRA 713. fundamental laws on public accountability and transparency—is inherent in the President’s powers
97 Solicitor General’s Consolidated Comment, Rollo, pp. 148-149. as the Chief Executive.” The Solicitor General further argues: “That the authority of the
105
344 President to conduct investigations and to create bodies to execute this power is not explicitly
344 SUPREME COURT REPORTS ANNOTATED mentioned in the Constitution or in statutes does not mean he is bereft of such authority.” 106
_______________
Biraogo vs. Philippine Truth Commission of 2010
inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a legislation that has long lost 103 G.R. No. 167324, July 17, 2007, 527 SCRA 746.
its potency. 104 J. Carpio’s Separate Concurring Opinion. Supra note 100.
105 Solicitor General’s Consolidated Comment, Rollo, p. 160.
Contemporary history teaches us that PD 1416 was passed under completely different factual 106 Id., at p. 41.
and legal milieus that are not present today, thus rendering this presidential decree an anachronism 346
that can no longer be invoked.
346 SUPREME COURT REPORTS ANNOTATED
Solicitor General Cadiz: No, Your Honor. There is created a Truth Commission, and
Biraogo vs. Philippine Truth Commission of 2010 Commissioners are appointed and it so stated here that they are independent.
That the President cannot, in the absence of any statutory justification, refuse to execute the Associate Justice Nachura: Aha, okay.
laws when called for is a principle fully recognized by jurisprudence. In In re Neagle, the US Solicitor General Cadiz: Of the Office of the President.348
Supreme Court held that the faithful execution clause is “not limited to the enforcement of acts of 348 SUPREME COURT REPORTS ANNOTATED
Congress according to their express terms.” According to Father Bernas, Neagle “saw as law that
107
had to be faithfully executed not just formal acts of the legislature but any duty or obligation Biraogo vs. Philippine Truth Commission of 2010
inferable from the Constitution or from statutes.” 108 Associate Justice Nachura: Are you saying now that the Commissioners are not under the power
Under his broad powers to execute the laws, the President can undoubtedly create ad and control of the President of the Philippines?
hoc bodies for purposes of investigating reported crimes. The President, however, has to observe Solicitor General Cadiz: It is so stated in the Executive Order, Your Honor.
Associate Justice Nachura: Aha, alright. So, the Truth Commission is not an office within the
the limits imposed on him by the constitutional plan: he must respect the separation of powers and executive department, because it is not under the power of control of the President, then, Section 17
the independence of other bodies which have their own constitutional and statutory mandates, as of Article VII would not apply to them, is that it?
discussed above. Contrary to what J. Antonio Eduardo B. Nachura claims in his Dissent, the Solicitor General Cadiz: Your Honor, the President has delineated his power by creating an
President cannot claim the right to create a public office in the course of implementing the law, as Executive Order which created the Commission, which says, that this is an independent body, Your
this power lodged exclusively in Congress. An investigating body, furthermore, must operate Honor.
within the Executive branch; the President cannot create an office outside the Executive Associate Justice Nachura: Okay. So, what you are saying is, this is a creation of the President, it is
department. under the President’s power of control, but the President has chosen not to exercise the power of
These legal realities spawned the problems that the Solicitor General created for himself when control by declaring that it shall be an independent body?
Solicitor General Cadiz: Yes, Your Honor.
he made conflicting claims about the Truth Commission during the oral arguments. For accuracy, Associate Justice Nachura: That is your position. I would like you to place that in your
the excerpts from the oral arguments are best quoted verbatim. 109
memorandum and see. I would like to see how you will develop that argument.
Associate Justice Nachura: Mr. Solicitor General, most of my questions have actually been asked The Solicitor General, despite his promise to respond through his Memorandum, never
already and there are few things that I would like to be clarified on. Well, following the questions
asked by Justice Carpio, I would like a clarification from you, a definite answer, is the Truth
bothered to explain point-by-point his unusual positions and conclusions during the oral
Commission a public office? arguments, responding only with generalities that were not responsive or in point. 110
_______________
Solicitor General Cadiz: No, Your Honor.
Associate Justice Nachura: Ah, you mean it is not a public office?
_______________ 110 Part of the argument the Solicitor General relied upon was Department of Health v. Campasano, (G.R. No. 157684.
April 27, 2005, 457 SCRA 438) Solicitor General’s Consolidated Comment, Rollo, pp. 145-146. Reliance on this case,
107 135 U.S. 1, 59 (1890). however, is misplaced. In Campasano, the Court upheld the power of the President to create an ad hoc investigating committee
108 Bernas, supra note 30, p. 895. in the Department of Health on the basis of the President’s constitutional power of control over the Executive Department as
109 TSN, September 28, 2010, pp. 209-214. well as his obligation under the faithful execution clause to ensure that all executive officials and employees faithfully comply
347 with the law. The Court’s ruling in Campasano is not determinative of the present case as the Truth Commission is claimed
to be a body entirely distinct and independent from the Office of the
VOL. 637, DECEMBER 7, 2010 347 349
Biraogo vs. Philippine Truth Commission of 2010 VOL. 637, DECEMBER 7, 2010 349
Solicitor General Cadiz: It is not a public office in the concept that it has to be created by Congress,
Your Honor. Biraogo vs. Philippine Truth Commission of 2010
Associate Justice Nachura: Oh, come on, I agree with you that the President can create public Specifically, while admitting that the Truth Commission is a “creation” of the President under
offices, that was what, ah, one of the questions I asked Congressman Lagman. his office pursuant to the latter’s authority under the Administrative Code of 1987, the Solicitor
Solicitor General Cadiz: Thank you, your Honor. General incongruously claimed that the Commission is “independent” of the Office of the
Associate Justice Nachura: Because he was insisting that only Congress could create public office President and is not under his control. Mercifully, J. Nachura suggested that the President may
although, he said, the President can create public offices but only in the context of the authority have created a body under his control but has chosen not to exercise the power of control by
granted under the Administrative Code of 1987. So, it is a public office?
Solicitor General Cadiz: Yes, Your Honor.
declaring that it is an independent body, to which the Solicitor General fully agreed.
Associate Justice Nachura: This is definite, categorical. You are certain now that Truth Commission Truth to tell (no pun intended), the Solicitor General appears under these positions to be
(interrupted) playing a game of smoke and mirrors with the Court. For purposes of the creation of the Truth
Solicitor General Cadiz: Yes, Your Honor, under the Office of the President Proper, yes, Your Commission, he posits that the move is fully within the President’s authority and in the
Honor. performance of his executive functions. This claim, of course, must necessarily be based on the
Associate Justice Nachura: Again? premise that execution is by the President himself or by people who are within the Executive
Solicitor General Cadiz: That this Truth Commission is a public office, Your Honor, created under Department and within the President’s power of supervision and control, as the President cannot
the Office of the President. delegate his powers beyond the Executive Department. At the same time, he claims that the
Associate Justice Nachura: Okay, created under the Office of the President, because it is the
President who created it. And the President can create offices only within the executive department.
Commissioners (whom he refuses to refer to as Presidential Assistants or as alter egos of the
He cannot create a public office outside of the executive department, alright. President) are independent of the President, apparently because the President has waived his
111
Solicitor General Cadiz: Yes, Your Honor. power of control over them.
Associate Justice Nachura: Okay. So, the Commissioners who are appointed are what, Presidential All these necessarily lead to the question: can the President really create an office within the
Assistants? Are they Presidential Assistants? Executive branch that is independent of his control? The short answer is he cannot, and the short
Solicitor General Cadiz: They are Commissioners, Your Honor. reason again is the constitutional plan. The execution and implementation of the laws have been
Associate Justice Nachura: They are, therefore, alter-egos of the President? placed by the Constitution on the shoulders of the
_______________
President. This conclusion is bolstered by the Solicitor General’s own admission during oral arguments that the Truth If the President wants a truly independent Commission, then that Commission must be
Commission, particularly the Commissioners are not under the power of control by the President. In fact, the Solicitor General
went as far as to admit that the President has in fact relinquished the power of control over the Commission to underscore its
created through an act of Congress; otherwise, that independent Commission will be an
independence. unconstitutional body. Note as added examples in this regard that
111 TSN, September 28, 2010, p. 214. _______________
350
Of Similar Attempts At A Violent Seizure Of Power, And For Other Purposes.” Its Section 1 provides:
350 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010 Section 1. Creation, Objectives and Powers.—There is hereby created an independent Commission which
President and on none other. He cannot delegate his executive powers to any person or entity
112 shall investigate all the facts and circumstances of the failed coup d’état of December 1989, and recommend
measures to prevent similar attempts at a violent seizure of power. [Emphasis supplied]
outside the Executive department except by authority of the Constitution or the law (which 116 See 6th Whereas Clause, EO 1.
authority in this case he does not have), nor can he delegate his authority to undertake fact-finding 352
as an incident of his executive power, and at the same time take the position that he has no
352 SUPREME COURT REPORTS ANNOTATED
responsibility for the fact-finding because it is independent of him and his office.
Under the constitutional plan, the creation of this kind of office with this kind of independence Biraogo vs. Philippine Truth Commission of 2010
is lodged only in the Legislature. For example, it is only the Legislature which can create a body
113
previous presidential fact-finding bodies, created either by Executive or Administrative Orders
like the National Labor Relations Commission whose decisions are final and are neither (i.e., Feliciano, Melo, Zeñarosa and IIRC Commissions), were all part of the Executive department
appealable to the President nor to his alter ego, the Secretary of Labor. Yet another example, 114
and their findings, even without any express representation in the orders creating them, were
President Corazon Aquino herself, because the creation of an independent commission was outside necessarily subject to the power of the President to review, alter, modify or revise according to the
her executive powers, deemed it necessary to act pursuant to a legislative fiat in constituting the best judgment of the President. That the President who received these commissions’ reports did
first Davide Commission of 1989. 115
not alter the recommendations made is not an argument that the President can create an
_______________ “independent” commission, as the Presidents receiving the commissions’ reports could have, but
simply did not, choose to interfere with these past commissions’ findings.
112 CONSTITUTION, Article VII, Section 1: ‘The Executive Power shall be vested in the President of the Philippines.” In sum, this Court cannot and should not accept an arrangement where: (1) the President
See Bernas, supra note 30, p. 820: “With the 1987 Constitution, the constitutional system returns to the presidential model of
the 1935 Constitution: executive power is vested in the President.” Father Bernas further states: “In vesting executive power in creates an office pursuant to his constitutional power to execute the laws and to his Administrative
one person rather than in a plural executive, the evident intention was to invest the power holder with energy.” Code powers to reorganize the Executive branch, and (2) at the same time or thereafter allow the
113 CONSTITUTION, Article VI, Section 1: “The legislative power shall be vested in the Congress of the Philippines President to disavow any link with the created body or its results through a claim of independence
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.” See Vera v. Avelino, 77 Phil. 192, 212 (1946): “any power, deemed to be legislative by usage and and waiver of control. This arrangement bypasses and mocks the constitutional plan on the
tradition, is necessarily possessed by Congress x x x” cited in Bernas, supra note 30, pp. 676-677. separation of powers; among others, it encroaches into Congress’ authority to create an office.
114 Even in the case of the NLRC, however, presidential control cannot be avoided as the NLRC is part of the Executive This consequence must necessarily be fatal for the arrangement is inimical to the doctrine of
branch and the President, through his Secretary of Labor, sets the policies on labor and employment (expressed through rules separation of powers whose purpose, according to Father Joaquin Bernas, is:
and regulations and interpretation) that, consistent with the existing laws and jurisprudence, must be followed.
115 Republic Act 6832, otherwise known as “An Act Creating A Commission To Conduct A Thorough Fact-Finding “to prevent concentration of powers in one department and thereby to avoid tyranny. But the price paid for the
Investigation Of The Failed Coup D’État Of December 1989, Recommend Measures To Prevent The Occurrence insurance against tyranny is the risk of a degree of inefficiency and even the danger of gridlock. As Justice
351 Brandeis put it, “the doctrine of separation of powers was adopted…not to promote efficiency but to preclude
the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction
VOL. 637, DECEMBER 7, 2010 351 incident to the distribution of governmental powers among the three departments, to save the people from
Biraogo vs. Philippine Truth Commission of 2010 autocracy.” 117
Apparently, the President wanted to create a separate, distinct and independent Commission Indeed, to allow one department of government, without the authority of law or the
because he wants to continuously impress upon the public—his audience in the second forum— Constitution, to be granted the authority to bestow an advanced imprimatur of “truth”bespeaks of
that this Commission can tell the “truth” without any control or prompting from the Office of the a concentration of
_______________
President and without need of waiting for definitive word from those constitutionally-assigned to
undertake this task. Here, truth-telling again rears its ugly head and is unmasked for what it really 117 Bernas, supra note 30, p. 678.
is—an attempt to bypass the constitutional plan on how crimes are investigated and resolved with 353
finality.
VOL. 637, DECEMBER 7, 2010 353
Otherwise stated, if indeed the President can create the Commission as a fact-finding or
investigating body, the Commission must perforce be an entity that is within the Executive branch Biraogo vs. Philippine Truth Commission of 2010
and as such is subject to the control and supervision of the President. In fact, the circumstances power that may well overshadow any initiative to combat graft and corruption; in its own way, this
surrounding the existence of the Commission—already outlined above in terms of its processes, grant itself is an open invitation to the very evils sought to be avoided.
facilities, budget and staff—cannot but lead to control. Likewise, if indeed the Truth Commission E. Violations of the Rights of Investigated Persons
is under the control of the President who issued the EO with openly-admitted political E.1 Violation of Personal Rights
motivation, then the Solicitor General’s representation about the Commission’s independently-
116
Separately from the above effects, truth-telling as envisioned under the EO, carries prejudicial
arrived “truth” may fall under the classification of a smoke and mirror political move. Sad to state, effects on the persons it immediately targets, namely: the officials, employees and private
the Solicitor General chose to aim for the best of all worlds in making representations about the individuals alleged to have committed graft and corruption during the previous administration.
creation and the nature of the Commission. We cannot allow this approach to pass unnoticed and This consequence proceeds from the above discussed truth-telling premise that—whether the
without the observations it deserves. Commission reports (recommending the charging of specific individuals) are proven or not in the
appropriate courts—the Commission’s function of truth-telling function would have been served field cannot but be uneven in a criminal trial when the accused enters trial with a government-
and the Commission would have effectively acted against the charged individuals. sponsored badge of guilt on his forehead. The presumption of innocence in law cannot serve
118
The most obvious prejudicial effect of the truth-telling function on the persons investigated is an accused in a biased atmospherepointing to guilt in fact because the government and public
on their persons, reputation and property. Simply being singled out as “charged” in a truth-telling opinion have spoken against the accused.
report will inevitably mean disturbance of one’s routines, activities and relationships; the Viewed from the perspective of its cause, the prejudicial publicity, that adversely affects the
preparation for a defense that will cost money, time and energy; changes in personal, job and chances of an accused for a fair trial after the EO has done its job, is not the kind that occurs solely
business relationships with others; and adverse effects on jobs and businesses. Worse, reputations because of the identity of the individual accused. This prejudice results from a cause systemic to
can forever be tarnished after one is labelled as a participant in massive graft and corruption. the EO because of its truth-telling feature that
Conceivably, these prejudicial effects may be dismissed as speculative arguments that are not _______________
justified by any supporting evidence and, hence, cannot effectively be cited as factual basis for the
invalidity of the EO. Evidence, however, is hardly necessary where the prejudicial effects are self- 118 See e.g. Allenet de Ribemont v. France, February 10, 1995, 15175/89 [1995] ECHR 5, where the European Court of
Human Rights held that the right to presumption of innocence may be “infringed not only by a judge or court but also by other
evident, i.e., given that the announced and undisputed government position that truth-telling per public authorities.” The ECHR likewise held:
se, in the manner envisioned by the EO and its implementing rules, is an independent objective the The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the fair criminal
government wants to achieve. When the government itself has been heard on the “truth,” the trial that is required by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer v. Belgium judgment, of 27 February
1980, Series A no. 35, p. 30, para. 56, and the Minelli judgment previously cited, p. 15, para. 27). It will be violated if a
probability of prejudice for the judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been
354 proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning
354 SUPREME COURT REPORTS ANNOTATED suggesting that the court regards the accused as guilty (see the Minelli judgment previously cited, p. 18, para. 37).
[emphasis supplied]
Biraogo vs. Philippine Truth Commission of 2010 356
individual charged is not only a likelihood; it approaches the level of certainty. 356 SUPREME COURT REPORTS ANNOTATED
In testing the validity of a government act or statute, such potential for harm suffices to
invalidate the challenged act; evidence of actual harm is not necessary in the way it is necessary Biraogo vs. Philippine Truth Commission of 2010
for a criminal conviction or to justify an award for damages. In plainer terms, the certainty of allows the government to call its proceedings and reports a process of truth-telling where the tales
consequent damage requires no evidence or further reasoning when the government itself declares cannot but be true. This kind of systemic aberration has no place in the country’s dispensation of
that for as long as the “story” of the allegedly massive graft and corruption during the past criminal justice system and should be struck down as invalid before it can fully work itself into the
administration is told, the Commission would have fulfilled one of its functions to satisfaction; criminal justice system as an acceptable intervention.
under this reckless approach, it is self-evident that the mistaken object of the “truth” told must F. The Truth Commission and the
necessarily suffer. Equal Protection Clause
In the context of this effect, the government statement translates to the message: forget the The guarantee of equal protection of the law is a branch of the right to due process embodied
damage the persons investigated may suffer on their persons and reputation; forget the in Article III, Section 1 of the Constitution. It is rooted in the same concept of fairness that
rights they are entitled to under the Constitution; give primacy to the story told. This kind of underlies the due process clause. In its simplest sense, it requires equal treatment, i.e., the absence
message, of course, is unacceptable under a Constitution that establishes the strongest safeguards, of discrimination, for all those under the same situation. An early case, People v.
through the Bill of Rights, in favor of the individual’s right to life, security and property against Cayat, articulated the requisites determinative of valid and reasonable classification under the
119
the overwhelming might of the government. equal protection clause, and stated that it must
E.2 Denial of the right to a fair criminal trial. (1) rest on substantial distinctions;
(2) be germane to the purpose of the law;
The essence of the due process guarantee in a criminal case, as provided under Section 14(1) (3) not be limited to existing conditions only; and
of the Constitution, is the right to a fair trial. What is fair depends on compliance with the express (4) apply equally to all members of the same class.
guarantees of the Constitution, and on the circumstances of each case. In our jurisdiction, we mainly decide equal protection challenges using a “rational
When the Commission’s report itself is characterized, prior to trial, and held out by the basis” test, coupled with a “deferential” scrutiny of legislative classifications and a reluctance to
government to be the true story of the graft and corruption charged, the chances of individuals to invalidate a law unless there is a showing of a clear and unequivocal breach of the
have a fair trial in a subsequent criminal case cannot be very great. Constitution. Our views on the matter, however, have not remained static, and have been attuned
120
Consider on this point that not even the main actors in the criminal justice system—the to the jurisprudential developments in the United States on the levels of scrutiny that are applied to
Ombudsman, the Sandiganbayan and even this Court—can avoid the cloud of “untruth” and a determine
doubtful taint in their integrity after the government has publicized the Commission’s _______________
355
VOL. 637, DECEMBER 7, 2010 355 119 68 Phil. 12 (1939).
120 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004,
Biraogo vs. Philippine Truth Commission of 2010 446 SCRA 299, 370.
357
findings as the truth. If the rulings of these constitutional bodies themselves can be suspect,
individual defenses for sure cannot rise any higher. VOL. 637, DECEMBER 7, 2010 357
Where the government simply wants to tell its story, already labelled as true, well ahead of
Biraogo vs. Philippine Truth Commission of 2010
any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in
the acceptability of any differences in treatment that may result from the law. 121
public opinion that news of government scandals generate, it does not require a leap of faith to
Serrano v. Gallant Maritime Services, Inc summarizes the three tests employed in this
122
conclude that an accused brought to court against overwhelming public opinion starts his case with
jurisdiction as follows:
a less than equal chance of acquittal. The presumption of innocence notwithstanding, the playing
“There are three levels of scrutiny at which the Court reviews the constitutionality of a classification
VOL. 637, DECEMBER 7, 2010 359
embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs
only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate Biraogo vs. Philippine Truth Commission of 2010
scrutiny in which the government must show that the challenged classification serves an important state terms are third level and higher officials of other previous administrations who can still be
interest and that the classification is at least substantially related to serving that interest; and c) strict judicial
scrutiny in which a legislative classification which impermissibly interferes with the exercise of a
possibly be charged of similar levels of graft and corruption they might have perpetrated during
fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, their incumbency. Likewise excepted are the third level officials of the present administration who
and the burden is upon the government to prove that the classification is necessary to achieve may likewise commit the same level of graft and corruption during the term of the Commission.
a compelling state interest and that it is the least restrictive means to protect such interest.” [Emphasis Thus, from the points of truth-telling and the focus on the people to be investigated, at least a
supplied] double layer of differential treatment characterizes the Truth Commission’s investigation. Given
The most exacting of the three tests is evidently the strict scrutiny test, which requires the these disparate treatment, the equal protection question that arises is: does the resulting
government to show that the challenged classification serves a compelling state interest and that classification and segregation of third level officials of the previous administration and their
the classification is necessary to serve that interest. Briefly stated, the strict scrutiny test is
123
differential treatment rest on substantial distinctions? Stated more plainly, is there reasonable
applied when the challenged statute either: basis to differentiate the officials of the previous administration, both from the focus given to
(1) classifies on the basis of an inherently suspect characteristic; or them in relation with all other officials as pointed out above, and in the truth-telling treatment
(2) infringes fundamental constitutional rights. accorded to them by the Commission?
In these situations, the usual presumption of constitutionality is reversed, and it falls upon the Still a deeper question to be answered is: what level of scrutiny should be given to the patent
government to demonstrate that discrimination in focus and in treatment that the EO abets? Although this question is stated last, it
_______________ should have been the initial consideration, as its determination governs the level of scrutiny to be
accorded; if the strict scrutiny test is appropriate, the government, not the party questioning a
121 See Central Bank Employees Association, Inc. v. Bangko Sental ng Pilipinas, id., where the Court expanded the classification, carries the burden of showing that permissible classification took place. This critical
concept of suspect classification; See also Serrano v. Gallant Maritime Services, Inc., infra where the Court applied the strict
scrutiny test. consideration partly accounts, too, for the relegation to the last, among the EO’s cited grounds for
122 G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-278. invalidity, of the equal protection clause violation; the applicable level of scrutiny may depend on
123 Supra note 30, pp. 139-140. the prior determination of whether, as held in Serrano, the disparate treatment is attended by
358 infringement of fundamental constitutional rights.
358 SUPREME COURT REPORTS ANNOTATED “Fundamental rights” whose infringement leads to strict scrutiny under the equal protection
clause are those basic liberties explicitly or implicitly guaranteed in the Constitution. Justice
Biraogo vs. Philippine Truth Commission of 2010
Carpio-Morales, although in dissent in Central Bank Employees Association, Inc. v.
its classification has been narrowly tailored to further compelling governmental interests; 360
otherwise, the law shall be declared unconstitutional for violating the equal protection clause. 124
In EO 1, for the first time in Philippine history, the Executive created a public office to 360 SUPREME COURT REPORTS ANNOTATED
address the “reports of graft and corruption of such magnitude that shock and offend the moral and Biraogo vs. Philippine Truth Commission of 2010
ethical sensibilities of the people, committed….during the previous administration” through fact- Bangko Sentral ng Pilipinas, elaborated on this point when she said:
127
finding, policy formulation and truth-telling. While fact-finding has been undertaken by previous
125
“Most fundamental rights cases decided in the United States require equal protection analysis because
investigative commissions for purposes of possible prosecution and policy-formulation, a first for these cases would involve a review of statutes which classify persons and impose differing restrictions on the
the current Truth Commission is its task of truth-telling. The Commission not only has to ability of a certain class of persons to exercise a fundamental right. Fundamental rights include only those
investigate reported graft and corruption; it also has the authority to announce to the public the basic liberties explicitly or implicitly guaranteed by the U.S. Constitution. And precisely because these
“truth” regarding alleged graft and corruption committed during the previous administration. statutes affect fundamental liberties, any experiment involving basic freedoms which the legislature
conducts must be critically examined under the lens of Strict Scrutiny.
EO 1’s problem with the equal protection clause lies in the truth-telling function it gave the
Fundamental rights which give rise to Strict Scrutiny include the right of procreation, the right to
Truth Commission. marry, the right to exercise First Amendment freedoms such as free speech, political expression, press,
As extensively discussed earlier in this Opinion, truth-telling is not an ordinary task, as the assembly, and so forth, the right to travel, and the right to vote.” [Emphasis supplied]
Commission’s reports to the government and the public are already given the imprimatur of truth In the present case, as shown by the previously cited grounds for the EO’s invalidity, EO No.
way before the allegations of graft and corruption are ever proven in court. This feature, by itself, 1 infringes the personal due process rights of the investigated persons, as well as their
is a unique differential treatment that cannot but be considered in the application of the constitutional right to a fair trial. Indisputably, both these rights—one of them guaranteed under
jurisprudential equal protection clause requirements. Section 1, Article III, and under Section 14 of the same Article—are, by jurisprudential definition,
Equally unique is the focus of the Commission’s investigation—it solely addresses alleged fundamental rights. With these infringements, the question now thus shifts to the application of the
graft and corruption committed during the past administration. This focus is further narrowed strict scrutiny test—an exercise not novel in this jurisdiction.
down to “third level public officers and higher, their co-principal, accomplices and accessories In the above-cited Central Bank Employees Association, Inc. case, we stated:128
from the private sector, if any, during the previous administration.” Under these terms, the126
“Congress retains its wide discretion in providing for a valid classification, and its policies should be
subject of the EO is limited only to a very select group—the highest officials, not any ordinary accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The
government official at the time. Notably excluded under these express deference stops where the classification violates a fundamental right, or prejudices persons accorded
_______________ special protection by the Constitution. When
_______________
124 J. Carpio-Morales’ Dissenting Opinion. Supra note 120, p. 485.
125 See Item I (c) of this Concurring Opinion, p. 8. 127 Supra note 120, pp. 495-496.
128 Id. at pp. 387, 390.
126 EO 1, Section 2.
361
359
_______________
VOL. 637, DECEMBER 7, 2010 361
Biraogo vs. Philippine Truth Commission of 2010 131 EO 1, 5th Whereas Clause.
these violations arise, this Court must discharge its primary role as the vanguard of constitutional 363
guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational VOL. 637, DECEMBER 7, 2010 363
basis should not suffice.
xxx Biraogo vs. Philippine Truth Commission of 2010
But if the challenge to the statute is premised on the denial of a fundamental right, or the Effectively, by acting as he did, the President simply gave the Commission the license to an
perpetuation of prejudice against persons favored by the Constitution with special protection, judicial open hunting season to tell the “truth” against the previous administration; the Commission can
scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this investigate an alleged single billion-peso scam, as well as transactions during the past
Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is
administration that, collectively, may reach the same amount. Only the Commission, in its
true whether the actor committing the unconstitutional act is a private person or the government itself or one of
its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.” wisdom, is to judge what allegations or reports of graft and corruption to cover for as long as these
[Underscoring supplied] were during the past administration. In the absence of any specific guiding principle or directive,
Stripped of the usual deference accorded to it, the government must show that a compelling indicative of its rationale, the conclusion is unavoidable that the EO carries no special compelling
state interest exists to justify the differential treatment that EO 1 fosters. reason to single out officials of the previous administration; what is important is that the graft be
Serrano v. Gallant Maritime Services, Inc. helpfully tells us the compelling state interest that
129 attributed to the previous administration. In other words, the real reason for the EO’s focus lies
is critical in a strict scrutiny examination: elsewhere, not necessarily in the nature or extent of the matters to be investigated.
“What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the If, as strongly hinted by the Solicitor General, dissatisfaction exists regarding the
Constitution and calibrated by history. It is akin to the paramount interest of the state for which some Ombudsman’s zeal, efforts, results, and lack of impartiality, these concerns should be addressed
individual liberties must give way, such as the public interest in safeguarding health or maintaining medical through the remedies provided under the Constitution and the laws, not by bypassing the
standards, or in maintaining access to information on matters of public concern.” established remedies under these instruments. Certainly, the remedy is not through the creation of
In this same cited case, the Court categorically ruled that “the burden is upon the government new public office without the authority of Congress.
to prove that the classification is necessary to achieve a compelling state interest and that it is Every successful prosecution of a graft and corruption violation ought to be an opportunity to
the least restrictive means to protect such interest.” 130
set an example and to send a message to the public that the government seriously intends to
_______________
discharge its duties and responsibilities in the area of graft and corruption. To be sure, the
conviction of a third level officer is a high profile accomplishment that the government can and
129 Supra note 120, p. 296.
130 Id., at p. 278 citing Grutter v. Bollinger, 539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984). should announce to all as evidence of its efforts and of the lesson that the conviction conveys. This
362 government’s accomplishment, however, does not need to be against an official or officials of the
previous administration in order to be a lesson; it can be any third level or higher official from any
362 SUPREME COURT REPORTS ANNOTATED
administration, including the present. In fact, the present administration’s serious intent in
Biraogo vs. Philippine Truth Commission of 2010 fighting graft may all the more be highlighted if it will also proceed against its own people.
On its face, the compelling state interest the EO cites is the “urgent call for the determination It is noteworthy that the terms of the EO itself do not provide any specific reason why, for
of the truth regarding certain reports of large scale graft and corruption in the government and to purposes of conveying a message against
put a closure to them by the filing of the appropriate cases against those involved if warranted, 364
and to deter others from committing the evil, restore the people’s faith and confidence in the 364 SUPREME COURT REPORTS ANNOTATED
Government and in their public servants.” Under these terms, what appears important to the
131
government as means or mediums in its fight against graft and corruption are (1) to expose the Biraogo vs. Philippine Truth Commission of 2010
graft and corruption the past administration committed; (2) to prosecute the malefactors, if graft and corruption, the focus should be on officials of the previous administration under the EO’s
possible; and (3) to set an example for others. Whether a compelling State interest exists can special truth-telling terms. As mentioned above, the extent of the alleged graft and corruption
best be tested through the prism of the means the government has opted to utilize. during the previous administration does not appear to be a sufficient reason for distinction under
In the usual course and irrespective of who the malefactors are and when they committed their the EO’s vague terms. Additionally, if a lesson for the public is really intended, the government
transgressions, grafters and corruptors ought to be prosecuted. This is not only a goal but a duty of already has similar successful prosecutions to its credit and can have many more graphic examples
government. Thus, by itself, the prosecution that the EO envisions is not any different from all to draw from; it does not need to be driven to unusual means to show the graft and corruption
other actions the government undertakes day to day under the criminal justice system in committed under the previous administration. The host of examples and methodologies already
proceeding against the grafters and the corrupt. In other words, expressed as a duty, the available to the government only demonstrate that the focus on, and differential treatment of,
compelling drive to prosecute must be the same irrespective of the administration under which the specific officials for public lesson purposes involves a classification unsupported by any special
graft and corruption were perpetrated. If indeed this is so, what compelling reasons can there be to overriding reason.
drive the government to use the EO and its unusual terms in proceeding against the officials of the Given the lack of sufficiently compelling reasons to use two (2) of the three (3) objectives or
previous administration? interests the government cited in EO 1, what is left of these expressed interests is simply the desire
If the EO’s terms are to be the yardstick, the basis for the separate focus is the “extent and to expose the graft and corruption the previous administration might have committed.
magnitude” of the reported graft and corruption which “shock and offend the moral and ethical Interestingly, the EO itself partly provides the guiding spirit that might have moved the Executive
sensibilities of the people.” What this “extent and magnitude” is or what specific incidents of to its intended expose as it unabashedly points to the President’s promise made in the last election
massive graft are referred to, however, have been left vague. Likewise, no explanation has been —“Kung walang corrupt, walang mahirap.” There, too, is the Solicitor General’s very
132
given on why special measures—i.e., the special focus on the targeted officials, the creation of a calculated statement that truth-telling is an end in itself that the EO wishes to achieve.
new office, and the grant of truth-telling authority—have been taken.
Juxtaposing these overt indicators with the EO’s singleness of focus on the previous interpret the Constitution, the Judiciary itself, however, is subject to the same Constitution and, for
administration, what emerges in bold relief is the conclusion that the EO was issued largely for this reason, must in fact be very careful and zealous in ensuring that it respects the very instrument
political ends: the President wants his election promise fulfilled in a dramatic and unforgettable it is sworn to safeguard. We are aware, too, that we “cannot be the repository of all
way; none could be more so than criminal convictions, or at least, exposure of the “truth” that remedies” and cannot presume that we can cure all
135
would forever mark his political opponents; thus, the focus on the previous administration and the _______________
stress on establishing their corrupt ways as the “truth.”
Viewed in these lights, the political motivation behind the EO becomes inescapable. Political 134 See then Associate Justice Reynato S. Puno’s Concurring and Dissenting Opinion in Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. No. 160261, November 10, 2003, 415
considerations, of course, cannot be con- SCRA 44, 211, where former Chief Justice Puno spoke of an “imperial judiciary,” viz.:
_______________ The 1987 Constitution expanded the parameters of judicial power, but that by no means is a justification for the errant
thought that the Constitution created an imperial judiciary. An imperial judiciary composed of the unelected, whose sole
132 EO 1, 6th Whereas Clause. constituency is the blindfolded lady without the right to vote, is counter-majoritarian, hence, inherently inimical to the central
365 ideal of democracy. We cannot pretend to be an imperial judiciary for in a government whose cornerstone rests on the doctrine
of separation of powers, we cannot be the repository of all remedies.
VOL. 637, DECEMBER 7, 2010 365 135 Ibid.
367
Biraogo vs. Philippine Truth Commission of 2010
sidered a legitimate state purpose as basis for proper classification. They may be specially
365 VOL. 637, DECEMBER 7, 2010 367
compelling but only for the point of view of a political party or interest, not from the point of view Biraogo vs. Philippine Truth Commission of 2010
of an equality-sensitive State. the ills of society through the powers the Constitution extended to us. Thus, this Court—by its
In sum, no sufficient and compelling state interest appears to be served by the EO to justify nature and functions—cannot be in any way be “imperial,” nor has it any intention to be so.
the differential treatment of the past administration’s officials. In fact, exposure of the sins of the Otherwise, we ourselves shall violate the very instrument we are sworn to uphold.
previous administration through truth-telling should not even be viewed as “least restrictive” as it As evident in the way this Court resolved the present case, it had no way but to declare EO
is in fact a means with pernicious effects on government and on third parties. invalid for the many reasons set forth above. The cited grounds are neither flimsy nor contrived;
For these reasons, the conclusion that the EO violates the equal protection clause is they rest on solid legal bases. Unfortunately, no other approach exists in constitutional
unavoidable. interpretation except to construe the assailed governmental issuances in their best possible lights or
G. A Few Last Words to reflect these effects in a creative way where these approaches are at all possible. Even
Our ruling in this case should not in any way detract from the concept that the Judiciary is the construction in the best lights or a creative interpretation, however, cannot be done where the cited
least dangerous branch of government. The Judiciary has no direct control over policy nor over the grounds are major, grave and affect the very core of the contested issuance—the situation we have
national purse, in the way that the Legislature does. Neither does it implement laws nor exercise in the present case.
power over those who can enforce laws and national policy. All that it has is the power to Nor can this Court be too active or creative in advocating a position for or against a cause
safeguard the Constitution in a manner independent of the two other branches of government. Ours without risking its integrity in the performance of its role as the middle man with the authority to
is merely the power to check and ensure that constitutional powers and guarantees are observed, decide disputed constitutional issues. The better (and safer) course for democracy is to have a
and constitutional limits are not violated. Court that holds on to traditional values, departing from these values only when these values have
Under this constitutional arrangement, the Judiciary offers the least threat to the people and become inconsistent with the spirit and intent of the Constitution.
their rights, and the least threat, too, to the two other branches of government. If we rule against In the present case, as should be evident in reading the ponencia and this Separate Opinion,
the other two branches of government at all in cases properly brought before us, we do so only to we have closely adhered to traditional lines. If this can be called activism at all, we have been an
exercise our sworn duty under the Constitution. We do not prevent the two other branches from activist for tradition. Thereby, we invalidated the act of the Executive without however foreclosing
undertaking their respective constitutional roles; we merely confine them to the limits set by the or jeopardizing his opportunity to work for the same objective in some future, more legally
Constitution. reasoned, and better framed course of action.
_______________
SEPARATE CONCURRING OPINION
PERALTA, J.:
133 Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).
366
On July 30, 2010, President Benigno Simeon C. Aquino III issued Executive Order (E.O.) No.
1 creating the Philippine Truth Commission of 2010 (Truth Commission), which is “primarily
366 SUPREME COURT REPORTS ANNOTATED tasked to con-
Biraogo vs. Philippine Truth Commission of 2010 368
This is how we view our present action in declaring the invalidity of EO 1. We do not thereby 368 SUPREME COURT REPORTS ANNOTATED
impugn the nobility of the Executive’s objective of fighting graft and corruption. We simply tell
Biraogo vs. Philippine Truth Commission of 2010
the Executive to secure this objective within the means and manner the Constitution ordains,
duct a thorough fact-finding investigation of reported cases of graft and corruption x x x involving
perhaps in a way that would enable us to fully support the Executive.
third level public officers and higher, their co-principals, accomplices and accessories from the
To be sure, no cause exists to even impliedly use the term “imperial judiciary” in 134
private sector, if any, during the previous administration and thereafter submit its findings and
characterizing our action in this case. This Court, by constitutional design and for good reasons, is
recommendations to the President, Congress and the Ombudsman.”
not an elective body and, as already stated above, has neither reason nor occasion to delve into
Petitioners filed their respective petitions questioning the constitutionality of E.O. No. 1. In
politics—the realm already occupied by the two other branches of government. It cannot exercise
G.R. No. 193036, petitioners, as members of the House of Representatives, have legal standing to
any ascendancy over the two other branches of government as it is, in fact, dependent on these two
impugn the validity of E.O. No. 1, since they claim that E.O. No. 1 infringes upon their
branches in many ways, most particularly for its budget, for the laws and policies that are the main
prerogatives as legislators. In G.R. No. 192935, petitioner, who filed his petition as a taxpayer,
1
subjects for its interpretation, and for the enforcement of its decisions. While it has the power to
may also be accorded standing to sue, considering that the issues raised are of transcendental of the President Proper, and the transfer of any function or any agency under the Office of the
importance to the public. The people await the outcome of the President’s effort to implement his
2
President to any other department or agency and vice-versa. Nowhere is it stated that the President
pledge to find out the truth and provide closure to the reported cases of graft and corruption during can create an office like the Truth Commission, which does not result from any reorganization
the previous administration. The constitutional issues raised by petitioners seek the determination under Section 31. Hence, the said section cannot be used to justify the creation of the Truth
of whether or not the creation of the Truth Commission is a valid exercise by the President of his Commission.
executive power. Moreover, in its Comment, the OSG stated that one of the bases for the creation of E.O. No. 1
Petitioners contend that E.O. No. 1 is unconstitutional, because only Congress may create a is P.D. No. 1416, as amended by P.D. No. 1772, which amendment was enacted by President
public office, pursuant to Section 1, Article VI of the Constitution. 3
Ferdinand E. Marcos on January 15, 1981.
Respondents, through the Office of the Solicitor General (OSG), counter that the issuance of P.D. No. 1416, as amended, is inapplicable as basis in the creation of the Truth Commission,
E.O. No. 1 is mainly supported by Section 17, Article VII of the Constitution, Section 31, Title III,
4
since it was intended by President Ferdinand E. Marcos to promote efficiency and flexibility in the
Book III of organization of the national government to strengthen the government bureaucracy when the
_______________ government was in the transition from presidential to the parliamentary form of government . This
is evident in the preamble of P.D. No. 1416, which states:
8
1 See David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160. “WHEREAS, the transition toward the parliamentary form of government will necessitate flexibility in
2 Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110. the organization of the national government; x x x” 9
3 Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. The OSG admitted during the oral argument that the 1987 Constitution ended the power of
10
4 Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure that the the President to reorganize the national government. It is noted that President Ferdinand E.
laws be faithfully executed. Marcos exercised legislative power concurrently with the interim Batasang Pambansa (1976) and,
369 subsequently, with the regular Batasang Pambansa
VOL. 637, DECEMBER 7, 2010 369 _______________
Biraogo vs. Philippine Truth Commission of 2010 7 Id. (Emphasis supplied.)
E.O. No. 292, and Presidential Decree (P.D.) No. 1416, as amended by P.D. No. 1772. 8 Enacted on June 9, 1978.
Quoted in E.O. No. 1 as the legal basis for its creation is Section 31, Title III, Book III of E.O. 9 Emphasis supplied.
10 Conducted on September 28, 2010.
No. 292, otherwise known as the Revised Administrative Code of 1987, which provides: 371
“SEC. 31. Continuing Authority of the President to Reorganize his Office.—The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have VOL. 637, DECEMBER 7, 2010 371
continuing authority to reorganize the administrative structure of the Office of the President. For this purpose,
Biraogo vs. Philippine Truth Commission of 2010
he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the (1984). After the February 1986 revolution, President Corazon C. Aquino assumed revolutionary
11
immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff legislative power, and issued Proclamation No. 3, the Provisional Freedom Constitution. Section 3,
Support System, by abolishing, consolidating or merging units thereof or transferring functions from Article I of Proclamation No. 3 abolished the Batasang Pambansa, while Section 1, Article II of
one unit to another; the said Proclamation vested legislative power in the President until a legislature would be elected
(2) Transfer any function under the Office of the President to any other Department or Agency and convened under a new Constitution. Thus, Section 6, Article XVIII (Transitory Provisions) of
as well as transfer functions to the Office of the President from other Departments and Agencies; and the 1987 Constitution provides that “[t]he incumbent President (President Corazon Aquino) shall
(3) Transfer any agency under the Office of the President to any other department or agency
continue to exercise legislative powers until the first Congress is convened.” 12
as well as transfer agencies to the Office of the President from other departments and agencies.”
In view of the foregoing, the decision in Larin v. Executive Secretary insofar as P.D. No. 13
In Bagaoisan v. National Tobacco Administration, the Court held that the first sentence of
5
1416, as amended by P.D. No. 1772, is cited as a law granting the President the power to
the law is an express grant to the President of a continuing authority to reorganize the
reorganize, needs to be re-examined.
administrative structure of the Office of the President. Section 31(1) of Executive Order No. 292
Assuming that P.D. No. 1416, as amended, is still a valid law, it cannot be the basis of the
specifically refers to the President’s power to restructure the internal organization of the Office of
creation of the Truth Commission, because all the cases, from Larin v. Executive
the President Proper, by abolishing, consolidating or merging units thereof or transferring
Secretary; Buklod
14
ng
functions from one unit to another. Section 31(2) and (3) concern executive offices outside the
6
Kawaning EIIB v. Zamora; Secretary of the Department of Transportation and
15
Office of the President Proper allowing the President to transfer any function under the Office of
Communications v. Mabalot; Bagaoisan v. National Tobacco Administration; Department of
16 17
the President to any other department or agency and vice-versa, and the trans-
_______________ Environment and Natural Resources v. DENR Region 12 Employees; Tondo Medical Center 18
Employees Association v. Court of Appeals; Malaria Employees and Workers Association of
19
5 G.R. No. 152845, August 5, 2003, 408 SCRA 337. the Philippines, Inc. (MEWAP) v. Romulo to Banda v. Ermi-
20
6 Id. (Emphasis supplied.) _______________
370
11 Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, First edition, pp.
370 SUPREME COURT REPORTS ANNOTATED 70-73, citing Legaspi v. Minister of Finance, 115 SCRA 418. (1982).
Biraogo vs. Philippine Truth Commission of 2010 12 Id., at p. 73.
13 G.R. No. 112745, October 16, 1997, 280 SCRA 713.
fer of any agency under the Office of the President to any other department or agency and vice- 14 Id.
versa. 7
15 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.
Thus, the reorganization in Section 31 involves abolishing, consolidating or merging units in 16 G.R. No. 138200, February 27, 2002, 378 SCRA 128.
17 Supra note 5.
the Office of the President Proper or transferring functions from one unit to another in the Office 18 G.R. No. 149724, August 19, 2003, 409 SCRA 359.
19 G.R. No. 167324, July 17, 2007, 527 SCRA 746. Secretary issued Administrative Order No. 298, creating an ad hoccommittee to investigate the
20 G.R. No. 160093, July 31, 2007, 528 SCRA 673.
372
administrative case filed against the DOH-NCR employees.
_______________
372 SUPREME COURT REPORTS ANNOTATED
24 Secretary of the Department of Transportation and Communications v. Mabalot, supra note 16.
Biraogo vs. Philippine Truth Commission of 2010 25 Emphasis supplied.
ta, which cited P.D. No. 1416, as amended, as a basis to reorganize, involved reorganization or
21
26 Supra note 23.
streamlining of an agency of the Executive Department. However, the Truth Commission was not 374
created for streamlining purposes. 374 SUPREME COURT REPORTS ANNOTATED
The purpose of reorganization under P.D. No. 1416, as amended by P.D. No. 1772, is to
“promote simplicity, economy and efficiency in the government to enable it to pursue programs Biraogo vs. Philippine Truth Commission of 2010
consistent with national goals for accelerated social and economic development, and to improve The said Administrative Order was indorsed to the Presidential Commission Against Graft and
upon the services of the government in the transaction of the public business.” Corruption (PCAGC), which found the respondents guilty as charged and recommended their
The creation of the Truth Commission, however, is not to promote simplicity, economy and dismissal from the government. However, the Court overturned the dismissal of respondents by
efficiency in the government. The Truth Commission is primarily tasked to conduct fact-finding the Secretary of DOH, because respondents were denied due process, but it declared valid the
investigation of reported cases of graft and corruption involving third level public officers and creation of the ad hoc committee, thus:
higher, their co-principals, accomplices and accessories from the private sector, if any, during the
“x x x The investigation was authorized under Administrative Order No. 298 dated October 25, 1996, which
previous administration of President Gloria Macapagal-Arroyo, which separate investigative body, had created an Ad Hoc Committee to look into the administrative charges filed against Director Rosalinda U.
as stated in the preamble, “will recommend the prosecution of the offenders and secure justice for Majarais, Priscilla G. Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L. Perez.
all.” It is, in part, the implementation of the pledge of President Benigno Aquino, Jr. during the The Investigating Committee was composed of all the members of the PCAGC: Chairman Eufemio C.
last election that if elected, he would end corruption and the evil it breeds. Domingo, Commissioner Dario C. Rama and Commissioner Jaime L. Guerrero. The Committee was directed
In its Memorandum, the OSG justifies the power of the President to create the Truth by AO 298 to “follow the procedure prescribed under Section 38 to 40 of the Civil Service Law (PD 807), as
Commission based on his authority to create ad hoc fact-finding committees or offices within the amended.” It was tasked to “forward to the Disciplining Authority the entire records of the case, together with
Office of the President, which authority is described as an adjunct of his plenary executive power its findings and recommendations, as well as the draft decision for the approval of the President.”
under Section 1 and his power of control under Section 17, both of Article VII of the The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
Constitution. It cited the case of Department of Health v. Camposano, which held:
22 23
President has the obligation to ensure that all executive officials and employees faithfully comply with the law.
“The Chief Executive’s power to create the Ad HocInvestigating Committee cannot be doubted. Having With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact
been constitutionally granted full control of the Executive Department, to which respondents belong, the that the investigating team and the PCAGC had the same composition, or that the former used the offices and
President has the obligation to ensure that all executive officials and employees faithfully
_______________
facilities of the latter in conducting the inquiry.” 27
The ponencia stressed that the purpose of allowing ad hoc investigating bodies to exist is to
21 G.R. No. 166620, April 20, 2010, 618 SCRA 488. allow inquiry into matters which the President is entitled to know so that he can be properly
22 OSG Memorandum, p. 43. advised and guided in the performance of his duties relative to the execution and enforcement of
23 496 Phil. 886, 896-897; 457 SCRA 438, 450 (2005).
373 the laws of the land. The ponencia stated that this was also the objective of investigative bodies
created in the past like
VOL. 637, DECEMBER 7, 2010 373 _______________
Biraogo vs. Philippine Truth Commission of 2010
comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is 27 Department of Health v. Camposano, supra note 23.
not affected by the fact that the investigating team and the PCAGC had the same composition, or that the 375
former used the offices and facilities of the latter in conducting the inquiry.” VOL. 637, DECEMBER 7, 2010 375
To clarify, the power of control is “the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to substitute the Biraogo vs. Philippine Truth Commission of 2010
judgment of the former for that of the latter;” hence, it cannot be the basis of creating the Truth
24 the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zeñarosa
Commission. Commission. Hence, the ponencia held that the President’s power to create investigative bodies
The ponencia justifies the creation of the Truth Commission based on the President’s duty to cannot be denied.
ensure that the laws be faithfully executed under Section 17, Article VII of the Constitution, thus: Albeit the President has the power to create ad hoc committees to investigate or inquire into
“Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall matters for the guidance of the President to ensure that the laws be faithfully executed, I am of the
ensure that the laws be faithfully executed.” 25 view that the Truth Commission was not created in the nature of the aforementioned ad
According to the ponencia, to ascertain if laws are faithfully executed, the President has the hoc investigating/fact-finding bodies. The Truth Commission was created more in the nature of a
power to create ad hoc investigating committees, which power has been upheld in Department of public office.
Health v. Camposano. In the said case, some concerned employees of the Department of Health
26 Based on the creation of ad hoc investigating bodies in Department of Health v.
(DOH)-National Capital Region (NCR) filed a complaint before the DOH Resident against certain Camposano and Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
officers of the DOH arising from alleged anomalous purchase of medicines. The Resident Desierto, the members of
28
Ombudsman submitted an investigation report to the Secretary of Health recommending the filing _______________
of a formal administrative charge of Dishonesty and Grave Misconduct against the respondents.
Subsequently, the Secretary of Health filed a formal charge against the respondents for Grave
Misconduct, Dishonesty, and Violation of Republic Act No. 3019. Thereafter, the Executive
28 G.R. No. 145184, March 14, 2008, 548 SCRA 295. In this case, President Fidel V. Ramos issued on October 8, 1992, the orderly conduct of its investigations, proceedings and hearings, including the
Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (Committee), which
reads:
presentation of evidence. 31
WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that “Subject to reasonable conditions prescribed by 3. The Truth Commission shall have the power to engage the services of experts as
law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest”; consultants or advisers as it may deem necessary to accomplish its mission. 32
WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that “The right of the state to recover properties In addition, the Truth Commission has coercive powers such as the power to subpoena
unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, laches or estoppel”; witnesses. Any government official or personnel who, without lawful excuse, fails to appear upon
33
WHEREAS, there have been allegations of loans, guarantees, or other forms of financial accommodation granted, subpoena issued by the Commission or who, appearing before the Commission refuses to take oath
directly or indirectly, by government owned and controlled bank or financial institutions, at the behest, command or urging by or affirmation, give testimony or produce documents for inspection, when required, shall be
previous government officials to the disadvantage and detriment of the Philippine government and the Filipino people;
ACCORDINGLY, an “Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS” is hereby created to be
subject to administrative disciplinary action. Any private person who does the same may be dealt
34
composed of the following: with in accordance with law. Apparently, the grant of such powers to the Truth Commission is no
35
Chairman of the Presidential longer part of the executive power of the President, as it is part of law-making, which legislative
Commission on Good Government - Chairman power is
The Solicitor General - Vice-Chairman _______________
376
376 SUPREME COURT REPORTS ANNOTATED 29 See Footnote 28.
30 E.O. No. 1, Section 2 (i).
Biraogo vs. Philippine Truth Commission of 2010 31 E.O. No. 1, Section 2 (j).
an ad hoc investigative body are heads and representatives of existing government offices, 32 E.O. No. 1, Section 5.
depending on the nature of the subject matter 33 E.O. No. 1, Section 2 (e).
34 E.O. No. 1. Section 9.
_______________
35 Id.
378
Representative from the
Office of the Executive Secretary - Member 378 SUPREME COURT REPORTS ANNOTATED
Representative from the
Department of Finance - Member Biraogo vs. Philippine Truth Commission of 2010
Representative from the vested in Congress. There are only two instances in the Constitution wherein Congress may
36
Department of Justice - Member delegate its law-making authority to the President: 37
Representative from the
Development Bank of the Philippines - Member
“Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both houses in joint session
Representative from the assembled, voting separately, shall have the sole power to declare the existence of a state of war.
Philippine National Bank - Member (2) In times of war or other national emergency, the Congress may, by law, authorize the
Representative from the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
Asset Privatization Trust - Member necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
Government Corporate Counsel - Member the Congress, such powers shall cease upon the next adjournment thereof.
Representative from the Article VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a
Philippine Export and Foreign
Loan Guarantee Corporation - Member
progressive system of taxation.
The Ad Hoc Committee shall perform the following functions: (2) The Congress may, by law, authorize the President to fix within specified limits, and subject
1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and
stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the wharfage dues, and other duties or imposts within the framework of the national development program
grant thereof; of the government.” 38
2. Identify the borrowers who were granted “friendly waivers”, as well as the government officials who Although the President may create investigating bodies to help him in his duty to ensure that
granted these waivers; determine the validity of these waivers;
3. Determine the courses of action that the government should take to recover those loans, and to the laws are faithfully executed, he cannot be allowed to encroach on or usurp the law-making
recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof. power of the Legislature in the creation of such investigative bodies.
The Committee is hereby empowered to call upon any department, bureau, office, agency, instrumentality or corporation Moreover, the Truth Commission’s function is questioned on the ground that it duplicates, if
of the government, or any officer or employee thereof, for such assistance as it may need in the discharge of its function.
377
not supersedes, the function of the Office of the Ombudsman. The OSG avers that the
Ombudsman’s power to
VOL. 637, DECEMBER 7, 2010 377 _______________
Biraogo vs. Philippine Truth Commission of 2010
36 The Constitution, Article VI, Section 1. The legislative power shall be vested in the Congress of the Philippines which
of the investigation. The ad hoc investigating body’s functions are primarily fact- shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on
finding/investigative and recommendatory in nature. 29
initiative and referendum.
In this case, the members of the Truth Commission are not officials from existing government 37 Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, supra note 11, at
70, 140-141, 161.
offices. Moreover, the Truth Commission has been granted powers of an independent office as 38 Emphasis supplied.
follows: 379
1. Engage or contract the services of resource persons, professionals and other personnel
VOL. 637, DECEMBER 7, 2010 379
determined by it as necessary to carry out its mandate; 30
2. Promulgate its rules and regulations or rules of procedure it deems necessary to Biraogo vs. Philippine Truth Commission of 2010
effectively and efficiently carry out the objectives of this Executive Order and to ensure investigate is not exclusive, but is shared with other similarly authorized agencies,
citing Ombudsman v. Galicia. 39
Based on Section 2 of E.O. No. 1, the powers and functions of the Truth Commission do not ministration of former President Gloria Macapagal-Arroyo. This is admitted by the OSG in its
supplant the powers and functions of the Ombudsman. Nevertheless, what is the use of the Truth
40
Memorandum as it explains that “to include the past administrations, at this point, may
44
Commission if its power is merely recommendatory? Any finding of graft and corruption by the unnecessarily overburden the Commission and lead it to lose its effectiveness.” The OSG’s
Truth Commission is still subject to evaluation by the Office of the Ombudsman, as it is only the position shows more consideration for the burden that the investigation may cause to the
Office of the Ombudsman that is empowered to conduct preliminary investigation, determine the Commission, while losing sight of the equal protection clause of the Constitution.
existence of probable cause and prosecute the case. Hence, the creation of the Truth Commission The OSG further states that even if the Truth Commission would solely concern itself with
will merely be a waste of money, since it duplicates the function of the Office of the Ombudsman graft and corruption, if there be any, of the previous administration, there is still no violation of the
to investigate reported cases of graft and corruption. equal protection clause. It submits that the segregation of the transactions of public officers during
Further, E.O. No. 1 violates that equal protection clause enshrined in the Constitution. The the previous administration as possible subjects of investigation is a valid classification based on
guarantee of equal protection of the laws means that no person or class of persons shall be denied substantial distinctions and is germane to the evils which the E.O. seeks to correct. The
the same protection of laws which is enjoyed by other persons or other classes in like distinctions cited are:
circumstances. 41
1) E.O No. 1 was issued in view of widespread reports of large scale graft and corruption in
In this case, investigation by the Truth Commission covers only third level public officers and the previous administration which have eroded public confidence in public institutions.
higher, their co-principals, accomplices 2) The segregation of the preceding administration as the object of fact-finding investigations
_______________ is warranted by the reality that the current administration will most likely bear the
immediate consequences of the policies of the previous administration, unlike those of the
39 G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339. administrations long gone.
40 Republic Act No. 6770, Section 15. Powers, Functions and Duties.—The Office of the Ombudsman shall have the
following powers, functions and duties: 3) The classification of the previous administration as a separate class for investigation lies in
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or the reality that the evidence of possible criminal activity, the evidence that could lead to
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary recovery of public monies illegally dissipated, the policy lessons to be learned to ensure
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigatory agency of Government, the investigation of such cases x x x.
that anti-corruption laws are faithfully executed, are more easily established in the regime
41 City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308. that immediately precedes the current administration.
380 4) Many administrations subject the transactions of their predecessors to investigations to
380 SUPREME COURT REPORTS ANNOTATED
provide closure to issues that are
_______________
Biraogo vs. Philippine Truth Commission of 2010
and accessories from the private sector, if any, during the previous administration of former 44 Memorandum, p. 89.
President Gloria Macapagal-Arroyo. 42 382
The OSG, however, counters in its Memorandum that the equal protection clause of the 382 SUPREME COURT REPORTS ANNOTATED
Constitution is not violated, because although E.O. No. 1 names the previous administration as the
Biraogo vs. Philippine Truth Commission of 2010
initial subject of the investigation of cases of graft and corruption, it is not confined to the said
pivotal to national life or even as a routine measure of due diligence and good
administration, since E.O. No. 1 clearly speaks of the President’s power to expand its coverage to
housekeeping by a nascent administration.
prior administrations as follows:
“SECTION 17. Special Provision Concerning Mandate.—If and when in the judgment of the Indeed, the equal protection clause of the Constitution allows classification. If the 45
President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include classification is reasonable, the law may operate only on some and not all of the people without
the investigation of cases and instances of graft and corruption during the prior administrations, such mandate violating the equal protection clause. To be valid, it must conform to the following requirements:
46
may be so extended accordingly by way of a supplemental Executive Order” 43
(1) It must be based on substantial distinctions; (2) it must be germane to the purposes of the law;
As provided above, the mandate of the Truth Commission may be expanded to include the (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members
investigation of cases of graft and corruption during prior administrations, but it is subject to the of the class. 47
“judgment” or discretion of the President and it may be so extended by way of a supplemental Peralta v. Commission on Elections held: 48
Executive Order. In the absence of the exercise of judgment by the President that the Truth “The equal protection clause does not forbid all legal classifications. What [it] proscribes is a
Commission shall also conduct investigation of reported cases of graft and corruption during prior classification which is arbitrary and unreasonable. It is not violated by a reasonable classification based upon
administrations, and in the absence of the issuance of a supplemental executive order to that effect, substantial distinctions, where the classification is germane to the purpose of the law and applies equally to all
those belonging to the same class. The equal protection clause is not infringed by legislation which applies
E.O. No. 1 covers only third level public officers and higher, their co-principals, accomplices and
only to those persons falling within a specified class, if it applies alike to all persons within such class, and
accessories from the private sector, if any, during the previous ad- reasonable grounds exist for making a distinction between those who fall within the class and those who do
_______________
not. There is, of course, no concise or easy answer as to what an arbitrary classification is. No definite rule has
been or can be laid down on the basis of which such question may be resolved. The determination must be
42 E.O. No. 1, Section 2. Powers and functions.—The Commission, which shall have all the powers of an investigative made in accordance with the facts presented by the particular case. The general rule, which is well-settled by
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-
the authorities, is that a classification, to be valid, must rest upon material differences between the persons,
finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous activities or things included and those excluded. There must, in other words, be a basis for distinction.
administration x x x. (Emphasis supplied.) Furthermore, such classification must be germane and pertinent to the purpose of the law. And, finally, the
43 Emphasis supplied. basis of classification must, in general, be so drawn that those who stand in substantially the same position
381 with respect to the law are treated alike.”
_______________
VOL. 637, DECEMBER 7, 2010 381
Biraogo vs. Philippine Truth Commission of 2010
45 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004, 446 “Black defines locus standi as “a right of appearance in a court of justice on a given question.” In public
SCRA 299, citing Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54. (1974). or constitutional litigations, the Court is often burdened with the determination of the locus standi of the
46 City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348. petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct
47 Id., at pp. 348-349.
48 No. L-47771, March 11, 1978, 82 SCRA 30.
any official action or policy in order to avoid obstructing the efficient functioning of public officials and
383 offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the
outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
VOL. 637, DECEMBER 7, 2010 383 The question on legal standing is whether such parties have “alleged such a personal stake in the
outcome of the controversy as to as-
Biraogo vs. Philippine Truth Commission of 2010 _______________
The distinctions cited by the OSG are not substantial to separate the previous administration
as a distinct class from prior administrations as subject matter for investigation for the purpose of 1 Philippine Constitution Association v. Hon. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888, August 19, 1994, 235 SCRA 506.
2 G.R. Nos. 191002, 191032, 191057, 191149, 191342 and 191420, and A.M. No. 10-2-5-SC, March 17, 2010, 615 SCRA 666.
ending graft and corruption. As stated by the ponencia, the reports of widespread corruption in the 385
previous administration cannot be taken as a substantial distinction, since similar reports have
been made in earlier administrations. VOL. 637, DECEMBER 7, 2010 385
Moreover, a valid classification must rest upon material differences between the persons, or Biraogo vs. Philippine Truth Commission of 2010
activities or thing included and excluded. Reasonable grounds must exist for making a distinction
49
sure that concrete adverseness which sharpens the presentation of issues upon which the court so
between those who fall within the class and those who do not. There is no substantial distinction
50
largely depends for illumination of difficult constitutional questions.” Accordingly, it has been held
cited between public officers who may be involved in reported cases of graft and corruption during that the interest of a person assailing the constitutionality of a statute must be direct and personal. He
the previous administration and public officers who may be involved in reported cases of graft and must be able to show, not only that the law or any government act is invalid, but also that he
corruption during prior administrations in relation to the purpose of ending graft and corruption. sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and
To limit the investigation to public officers of the previous administration is violative of the equal not merely that he suffers thereby in some indefinite way. It must appear that the person complaining
has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is
protection clause. about to be subjected to some burdens or penalties by reason of the statute or act complained of.
I vote, therefore, to GRANT the petitions as Executive Order No. 1 is unconstitutional since it It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
violates the equal protection clause of the Constitution and encroaches on the law-making power determining whether a petitioner in a public action had locus standi. There, the Court held that the person who
of Congress under Section 1, Article VI of the Constitution. would assail the validity of a statute must have “a personal and substantial interest in the case such that he has
SEPARATE OPINION sustained, or will sustain direct injury as a result.” Vera was followed in Custodio v. President of the
BERSAMIN, J.: Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the Philippines v.
I register my full concurrence with the Majority’s well reasoned conclusion to strike down Felix, and Pascual v. Secretary of Public Works.
Executive Order No. 1 (E.O. No. 1) for its incurable unconstitutionality. Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can
be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the
I share and adopt the perspectives of my colleagues in the Majority on why the issuance has to Court liberalized the approach when the cases had “transcendental importance.” Some notable controversies
be struck down. I render this Separate Opinion only to express some thoughts on a few matters. whose petitioners did not pass the direct injury testwere allowed to be treated in the same way as in Araneta v.
_______________
Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised
49 Peralta v. Commission on Elections, supra. by the petition due to their “far-reaching implications,” even if the petitioner had no personality to file the suit.
50 Id. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases,
384
permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the
384 SUPREME COURT REPORTS ANNOTATED constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
Biraogo vs. Philippine Truth Commission of 2010 unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in
general. Although such petitioner may not be as adversely affected by the action complained against as are
I others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief
from the Court in the vindication of a public right.386
Locus Standi of Petitioners 386 SUPREME COURT REPORTS ANNOTATED
I hold that the petitioners have locus standi. Biraogo vs. Philippine Truth Commission of 2010
In particular reference to the petitioners in G.R. No. 193036, I think that their Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That
being incumbent Members of the House of Representatives gave them the requisite legal standing is not surprising, for even if the issue may appear to concern only the public in general, such capacities
to challenge E.O. No. 1 as an impermissible intrusion of the Executive into the domain of the nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly
Legislature. Indeed, to the extent that the powers of Congress are impaired, so is the power explains why:
of each Member, whose office confers a right to participate in the exercise of the powers of that Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public
institution; consequently, an act of the Executive that injures the institution of actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff
Congress causes a derivative but nonetheless substantial injury that a Member of Congress can 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
assail. Moreover, any intrusion of one Department in the domain of another Department
1
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v.
diminishes the enduring idea underlying the incorporation in the Fundamental Law of the time- Collins: “In matter of mere public right, however…the people are the real parties…It is at least the
honored republican concept of separation of powers.Justice Mendoza’s main opinion, which well right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued
explains why the petitioners have locus standi, is congruent with my view on the matter that I and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v.
expressed in De Castro v. Judicial and Bar Council, et al., viz.: 2
Jordan held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
unlawful use of public funds to his injury cannot be denied.” offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-
xxx principals, accomplices and accessories from the private sector, if any, during the previous administration; and
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of
any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of justice shall be served without fear or favor.
the requirement. The Commission shall be composed of a Chairman and four (4) members who will act as an independent
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to collegial body.”
remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are If the Truth Commission is an entirely new office, then it is not the result of any
not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. reorganization undertaken pursuant to Section 31, Chapter 10, Book III, of the Administrative
In Agan, Jr. v. Philippine International Air Terminals Co., Inc., we pointed out: “Standing is a peculiar Code of 1987. Thus, the contention of the Solicitor General is absolutely unwarranted.
concept in constitutional law because in some cases, suits are not brought by parties who have been personally
Neither may the creation of the Truth Commission be made to rest for its validity on the fact
injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the that the Constitution, through its Section 17, Article VII, invests the President with the duty to
definition, it is still within the wide discretion of the Court to waive the requirement and so remove the ensure that the laws are faithfully executed. In my view, the duty of faithful execution of the laws
impediment to its addressing and resolving the serious constitutional questions raised.” necessarily presumes the prior existence of a law or rule to execute on the part of the President.
387 But, here, there is no law or rule that the President has based his issuance of E. O. No. 1.
VOL. 637, DECEMBER 7, 2010 387 I cannot also bring myself to accept the notion that the creation of the Truth Commission is
traceable to the President’s power of control over the Executive Department. It is already settled
Biraogo vs. Philippine Truth Commission of 2010 that the Presi-
II 389
The President Has No Power to Create A Public Office VOL. 637, DECEMBER 7, 2010 389
A public office may be created only through any of the following modes, namely: ( a) by the
Constitution; or (b) by statute enacted by Congress; or (c) by authority of law (through a valid Biraogo vs. Philippine Truth Commission of 2010
delegation of power). 3 dent’s power of control can only mean “the power of an officer to alter, modify, or set aside what a
The power to create a public office is essentially legislative, and, therefore, it belongs to subordinate officer had done in the performance of his duties, and to substitute the judgment of the
Congress. It is not shared by Congress with the President, until and unless Congress enacts former for that of the latter.” As such, the creation by the President of a public office like the
4
legislation that delegates a part of the power to the President, or any other officer or agency. Truth Commission, without either a provision of the Constitution or a proper law enacted by
Yet, the Solicitor General contends that the legal basis for the President’s creation of the Truth Congress authorizing such creation, is not an act that the power of control includes.
Commission through E. O. No. 1 is Section 31, Chapter 10, Book III, of the Administrative Code
of 1987. III
Section 31, Chapter 10, Book III, of the Administrative Code of 1987, which reads:
“Section 31. Continuing Authority of the President to Reorganize his Office.—The President, subject to Truth Commission Replicates and Usurps the
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
Duties and Functions of the
continuing authority to reorganize the administrative structure of the Office of the President. For this purpose,
he may take any of the following actions: Office of the Ombudsman
1. Restructure the internal organization of the Office of the President Proper, including the immediate I find that the Truth Commission replicates and usurps the duties and functions of the Office
Offices, the Presidential Special Assistants/Advisers System, by abolishing, consolidating or merging units of the Ombudsman. Hence, the Truth Commission is superfluous and may erode the public trust
thereof or transferring functions from one unit to another; and confidence in the Office of the Ombudsman.
2. Transfer any function under the Office of the President to any other Department or Agency as well as The Office of the Ombudsman is a constitutionally-created quasi-judicial body established to
transfer functions to the Office of the President from other Departments and Agencies; and investigate and prosecute illegal acts and omissions of those who serve in the Government. Section
3. Transfer any agency under the Office of the President to any other department or agency as well as 5, Article XI of the 1987 Constitution enumerates the powers, functions, and duties of the Office
transfer agencies to the Office of the President from other departments or agencies.”
_______________
of the Ombudsman, including the power to:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
3 Secretary of the Department of Transportation and Communications v. Malabot, G.R. No. 138200, February 27, 2002,
xxx
378 SCRA 128.
388
(5) Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.
388 SUPREME COURT REPORTS ANNOTATED xxx
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Biraogo vs. Philippine Truth Commission of 2010 Government and make recommendations for
nowhere refers to the creation of a public office by the President. On the contrary, only a little _______________
effort is needed to know from reading the text of the provision that what has been granted is
limited to an authority for reorganization through any of the modes expressly mentioned in the 4 Mondano v. Silvosa, 97 Phil. 143.
390
provision.
The Truth Commission has not existed before E. O. No. 1 gave it life on July 30, 2010. 390 SUPREME COURT REPORTS ANNOTATED
Without a doubt, it is a new office, something we come to know from the plain words of Section 1 Biraogo vs. Philippine Truth Commission of 2010
of E. O. No. 1 itself, to wit: their elimination and the observance of high standards of ethics and efficiency.
“Section 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the “COMMISSION”, which shall primarily seek and find the truth
The Framers of the Constitution, particularly those of them who composed the Committee on Madam President, the creation of an Ombudsman x x x is in answer to the crying need of our people for
Accountability of Public Officers, intended the Office of the Ombudsman to be strong and an honest and responsive government. The office of the Ombudsman as proposed by the Committee on
effective, in order to enable the Office of the Ombudsman to carry out its mandate as the Protector Accountability of Public Officers, x x x is really an institution primarily for the citizens as against the
malpractices and corruption in the government. As an official critic, the Ombudsman will study the law,
of the People against the inept, abusive, and corrupt in the Government. This intent is clear from
the procedure and practice in the government, and make appropriate recommendations for a more
the proceedings on the establishment of the Office of the Ombudsman, as follows: systematic operation of the governmental machinery, free from bureaucratic inconveniences. As a
SPONSORSHIP SPEECH mobilizer, the Ombudsman will see to it that there be a steady flow of services to the individual consumers of
OF COMMISSIONER MONSOD government. And as a watchdog, the Ombudsman will look after the general, as well as specific,
MR. MONSOD. Madam President, the Committee on Accountability of Public Officers is respectfully performances of all government officials and employees so that the law may not be administered with an
submitting its proposed Article in the Constitution, and we would just want to make a few remarks on the evil eye or an uneven hand.” 7
articles and sections that we have included.
On the other hand, E.O. No. 1 enumerates the objectives of the creation of the Truth
xxx
With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a distinction Commission, thus:
between the purely prosecutory function of the Tanodbayan and the function of a pure Ombudsman who will EXECUTIVE ORDER NO. 1
use the prestige and persuasive powers of his office. To call the attention of government officials to any CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
impropriety, misconduct or injustice, we conceive the Ombudsman as a champion of the citizens x x x WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle
The concept of the Ombudsman here is admittedly a little bit different from the 1973 concept x x x The idea that a public office is a public trust and mandates that public officers and employees, who are servants of
here is to address ourselves to the problem that those who have unlawfully benefitted from the the people, must at all times be accountable to the latter, serve them with utmost responsibility,
acquisition of public property over the years, through technicalities or practice, have gained integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
immunityand that, therefore, the right of the people to recover should be respected x x x. 5
xxx
xxx WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
_______________ scale graft and corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore
5 Record of the Deliberation of the 1986 Constitutional Commission, R.C.C. No. 40, Saturday, July 26, 1986, pp. 265. the people’s faith and confidence in the Government and in their public servants;
391 WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported
VOL. 637, DECEMBER 7, 2010 391 _______________
Biraogo vs. Philippine Truth Commission of 2010
7 Id., at p. 267.
SPONSORSHIP SPEECH 393
OF COMMISSIONER COLAYCO
MR. COLAYCO. Thank you, Madam President. VOL. 637, DECEMBER 7, 2010 393
The Committee is proposing the creation of an office which can act in a quick, inexpensive and
Biraogo vs. Philippine Truth Commission of 2010
effective manner on complaints against the administrative inaction, abuse and arbitrariness of
government officials and employees in dealing with the people. x x x. cases of graft and corruption during the previous administration, and which will recommend the
xxx prosecution of the offenders and secure justice for all;
[W]e have proposed as briefly as possible in our resolution an office which will not require any formal WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
condition for the filing of a complaint. Under our proposal, a person can file a complaint even by telephone Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of
and without much ado, the office of the Ombudsman is under obligation to see to it that the complaint is acted the President.
upon, not merely attended to but acted upon. x x x. If the employee admits that there was reason behind the NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
complaint, he is told to do what the complainant wanted him to do without much ado. And then that is virtue of the powers vested in me by law, do hereby order:
followed up by the corresponding report to the department of the government which has supervision over the SECTION 1. Creation of a Commission.—There is hereby created the PHILIPPINE TRUTH
employee at fault, with the proper recommendation. COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the
xxx truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
Under our proposal, the Ombudsman is empowered to investigate, to inquire into and to demand that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
the production of documents involving transactions and contracts of the government where employees, their co-principals, accomplices and accessories from the private sector, if any, during the
disbursement of public funds is reported. x x x [t]he main thrust is action; the disciplinary or punitive previous administration; and thereafter recommend the appropriate action or measure to be taken
remedy is secondary. On a higher level then, the Ombudsman is going to be the eyes and ears of the people. thereon to ensure that the full measure of justice shall be served without fear or favor.
Where administrative action demanded is not forthcoming x x x he (Ombudsman) is authorized to make public x x x”
the nature of the complaint and the inaction of the official concerned, x x x. 6 A comparison between the aforequoted objectives of the Office of the Ombudsman and the
xxx Truth Commission quickly reveals that the Truth Commission is superfluous, because
SPONSORSHIP SPEECH it replicates or imitates the work of the Office of the Ombudsman. The result is that the Truth
OF COMMISSIONER NOLLEDO Commission can even usurp the functions, duties, and responsibilities of the Office of the
MR. NOLLEDO. Thank you, Madam President. Ombudsman. That usurpation is not a desirable result, considering that the public faith and trust in
xxx the Office of the Ombudsman, as a constitutionally-created office imbued with specific powers
_______________
and duties to investigate and prosecute graft and corruption, may be eroded.
6 Id., at pp. 265-266. ACCORDINGLY, I vote to grant the petitions. 394
392
394 SUPREME COURT REPORTS ANNOTATED
392 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
Biraogo vs. Philippine Truth Commission of 2010
SEPARATE DISSENTING OPINION Take the comic example of a law that requires married women to wear their wedding rings at
all times to warn other men not to entice women to violate their marriage vows. Such law would
ABAD, J.: be unfair and discriminatory since married men, who are not covered by it, are exposed to similar
enticements from women other than their wives.
Brief Background But it would be just as unfair and discriminatory if people who hardly share anything in
common are grouped together and treated similarly. The equal protection clause is not violated by
2
a law that
As the opinion written for the majority by Justice Jose Catral Mendoza says, President _______________
Benigno Simeon Aquino III (President P-Noy to distinguish him from former President Corazon
C. Aquino) campaigned on a platform of “kung walang corrupt, walang mahirap.” On being 2 Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
elected President, he issued Executive Order 1, creating the Philippine Truth Commission of 2010
1
396
that he tasked with the investigation of reported corruption during the previous administration. The
396 SUPREME COURT REPORTS ANNOTATED
Truth Commission is to submit its findings and recommendations to the President, the Congress,
and the Ombudsman. Biraogo vs. Philippine Truth Commission of 2010
Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon applies only to persons falling within a specified class, if such law applies equally to all persons
A. Datumanong, and Rep. Orlando B. Fua, Sr. have come to this Court to challenge the within such class, and reasonable grounds exist for making a distinction between those who fall
Constitutionality of Executive Order 1. within it and those who do not. 3
For example, restaurant cooks and waiters cannot complain of discrimination against an
The Issues Presented ordinance that requires them but not other workers to undergo periodic medical check-ups. Such
check-ups are important for food-handlers in the interest of public health but not for ordinary
The parties present four issues: office clerks. Also, a law that grants a 60-day paid leave to pregnant workers but not to other
1. Whether or not petitioners have legal standing to challenge the constitutionality of workers, male or female, is not discriminatory since female workers who just had their babies need
Executive Order 1; more time to care for the latter and make adjustments for going back to work.
2. Whether or not Executive Order 1 usurps the authority of Congress to create and Here, the issue I address is whether or not President P-Noy’s decision to focus the Truth
appropriate funds for public offices, agencies, and commissions; Commission’s investigation solely on the reported corruption during the previous administration,
3. Whether or not Executive Order 1 supplants the powers of the Ombudsman and the DOJ; implicitly excluding the corruption during the administrations before it, violates the equal
and protection clause. Since absolute equality in treating matters is not required, the ultimate issue in
4. Whether or not Executive Order 1 violates the equal protection clause in that it singles out this case is whether or not the President has reasonable grounds for making a distinction between
the previous administration for investigation. corruptions committed in the recent past and those committed in the remote past. As a rule, his
_______________ grounds for making a distinction would be deemed reasonable if they are germane or relevant to
the purpose for which he created the Truth Commission. 4
1 Dated July 30, 2010. And what is the President’s purpose in creating the Truth Commission? This can be inferred
395 from section 1 of Executive Order 1 which states that the Commission’s primary function is to—
VOL. 637, DECEMBER 7, 2010 395 “xxx seek and find the truth on, and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical sensibilities of the people,
Biraogo vs. Philippine Truth Commission of 2010 committed by public officials and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration, and thereafter recommend the appro-
_______________
Discussion
3 2 Cooley, Constitutional Limitations, 824-825.
4 People v. Cayat, 68 Phil. 12 (1939), citing leading American cases.
The majority holds that petitioners have standing before the Court; that President P-Noy has 397
the power to create the Truth Commission; that he has not usurped the powers of Congress to
create public offices and appropriate funds for them; and, finally, that the Truth Commission can VOL. 637, DECEMBER 7, 2010 397
conduct investigation without supplanting the powers of the Ombudsman and the Department of Biraogo vs. Philippine Truth Commission of 2010
Justice since the Commission has not been vested with quasi-judicial powers. I fully conform to priate action to be taken thereon to ensure that the full measure of justice shall be served without fear or
these rulings. favor.”
The majority holds, however, that Executive Order 1 violates the equal protection clause of Evidently, the objective the President sets for the Truth Commission is the uncovering of the
the Constitution. It is here that I register my dissent. “truth” regarding reported corruption in the previous administration “to ensure that the full
The 1987 Constitution provides in section 1 of Article III (The Bill of Rights) as follows: measure of justice [evidently upon those responsible for it] is served without fear or favor.”
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor Ultimately, the purpose of the creation of the Truth Commission is to ensure that the corrupt
shall any person be denied the equal protection of the laws. officials of the previous administration are exposed and brought to justice.
The idea behind the “equal protection clause” is that public authorities should treat all persons The majority holds that picking on the “previous administration” and not the others before it
or things equally in terms of rights granted to and responsibilities imposed on them. As an element makes the Commission’s investigation an “adventure in partisan hostility.” To be fair, said the
of due process, the equal protection clause bars arbitrary discrimination in favor of or against a majority, the search for truth must include corrupt acts not only during the previous administration
class whether in what the law provides and how it is enforced. but also during the administrations before it where the “same magnitude of controversies and
anomalies” has been reported.
The majority points out that corruption in the previous administration and corruption in the As it happens, President P-Noy limited the Truth Commission’s investigation to the 9 years of
administrations before it have no substantial difference. And what difference they have, the the previous administration. He did not include the 66 years of the 12 other administrations before
majority adds, is not relevant to the purpose of Executive Order 1, which is to uncover corrupt acts it. The question, as already stated, is whether the distinction between the recent past and the
and recommend their punishment. Superficial difference like the difference in time in this case remote past makes for a substantial difference that is relevant to the purpose of Executive Order 1.
does not make for a valid classification. That the distinction makes for a substantial difference is the first point in this dissent.
But time differentiation should not be so easily dismissed as superficial. The world in which
people live has two great dimensions: the dimension of space and the dimension of time. Nobody 1. The Right to Equal Protection
can say that the difference in time between two acts or events makes for a superficial difference.
Such difference is the substance of human existence. As the Bible says: Feasibility of success. Time erodes the evidence of the past. The likelihood of finding
There is an appointed time for everything,
evidence needed for conviction diminishes with the march of time. Witnesses, like everyone else,
and a time for every affair under the heavens.
A time to be born, and a time to die; have short memories. And they become scarce, working overseas, migrating, changing addresses,
a time to plant, and a time to uproot the plant. or just passing away. Official or private documents needed as evidence are easily overwhelmed by
A time to kill, and a time to heal; the demand to file and keep even more documents generated by new activities and transactions.
a time to tear down, and a time to build.398 Thus, old documents are stored away in basements, garages, or corridors, and eventually lost track
of, misplaced, or simply destroyed, whether intentionally or not. In a government that is notorious
398 SUPREME COURT REPORTS ANNOTATED
for throwing away or mishandling old records, searching for a piece of document after ten years
Biraogo vs. Philippine Truth Commission of 2010 would be uncertain, tedious, long, and costly.
A time to weep, and a time to laugh; When the government of President Marcos fell in 1986, the new government acted swiftly to
a time to mourn, and a time to dance; sequester suspected wealth, impound documents believed to constitute evidence of wrong-doing,
A time to scatter stones, and a time to gather them; and interview witnesses who could help prosecute the Marcoses and their cronies. One would
a time to embrace, and a time to be far from
embraces.
think that these actions will ensure successful prosecution of those who committed graft and
A time to seek, and a time to lose; corruption in that era. Yet, after just a decade, the prosecution has been mostly unable to find the
a time to keep, and a time to cast away; right documents or call the right witnesses. Today, after 24 years, the full force of government has
A time to rend, and a time to sew; failed to produce even one conviction.400
a time to be silent and a time to speak.
400 SUPREME COURT REPORTS ANNOTATED
A time to love, and a time to hate;
a time of war, and a time of peace. Biraogo vs. Philippine Truth Commission of 2010
(Ecclesiastes 3:1-8, New American Bible) Clearly, it would be a waste of effort and time to scour all of 66 years of the administrations
Recognizing the irreversibility of time is indispensable to every sound decision that people before the last, looking for evidence that would produce conviction. Time has blurred the chance
make in their lives everyday, like not combing the hair that is no longer there. In time, parents let of success. Limiting the Truth Commission’s investigation to the 9 years of the previous
their married children leave to make their own homes. Also, when a loved one passes away, he administration gives it the best chance of yielding the required proof needed for successful action
who is left must know that he cannot bring back the time that is gone. He is wise to move on with against the offenders.
his life after some period of mourning. To deny the truth that the difference in time makes for Historically, there have been no known or outstanding inquiries done by the Executive
substantial difference in human lives is to deny the idea of transition from growth to decay, from Department into corrupt acts of the past that went beyond the term of the immediately preceding
life to death, and from relevant to irrelevant. administration. It makes sense for President P-Noy to limit the investigation to what is practical
Here the past presidential administrations the country has gone through in modern history and attainable, namely, the 9 years of the previous administration. He strikes at what is here and
cover a period of 75 years, going back from when President Gloria Macapagal Arroyo ended her near. Perchance, he can get a conviction. Investigating corruption in the past 75 years rather than
term in 2010 to the time President Manuel L. Quezon began his term in 1935. The period could in the nearest 9 years, under a nebulous claim of evenhandedness, is the key to failing altogether.
even go back 111 years if the administration of President Emilio Aguinaldo from 1989 to 1901 is It has been held that if the law presumably hits the evil where it is felt, it is not to be overthrown
included. But, so as not to complicate matters, the latter’s administration might just as well be because there are other instances to which it might have been applied. 6
excluded from this discussion. Neutralization of Presidential bias. The Court can take judicial notice of the fact that
It should be remembered that the right of the State to recover properties unlawfully acquired President P-noy openly attacked the previous administration for its alleged corruption in the course
by public officials does not prescribe. So, if the majority’s advice were to be literally adopted, the
5
of his election campaign. In a sense, he has developed a bias against it. Consequently, his creation
Truth Commission’s investigation to be fair to all should go back 75 years to include the of the Truth Commission, consisting of a former Chief Justice, two former Associate Justices of
administrations of former Presidents Arroyo, Estrada, the Supreme Court, and two law professors serves to neutralize such bias and ensure fairness. The
_______________
President did not have to include the 66 years of earlier administrations for investigation since he
did not specifically target them in his election campaign.
5 1987 CONSTITUTION OF THE PHILIPPINES, Article 11, Section 15
399 At any rate, it does not mean that when the President created the Truth Commission, he shut
the door to the investigation of corruption committed during the 66 years before the previous one.
VOL. 637, DECEMBER 7, 2010 399 All existing government agencies that are charged with unearthing crimes committed by public
Biraogo vs. Philippine Truth Commission of 2010 officials are not precluded from following up leads and uncovering corruptions committed during
Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino, Roxas, Osmeña, Laurel, and the earlier years.
Quezon. _______________
.6 Keokee Coke Co. v. Taylor, 234 U.S. 224, 227. It does not have all the information and data it would need for deciding what objective is fair and
401
viable for a five-member body like the Truth Commission. Only when the President’s actions are
VOL. 637, DECEMBER 7, 2010 401 plainly irrational and arbitrary even to the man on the street can the Court step in from Mount
Olympus and stop such actions.
Biraogo vs. Philippine Truth Commission of 2010
Notably, none of those who have been reported as involved in corruption in the previous
Those corrupt officials of the remote past have not gained immunity by reason of Executive Order
administration have come forward to com-
1. _______________
Matching task to size. The Truth Commission is a collegial body of just five members with
no budget or permanent staffs of its own. It simply would not have the time and resources for 7 Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.
examining hundreds if not thousands of anomalous government contracts that may have been 403
entered into in the past 75 years up to the time of President Quezon. You cannot order five men to VOL. 637, DECEMBER 7, 2010 403
pull a train that a thousand men cannot move.
Good housekeeping. Directing the investigation of reported corrupt acts committed during Biraogo vs. Philippine Truth Commission of 2010
the previous administration is, as the Solicitor General pointed out, consistent with good plain that the creation of the Truth Commission has violated their rights to equal protection. If they
housekeeping. For example, a new treasurer would be prudent to ensure that the former treasurer committed no wrong, and I believe many would fall in this category, they would probably have an
he succeeds has balanced his accounts and submitted himself to a closing audit even after the new interest in pushing for the convening of the Commission. On the other hand, if they believe that
treasurer has taken over. This prevents the latter having to unfairly assume the liabilities of his the investigation unfairly threatens their liberties, they can, if subpoenaed, to testify invoke their
predecessor for shortages in the cash box. Of course, the new treasurer is not required to look right to silence. As stated in the majority opinion, the findings of the Commission would not bind
farther into the accounts of the earlier treasurers. them. Such findings would not diminish their right to defend themselves at the appropriate time
In like manner, it is reasonable for President P-Noy to cause the investigation of the anomalies and forum.
reportedly committed during the previous administration to which he succeeded. He has to locate For the above reasons, I join the main dissent of Justice Antonio T. Carpio.
government funds that have not been accounted for. He has to stanch the bleeding that the SEPARATE OPINION
government could be suffering even now by reason of anomalous contracts that are still on-going. PEREZ, J.:
Such is a part of good housekeeping. It does not violate the equal protection clause by its non- Executive Order No. 1 of President Benigno S. Aquino III Creating the Philippine Truth
inclusion of the earlier administrations in its review. The latter’s dealings is remotely relevant to Commission of 2010 violates Article XI, Section 5 and Section 7 together with Section 13(1) and
good housekeeping that is intended to manage a smooth transition from one administration to the (7) and related provisions in Paragraphs (2), (3), (4), (5) and (6) of the same Section 7, all of the
next. Philippine Constitution.
2. The President’s Judgment Particularized, the presidential issuance offends against the independence of the Office of the
as against the Court’s Ombudsman; defies the protection against legislation of the mandates of the Ombudsman; and
That is the first point. The second point is that the Court needs to stand within the limits of its defiles the bestowal of these mandates by their reappointment to the lesser body. The presidential
power to review the actions of a co-equal branch, like those of the President, within the sphere of creation, if unchecked, would, under the layer of good intentions, sully the integrity of the organic
its constitu- act which, for law to rule, can be touched by no one except the sovereign people and only by the
402 way and manner they have ordained. This is a democratic original. The sovereign people can, of
402 SUPREME COURT REPORTS ANNOTATED course, choose to cut the essential ties, scatter the existing entirety and slay the standing system.
That did not happen. The sovereign elected to stay put; to stay in the present ordinance. Everyone
Biraogo vs. Philippine Truth Commission of 2010 must honor the election. And there can be no permissible disregard, even in part, of the free and
tional authority. Since, as the majority concedes, the creation of the Truth Commission is within deliberate choice.
the constitutional powers of President P-Noy to undertake, then to him, not to the Court, belongs The proposition is truly significant in this study of the questioned executive order. The
the discretion to define the limits of the investigation as he deems fit. The Court cannot pit its country has had a historic revolution that gave
judgment against the judgment of the President in such matter. 404
And when can the Supreme Court interfere with the exercise of that discretion? The answer is, 404 SUPREME COURT REPORTS ANNOTATED
as provided in Section 1, Article VIII of the 1987 Constitution, only when the President gravely
abuses his exercise of such discretion. This means that, in restricting the Truth Commission’s Biraogo vs. Philippine Truth Commission of 2010
investigation only to corruptions committed during the previous administration, he the people the chance to right the wrong that shoved the nation on the verge. A new charter was
acted capriciouslyand whimsically or in an arbitrary or despoticmanner. 7 written. But the topic of Executive Order No. 1, accountability of public officers, was rewritten
To act capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing and as the same constitutional heading. The injunction that public office is a public trust, including
one moment and crying the next without apparent reason. Does this characterize the President’s its meaning and import, was copied from the otherwise discarded document. And having adopted
action in this case, considering that he merely acted to set a feasible target, neutralize political the objective of the old, the new law assumed likewise the means for the end which are the anti-
bias, assign the Commission a task suitable to its limited capacity, and observe correct graft institutions of 1973, to wit, the special graft court named Sandiganbayan and the
housekeeping procedures? Did he act arbitrarily in the manner of little children changing the rules Ombudsman, the corruption investigator and prosecutor then known as the Tanodbayan both of
of the game in the middle of the play or despotically in the manner of a dictator? Unless he did, the which were, in the 1973 Charter, ordered created by legislation.
Court must rein in its horses. It cannot itself exceed the limits of its power of review under the The transplant of idea and mechanism, the adoption of the ends and the assumption of the
Constitution. means of 1973 leads to the definite conclusion that the present Constitution is an affirmance that,
Besides, the Court is not better placed than the President to make the decision he made. driven by the breadth of corruption in public office needing enduring solutions, there must be no
Unlike the President, the Court does not have the full resources of the government available to it.
less than a constitutionally secured institution with impregnable authority to combat corruption. As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of
This is the Ombudsman. the Special Prosecutor which continued to function and exercise its powers as provided by law, except those
Uy vs. Sandiganbayan, chronicled the origins of the Ombudsman. It was there recounted that:
1 conferred on the Office of the Ombudsman created under the 1987 Constitution.
“In the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid
constitutionalize the office of the Ombudsman, to give it political independence and adequate powers to down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.
enforce its recommendations. The 1973 Constitution mandated the legislature to create an office of the In September 1989, Congress passed RA 6770 providing for the functional and structural organization of
Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present
recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case Ombudsman not only the duty to receive and relay the people’s grievances, but also the duty to investigate and
before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read: prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers
Section 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as and employees as embodied in Sections 15 and 11 of the law.” 2
Tanodbayan, which shall receive and investigate complaints relative to public office, including those Clear then from the chronicle, that, as it was at the time of its constitutionalization in 1973, the
in government-owned or controlled corporations, make appropriate recommendations, and in case of power of the Ombudsman “shall not be limited to receiving complaints and making
failure of justice as defined by law, file and recommendations, but shall also include the filing and prosecution of criminal xxx cases before the
_______________ appropriate body xxx.” More importantly, the grant of political independence to the Ombudsman
which was the spirit be-
1 G.R. No. 105965-70, 354 SCRA 651, 661. _______________
405
VOL. 637, DECEMBER 7, 2010 405 2 Id., at pp. 664-665.
407
Biraogo vs. Philippine Truth Commission of 2010
prosecute the corresponding criminal, civil or administrative case before the proper court of body. VOL. 637, DECEMBER 7, 2010 407
Uy went on to enumerate the implementing presidential decrees, issued as legislation, namely Biraogo vs. Philippine Truth Commission of 2010
Presidential Decree No. 1487 creating the Office of the Ombudsman known as the Tanodbayan;
hind the 1973 provisions was specifically stated in the 1987 Constitution. Thus:
Presidential Decree No. 1607 broadening the authority of the Tanodbayan to investigate “Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
administrative acts of administrative agencies; Presidential Decree 1630 reorganizing the Office of Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon,
the Tanodbayan and vesting the powers of the Special Prosecutor in the Tanodbayan himself. Visayas and Mindanao. A separate Deputy for the Military establishment may likewise be appointed.”
The events at and following the ratification of the 1987 Constitution, as likewise historified (Underscoring supplied.)
in Uy, must be made part of this writer’s position: Of direct relevance and application to the case at bar is the reason behind the
“With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present constitutionalization of the Ombudsman. Again, we refer to Uy citing Cortez, Redress of
3
Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or Grievance and the Philippine Ombudsman (Tanodbayan):
manner against public officials or employees of the government or any subdivision, agency or instrumentality “In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the
thereof, including government-owned or controlled corporations, and to notify the complainants of the action people’s medium for airing grievances and seeking redress against abuses and misconduct in the government.
taken and the result thereof. He possesses the following powers, functions and duties: These offices were conceived with the view of raising the standard in public service and ensuring integrity and
1. Investigate on its own, or on complaint by any person, any act or omission of any public efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with
official, employee, office or agency, when such act or omission appears to be illegal, unjust, receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in
improper, or inefficient; office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by
2. Direct, upon complaint or at its own instance, any public official or employee of the several other agencies which performed basically the same functions of complaints-handling and investigation.
Government, or any subdivision, agency or instrumentality thereof, as well as of any government- These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the
owned or controlled corporation with original charter, to perform and expedite any act or duty Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the
required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on
3. Direct the officer concerned to take appropriate action against a public official or employee Reform and Government Operations and the Office of the Citizens counselor, both under President Ferdinand
at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the
compliance therewith. political independence necessary for the effective performance of their function as government critic.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may Furthermore, their powers extended to no more than fact-finding and recommending.”
be provided by law, to furnish it with copies of documents relating to contracts or transactions The lack of political independence of these presidential commissions, to which was attributed
entered into by his office involving the disbursements or use of public funds or proper-
406
their failure to realize their objectives, was clarified during the deliberations of the Constitutional
Commis-
406 SUPREME COURT REPORTS ANNOTATED _______________
Biraogo vs. Philippine Truth Commission of 2010
3 Id., at pp. 660-661.
ties, and report any irregularity to the Commission on Audit for appropriate action.
408
5. Request any government agency for assistance and information necessary in the discharge
of its responsibilities, and to examine, if necessary, pertinent records and documents. 408 SUPREME COURT REPORTS ANNOTATED
6. Publicize matters covered by its investigation when circumstances so warrant and with due
prudence. Biraogo vs. Philippine Truth Commission of 2010
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the sion on what is now Article XI of the Constitution with, as already observed, the same heading
Government and make recommendations for their elimination and the observance of high standards used in 1973, “Accountability of Public Officials.” The Commissioners also alluded to the
of ethics and efficiency. unsuccessful presidential attempts.
8. Promulgate its rules or procedure and exercise such other powers or perform such functions In his sponsorship speech, Commissioner Colayco, Vice-Chairman of the Committee on
or duties as may be provided by law. Accountability of Public Officers, articulated:
“In 1950, for instance, President Quirino created the Integrity Board in an attempt to formalize the
410 SUPREME COURT REPORTS ANNOTATED
procedure for executive direction and control of the bureaucracy. This Board lasted for six months. When
President Magsaysay took over the reins of government in 1953, he created the Presidential Complaints and Biraogo vs. Philippine Truth Commission of 2010
Action Committee. The primary purpose of this Committee was to expedite action on complaints received by adopted the already defined goal to circle and contain corruption, an enemy of the good state
the Office of the President against the manner in which the officials of the executive departments and offices
were performing the duties entrusted to them by law, or against their acts, conduct or behavior. xxx. But again
already identified way back in 1973. What Executive Order No. 1 did was to shorten the sight and
politics came in—this office did not last long. Two months after President Magsaysay’s death, the office was set it from the incumbent’s standpoint. Therefrom, it fixed its target at “reported cases of graft and
abolished. corruption involving third level public officers and higher, their co-principals, accomplice and
Next, President Garcia created his own Presidential Committee on Administration, Performance and accessories from the private sector” and further pinpointed the subjects as “third level public
Efficiency [PCAPE]. Again this office did not last long and was replaced by the Presidential Agency on officers during the previous administration.” For this commission, the Philippine Truth
Reforms and Government Operations or PARGO under the regime of President Marcos.” 4
Commission was presidentially empowered as an “investigative body” for a thorough fact-finding
As Commissioner Colayco pointed out in the continuation of his sponsorship speech: although investigation, thereafter to:
these programs were “good per se,” the succeeding Presidents discarded them—as the incoming “g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional
Presidents generally tend to abandon the policies and programs of their predecessors—a political authorities, by means of a special or interim report and recommendation, all evidence on corruption of public
barrier to the eventual success of these bodies. He concluded by saying that “[t]he intention, officers and employees and their private sector co-principals, accomplice or accessories, if any, when in
therefore, of our proposal is to constitutionalize the office so that it cannot be touched by the the course of its investigation the Commission finds that there is reasonable ground to believe that they are
liable for graft and corruption under pertinent applicable laws.”
Presidents as they come and go.”
It may thus be said that the 1987 Constitution completed the Ombudsman’s Having thus taken account of the foregoing, this writer takes the following position:
constitutionalization which was started in 1973. The past Constitution mandated the creation by 1. In light of the constitutionally declared and amply underscored independence of the
the legislature, the National Security Assembly, later the Batasang Pambansa, of an office of the Office of the Ombudsman, which declaration is winnowed wisdom from the experienced inherent
Ombudsman, which mandate, incidentally, was given also for the defects of presidential creations, so real and true that the Ombudsman’s constitutionalization was
_______________ adopted to completion even if from the charter of an overthrown regime, Executive Order No. 1
cannot pass the present constitutional test. Executive Order No. 1 is unconstitutional precisely
4 Records of the Constitutional Commission Vol. II, 26 July 1986, p. 267. because it was issued by the President. As articulated by Commissioner Colayco of the
409 Commission that resurrected the Ombudsman, “our proposal is to constitutionalize the office so
VOL. 637, DECEMBER 7, 2010 409 that it cannot be touched by the Presidents as they come and go.” And as this Court stated,
repeating the observation regarding the erstwhile presidential anti-graft commissions, such
Biraogo vs. Philippine Truth Commission of 2010 commissions failed to realize their objective because they did not enjoy the political independence
creation of a special court, the Sandiganbayan. The present Constitution, while allowing the necessary for the effective performance of a government critic. 411
continuation of the Sandiganbayan and leaving its functions and jurisdiction to provisions “by
VOL. 637, DECEMBER 7, 2010 411
law,” itself created “the independent Office of the Ombudsman” and itself determined its powers,
functions and duties. The independence of the Ombudsman is further underscored by the Biraogo vs. Philippine Truth Commission of 2010
constitutional orders that the Ombudsman and his Deputies shall be appointed by the President Relevant too are the words of Commissioner Regalado:
from a list prepared by the Judicial and Bar Council which appointments shall require no “It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not
confirmation; that the Ombudsman and his Deputies shall have the rank of Chairman and necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the
Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as
which shall not be decreased during their term of office; that the Office of the Ombudsman shall has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity
to render service to Juan dela Cruz.”6
enjoy fiscal autonomy and its approved annual appropriations shall be automatically and regularly
Verily, the Philippine Truth Commission is a defiance of the constitutional wisdom that
released; and that the Ombudsman may only be removed from office by impeachment. 5
established the politically independent Ombudsman for one of its reasons for being is the very
It is with the ground and setting just described that Executive Order No. 1 created the
campaign battlecry of the President “kung walang corrupt, walang mahirap.” Not that there is
Philippine Truth Commission. Naturally, the Order had to state that the Philippine Truth
anything wrong with the political slogan. What is wrong is the pursuit of the pledge outside the
Commission was created by the President of the Republic of the Philippines further describing the
limits of the Constitution. What is wrong is the creation by the President himself of an
act as the exercise of his “continuing authority to reorganize the Office of the President.” The
Ombudsman-like body while there stands established an Ombudsman, constitutionally created
Order specified that the budget of the Commission shall be provided by the Office of the President
especially because of unsuccessful presidential antecedents, and thus made independent from
and even its furniture and equipment will come from the Office of the President. More
presidential prerogative.
significantly, a basic premise of the creation is the President’s battlecry during his campaign for
2. A simple comparison will show that likeness of the Philippine Truth Commission with the
the Presidency in the last elections “kung walang corrupt, walang mahirap,” which is considered
Ombudsman. No such likeness is permitted by the Constitution.
a “solemn pledge that if elected, he would end corruption and the evil it breeds.” So much so that
It can easily be seen that the powers of the Truth Commission to: 1) identify and determine
the issuance states that “a comprehensive final report shall be published upon directive of the
the reported cases of graft and corruption which it will investigate; and 2) collect, receive, review
President” upon whose directive likewise, interim reports may issue from time to time.
and evaluate evidence related to or regarding the cases of large scale corruption which it has
The Philippine Truth Commission anchored itself on the already constitutionalized principle
chosen to investigate, are the same as the power of the Ombudsman to investigate any illegal,
7
that public office is a public trust. It
_______________ unjust, improper, or inefficient act or omission of any public official, employee, office or agency. 8
The authority of the Truth Commission to require any agency, official or employee of the
5 Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987 Constitution. Executive Branch to produce documents,
410 _______________
6 Records of the Constitutional Commission, Vol. II, 26 July 1986, p. 296. “The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall
7 Section 2(a) and (b), respectively, E.O. No. 1, dated 30 July 2010. continue to function and exercise its powers as now or hereafter may be provided by law, except those
8 Article XI, Section 13(1), 1987 Constitution. conferred on the Office of the Ombudsman created under this Constitution.
412
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan
412 SUPREME COURT REPORTS ANNOTATED (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT
GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the
Biraogo vs. Philippine Truth Commission of 2010 filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so
books, records and other papers mirrors the authority of the Ombudsman to direct concerned
9
was lost effective February 2, 1987. From that time, he has been divested of such authority.
government officials to furnish it with copies of documents relating to contracts or transactions _______________
entered into by the latter’s office involving the disbursement or use of public funds or properties. 10
16 G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843, 846-847.
Likewise, the right to obtain information and documents from the Senate, the House of 414
Representatives and the courts, granted by Executive Order No. 1 to the Truth Commission, is
11
analogous to the license of the Ombudsman to request any government agency for assistance and 414 SUPREME COURT REPORTS ANNOTATED
information and to examine pertinent records and documents. 12
Biraogo vs. Philippine Truth Commission of 2010
And, the powers of the Truth Commission to invite or subpoena witnesses, take their Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the
testimonies, administer oaths and impose administrative disciplinary action for refusal to obey
13
Tanodbayan (Ombudsman) and can investigate and prosecute cases only upon the latter’s authority or orders.
subpoena, take oath or give testimony are parallel to the powers to administer oaths, issue
14 The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to
subpoena, take testimony and punish for contempt or subject to administrative disciplinary action do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d)
any officer or employee who delays or refuses to comply with a referral or directive granted by of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Special
Prosecutor in connection with the cases he is ordered to investigate.” (Underscoring supplied.)
Republic Act (RA) 6770 to the Ombudsman.
15
The ruling was clear: the duty to investigate contained in Section 13(1) having been conferred
If Executive Order No. 1 is allowed, there will be a violation of Section 7 of Article XI, the
on the Office of the Ombudsman, left the then Tanodbayan without authority to conduct
essence of which is that the function and powers (enumerated in Section 13 of Article XI)
preliminary investigation except upon orders of the Ombudsman. The message was definite. The
conferred on the Ombudsman created under the 1987 Constitution cannot be removed or
conferment of plenary power upon the Ombudsman to investigate “any act or omission of any
transferred by law. Section 7 states:
“Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor.
public official xxx when such act or omission appears to be illegal, unjust, improper or inefficient”
It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those cannot, after 1987 and while the present Constitution remains, be shared even by the body
conferred on the Office of the Ombudsman created under this Constitution.” previously constitutionalized as vested with such authority, even if there is such assignment “by
_______________ law.”
Indeed, the subsequent law obeyed Section 7 as correctly read in Zaldivar. Thus, in Republic
9 Section 2(b), E.O. No. 1, supra note 7. Act No. 6770, an Act Providing For the Functional And Structural Organization of the Office of
10 Article XI, Section 13(4), 1987 Constitution. the Ombudsman and For Other Purposes, it was made clear in Section 11(3) second sentence that
11 Section 2(c) and (d), E.O. No. 1, supra.
12 Article XI, Section 13(5), 1987 Constitution. “the Office of the Special Prosecutor shall be an organic component of the Office of the
13 Section 2(e), E.O. No. 1, supra. Ombudsman and shall be under the supervision and control of the Ombudsman.”
14 Id., Section 9. Constitutional history, specific constitutional provisions, jurisprudence and current statute
15 The Ombudsman Act of 1989, Section 15(8) and (9) and Section 26(4).
combine to say that after the ratification of the Constitution in 1987, no body can be given “by
413
law” any of the powers, functions and duties already conferred on the Ombudsman by Section 13,
VOL. 637, DECEMBER 7, 2010 413 Article XI of the Constitution. As already shown, the Truth Commission insofar as concerns the
Biraogo vs. Philippine Truth Commission of 2010 mentioned third level officers or higher of the previous administration appropriates, not just one
There is a self-evident reason for the shield against legislation provided by Section 7 in but virtually, all of the powers constitutionally enumerated for the Ombudsman. The violation of
protection of the functions conferred on the Office of the Ombudsman in Section 13. The Section 7 in relation to Section 13 of Article XI of the Constitution is evident. 415
Ombudsman is a constitutional office; its enumerated functions are constitutional powers. VOL. 637, DECEMBER 7, 2010 415
So zealously guarded are the constitutional functions of the Ombudsman that the prohibited
Biraogo vs. Philippine Truth Commission of 2010
assignment of the conferred powers was mentioned in Section 7 in relation to the authority of the
Tanodbayan which, while renamed as Office of the Special Prosecutor, remained constitutionally 3. No comfort is given to the respondents by the fact that, as mentioned in Honasan II vs.
recognized and allowed to “continue to function and exercise its powers as now or hereafter may Panel of Investigating Prosecutors of the Department of Justice, there are “jurisprudential
17
be provided by law.” declarations” that the Ombudsman and the Department of Justice (DOJ) have concurrent
The position of the Office of the Special Prosecutor, as a continuing office with powers “as jurisdiction. Concurrence of jurisdiction does not allow concurrent exercise of such jurisdiction.
may be provided by law” vis-à-vis the Ombudsman created by the 1987 Constitution would be Such is so that the Ombudsman Act specifically states in Section 15 that the Ombudsman has
unraveled by subsequent law and jurisprudence. Most apt is Zaldivar vs. Sandiganbayan, which 16 primary jurisdiction over cases cognizable by the Sandiganbayan—precisely the kind of cases
said: covered by the Philippine Truth Commission—and proceeds to define “primary jurisdiction” by
“Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is again, specifically, stating that the Ombudsman “may take over, at any stage, from any
charged with the duty to: investigation of such cases.” This primary jurisdiction was the premise when a majority of the
Investigate on its own, or on complaint by any person, any act or omission of any public official, Court in Honasandiscussed the relevance of OMB-DOJ Joint Circular No. 95-001 (which provides
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” that the preliminary investigation and prosecution of offenses committed by public officers in
The Constitution likewise provides that: relation to office filed with the Office of the Prosecutor shall be “under the control and supervision
of the Office of the Ombudsman”) in relation to Sections 2 and 4, Rule 112 of the Revised Rules
on Criminal Procedure on Preliminary Investigation, which concerns the review of the resolution If the Philippine Truth Commission would, indeed, conduct only fact-finding investigations
of the investigating prosecutor in such cases. Honasanwould conclude that the authority of the preliminary to a criminal investigation, then the foregoing discussion would truly be irrelevant.
DOJ prosecutors to conduct preliminary investigation of offenses within the original jurisdiction The fact, however, is that the Philippine Truth Commission is, to use the Solicitor General’s
of the Sandiganbayan is subject to the qualification: phrase a “criminal investigator” or one who conducts a preliminary investigation for the
“xxx that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, prosecution of a criminal case.
after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for Detailing the powers and functions of the Philippine Truth Commission, Section 2 of
appropriate action. Also, the prosecutor cannot dismiss the complaint without prior written authority of the Executive Order No. 1 says that the Commission shall identify and determine the reported cases of
Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being
such graft and corruption which it will investigate (Section 2[a]) and collect, receive, review and
deputized by, and without prior written authority of the Ombudsman, or his deputy.” (Underscoring in the
18
original) evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to
Three separate opinions, two of which were dissents were submitted in Honasan. Justice investigate (Sec. 2[b]). As aforenoted, the Philippine Truth Commission’s power to investigate
Vitug said that the investigating fiscal must graft and corruption is no different from the constitutional power of the Ombudsman to investigate
_______________ any act of any public official when such act appears to be illegal, unjust, improper, or inefficient.
The Philippine Truth Commission cannot avoid the comparison by differentiating “formal
17 G.R. No. 159747, 13 April 2004, 427 SCRA 46. investigation” or “criminal investigation” which it says is conducted by the Ombudsman or the
18 Id., at p. 74. DOJ, from the “fact-finding investigation” of the Philippine Truth Commission. Let us go back
416 to Zaldivar. There it was as much as stated that the power to investigate mentioned in Section
416 SUPREME COURT REPORTS ANNOTATED 13(1) of the 1987 Constitution is the authority to conduct preliminary investigation which
authority was
Biraogo vs. Philippine Truth Commission of 2010 _______________
be particularly deputized by the Ombudsman and the investigation must be conducted under the
supervision and control of the Ombudsman; Justice Ynares-Santiago discussed at length the
19
22 Memorandum for Respondent, p. 79.
concept of primary jurisdiction and took the position that: 20
418
“Where the concurrent authority is vested in both the Department of Justice and the Office of the
418 SUPREME COURT REPORTS ANNOTATED
Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of Justice from
exercising its investigative authority if the case will likely be cognizable by the Sandiganbayan. In such cases, Biraogo vs. Philippine Truth Commission of 2010
the Office of the Ombudsman should be the proper agency to conduct the preliminary investigation over such removed from the Tandobayan called Special Prosecutor when it was given to the Ombudsman.
an offense, it being vested with the specialized competence and undoubted probity to conduct the
This equivalence was affirmed in Acop vs. Office of the Ombudsman, where it was stated:
23
investigation.”
“In view of the foregoing, it is evident that the petitioners have not borne out any distinction between “the
Justice Sandoval-Gutierrez was more straightforward: 21
duty to investigate” and “the power to conduct preliminary investigations;” neither have the petitioners
“While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and special established that the latter remains with the Tanodbayan, now the Special Prosecutor. Thus, this Court can only
laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or statute vests jurisdiction reject the petitioners’ first proposition.”
over the investigation and prosecution of certain crimes in an office, the DOJ has no jurisdiction over those
Such established definition of “investigation” of graft and corruption cases, especially for the
crimes. In election offenses, the Constitution vests the power to investigate and prosecute in the Commission
on Elections. In crimes committed by public officers in relation to their office, the Ombudsman is given by purpose of determining the authority of one body in relation to another, which is exactly one of the
both the Constitution and the statute the same power of investigation and prosecution. These powers may not issues in this case, must be read into Executive Order No. 1. No source citation is needed for the
be exercised by the DOJ. xxx” generally accepted rule that the words used in a legal document, indeed one which is intended to
At the very least, therefore, the prosecutor, in Sandiganbayan cases must, after investigation be a law, has the meaning that is established at the time of the law’s promulgation. “Investigation”
transmit the records and their resolution to the Ombudsman whose prior written authority is in Section 1(a) of Executive Order No. 1 is the same as preliminary investigation and its conduct
needed before the prosecutor can dismiss a complaint or file an information in which latter by the Truth Commission cannot be independent of the Ombudsman. The Truth Commission
instance, a deputization of the fiscal is additionally needed. Even as this writer submits that the cannot exist outside the Ombudsman. Executive Order No. 1 so places the Truth Commission and,
position of the minority in Honasan hews far better to the Constitution since, as already observed, is, therefore unconstitutional.
the Ombudsman’s authority excludes even the Tanodbayan Indeed, Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth
_______________ Commission with is the authority of preliminary investigation. Section 2(g) of the executive order
states:
19 Id., at pp. 77-78. “Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional authorities, by
20 Id., at p. 86. means of a special or interim report and recommendation, all evidence on corruption of public officers and
21 Id., at p. 92. employees and their private sector co-principals, accomplice or accessories, if any, when in the course of
417 its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft
VOL. 637, DECEMBER 7, 2010 417 and corruption under pertinent applicable laws.” (Underscoring supplied.)
Investigation to find reasonable ground to believe “that they are liable for graft and corruption
Biraogo vs. Philippine Truth Commission of 2010 under applicable laws” is preliminary
which used to be the constitutionally recognized holder of the power, the further submission is that _______________
the majority ruling to the effect that the Ombudsman is the supervisor of the prosecutor who
investigates graft in high places, nonetheless illegalizes the Philippine Truth Commission. 23 G.R. No. 120422, 248 SCRA 566, 579.
Respondent’s main reliance is that – 419
“Unlike that of the OMB or DOJ which conducts formal investigation as a result of criminal complaints VOL. 637, DECEMBER 7, 2010 419
filed before them, or upon reports, the Truth Commission conducts fact-finding investigation preliminary to
the filing of a complaint that could lead to a criminal investigation.” 22
Biraogo vs. Philippine Truth Commission of 2010
investigation as defined in Rule 112, Section 1 of the Rules of Criminal Procedure, which states: 421
“Section 1. Preliminary investigation defined; when required.—Preliminary investigation is an inquiry VOL. 637, DECEMBER 7, 2010 421
or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be held for trial.” Biraogo vs. Philippine Truth Commission of 2010
Moreover, as clearly stated in Section 2(g) of Executive Order No. 1, the Philippine Truth “Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
Commission will be more powerful than the DOJ prosecutors who are required, after their complaints filed in any form or manner against public officials or employees of the government, or any
investigation, to transmit the records and their resolution for appropriate action by the subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and
Ombudsman or his deputy, which action is taken only after a review by the Ombudsman. Section shall, in appropriate cases, notify the complainants of the action taken and the result thereof.”
4 of Rule 112 states that: The Ombudsman on its own investigates any act or omission of any public official when such
“x x x x act or omission appears to be illegal (Section 13(1), Article XI of the Constitution). The power is
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior broad enough, if not specially intended, to cover fact-finding of the tenor that was given to the
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or Philippine Truth Commission by Executive Order No. 1 which is:
his deputy. “b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is corruption which it has chosen to investigate xxx.”
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on And, the objective of the Philippine Truth Commission pointed to by the Solicitor General
the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, which is to make findings for “policy recommendations to address corruption in government” and
or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary to serve as “sources of policy options” is exactly the function described for and ascribed to the
investigation.
Ombudsman in Section 13(7), Art. XI of the Constitution:
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
“(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief
Government and make recommendations for their elimination and the observance of high standards of ethics
state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without
and efficiency.”
conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by Moreover, as at the outset already pointed out, the power of the Philippine Truth Commission
the officers of the Office of the Ombudsman.” to obtain information and documents from the Congress and the Judiciary [Section 2(c) and (d) of
In other words, under existing Rule which follows the statutorily defined primary jurisdiction Executive Order No. 1] is a reproduction of the Ombudsman powers provided for in Section 13 (4)
of the Ombudsman in obeisance to the and (5), Article XI of the Constitution.
420 Virtually, another Ombudsman is created by Executive Order No. 1. That cannot be permitted
as long as the 1987 Constitution remains as the fundamental law. 422
420 SUPREME COURT REPORTS ANNOTATED
422 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
constitutional conferment of authority, the Ombudsman reviews and may reverse or modify the Biraogo vs. Philippine Truth Commission of 2010
resolution of the investigating prosecutor. In the case of the Philippine Truth Commission, the 5. To excuse the existence of the presidentially created, manned, funded and equipped Truth
Ombudsman not only shares its constitutional power but, over and above this, it is divested of any Commission side-by-side with the Constitutionally created and empowered Ombudsman, the
and all investigatory power because the Philippine Truth Commission’s finding of “reasonable Solicitor General provides the very argument against the proposition. In page 75 of his
ground” is final and unreviewable and is turned over to the Ombudsman solely for “expeditious memorandum, the Solicitor General says that:
prosecution.” “The concerned agencies need not wait until the completion of the investigation of the Truth Commission
4. There is an attempt by the Solicitor General to read around the explicitness of Section before they can proceed with their own investigative and prosecutorial functions. Moreover, the Truth
Commission will, from time to time, publish special interim reports and recommendations, over and above the
2(g) of Executive Order No. 1. Thus, skirting the words “for expeditious prosecution” and their
comprehensive final report. If any, the preliminary reports may aid the concerned agencies in their
obvious meanings as just discussed, the respondents argue that: investigations and eventually, in the filing of a complaint or information.” (Underscoring supplied)
“The Truth Commission will submit its recommendation to, among others, the OMB and to the
Apparently, the statement proceeds from the position that “the power of the OMB to
“appropriate prosecutorial authorities” which then shall exercise their constitutional and statutory powers and
jurisdiction to evaluate the recommendation or endorsements of the Truth Commission. While findings of the investigate offenses involving public officers or employees is not exclusive but is concurrent with
Truth Commission are recommendatory, the facts gathered by the Commission will decisively aid other similarly authorized agencies of the government.” Without cutting off from the discussions
25
prosecutorial bodies in supporting possible indictments for violations of anti-graft laws. Moreover, the policy that the concurrence of jurisdiction of the Ombudsman with any other body should be read to
recommendations to address corruption in government will be invaluable to the Executive’s goal to realize its mean that at the very least any finding by any other body is reviewable by the Ombudsman and
anti-corruption policies.24
that in full obedience to the Constitution, graft cases against high officials should be investigated
xxxx alone by or under the aegis of the Ombudsman, it need only be repeated that concurrence of
The Reports of the Truth Commission will serve as bases for possible prosecutions and as sources of jurisdiction does not allow concurrent exercise of jurisdiction. This is the reason why we have the
policy options xxx.”
rule that excludes any other concurrently authorized body from the body first exercising
Fact gathering as basis for preliminary investigation and not as preliminary investigation itself
jurisdiction. This is the reason why forum shopping is malpractice of law.
and basis for prosecution, is, seemingly, the function respondents want to attribute to the
The truth is, in the intensely political if not partisan matter of “reports of graft and corruption
Philippine Truth Commission to escape the obvious unconstitutional conferment of Ombudsman
xxx committed by public officers xxx, if any, during the previous administration,” there can only
power. That is no route out of the bind. Fact gathering, fact finding, indeed truth finding is, as
be one finding of truth. Any addition to that one finding would result in din and confusion, a babel
much as investigation as preliminary investigation, also constitutionally conferred on the
not needed by a nation trying to be one. And this is why all that fall under the topic accountability
Ombudsman. Section 12 of Article XI states:
_______________ of public officers have been particularized and gathered under one authority—The Om-
_______________
24 Memorandum for Respondents, pp. 73-74.
25 Memorandum for Respondents, p. 82.
423 1; and even if Congress itself were to create such commission, it would still be struck down for
VOL. 637, DECEMBER 7, 2010 423 violating the equal protection right of former President Arroyo.
Justice Antonio Carpio opines that the effect of the majority Decision is the absolute
Biraogo vs. Philippine Truth Commission of 2010 prevention of the investigation of the Arroyo ad-
budsman. This was done by the Constitution. It cannot be undone as the nation now stands and 425
remains.
VOL. 637, DECEMBER 7, 2010 425
WHEREFORE, I vote for the grant of the petition and the declaration of Executive Order No.
1 as unconstitutional. Biraogo vs. Philippine Truth Commission of 2010
DISSENTING OPINION ministration. I agree with his assessment, especially considering the further views on the matter
2
Sir, I say that justice is truth in action. expressed separately by Chief Justice Corona and Justices de Castro, Brion, Peralta, Bersamin, and
Benjamin Disraeli, in a speech delivered before the British House of Commons, February 11, Perez. In my view, the Decision and the separate concurring opinions manifest the “backlash
1851 effect” wherein movements to achieve social justice and a more equitable distribution of powers
SERENO, J.: are met with opposition from the dominant group. When the people start demanding
The majority Decision defeats the constitutional mandate on public accountability; it accountability, in response to which truth commissions and other fact-finding bodies are
effectively tolerates impunity for graft and corruption. Its invocation of the constitutional clause established, those from the previously ruling elite, who retain some hold on power, lash back at the
on equal protection of the laws is an unwarranted misuse of the same and is a disservice to those effort by crying “persecution,” “violation of due process” and “violation of the equal protection
classes of people for whom the constitutional guarantee was created as a succor. The majority guarantee.” Some of the petitioners, according to Justice Conchita Carpio-Morales, are in essence
Decision accomplished this by completely disregarding “reasonableness” and all its jurisprudential acting for and in behalf of former President Arroyo and her officials, otherwise they would not be
history as constitutional justification for classification and by replacing the analytical test of invoking the “equal protection clause,” a defense that is inherently personal to President Arroyo
reasonableness with mere recitations of general case doctrines to arrive at its forced conclusion. and her officials. These petitioners are wielding the backlash whip through the Petitions. In
By denying the right of the President to classify persons in Executive Order No. (EO) 1 even if the bending over backwards to accommodate the Petitions, especially on equal protection claims
classification is founded on reason, the Decision has impermissibly infringed on the constitutional which Petitioners could not properly raise, this Court is wittingly or unwittingly compromising
powers of the President. It wafts the smell of hope onto the air towards those who seek the important constitutional principles and rendering the path to a genuinely strong democratic
affirmance of EO 1 by saying: Philippines more difficult. With all due respect, the Decision in effect conveys the immoral lesson
“... [T]his is not a death knell for a truth commission as nobly envisioned by the present administration. that what is all-important is to capture and retain political power at all costs and misuse the legal
Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to infrastructure, including the Bill of Rights and the power of appointment, to create a shield of
pass the test of reasonableness and not be an affront to the Constitution...
1
immunity from prosecution of misdeeds.
_______________
Findings and Dispositive Conclusion
1 Decision, at p. 43.
of the Majority
424 The dispositive conclusion of the majority Decision contradicts its own understanding of both
the Constitution and the legal implication of recent political events. It finds that: (1) the Filipino
424 SUPREME COURT REPORTS ANNOTATED people convinced in the sincerity and ability of Benigno Simeon Aquino III to
Biraogo vs. Philippine Truth Commission of 2010 _______________
but the scent of hope, as will be demonstrated, is that which emanates from a red herring. Since
2 This is discussed in the part of this Opinion on “The Majority Decision’s Turn-Around.”
Ferdinand Marcos’s presidency, no Court has stifled the powers of the Philippine presidency as
426
has this Court through the majority Decision.
The Concurring Opinion of Justice Arturo Brion reveals one undercurrent beneath the 426 SUPREME COURT REPORTS ANNOTATED
majority’s logically indefensible conclusion that flows thusly: (1) the Filipino people cannot be Biraogo vs. Philippine Truth Commission of 2010
trusted to recognize truth from untruth; (2) because the people cannot make the distinction, there carry out the noble objective of stamping out graft and corruption, “catapulted the good
exists a large possibility that the people would accept as truth the Philippine Truth Commission senator to the Presidency” ; (2) to transform his campaign slogan into reality, “President Aquino
3
(PTC) version of the story on reports of graft and corruption under the administration of President found a need for a special body to investigate reported cases of graft and corruption allegedly
Gloria Macapagal-Arroyo even if it turns out to be untruth; (3) this potential public belief in the committed during the administration of his predecessor;” (3) the Philippine Truth Commission
4
untruth also enables the credulous public’s inordinate pressure on the Ombudsman and the courts (PTC) is an ad hoc committee that flows from the President’s constitutional duty to ensure that the
to concur in the untruth; (4) because of the possibility of this inordinate pressure being brought to laws are faithfully executed, and thus it can conduct investigations under the authority of the
bear, the probability that the Ombudsman and the courts would give in to such pressure exists; (5) President to determine whether the laws were faithfully executed in the past and to recommend
thus the formula emerges—the public clamor supportive of the untruth plus the Ombudsman and measures for the future to ensure that the laws will be faithfully executed; (4) the PTC is 5
the courts possibly giving way to this clamor equals violation of the due process rights of former constitutional as to its manner of creation and the scope of its powers; (5) that it is similar to valid
6
President Arroyo and her officials; in turn, this sum equals striking down the Philippine Truth investigative bodies like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission for being unconstitutional. Commission and the Zeñarosa Commission. Nevertheless, the majority Decision concluded that
7
The separate opinions of Chief Justice Renato Corona and Justices Teresita de Castro, Lucas the PTC should be struck down as unconstitutional for violating the equal protection clause for the
Bersamin, and Jose Perez hold an extreme view on EO 1, opposing well-established jurisprudence reason that the PTC’s clear mandate is to “investigate and find out the truth concerning the
which categorically pronounce that the investigatory powers of the Ombudsman may be reported cases of graft and corruption during the previous administration only.” 8
concurrently exercised with other legally authorized bodies. Chief Justice Corona and Justices de There is a disjoint between the premises and the conclusion of the Decision caused by its
Castro, Diosdado Peralta, and Bersamin even go further in saying that it would take congressional discard of the elementary rules of logic and legal precedents. It suffers from internal contradiction,
action, by means of legislation, to create a truth commission with the same mandate as that in EO
engages in semantic smoke-and-mirrors and blatantly disregards what must be done in evaluating and the people. This political contract creates many of the same kinds of legal and constitutional
equal protection claims, i.e., a judge must ask whether there was indeed a classification; the imperatives under the social contract theory as organic charters do. It also undergirds the moral
purpose of the law or executive action; whether that purpose achieves a legitimate state objective; legitimacy of political administrations. This political contract between President Aquino and the
the reason for the classification; and the relationship between the means and the end. Within those Filipino people is a potent force that must be viewed with the same seriousness as the 1987
layers of analysis, the judge must compare the claimed reason for classification with cases of Constitution, whose authority is only maintained by the continuing assent thereto of the same
_______________ Filipino people.
Then the Decision proceeds to affirm the power of the President to conduct investigations as a
3 Decision at p. 3. necessary offshoot of his express constitutional duty to ensure that the laws are faithfully
4 Id.
5 Id., at p. 24. executed. It then proceeds to explain that fact-finding powers must necessarily carry the power to
12
6 Id., at p. 23. create ad hoc committees to undertake fact-finding. And because the PTC is only an ad
7 Id., at p. 25. hoc committee that is to be funded from the approved budget of the Office of the President, the
8 Decision at p. 35.
Executive Order that created it is not a usurpation of any legislative power.
427
The Decision upholds in extensive affirmatory language what, since the creation of the
VOL. 637, DECEMBER 7, 2010 427 Republic, has been understood about the
_______________
Biraogo vs. Philippine Truth Commission of 2010
like or unlike reasoning. He knows the real world, he looks at its limitations, he applies his 11 Decision at p. 3.
common sense, and the judge knows in his judicial heart whether the claimed reason makes sense 12 Decision at p. 24.
or not. And because he is a practical man, who believes as Justice Oliver Wendell Holmes did that 429
the life of the law is in experience, he knows false from genuine claims of unconstitutional VOL. 637, DECEMBER 7, 2010 429
discrimination.
With all due respect, it is bad enough that the Decision upsets the long line of precedents on Biraogo vs. Philippine Truth Commission of 2010
equal protection and displays self-contradiction. But the most unacceptable effect of the majority powers of the Presidency and the need for the effective exercise of the investigatory powers of that
Decision is that a court of unelected people—which recognizes that the President “need(s) to office to serve state objectives. Unfortunately, it then breaks its own chain of thought and shrinks
create a special body to investigate reports of graft and corruption allegedly committed during the the vista from its grand view of representative government to a view that is myopic and logically
previous administration” to “transform his campaign promise” “to stamp out graft and corruption” 9 infirm.
—proposes to supplant the will of the more than 15 million voters who voted for President Aquino The Majority Decision’s Turn-Around to Un-
and the more than 80% of Filipinos who now trust him, by imposing unreasonable restrictions on constitutionally Restrict the Powers of the
and impossible, unknowable standards for presidential action. The Decision thereby prevents the Aquino Presidency, its Unpredictable Stan-
fulfillment of the political contract that exists between the Philippine President and the Filipino dard for “Reasonable Prioritization,” and the Resulting Imposition of an Impossible Condi-
people. In so doing, the Court has arrogated unto itself a power never imagined for it since the tion on Aquino’s Campaign Promise, as Well
days of Marbury v. Madison when the doctrine of judicial review was first laid down by the U.S.
10 as Its Internal Contradiction
Supreme Court. The majority does not only violate the separation of powers doctrine by its Having strongly expounded on the need of President Aquino to fulfill his political contract
gratuitous intrusion into the powers of the President—which violation the Decision seeks to deny. with the Filipino people to address graft and corruption, and his constitutional duty to ensure that
Nay, the majority created a situation far worse—the usurpation by the judiciary of the sovereign the laws are faithfully executed, the Court suddenly finds itself impermissibly restricting this
power of the people to determine the priorities of Government. power when the object of the exercise of the Presidential powers of investigation under EO 1
The Majority Decision’s Expansive Views of the Powers of the Presidency and the Mandate of focused on the reported misdeeds of the Arroyo administration. From full support of the
the Aquino Government incumbent President and his constitutional powers, the majority Decision reverses its track to
_______________ unconstitutionally restrict his powers by effectively denying him the right to choose the priority—
in this case the Arroyo administration—in his graft-busting campaign.
9 Id., at p. 3. The reasoning of the Decision proceeds thus: (a) all past administrations are a class and to
10 5 U.S. 137 (1803).
exclude other past administrations is on its face unlawful discrimination; (b) the reasons given by
428
the Solicitor General for the limited scope of the intended investigation—administrative
428 SUPREME COURT REPORTS ANNOTATED overburden if other past administrations are included, difficulty in unearthing evidence on old
Biraogo vs. Philippine Truth Commission of 2010 administrations, duplication of investigations already made—are either specious, irrelevant to the
The majority Decision starts with an expansive view of the powers of the Philippine legitimate and noble objective of the PTC to stamp out corruption, or beside the point and thus do
presidency and what this presidency is supposed to accomplish for the Filipino people: not justify the discrimination; (c) to be constitutional, the PTC must, “at least, have authority to
“The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, investigate
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with 430
his slogan, “Kung walang corrupt, walang mahirap.” The Filipino people convinced in his sincerity and in his 430 SUPREME COURT REPORTS ANNOTATED
ability to carry out this noble objective catapulted the good senator to the Presidency.”
11
Here we have the majority affirming that there exists a political contract between the Biraogo vs. Philippine Truth Commission of 2010
incumbent President and the Filipino people – that he must stamp out graft and corruption. It must all past administrations” and “must not exclude the other past administrations;” (d)
13 14
be remembered that the presidency does not exist for its own sake; it is but the instrument of the “[p]erhaps a revision of the executive issuance so as to include the earlier past administrations
will of the people, and this relationship is embodied in a political contract between the President would allow it to pass the test of reasonableness and not be an affront to the Constitution;” and (e)
15
“reasonable prioritization is permitted,” but “it should not be arbitrary lest it be struck down as 18 Unless the Court is impliedly saying that the reported crimes that are the earliest in point of time are the ones that
must be prioritized, i.e., reported crimes committed during the administrations of Presidents Corazon Aquino and Fidel Ramos.
unconstitutional.” 16
But to impose this standard is the height of legal unreasonableness and the worst form of judicial overreach.
The Decision is telling the President to proceed with his program of anti-corruption on the 19 G.R. No. L-63915, 29 December 1986, 146 SCRA 446.
condition that, when constituting a fact-finding commission, he must include “all past 432
administrations” without exception, save he cannot be expected to investigate dead presidents or 17
432 SUPREME COURT REPORTS ANNOTATED
those whose crimes have prescribed. He may prioritize, but he must make sure such prioritization
is not arbitrary. Biraogo vs. Philippine Truth Commission of 2010
In talking about an acceptable formulation for a fact-finding commission, it is as if the It is incumbent upon any administration to conduct an internal audit of its organization—in
Decision is talking past EO 1. The President has already made his fact-finding prioritization this case, the executive department. This is standard practice in the private sector; it should
in EO 1, and his prioritization is not arbitrary. The government has already explained why likewise be standard practice for the public sector if the mandate of public accountability is to be
investigation of the Arroyo administration is its priority—(a) the audit of an immediate past fulfilled. No President should be prevented from creating administrative structures to exact
administration is usually where audits begin; (b) the evidence of graft and corruption is more accountability; from conducting internal audits and creating controls for executive operations; and
likely to still be intact; (c) the most immediate deleterious effects of the reported graft and from introducing governance reforms. For the Court to do so would be to counter progress and to
corruption of the immediate past administration will need to be faced by the present deny the executive department the use of best practices that are par for the course in modern
administration; (d) the resources required for investigation of the immediate past administration democracies.
alone will take up all the resources of the PTC; and (e) other past administrations have already The Decision contradicts itself by concluding that the graft and corruption fact-finding
been investigated and one past president has already been jailed. But this Court is saying that all mandate of the PTC is confined only to those incidents in the Arroyo administration. In the same
the above are not indicators of rational prioritization. Then, what is? This Court seems to have set breath, it acknowledges that the express language of EO 1 indicates that the President can expand
an inordinately high standard for reason- the focus of the PTC at any time by including other past misdeeds of other administrations. In
_______________ other words, the clear and unmistakable language of EO 1 precludes any conclusion that the PTC’s
investigation of graft and corruption is confined only to the administration of President Arroyo.
13 The majority Decision clarifies that investigation of deceased presidents, cases which have already prescribed and EO 1 should be read as empowering the PTC to conduct its fact-finding on the Arroyo
simultaneous investigations of previous administration are not expected of the PTC. (Decision at p. 37) administration, and that this fact-finding may expand to include other past administrations on the
14 Decision at p. 37.
15 Decision at p. 43. instruction of President Aquino.
16 Id., at pp. 37-38. The use of the word “only” in the majority Decision is unwarranted, as it indicates exclusivity
20
17 I submit that the majority Decision must have intended to refer to all officials of past presidents, and not only to the of the PTC’s focus on the Arroyo administration—an exclusivity that is incompatible with the
Presidents themselves.
431
unequivocally non-exclusive language of Sec. 17 of EO 1. The litmus test that should have been
21
applied by this Court is whether or not EO 1 is unconstitutional for prioritizing fact-finding on the
VOL. 637, DECEMBER 7, 2010 431 reported graft
_______________
Biraogo vs. Philippine Truth Commission of 2010
ableness that is impossible to satisfy, primarily because it is unknowable and unpredictable. The
20 Decision at p. 36.
only conclusion is that there is no other standard out there acceptable to the majority, and there 21 SECTION 17. Special Provision Concerning Mandate.—If and when in the judgment of the President there is a
never will be. Even the majority Decision gives no clue, and perhaps the majority has no clue on
18
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and
what those reasonable standards are. As Justice Florentino Feliciano said in his concurrence instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a
supplemental Executive Order.
in Tañada v. Tuvera: 19
433
“x x x The enforcement of prescriptions which are both unknown to and unknowable by those subjected
to the statute, has been throughout history a common tool of tyrannical governments. Such application and VOL. 637, DECEMBER 7, 2010 433
enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations between a
government and its people.” Biraogo vs. Philippine Truth Commission of 2010
This is the red herring—for the majority Decision to speak as if there were a way to “tweak” and corruption of the Arroyo administration without foreclosing, but not guaranteeing, future
EO 1 so that it becomes acceptable to the majority when in reality there is no way that can be done investigation into other administrations.
without loss of dignity to the incumbent presidency. The tweaked EO, according to the Decision, Unwarranted Creation of “Class of All
must include all past administrations in its coverage, and can identify its priority; but a reading of Political Administrations” as the Object
the Decision already indicates that the moment the prioritization hints at focusing on the Arroyo of Constitutional Review by This Court
administration, then the majority is ready to once again strike it down. Such proposition is to At the outset, it must be emphasized that EO 1 did not, for purposes of application of the laws
require the Aquino administration to engage in hypocrisy—to fact-find on “the elephant in the on graft and corruption, create two classes—that of President Arroyo and that of other past
room” without talking about that elephant in particular because the majority finds that to talk about administrations. Rather, it prioritized fact-finding on the administration of President Arroyo while
that particular elephant without talking about all other elephants is to deprive that particular saying that the President could later expand the coverage of EO 1 to bring other past
elephant of its equal protection right. This Court has imposed an unbearable and undignified yoke administrations under the same scrutiny. Prioritization per se is not classification. Else, as all
on the presidency. It is to require the Aquino Presidency to pretend that addressing the reported human activities require prioritization, everyone in a priority list for regulation or investigation can
graft and corruption of the Arroyo administration was never a major campaign promise of this make out a case that there is prima facie classification, and that the prioritization is not supported
Presidency to the people. by a reasonable objective. All acts of government would have to come to a halt and all public
_______________ offices would need to justify every plan of action as to reasonableness of phases and prioritization.
The step-by-step approach of legislative and regulatory remedies—recognized as valid in Quinto
v. COMELEC and in the case law cited by the Decision – in essence says that prioritization is
22 23 circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does
not classification, much less invalid classification. not require that things which are different in fact be treated in law as though they were the same. The
The majority looks at the issue of equal protection by lumping into a single class all past equal protection clause does not forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is directed or by the territory
administrations, i.e., those of former Presidents Aguinaldo, Quezon, Osmeña, Laurel, Roxas,
24
within which it is to operate.
Quirino, Magsaysay, Garcia, Macapagal, Marcos, Aquino, Ramos, Estrada and Arroyo. Justice The equal protection of the laws clause of the Constitution allows classification. Classification in
Carpio makes the case that recovery of ill-gotten wealth is imprescriptible. Then conceivably law, as in other departments of knowledge or practice, is the grouping of things in speculation or
under the formulation of the majority, all past administrations are required to be investigated. In practice because they agree with one another in certain particulars. A law is not invalid because of
fact, simple inequality. The very idea of classification is that of inequality. All that is required of a valid
_______________ classification is that it be reasonable, which means that classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of the law; that it
22 G.R. No. 189698, 22 February 2010. must apply equally to each member of the class. The Court has held that the standard is satisfied if the
23 Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16(b), p. 371; Hunter v. Flowers, classification is based on a reasonable foundation or rational basis and is not palpably arbitrary.
43 So. 2d 435 cited in Am. Jur. 2d, Vol. 16(b), p. 370; Clements v. Fashing, 457 U.S. 957. Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
24 Decision at p. 36. equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the
434 truth “concerning the reported cases of graft and corruption during the previous administration” only. The
434 SUPREME COURT REPORTS ANNOTATED intent to single out the previous administration is plain, patent and manifest ...436
Biraogo vs. Philippine Truth Commission of 2010 436 SUPREME COURT REPORTS ANNOTATED
even with the exceptions introduced by the Decision, its conclusory parts emphasize the need to Biraogo vs. Philippine Truth Commission of 2010
include all past administrations in the coverage of EO 1. It then pronounces that any difference in Though the OSG enumerates several differences between the Arroyo administration and other past
treatment between members of this class is unequal protection, such that to treat the Arroyo administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
administration differently from the administration of President Aguinaldo is unconstitutional. “previous administration” only.
After all, says the majority Decision, corruption was reported in other past administrations as well. ... The OSG ventures to opine that “to include other past administrations, at this point, may unnecessarily
The lumping together of all Philippine political administrations spanning 111 years, for overburden the commission and lead it to lose its effectiveness.” The reason given is specious. It is without
doubt irrelevant to a legitimate and noble objective of the PTC to stamp out or “end corruption and the evil it
purposes of testing valid legislation, regulation, or even fact-finding is unwarranted. There is
breeds.”
inherent illogic in the premise of the Decision that administrations from the time of Aguinaldo to The probability that there would be difficulty in unearthing evidence or that the earlier reports
Arroyo belong to one class. 25
involving the earlier administrations were already inquired into is beside the point. Obviously, deceased
Assuming arguendo that all the political administrations can be categorized as one class, the test presidents and cases which have already prescribed can no longer be the subjects of inquiry by the PTC.
of reasonableness has been more than met by EO 1, as extensively discussed by Justices Carpio, Neither is the PTC expected to conduct simultaneous investigations of previous administrations, given the
Carpio Morales, Antonio Eduardo Nachura, and Roberto Abad. Let me just add to their voices by body’s limited time and resources. “The Law does not require the impossible” (Lex non cognit ad
looking at the constitutional problem before this Court from other angles. impossibilia).
The Majority Decision Indirectly Admits Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order No. 1
that the “Reasonableness Test” Has Been
suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not
Satisfied in the Same Breath that it Re- exclude the other past administration. The PTC must, at least, have the authority to investigate all past
quires the Public to Live with an Unreal administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down
World View for being unconstitutional. …
To quote from the majority Decision’s discussion of the claim of violation of the equal It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
protection clause: however, is of the considered view that although its focus is restricted, the constitutional guarantee of
_______________ equal protection under the law should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance with
25 Despite the attempt of the majority Decision to make it appear that it is not unreasonable in requiring an all- which all private rights determined and all public authority administered. Laws that do not conform to the
comprehensive coverage when it says that it does not require the impossible, the fact that it keeps on insisting that all past Constitution should be stricken down for being unconstitutional. While the thrust of the PTC is specific, that is,
administrations must be included in the coverage of EO 1 give basis for the opinion that the Decision indeed requires coverage for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read together with
spanning at least 6 decades, and even perhaps, a century. See Dissent of J. Carpio. the provisions of the Constitution. To exclude the earlier administrations in the guise of “substantial
435 distinctions” only an “adventure in partisan hostility.” …437
VOL. 637, DECEMBER 7, 2010 435 VOL. 637, DECEMBER 7, 2010 437
Biraogo vs. Philippine Truth Commission of 2010 Biraogo vs. Philippine Truth Commission of 2010
Although the purpose of the Truth Commission falls within the investigative powers of the To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
President ... embrace all persons who naturally belong to the class. “Such a classification must not be based on existing
. . . . . . . . . circumstances only, or so constituted as to preclude additions to the number included within a class, but must
... It must not leave out or “underinclude” those that should otherwise fall into a certain classification. be of such nature as to embrace all those who may thereafter be in similar circumstances and conditions.
. . . . . . . . . Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation
As elucidated in Victoriano v. Elizalde Rope Workers’ Unionand reiterated in a long line of cases, and which are indistinguishable from those of the members of the class must be brought under the influence of
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the law and treated by it in the same way as members of the class.”
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law under the equal
constitutional prohibition against inequality, that every man, woman and child should be affected protection clause” ... In several instances, the underinclusiveness was not considered a valid reason to
alike by statute. Equality of operation of statutes does not mean indiscriminate operation on strike down a law or regulation where the purpose can be attained in future legislations or regulations.
These cases refer to the “step by step” process. “With regard to equal protection claims, a legislature The law has always been that a class can be validly distinguished from others if there is a
does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence reasonable basis for the distinction. The reasonableness of the classification in EO 1 was amply
or otherwise, to cover every evil that might conceivably have been attacked.” demonstrated by the Solicitor General, but the majority simply responds dismissively that the
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked
distinctions are superficial, specious and irrelevant, without clearly explaining why they are so.
out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in
the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular Contrary to the conclusion of the majority, jurisprudence bear out the substantial and reasonable
act, event or report to be focused on unlike the investigative commissions created in the past. “The equal nature of the distinction.
protection clause is violated by purposeful and intentional discrimination.” With respect to the first reason for the classification claimed by the Solicitor General—that
... Although Section 17 allows the President the discretion to expand the scope of the investigations of the other past administrations have already been investigated and, hence, there is constitutional basis
Truth Commission so as to include the acts of graft and corruption, it does not guarantee that they would be not to include them in the immediate focus of the investigation—the case of Luna
covered in the future. Such expanded mandate of the commission will still depend on the whim and caprice of v. Sarmiento supports the conclusion that the distinction is constitutional.
28
the President. If he would decide not to include them, the section would then be meaningless. This will only Commonwealth Act No. (CA) 703, which was sustained by Luna v. Sarmiento, created two
fortify the fears of the petitioners that the Executive Order No. 1 was “crafted to tailor-fit the prosecution of
sets of situations—one in which persons were delinquent in their tax payments for half of the year
officials and personalities of the Arroyo administration.” (Emphasis and underscoring supplied)
26
_______________ 1941 and the entirety of the years 1942-45 (during the Japanese occupation), and another in which
persons had paid their taxes for the said periods. Only the first set of persons was benefited by the
26 Decision, at pp. 29-40. tax amnesty provision of CA 703. The law was silent on the treatment of the tax payments made
438 by compliant taxpayers during that period. A claim of unequal protection was raised. The Court
438 SUPREME COURT REPORTS ANNOTATED
said:
_______________
Biraogo vs. Philippine Truth Commission of 2010
In an earlier portion, I discussed the findings of the majority Decision regarding the mandate 28 G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
of President Aquino from the electorate and the vast expanse of his powers to investigate and 440
ensure the faithful execution of the laws. The majority concedes the reasonableness of the purpose 440 SUPREME COURT REPORTS ANNOTATED
of EO 1, but, as shown in the above excerpts, it contests the manner by which President Aquino
Biraogo vs. Philippine Truth Commission of 2010
proposes to achieve his purpose. The very discussion above, however, demonstrates the self-
“Does this provision cover taxes paid before its enactment, as the plaintiff maintains and the court below
contradiction and unreality of the majority Decision’s worldview. held, or does it refer, as the City Treasurer believes, only to taxes which were still unpaid?
First, the Decision concedes that classification per se is not forbidden in the process of There is no ambiguity in the language of the law. It says “taxes and penalties due and payable,” the literal
legislation or regulation. Indeed, cases identified by the Decision, when examined, pronounce that meaning of which is taxes owed or owing. (See Webster's New International Dictionary.) Note that the
the legislature and the regulators must necessarily pick and choose in the process of their work. provision speaks of penalties, and note that penalties accrue only when taxes are not paid on time. The word
Second, in legislation or regulation, a step-by-step process resulting in a classification of those “remit” underlined by the appellant does not help its theory, for to remit is to desist or refrain from exacting,
that are immediately included therein versus those that have yet to be included in the future is inflicting, or enforcing something as well as to restore what has already been taken. (Webster's New
constitutional. International Dictionary)
We do not see that literal interpretation of Commonwealth Act No. 703 runs counter and does violence to
Third, the Decision also concedes that the under-inclusiveness of remedial measures is not
its spirit and intention, nor do we think that such interpretation would be “constitutionally bad” in that
unconstitutional, especially when the purpose can be attained through inclusive future legislation “it would unduly discriminate against taxpayers who had paid in favor of delinquent taxpayers.” The
or regulation. I note of course, that the Decision states in an earlier part that “under-inclusiveness” remission of taxes due and payable to the exclusion of taxes already collected does not constitute unfair
makes for invalid classification. It is important to note the observation of Justice Carpio that the discrimination. Each set of taxes is a class by itself, and the law would be open to attack as class legislation
creation of the Presidential Commission on Good Government (PCGG) has consistently been only if all taxpayers belonging to one class were not treated alike. They are not.”
29
upheld by the Court despite constitutional challenges on equal protection grounds. The PCGG’s In other words, within the class of taxpayers obligated to pay taxes in the period from the
charter has the same “future inclusion” clause as Section 17 of EO 1; yet, the majority Decision second half of 1941 to the end of 1945 are two subclasses—those who did not pay their taxes and
ignores jurisprudence on the PCGG. those who did. By the same kind of reasoning, within the class of political administrations, if past
Fourth, the Decision, through a quoted case, observes that valid under-inclusiveness can be
27
administrations have already been the subject of a fact-finding commission, while one particular
the result of either inadvertence or deliberateness. administration has not been so, that alone is a good basis for making a distinction between them
_______________ and an administration that has not yet been investigated. There is a constitutionally valid basis,
therefore, to distinguish between the Marcos, Ramos, and Estrada administrations—which have
27 Decision at p. 39, citing McDonald v. Board of Election Com’rs of Chicago, 394 US 802 cited in AM. Jur 2d, note 9. already been the subject of fact-finding commissions—and the Arroyo administration.
439
With respect to the second reason for the classification—that it would be unduly oppressive
VOL. 637, DECEMBER 7, 2010 439 and burdensome to require the PTC to
_______________
Biraogo vs. Philippine Truth Commission of 2010
Regardless of the foregoing findings and discussions, which in effect support its validity, EO 29 G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
1 is struck down by the Decision. The majority creates an argument for the invalidity of EO 1 by 441
quoting only from general principles of case law and ignoring specific applications of the
VOL. 637, DECEMBER 7, 2010 441
constitutional tests for valid classification. Instead of drawing from real-world experiences of
classification decided in the past by the Court, the Decision relies on general doctrinal statements Biraogo vs. Philippine Truth Commission of 2010
normally found in cases, but divorces these doctrinal statements from their specific contextual investigate all administrations—case law holds that administrative constraints are a valid basis for
setting and thereby imposes unrealistic standards for presidential action. classification.
In British American Tobacco v. Camacho, the Court declared the legislative classification
30
The Majority Decision Grievously Omitted the Analytical Process Required of this Court in
freeze on the four-tiered system of cigarette taxes as a valid and reasonable classification arising Equal Protection Claims
from practicality andexpediency. Thus, freezing the tax classification of cigarettes based on
31
A judicial analysis must not stop at reciting legal doctrines which are its mere beginning
their 1996 or 2003 net retail prices was found to be the most efficient way to respond to Congress’ points, but, especially in equal protection claims, it must move forward to examine the facts and
legitimate concern with simplifying tax collections from cigarette products. In a similar vein, the the context of the controversy. Had the majority taken pains to examine its own cited cases, it
President believed that the most efficient and effective way of jump-starting his administration’s would have discovered that the cases, far from condemning EO 1, would actually support the
fight against corruption was to focus on one freezable time frame—the latest past administration. constitutionality of the latter.
The legitimate and valid administrative concern is obviously the limited resources and time The majority Decision and the separate opinion of Chief Justice Corona rely greatly
available to the PTC to make a comprehensive yet valuable fact-finding report with on Victoriano v. Elizalde Rope Workers Union for their main doctrinal authority. The Court in
34
recommendations to address the problem of graft and corruption in a timely and responsive that case held that the questioned classification was constitutional, and it went through a step-by-
manner within a period of two years. Hence, there can be no violation of equal protection based on step analysis to arrive at this conclusion. To clarify the kind of analytical process that must go into
the fact that the PTC’s investigation is limited to the investigation of what can be feasibly an examination of the equal protection claim, let us quote from the case in extenso:
investigated, a classification based on the Executive’s practical administrative constraints. “Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects
With respect to the third reason for the classification made by EO 1, one that lumps together which ban their members from joining labor unions, in violation of Article III, Section 1(7) of the 1935
the various temporal reasons, the Solicitor General describes it thus: Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or protection to
“... The segregation of the preceding administration as the object of fact-finding is warranted by the reality labor organizations.
that unlike with administration long gone, ... that said Act does not violate the constitutional provision of equal protection, for the classification of
_______________ workers under the Act depending on their religious tenets is based on substantial distinction, is germane to the
purpose of the law, and applies to all the members of a given class...
30 G.R. No. 163583, 20 August 2008, 562 SCRA 511. ... All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
31 “All in all, the classification freeze provision addressed Congress’s administrative concerns in the simplification of tax administration of unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship
sin products, elimination of potential areas for abuse and corruption in tax collection, buoyant and stable revenue generation, and ease of projection does not render it unconstitutional; that if any reasonable basis may be conceived which supports the
of revenues. Consequently, there can be no denial of the equal protection of the laws since the rational-basis test is amply satisfied.” ( British
American Tobacco v. Camacho, id.) statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not
442 concerned with the wisdom, justice, policy, or expediency of a stat-
_______________
442 SUPREME COURT REPORTS ANNOTATED
34 G.R. L-25246, 12 September 1974, 59 SCRA 54.
Biraogo vs. Philippine Truth Commission of 2010
444
the current administration will most likely bear the immediate consequence of the policies of the previous
administration. 444 SUPREME COURT REPORTS ANNOTATED
... The classification of the previous administration as a separate class for investigation lies in the reality
Biraogo vs. Philippine Truth Commission of 2010
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, ute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation
are more easily established in the regime that immediately precede the current administration.” should be adopted.
... In Aglipay v. Ruiz, this Court had occasion to state that the government should not be precluded from
The temporal dimension of every legal argument is supremely important, imposed by the
pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or
inevitable fact that this world and its inhabitants are creatures of space and time. Every public sect...
official, therefore, must accomplish his duties within the constraints of space and time. To ignore The primary effects of the exemption from closed shop agreements in favor of members of religious
the limitation of time by assuming that a public official has all the time in the world to accomplish sects that prohibit their members from affiliating with a labor organization, is the protection of said
an investigative goal, and to force the subject of the universe of his scrutiny to comprise all past employees against the aggregate force of the collective bargaining agreement, and relieving certain
administrations, is the height of legal unreasonableness. citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity due
In other words, according to the majority Decision, within the limited term of President to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, the
Aquino, and within the more severely limited life span of an ad hoc fact-finding committee, Act also promotes the well-being of society. It is our view that the exemption from the effects of closed
shop agreement does not directly advance, or diminish, the interests of any particular religion. Although
President Aquino must launch his pursuit to eradicate graft and corruption by fact-finding into all
the exemption may benefit those who are members of religious sects that prohibit their members from
past administrations spanning multitudes of decades. Truth commissions, of which the PTC joining labor unions, the benefit upon the religious sects is merely incidental and indirect. The
according to Chief Justice Corona is one, are all highly limited in investigations, statement taking, “establishment clause” (of religion) does not ban regulation on conduct whose reason or effect merely happens
and transcribing information. In order to be swift and independent, truth commissions operate
32
to coincide or harmonize with the tents of some or all religions. The free exercise clause of the Constitution
within strict time constraints. They are also restricted in the subject matter they can review. This 33
has been interpreted to require that religious exercise be preferentially aided.
is the real world of truth commissions, not that imagined by the majority. The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
_______________ laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a
32 Matiangai Sirleaf, Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such,
Truth & Reconciliation Commission for Liberia, 21 Fla. J. Int’l L. 209, 213 (2009), citing E. Gyimah-Boadi, Executive but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights.
Director, CDD-Ghana, Paper Presentation at the British Hall Council: Reconciliation: Comparative Perspectives, 7 (June 13, The Constitution does not require that things which are different in fact be treated in law as though they were
2005). the same. The equal protection clause does not forbid discrimination as to things that are different. It does not
33 Kristin Bohl, Breaking the Rules of Transitional Justice, 24 Wis. Int’l L. J. 557, 473 (2006). prohibit legislation which is limited either in the object to which it is directed or by the territory within which it
443 is to operate.
VOL. 637, DECEMBER 7, 2010 443 The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice because
Biraogo vs. Philippine Truth Commission of 2010 they agree with one another in certain particulars. A law is not invalid because of
445 from it. The distinction lies in reason—administrative constraints, availability of evidence,
VOL. 637, DECEMBER 7, 2010 445 immediate past acts, non-prescription of causes of
_______________
Biraogo vs. Philippine Truth Commission of 2010
simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the 35 G.R. L-25246, 12 September 1974, 59 SCRA 54.
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid 447
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the purpose of the law; that it VOL. 637, DECEMBER 7, 2010 447
must not be limited to existing conditions only; and that it must apply equally to each member of the Biraogo vs. Philippine Truth Commission of 2010
class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
actions—all of which are not whimsical, contrived, superficial or irrelevant. It must also be
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its emphasized that the Court, as quoted above, recognizes that in many cases, the classification lies
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the in narrow distinctions. We have already discussed how in Luna v. Sarmiento the Court
classification be based on scientific or marked differences of things or in their relation. Neither is it necessary recognized subclasses within a class and upheld the narrow distinction made by Congress between
that the classification be made with mathematical nicety. Hence legislative classification may in many cases these subclasses. So if past administrations have already been the subject of a fact-finding
properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature commission, while one particular administration has not been so subjected, that alone is a good
from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. basis for making a distinction between them and an administration that has not yet been
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies investigated. It must be emphasized that the Victoriano case, which the majority heavily relied on,
employees and workers, as to the effect and coverage of union shop security agreements, into those who
by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose
reiterated that as long as there is a public benefit to be obtained in a government action, incidental
religion does not prohibit membership in labor unions. The classification rests on real or substantial, not advantage (and conversely, disadvantage) to a group is not sufficient to upset the presumption of
merely imaginary or whimsical, distinctions... constitutionality of a government action.
...The classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions. On the second test. The classification is germane to the purpose of the law—to get a
The classification introduced by said Act is also germane to its purpose. The purpose of the law is headstart on the campaign against graft and corruption. If the investigation into the root of
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being corruption is to gain traction, it must start somewhere, and the best place to start is to examine the
deprived of their right to work and from being dismissed from their work because of union shop immediate past administration, not distant past administrations.
security agreements. On the third test. Of course this is not relevant in this case, for the law being examined
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time
of its enactment. The law does not provide that it is to be effective for a certain period of time only. It is
in Victoriano was one that granted prospective rights, and not one that involves fact-finding into
intended to apply for all times as long as the conditions to which the law is applicable exist. As long as there past acts as with EO 1.
are closed shop agreements between an employer and a labor union, and there are employees who are On the last test. This asks whether the law applies equally to all members of the segregated
prohibited by class. It must be emphasized that in the Victoriano case, this last test was applied not to all the
446 workers in the bargaining unit, but it was applied to the subclass of workers whose religions
446 SUPREME COURT REPORTS ANNOTATED prohibit them from joining labor unions. In application to this case, the question should then have
been, not whether there is equality of treatment between all political administrations under EO 1,
Biraogo vs. Philippine Truth Commission of 2010 but whether within the subclass of third level public officials of the Arroyo administration—that
their religion from affiliating with labor unions, their exemption from the coverage of said agreements
is, the subject of EO 1—there is unequal treatment. Obviously, the answer is no. The majority
continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from its applied the last test backwards by asking whether there is equality of treatment
448
provision. The fact that the law grants a privilege to members of said religious sects cannot by itself
render the Act unconstitutional, for as We have adverted to, the Act only restores to them their freedom 448 SUPREME COURT REPORTS ANNOTATED
of association which closed shop agreements have taken away, and puts them in the same plane as the
other workers who are not prohibited by their religion from joining labor unions. The circumstance, Biraogo vs. Philippine Truth Commission of 2010
that the other employees, because they are differently situated, are not granted the same privilege, does among all political administrations and concluding that there was no equality of treatment, even
not render the law unconstitutional, for every classification allowed by the Constitution by its nature before it could answer the first test of whether the classification between the Arroyo
involves inequality. administration and other past administrations was reasonable.
The mere fact that the legislative classification may result in actual inequality is not violative of the It must be emphasized that the Victoriano case on which the majority heavily relies states in
right to equal protection, for every classification of persons or things for regulation by law produces several parts that classification must necessarily result in inequality of treatment and that such
inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it results in some inequality.
inequality does not give rise to a constitutional problem. It is the lack of reason that gives rise to a
Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object constitutional issue, not the inequality per se. To quote again:
is for the benefit of the public and the means by which the benefit is to be obtained are of public “The mere fact that the legislative classification may result in actual inequality is not violative of the right
character, the law will be upheld even though incidental advantage may occur to individuals beyond to equal protection, for every classification of persons or things for regulation by law produces inequality in
those enjoyed by the general public.” 35 some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not offend
The above analysis is the kind of processed reasoning to which EO 1 should be subjected. The the constitution simply because in practice it results in some inequality. Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object is for the benefit of the public and the means
majority Decision falls short of satisfying this process. by which the benefit is to be obtained are of public character, the law will be upheld even though incidental
On the first test. Is the classification reasonable, based on substantial distinctions that make advantage may occur to individuals beyond those enjoyed by the general public.” 36
for real difference? The government has already given several reasons why the distinction between Selective Investigation,
the administration of President Arroyo is different from other past administrations. The distinction Enforcement and Prosecution
does not lie in any claim that corruption is the sole hallmark of the Arroyo administration—far
Fact-finding or investigation can only begin by identifying the phenomenon, event or matter American constitutional history, it is the traditionally oppressed—racial or religious minorities and
that is to be investigated. Then it can only proceed if the fact-finder, or the authority under whom the politically disenfranchised—who have succeeded in making a case of unequal protection when
he works, identifies or selects the persons to be investigated. their prejudiced status is shown to be the principal invidious or bad faith consideration for the
The validity of the Feliciano Commission created by Administrative Order No. (AO) 78 of selective prosecution.
former President Arroyo is affirmed by the majority Decision. AO 78 zeroed in on the The standard for demonstrating selective prosecution therefore is demanding: a “presumption
investigation of “the rebellion of misguided military officers last July (2003),” in order “to of regularity supports prosecutorial decisions and in the absence of clear evidence to the contrary,
investigate the roots of the rebellion and the provocations that inspired it,” and concludes that “this courts presume that they have properly discharged their official functions.” 47
rebellion is deplorable.” AO 78 labeled the officers involved in the July 2003 Oakwood rebellion In People v. Dela Piedra, the Philippine Supreme Court, adhering to the precedents set in
48
as “misguided” American jurisprudence, likewise denied the equal protection argument of an illegal recruiter, who
_______________ claimed that others who had likewise performed acts of recruitment remained scot-free:
“The prosecution of one guilty person while others equally guilty are not prosecuted, however, is
36 G.R. L-25246, 12 September 1974, 59 SCRA 54. not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in
449 _______________
VOL. 637, DECEMBER 7, 2010 449 43 Bell v. State, 369 So.2d 932 (1979).
44 United States v. Armstrong, supra, 517 U.S. 456, 465 (1996).
Biraogo vs. Philippine Truth Commission of 2010 45 United States v. Furman, 31 F.33 1034, 1038 (10th Cir. 1994), quoting United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983).
and cast their actions as “rebellion” and “deplorable.” President Arroyo selected a class—the 46 United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983).
47 United States v. Hunter, 13 F.Supp.2D 586, 10 June 1998.
officers involved in the July 2003 “rebellion”—in contradistinction to all other all military officers 48 G.R. No. 121777, 24 January 2001, 350 SCRA 163.
who had ever rebelled against the Republic since its founding. The acts were stigmatized as acts of 451
“rebellion,” a crime punishable by law. The majority does not condemn this classification made in VOL. 637, DECEMBER 7, 2010 451
AO 78 by President Arroyo which uses condemnatory language on the class of people targeted. In
contrast, the language of EO 1 of President Aquino is mild, willing to grant the administration of Biraogo vs. Philippine Truth Commission of 2010
President Arroyo the benefit of the doubt by using adjectives to denote the tentativeness of the conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty,
although a violation of the statute, is not without more a denial of the equal protection of the laws. The
observations on corruption such as “alleged” and “reported” instead of treating them as actuality.
unlawful administration by officers of a statute fair on its face, resulting in its unequal application to
AO 78 is affirmed while EO 1 is struck down; no explanation for the differing treatment is made those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be
by the majority Decision. This difference in treatment is disturbing considering the long history of present in it an element of intentional or purposeful discrimination.This may appear on the face of the
the treatment by courts of the defense of selective investigation and prosecution. action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing
In fulfilling its duty to execute the laws and bring violators thereof to justice, the Executive is a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is
presumed to undertake criminal prosecution “in good faith and in a nondiscriminatory fashion.” 37 not presumed, there must be a showing of “clear and intentional discrimination.” Appellant has failed to show
The government has broad discretion over decisions to initiate criminal prosecutions and 38 that, in charging appellant in court, that there was a “clear and intentional discrimination” on the part of the
whom to prosecute. Indeed, the fact that the general evil will only be partially corrected may serve
39 prosecuting officials.
The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence
to justify the limited application of criminal law without violating the equal protection
before it can justify a reasonable belief that a person has committed an offense. The presumption is that the
clause. Mere laxity in the enforcement of laws by public officials is not a denial of equal
40
prosecuting officers regularly performed their duties, and this presumption can be overcome only by
protection. 41
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to
Although such discretion is broad, it is not without limit. In order to constitute denial of equal
42
overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission
protection, selective enforcement must be deliberately based on unjustifiable or arbitrary of a crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is insufficient to support a
classification; the conclusion that the prosecution officers denied appellant equal protection of the laws.” (Emphasis supplied)
_______________ In the instant case, the fact that other administrations are not the subject of the PTC’s
investigative aim is not a case of selective prosecution that violates equal protection. The
37 United States v. Haggerty, 528 F.Supp. 1268, 1291 (D.Colo. 1981). Executive is given broad discretion to initiate criminal prosecution and enjoys clear presumption
38 United States v. Armstrong, 517 US 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).
39 United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982).
of regularity and good faith in the performance thereof. For petitioners to overcome that
40 McLaughlin v. State of Fla., 85 S.Ct. 283 (1964). presumption, they must carry the burden of showing that the PTC is a preliminary step to selective
41 Application of Finn, 356 P.2D 685 (1960). prosecution, and that it is laden with a discriminatory effect and a discriminatory purpose.
42 United States v. Wayte, 470 US 598, 608 (1995). However, petitioner has sorely failed in discharging that burden.
450
The presumption of good faith must be observed, especially when the action taken is pursuant
450 SUPREME COURT REPORTS ANNOTATED to a constitutionally enshrined state policy such as the taking of positive and effective measures
Biraogo vs. Philippine Truth Commission of 2010
against
452
mere failure to prosecute all offenders is no ground for the claim of a denial of equal
protection. To support a claim of selective prosecution, a defendant must establish a violation of
43 452 SUPREME COURT REPORTS ANNOTATED
equal protection and show that the prosecution (1) had a discriminatory effect and (2) was Biraogo vs. Philippine Truth Commission of 2010
motivated by a discriminatory purpose. First, he must show that “he has been singled out for
44
graft and corruption. For this purpose, the President created the PTC. If a law neither burdens a
49
prosecution while other similarly situated generally have not been proceeded against for the type fundamental right nor targets a suspect class, the Court must uphold the classification, as long as it
of conduct forming the basis of the charge against him.” Second, he must prove that his selection
45
bears a rational relationship to some legitimate government end. 50
for prosecution was invidious or in bad faith and was “based on impermissible considerations
such as race, religion, or the desire to prevent the exercise of constitutional rights.” In 46
The same presumption of good faith and latitude in the selection of what a truth commission 454
must fact-find must be given to the President. Too wide a mandate would no doubt drown the 454 SUPREME COURT REPORTS ANNOTATED
commission in a sea of history, in the process potentially impeding the more forward-looking
aspects of its work. To require the PTC to look into all acts of large-scale corruption in all prior
51 Biraogo vs. Philippine Truth Commission of 2010
administrations would be to make truth-telling overly comprehensive, resulting in a superficial In Gallardo v. People, the Supreme Court held that there was no violation of the equal
60
fact-finding investigation of a multitude of allegations without depth and insightful analysis. The protection clause when the Ombudsman recommended the filing of an information against a public
Philippines’ past experience with ad hocinvestigating commissions has been characterized by a officer, even if it had previously dismissed sixteen (16) other cases of similar factual
focus on the truth regarding a key period or event in our collective history and by a reasonable circumstances:
time frame for achieving their purpose, i.e., the assassination of Ninoy Aquino, the 1989 coup 52 “The contention that petitioners’ right to equal protection of the law has been transgressed is equally
untenable. The equal protection clause requires that the law operates uniformly on all persons under similar
d’état, the 2003 Oakwood mutiny, the extra-judicial killings of media and activists, and private
53 54 55
circumstances or that all persons are treated in the same manner, the conditions not being different, both in
armed groups. 56
privileges conferred and the liabilities imposed. It allows reasonable classification. If the classification is
Here, petitioners who are not even the injured parties are invoking the equal protection clause. characterized by real and substantial differences, one class may be treated differently from another. Simply
Their standing to raise this issue is seriously contested in the Dissent of Justice Carpio-Morales. because the respondent Ombudsman dismissed some cases allegedly similar to the case at bar is not
They do not claim in any manner that they are the subject of EO 1. Courts have sufficient to impute arbitrariness or caprice on his part, absent a clear showing that he gravely abused
_______________ his discretion in pursuing the instant case. The Ombudsman dismissed those cases because he believed
there were no sufficient grounds for the accused therein to undergo trial. On the other hand, he
49 CONSTITUTION, Article II, Section 27. recommended the filing of appropriate information against petitioners because there are ample grounds
50 Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, 08 April 2010, 618 SCRA 32. to hold them for trial. He was only exercising his power and discharging his duty based upon the
51 Ariel Meyerstein, Transitional Justice and Post Conflict Israel/Palestine: Assessing the Applicability of the Truth constitutional mandate of his office. Stated otherwise, the circumstances obtaining in the numerous cases
Commission Paradigm, 38 Case W. Res. J. Int’l. L. 281, 330 (2006-2007). previously dismissed by the Ombudsman are entirely divergent from those here existing.” (Emphasis supplied)
52 Agrava Commission, Presidential Decree No. 1886 (14 October 1983).
53 Davide Commission, Administrative Order No. 146 (06 December 1989) and Republic Act No. 6832 (05 January
Even on the assumption that the recommendation of the PTC is that acts of graft and
1990). corruption were indeed committed by the Arroyo administration, there is still a long way to go
54 Feliciano Commission, Administrative Order No. 78 (30 July 2003). before the recommendation would ripen to criminal prosecution, much less conviction. The
55 Melo Commission, Administrative Order No. 173 (23 March 2007). Ombudsman must accept the referral and conduct its own preliminary investigation. It must find
56 Zeñarosa Commission, Administrative Order No. 275 (09 December 2009).
453 probable cause, then file the appropriate information. The Court must then preside over a criminal
trial at which the findings of the PTC have no conclusive effect on the Court’s ultimate judgment,
VOL. 637, DECEMBER 7, 2010 453 in the same way they treated the findings of the Davide Commission in Kapunan v. Court of
Biraogo vs. Philippine Truth Commission of 2010 Appeals: 61
_______________
warned that the right of equal protection of the law “may not be perversely invoked” to justify
desistance by the authorities from the prosecution of a criminal case, just because not all of those
60 G.R. No. 142030, 21 April 2005, 456 SCRA 494.
who are probably guilty thereof were charged. This characterization would apply especially if the
57
61 G.R. Nos. 148213-17, 13 March 2009, 581 SCRA 42.
ones who invoke the equal protection clause are those who are not injured by the contested 455
executive action.
VOL. 637, DECEMBER 7, 2010 455
EO 1 activities are at most initiatory investigations. There is no preliminary investigation—
much less prosecution—to be conducted under the auspices of EO 1. The PTC is tasked to Biraogo vs. Philippine Truth Commission of 2010
“collect, receive, review and evaluate evidence related to or regarding the cases of large scale “We do not wish to denigrate from the wisdom of the Davide Commission. However, its findings cannot
corruption,” tasks that constitutes nothing more than a general inquiry into such reported cases in
58 be deemed as conclusive and binding on this Court, or any court for that matter. Nothing in R.A. No.
the previous administration. Similar to an initiatory police investigation, the PTC is tasked with 6832 mandates that the findings of fact or evaluations of the Davide Commission acquire binding effect
general fact-finding to uncover the truth of the events pertaining to an alleged unsolved crime. To or otherwise countermand the determinative functions of the judiciary. The proper role of the findings of
fact of the Davide Commission in relation to the judicial system is highlighted by Section 1 (c) of R.A. No.
strike down the PTC’s mandate to investigate the previous administration simply because other
6832, which requires the Commission to ‘[t]urn over to the appropriate prosecutorial authorities all evidence
administrations are not immediately included is tantamount to saying that a police investigation of involving any person when in the course of its investigation, the Commission finds that there is reasonable
a recent murder case is violative of equal protection because there are other prior yet equally ground to believe that he appears to be liable for any criminal offense in connection with said coup d’état.’
heinous murders that remain uninvestigated and unsolved by the police. Whatever factual findings or evidence unearthed by the Davide Commission that could form the
What renders the plaint regarding an alleged violation of the equal protection clause ridiculous basis for prosecutorial action still need be evaluated by the appropriate prosecutorial authorities to
is that it is being raised at the inception stage for the determination of possible criminal liability, serve as the nucleus of either a criminal complaint or exculpation therefrom. If a criminal complaint is
where threat to liberty is most absent. In contrast, with respect to petitions to stop later and more indeed filed, the same findings or evidence are still subject to the normal review and evaluation processes
freedom-threatening stages in the determination of criminal liability such as in formal criminal undertaken by the judge, to be assessed in accordance with our procedural law.” (Emphasis and underscoring
supplied)
investigations and prosecutions, Philippine courts instinctively reject the defense of a suspect or
Who Fears the Truth?
accused that the investigation is illegitimate because others who may have also violated the
Truth commissions operate on the premise that the truth—if faced squarely, documented
relevant rule, are not being investigated. 59
_______________ thoroughly, and acknowledged officially—will reduce the likelihood that a repetition of
government abuses will recur in the future. Official acknowledgment of the truth is extremely
62
57 Reyes v. Pearlbank Security, Inc., G.R. No. 171435, 30 July 2008, 560 SCRA 518. powerful in the healing process, especially in an atmosphere previously dominated by official
58 Executive Order No. 1, Section 2 (b). denial. Aside from their cathartic value, truth commissions like the PTC can be useful in
63
59 “The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws.” (People v. Dumlao, G.R. No. 168918, 02 March 2009, 580 SCRA 409).
uncovering the causes and patterns that led to such corruption, if it indeed existed, so that it may of backlash, meant to both “lash back” against those perceived to be behind the threat to the
be prevented in the future. The absence of any security of power and to return the system to the state it occupied before attempts to seek redress
_______________ were made. In the United States, this pattern is evident in various bills, policies and initiatives—
68
from the campaign rhetoric of a presidential contender, immigration bills, and laws on language to
62 Rose Weston, Facing the Past, Facing the Future: Applying the Truth Commission Model to the Historic Treatment university admissions policies—that aim to challenge and minimize any gains made by
of Native Americans in the United States, 18 Ariz. J. Int’l & Comp. L. 1017, 1018-1019 (2001).
63 Jocelyn E. Getgen, Untold Truths: The Exclusion of Enforced Sterilizations From the Peruvian Truth Commission’s disadvantaged and subordinated groups over the past years. 69
Final Report, 29 B.C. Third World L.J. 1, 34 (2009). To be sure, the differences both in history and circumstance, between the backlash
456 experienced by various disprivileged groups in the U.S. and the situation at hand, are not
456 SUPREME COURT REPORTS ANNOTATED insignificant. However, the parallels that can be drawn are striking and unsettling. In our present
context, it is the Filipino people—a great majority of whom have been disprivileged by institutions
Biraogo vs. Philippine Truth Commission of 2010 that heavily favor the ruling
form of accountability for public officials’ past misconduct of a grave nature and massive _______________
scale will promote a culture of impunity. If the present administration does not demonstrate that it
can hold accountable persons who committed acts of corruption, such inability may be interpreted 66 Id.
as a “license to engage in further acts of corruption” and embolden public officials to steal from
64 67 Id., at p. 22.
68 Keith Aoki, The Scholarship of Reconstruction and the Politics of Backlash, 81 Iowa L. Rev p. 1468, July 1996.
the government coffers more often and in greater quantity. 69 Id.
The Concurring Opinion of my esteemed colleague Justice Brion speaks to the fear that the 458
PTC would be a mind-conditioning commission such that if the Ombudsman, the Sandiganbayan
458 SUPREME COURT REPORTS ANNOTATED
or the Supreme Court itself were to reject the PTC’s findings, they would incur the ire of the
people. The potential imminence of public wrath would thus serve as a deterrent to rejection (and Biraogo vs. Philippine Truth Commission of 2010
an incentive to acceptance) of the findings of the PTC. He regards the release of the conclusions of elite—that have suffered the damaging consequences of graft and corruption. It is the Filipino
the PTC as a “priming” mechanism upon the public, the Ombudsman and the Court to concur with people who have been wronged by past abuses and systematic inequality; and it is they who now
the PTC’s way of thinking. He objects to the PTC’s appropriation of the word “truth” and assumes desire justice in truth. In the Philippine context, the pre-redress state was that of an imbalance so
that all conclusions contrary to the PTC’s would be more likely labeled as “untruth.” According to great it allowed the immunity of past high officials (the privileged class) from public
the Concurring Opinion, because President Aquino is highly trusted by Filipinos, then repeated accountability; members from such group will try to return to that state by seeking to continue
“truth” from him or his government would be believed, wholesale and with finality, by a credulous eluding accountability.
people. This would thus, the Concurring Opinion states, bring undue pressure to bear on the By ignoring the Filipino public’s experience as a witness to the frustration of attempts to hold
Ombudsman, the Sandiganbayan, and the Supreme Court: in the event of any of these bodies the past administration accountable for its reported misdeeds, and framing it instead as a group
“go[ing] against the Commission’s report,” the consequent public perception that said body sided that stands ready to convict past officials at the bar of public opinion, the Concurring Opinion
with an “untruth” would compromise “the authority, independence, and even the integrity of these turns social reality on its head. It minimizes the status of the Filipino people as a group wronged
constitutional bodies ... to the prejudice of the justice system.” Justice Brion theorizes that, in the
65
by the imbalance of power and the betrayal of public trust. It ignores the need of this group to see
light of the potential of the Commission’s influence to “prime the public” and “go beyond the these rectified. It ascribes an excess of strength to public opinion and grounds its logic on fear of
level of priming” in a way that “can affect the public environment as well as the thinking of both the public acting as an angry mob. It does not attribute the proper importance to the active,
the decision makers in the criminal justice system and the public in general,” the PTC’s primary participatory role the Filipino people desire to take in the process of dealing with the possible
role is “negated in ac- misdeeds of the past.
_______________ Implicit in Justice Brion’s Concurring Opinion are the roles the public is expected to take: that
of passive observer, receiver of information and susceptible to the branding of “truth” and its
64 James Thuo Gathii, Defining The Relationship of Human Rights to Corruption, 31 U. Pa. J. Int'l L. 125, 170 (2009). repetition; and that of a source of pressure. In the latter role, the Concurring Opinion envisions
70
65 Concurring Opinion of Justice Brion, p. 16.
457
the Filipino people, having adjudged guilt according to what it was told by the PTC and the media,
wielding the threat of public disapproval against the Ombudsman and the judiciary so as to shift
VOL. 637, DECEMBER 7, 2010 457 the burden to these bodies to demonstrate proof and the basis for their actions if they were to
Biraogo vs. Philippine Truth Commission of 2010 disagree with the findings of the PTC. 71
tual application by the title Truth Commission and its truth-telling function.” According to the 66 This is gross speculation. It does not follow that repetition of information guarantees the
Concurring Opinion, this renders the Commission an “unreasonable means to a reasonable acceptance of its veracity; to make that logical leap in this instance is to insinuate that repetition
objective.” I believe these arguments betray a very poor view of the Filipino people and that this
67 would rob
_______________
view lies at the root of his “due process” problem.
Woven as binding threads throughout the Concurring Opinion are a denial of an imbalance of
70 Justice Brion’s Concurring Opinion, pp. 13, 17-18.
power and an unwillingness to see it shift in favor of a weaker group seeking redress for the 71 Id., at p. 15.
perpetration of injustice against its members. It is an oft-observed phenomenon that when there are 459
attempts to address past abuses committed by a powerful group, and when steps are taken to
VOL. 637, DECEMBER 7, 2010 459
rectify the systemic inequalities, members of the powerful group decry the threats represented by
these efforts to rebalance the scales. In this manner cries and accusations of reverse Biraogo vs. Philippine Truth Commission of 2010
“discrimination” and “persecution” are raised by persons who have to answer to the demands of the Filipino people of the capacity to make distinctions between what to accept and what to reject.
those seeking the righting of past wrongs. This reaction may be viewed as part of a larger pattern Neither does it follow that the Ombudsman and the judiciary must inevitably accede to public
clamor, or that the entry of public opinion into the discussion would cause a “qualitative change in 76 Hom and Yamamoto, supra at p. 1759.
77 G.R. No. 182498, 03 December 2009, 606 SCRA 598.
the criminal justice system” and weaken “reliance on the law, the rules and jurisprudence.” 72
461
The public does not need sheltering from the “potentially prejudicial effects of truth-telling.”
Nor is the public to be viewed as unwitting victims to “a noisy minority [who] can change the VOL. 637, DECEMBER 7, 2010 461
course of a case simply because of their noise and the media attention they get.” The Filipino 73
Biraogo vs. Philippine Truth Commission of 2010
people have a genuine stake in the addressing of abuses possibly committed by the past “the right of relatives of the disappeared persons and of the society as a whole to know
administration and are entitled to information on the same. the truth on the fate and whereabouts of the disappeared and on the progress and results of
Striking down efforts to give the public information regarding the misdeeds of powerful the investigation,” as expressed in the United Nations Declaration on the Protection of All
officials sends a signal of the continuing dominance of “might makes right” and the futility of Persons from Enforced Disappearance. It would be inconsistent for this Court not to afford the
attempting to hold public officials accountable for their actions. Conversely, by carrying out same level of openness and accountability in enforced disappearances of individuals to allegations
investigations of the past actions of public officials, and by holding up its results to public scrutiny of criminal acts of massive corruption committed against the entire Philippine nation, under the
and criticism, the government reinforces respect for the rule of law and educate the people on the fundamental premise of Razon v. Tagitis that the Filipino have the right to know and can handle
nature and extent of past wrongdoing. Moreover, the characterization of public discussion—the
74
the truth. The public’s right to know and the concomitant public policy of full public
78
“second forum”—as an inappropriate venue for the release of the PTC's findings devalues the disclosure support the fact-finding mandate of the PTC to uncover the truth of these allegations
79
utility and meaning that truth possesses for the aggrieved group, and denigrates the need for the and reports in the Arroyo administration. 80
construction and repair of the group’s collective memory. Indeed, the Concurring Opinion implies _______________
that the PTC's influence on public perceptions—and consequently the shaping of the collective
memory of Filipinos—will only instigate more injustice. 78 The right of the people to information on matters of public concern shall be recognized. Access to official records, and
To the contrary, the need to shape collective memory as a way for the public to confront to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
injustice and move towards a more just society (CONSTITUTION, Article III, Section 7)
_______________
79 Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. (CONSTITUTION, Article II, Section 28)
72 Id., at p. 27. 80 “The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to
73 Brion, supra at p. 27. information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the
74 Stephen Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions , people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody
Law & Contemp. Probs., Vol. 59, No. 4, p. 88 (1997). demands.
460 “The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely
open democracy, with the people’s right to know as the centerpiece. It is a mandate of the State to be accountable by
460 SUPREME COURT REPORTS ANNOTATED following such policy. These provisions are vital to the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.” (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain , G.R.
Biraogo vs. Philippine Truth Commission of 2010 Nos. 183591, 183752, 183893, 183951 & 183962, 14 October 2008, 568 SCRA 402; emphasis supplied)
should not be diminished or denied. The Concurring Opinion disregards the significance to justice 462
of what is seen and remembered and eliminates the vital role of the people themselves in 462 SUPREME COURT REPORTS ANNOTATED
“constructing collective memories of injustice as a basis for redress.” This disregard need not
75
prevail. There is much value to be found in memory, as Hom and Yamamoto recounted: Biraogo vs. Philippine Truth Commission of 2010
“For many of the 10,000 Philippine citizens tortured and murdered for their political opposition to the Justice Brion’s Concurring Opinion does not lay down enough legal basis for his argument
former Ferdinand Marcos regime, reshaping memory became both a means to challenge injustice and a that the PTC has to be struck down due to the possibility of bias to be created in the public mind
psychological end in itself. Consider the anguish of the family of Archimedes Trajano, a college student who through public reports of the PTC and the inordinate pressure this bias will bring on the
posed a mildly critical question to Marcos's daughter at a forum and was whisked away, tortured for days, and Ombudsman and the judiciary. The Philippine judiciary has had more than a century’s worth of
thrown off a building. For his family, and thousands of others, there existed the need to create a new memory experience dealing with judicial cases and criminal investigations under the harsh light of public
beyond the excruciating story of personal loss and suffering—a memory that included a sense of social justice
and government accountability. To write this new memory collectively, many families, lawyers, bureaucrats scrutiny, yet not one case or investigation has been stopped on the simple basis of the public
risked much in the Philippines to aid the thirteen-year human rights multidistrict class action litigation in the forming a strong opinion on them and voicing this opinion in a loud manner. A judge is expected 81
United States.”76 to act impartially and independently, under any set of circumstances, with or without the public as
While it is true that public opinion will be influenced by the information that the public can witness. This is the role of a judge and if the neutrality required of a judge is not maintained, the
access, it would be specious to claim that the possible turning of the tide of public opinion against fault lies not in the creation of a fact-finding commission that started the search for truth, but in the
those subject to investigation is tantamount to a conviction before the court of the Filipino people. judge’s character. To this end, the statement of the Court in People v. Sesbreño on undue 82
To declare the Filipino public undeserving of the truth on the grounds of its supposed lack of publicity and its effect on the right of the accused is worth recalling:
capacity to deal with the truth and its alleged susceptibility to the “priming” effect of the PTC’s “x x x Besides, a thorough review of the records yields no sufficient basis to show that pervasive publicity
findings, while ignoring the public’s need to know the truth and to seek redress for wrongs, is to unduly influenced the court's judgment. Before we could conclude that appellant was prejudiced by hostile
media, he must first show substantial proof, not merely cast suspicions. There must be a showing that adverse
deny the public the means to move towards social justice. publicity indeed influenced the court's decision, as held in Webb v. De Leon, 247 SCRA 653 (1995)
In Razon v. Tagitis, the Court, speaking through no less than Justice Brion himself, affirmed
77
and People v. Teehankee, 249 SCRA 54 (1995).
the grant of the Writ of Amparo petitioned by the wife of Engineer Morced Tagitis, and touched on “[T]o warrant a finding of prejudicial publicity there must be allegation and proof that the judges
the have been unduly influenced, not simply that they might be, by the barrage of publicity.”
_______________ “Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself
75 Sharon K. Hom and Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA LAW prove that the publicity so permeated the mind of the trial judge and impaired his
REVIEW 1747 (2000), p. 1764. _______________
81 In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles
or fear of criticism. (Barillo v. Lantion, G.R. No. 159117 & A.M. No. MTJ-10-1752, 10 March 2010, 615 SCRA 39).
82 People v. Sebreño, G.R. No. 121764, 09 September 1999, 314 SCRA 87. that have served their day expire, and new principles are born.” 85
463
VOL. 637, DECEMBER 7, 2010 463 _______________
Biraogo vs. Philippine Truth Commission of 2010 83 Justice Brion’s Concurring Opinion, at pp. 18-19.
impartiality. For one, it is impossible to seal the minds of the members of the bench from pre-trial and 84 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 150 (1921).
other off-court publicity of sensational criminal cases. The state of the art of our communication 85 Cardozo, supra at pp. 166-167.
system brings news as they happen straight to our breakfast tables and right to our bedrooms. These 465
news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair VOL. 637, DECEMBER 7, 2010 465
and impartial judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lose their impartiality. . . Biraogo vs. Philippine Truth Commission of 2010
. Our judges are learned in the law and trained to disregard off-court evidence and on-camera Justice Cardozo was also conscious of the close intertwining between a judge’s philosophy
performances of parties to a litigation. Their mere exposure to publications and publicity stunts and the judicial process, in his analysis of Roosevelt’s statement on the philosophy of judges, the
does not per se infect their impartiality. timeliness of their philosophy, and the impact of the same on the decisions of the courts. It is due 86
“At best appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
to the limits of human nature, Justice Cardozo conceded, that the ideal of “eternal verities” is
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual beyond the reach of a judge; thus it is impossible to completely eliminate the “personal measure of
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and the [judicial] interpreter.” Of such personal measures and the signs of the times he wrote: “My
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of duty as judge may be to objectify in law, not my own aspirations and convictions and
publicity. In the case at bar, the records do not show that the trial judge developed actual bias against philosophies, but the aspirations and convictions and philosophies of the men and women of
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The my time. Hardly shall I do this well if my own sympathies and beliefs and passionate
totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a devotions are with a time that is past.” 87
result of prejudicial publicity which is incapable of change even by evidence presented during the It is clear that Justice Cardozo did not expect a judge to cut himself completely off from the
trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. (Italics
in the original)”
pressures, forces, and beliefs of his society – far from it. “We may figure the task of the judge, if
Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible for his we please, as the task of a translator, the reading of signs and symbols given from
conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be reversed on that without,” he went on to say. Indeed, the first lines of the paragraph quoted in Justice Brion’s
88
ground.” Concurring Opinion state: “I have no quarrel, therefore, with the doctrine that judges ought
89
Justice Cardozo, the Judge and Society to be in sympathy with the spirit of their times.” Justice Cardozo did not regard the influence
90
In his Concurring Opinion, Justice Brion quotes Justice Benjamin Cardozo of the United of “the truth without us” on the shaping of individual beliefs as harmful in and of itself, nor did he
States Supreme Court in the context of “what the repeated” “truth from a generally trusted say that judges must be completely free of outside influences. He spoke of the effect the thinking
government can achieve” and “the effect of outside influence on judging.” The Concurring of the group could play in the thinking of the individual, and how these factors and influences, as
Opinion uses quotations from Justice Cardozo’s book, The Nature part of human nature, might play out in the judicial process, without considering such effect as a
464 problem. He wrote, following his quoting of James Harvey Robinson, that “[t]he training of the
464 SUPREME COURT REPORTS ANNOTATED judge, if coupled with what is styled the judicial temperament, will help in some degree to
_______________
Biraogo vs. Philippine Truth Commission of 2010
of the Judicial Process, to drive home its points on how “the Commission’s influence can go 86 Roosevelt as cited in Cardozo, id., at p. 171.
beyond the level of priming and can affect the public environment as well as the thinking of both 87 Id., at pp. 172-173.
88 Cardozo, supra at p. 174.
the decision makers in the criminal justice system and the public in general” and on the “potential 89 Concurring Opinion of Justice Brion, p. 18.
prejudicial effects of truth-telling.” 83
90 Cardozo, supra at p. 174.
The source of the quotations featured in Justice Brion’s Concurring Opinion is entitled 466
“Adherence to Precedent. The Subconscious Element in the Judicial Process. Conclusion,” fourth 466 SUPREME COURT REPORTS ANNOTATED
in a series of lectures delivered by Justice Cardozo at Yale University and subsequently published
as a book. In the lecture, Justice Cardozo spoke about the gaps left by absence of precedents in Biraogo vs. Philippine Truth Commission of 2010
systems of law, the development of principles to address these gaps, and adherence to the rule of emancipate him from the suggestive power of individual dislikes and prepossessions. It will help
precedent. With regard to the latter he expressed his belief that “when a rule, after it has been duly to broaden the group to which his subconscious loyalties are due. Never will these loyalties be
tested by experience, has been found to be inconsistent with the sense of justice or with the social utterly extinguished while human nature is what it is.” 91
welfare, there should be less hesitation in frank avowal and full abandonment.” Building on this 84 Accepting fully the flaws inherent in human nature and the “eccentricities of judges,”
principle, he discussed the rule of precedent in application, and from there went on to survey optimistic in the belief that “because [the flaws] are not only there but visible, we have faith that
judicial methods, comparing “static” with “dynamic” precedents, narrating his personal struggles they will be corrected,” Justice Cardozo concluded with words on the temporal nature of the work
92
first to find certainty, then to reconcile himself with uncertainty. of a judge: “The work of a judge is in one sense enduring and in another sense ephemeral. What is
Throughout all this, one forms the image of a man fully aware of the doubts and tensions that good in it endures. What is erroneous is pretty sure to perish.” It was in this sense—the building of
beset a judge, keenly cognizant of the limitations of his position and the temporal nature of even new structures upon good foundations, the rejection of errors as they are determined by the years
those principles of whose development he earlier spoke: “I have grown to see that the process in —that Justice Cardozo wrote the lines that constitute the second excerpt quoted in Justice Brion’s
its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and Concurring Opinion. Preceding Justice Cardozo’s quoting of Henderson, he wrote: “Little by little
the old doctrine is undermined. Often the encroachments are so gradual that their significance is at
first obscured. Finally we discover that the contour of the landscape has been changed, that the old ridden societies; (3) mature democracies that are reckoning with abuses their own governments
maps must be cast aside, and the ground charted anew.” It was change—in the spirit of the times,
93
may have committed in the past. The Philippine context does not, therefore, close off the avenue
98
in the principles underpinning the judicial process, in the personal and very human beliefs of of a truth commission as a permissible means to address past abuses. Likewise, a definition that
individual judges—that Justice Cardozo spoke of in this passage. It does not speak of damage expects reconciliation as a requisite goal for the PTC is an unduly narrow definition.
99
wrought by societal influence, nor of destructive or prejudicial effects due to shifts in public Another argument raised in Justice Brion’s Concurring Opinion refers to the EO 1’s creation
opinion and belief, but rather of how law develops and changes. Indeed, Justice Cardozo ends of the PTC as a “shortcut to the emergence of truth” —one which should not be taken as it
100
on a note rich with hope in change: “bypass[es] processes established by the Constitution and the laws.” Because it deems “the
“Ever in the making, as law develops through the centuries, is this new faith which silently and steadily international experiences that give rise to the title Truth Commission” as not applying to the
effaces our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch about the present Philippine situation and claims there is no need for “quick transitional justice,” the
enduring consequences of our errors. They may work a little confusion for a time. In the end, they will be Concurring Opinion reasons that “there is no need to resort to... institutions and mechanisms
modified or corrected or their teachings ignored. The future
_______________ outside of those already in place.” In other words, only the Ombudsman and the judiciary have
101
the rightful duopoly on truth-finding and truth-telling in graft and corruption cases.
91 Id., at p. 176. Yet the justifications for the use of truth commissions are not confined only to certain post-
92 Id., at p. 177. conflict scenarios or the absence of function-
93 Cardozo, supra at p. 178.
467
_______________
VOL. 637, DECEMBER 7, 2010 467 97 Juan E. Mendéz, Accountability for Past Abuses, 19 Hum. Rts. Q2, 255-282 (1997); Charles O. Lerche III, Truth
Commissions and National Reconciliation: Some Reflections on Theory and Practice <http://www.gmu.edu/
Biraogo vs. Philippine Truth Commission of 2010 academic/pcs/LERCHE71PCS.html> (accessed 7 November 2010).
takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the 98 David Crocker, Reckoning with Past Wrongs: A Normative Framework, 13 ETHICS & INTERNATIONAL AFFAIRS, 43-
dross, and a constant retention of whatever is pure and sound and fine.” 94
64 (1999).
Truly, the role of the judge is to do his utmost to exercise his independence, even against 99 Brion, supra at p. 6.
100 Id., at p. 20.
overwhelming pressure, to uphold the rule of law. But simply because the possibility exists that 101 Id., at p. 33.
the judiciary may go along with a public that is hungry for the truth does not mean we do not 469
allow the truth to be found out. As we can see from a reading of Justice Cardozo's lecture, we need
VOL. 637, DECEMBER 7, 2010 469
not fear societal influences and forces. The “truth without us” does not negate the validity of “the
truth within.” Biraogo vs. Philippine Truth Commission of 2010
Appropriateness of Establishing a ing judicial systems. Even in some contexts where there is a judicial system already in place, a
“Truth” Commission truth commission may be used by the government as a redress mechanism. There are numerous 102
In his Concurring Opinion, Justice Brion raises the points that: (1) the term “truth reasons prosecution and other means usually undertaken within the judicial system may not be
commission” is usually reserved for a body “investigating the human rights violations that viable. There may be too many incidents to prosecute; due to the atmosphere of secrecy in which
attended past violence and repression, and in some instances for a body working for reconciliation abuses took place, evidence may be insufficient for a criminal conviction. Current political 103
in society,” and (2) reconciliation is not present as one of the goals of the PTC. These two points,
95
policies, as well as concerns about vengeance and the resulting societal tensions, may also make
according to the Concurring Opinion, further distance the PTC from other truth commissions; the prosecution difficult or impossible. The element of time may also be a significant factor. In
104 105
latter point in particular thereby “remov[es] a justification for any massive information campaign addition, some of the aims of truth commissions may be outside the purview of courts, as in the
aimed at healing divisions that may exist in the nation.” 96
case of giving an account of events that transpired: “A court is not supposed to give an account
To arrive at this conclusion is to place unwarranted restrictions on the definitions and about the circumstances of the historic, economic, and political reasons for a crime, nor about the
functions of bodies bearing the name of “truth commission.” While many truth commissions have involvement of different groups in the society or political influence from the outside which may
indeed been established in the wake of a violent conflict leading to a transition between two have encouraged the perpetrators... Giving an account, providing explanations, and offering
regimes, this does not preclude that truth commissions in some countries may be used for recommendations for a better future are exactly the purposes of a truth commission.” Means of 106
circumstances that do not duplicate the violence of the conflict or the character of the regime redress attempted within the confines of the judicial system may also not be viable precisely
transition in because of elements influencing the system itself. Officials allied with the previous regime may
_______________ also still retain power, and through various means hinder proceedings undertaken within the
judicial system.
94 Id., at p. 179.
95 Justice Brion’s Concurring Opinion, pp. 5-6.
This last point regarding situations wherein the former regime still possesses a certain degree
96 Id., at p. 6. of influence over the system is especially salient in the light of state capture. According to the
468 World Bank, state capture may be treated as akin in essence to regulatory capture
_______________
468 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010 102 Angelika Schlunck, Truth and Reconciliation Commissions, 4 ILSA J. Int’l & Comp. L, 415, 2.
103 S. Sandile Ngcobo, Truth, Justice, and Amnesty in South Africa: Sins from the Past and Lessons for the Future , 8
other countries. The needs of various countries differ and consequently determine a great deal IUS Gentium, 6-7.
of variation in the fundamental goals, purposes, and characteristics of the bodies they establish, to 104 Landsman, supra note 72.
deal with the abuses of previous administrations. David Crocker puts forth the view that even
97
105 Neil J. Kritz, Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of
nations other than new democracies may see the need for ways to “reckon with past wrongs,” and Human Rights, 59 Law & Contemp. Probs. 4, 127-152.
106 Schlunck, supra at pp. 419-420.
classifies these other nations into three broad categories: (1) post-conflict societies aspiring to 470
transition to democracy, but occupied with pressing security issues; (2) authoritarian and conflict-
470 SUPREME COURT REPORTS ANNOTATED
then such evidence reinforces the immoral political lesson that the misuse of the law and the
power of appointment can be purposively committed to create a strong shield of immunity from
Biraogo vs. Philippine Truth Commission of 2010 accountability. With or without such evidence, however, and especially because the belief in the
as it is used in economics literature: state regulatory agencies are considered “captured” when they non-independence of the Ombudsman is openly expressed by people, the only way for this Court
“regulate businesses in accordance with the private interests of the regulated as opposed to the to not abet such a plan if such a plan indeed existed on the part of Arroyo administration, is to
public interest for which they were established.” State capture, then, encompasses the state’s allow the people to exact accountability upon those from whom accountability is due. It
“capture” as evinced in the “formation of laws, rules, and decrees by a wider range of state 472
institutions, including the executive, ministries and state agencies, legislature, and the 472 SUPREME COURT REPORTS ANNOTATED
judiciary.” State capture alters the “rules of the game” in favor of those who have captured the
107
state. While state capture encompasses a variety of situations, its fundamental characteristic is that Biraogo vs. Philippine Truth Commission of 2010
it is channeled through illicit, informal, and non-transparent means of providing private gains to must let the President fulfill his promise to the people, and if the President believes that the best
public officials as incentives for these very officials to influence the formation of way for him is to start from fact-finding into the past administration, then he must be allowed to do
laws and prejudice the rules to these captors’ narrow advantage. If public officials are perceived
108 so without unconstitutional judicial restraint.
to have been captured, the credibility of official processes—such as rendering decrees, forming The “Least Dangerous” Branch
laws, and shaping policies—will suffer. It is not difficult to see how state capture may render The majority took pains to reiterate the honorable role of the Court in exercising the
traditional means such as prosecution completely ineffective against those who may have captured constitutional and awesome power of judicial review, amidst the recent string of rebukes against
the state. the initiatives of the legislature and elected executives—democratically elected representatives of
To that end, S. Sandile Ngcobo writes: the people.
“...many transitional governments do not represent a complete break with the past. In some cases, In the seminal book “The Least Dangerous Branch: The Supreme Court at the Bar of
members of the police and security forces that were responsible for heinous acts under the old regime remain Politics,” Alexander M. Bickel expounded on the “counter-majoritarian difficulty” of judicial 110
in influential positions. Their numbers and their continued control of deadly weapons provide them with the review exercised by an unelected court to declare null and void an act of the legislature or an
capability to undermine the peaceful transition. Their continued influence may threaten the new democratic elected executive in this wise:
order, making prosecutions both undesirable and impractical. Given these realities, the emerging democracy “The root difficulty is that judicial review is a counter-majoritarian force in our system. x x x when the
may be compelled to look for alternative approaches. At this point, a truth commission may become an Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the
attractive option.” (Emphasis supplied.)
109
will of representatives of the actual people of the here and now; it exercises control, not in behalf of the
prevailing majority, but against it. That, without mystic overtones, is what actually happens. It is an altogether
_______________ different kettle of fish, and it is the reason the charge can be made that judicial review is undemocratic.” 111
Bickel’s “counter-majoritarian difficulty” is met by the argument that the Court’s duty is to
107 World Bank, Anticorruption in Transition: A Contribution to the Policy Debate (2000) uphold the Constitution, that in determining the “boundaries of the great departments of
<http://info.worldbank.org/etools/docs/library/17506/contribution. pdf>(accessed on 7 November 2010).
108 World Bank, supra at pp. 1-2. government” is not to
109 Ngcobo, supra note 103 at p. 7. _______________
471
110 “The question at the heart of the anomaly is why a democracy—a political system based on representation and
VOL. 637, DECEMBER 7, 2010 471 accountability—should entrust the final, or near final, making of such highly significant decisions to judges—unelected,
independent and insulated from the direct impact of public opinion.” (Stephen G. Breyer, Judicial Review: A Practising
Biraogo vs. Philippine Truth Commission of 2010 Judge’s Perspective, 19 Oxford Journal of Legal Studies 153 [1999], cited in VICENTE V. MENDOZA, JUDICIAL REVIEW OF
It is true that in the Philippine context we may not be speaking of a past regime’s continuing CONSTITUTIONAL QUESTIONS, 261 [2004]
control of guns and armed men; but power, in any form, is power. In any event, the 111 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS , 16-17
appropriateness of naming the PTC as a “truth commission” is not a legal argument for its (1962).
473
invalidation, as Justice Brion himself conceded.
Unlawful Discrimination is not an Argu- VOL. 637, DECEMBER 7, 2010 473
ment of the Powerful; the Phenomenon of Biraogo vs. Philippine Truth Commission of 2010
State Capture assert superiority over them but merely to assert its solemn and sacred obligation to determine
Unlawful discrimination, as shown in American cases on equal protection claims in criminal conflicting claims of authority under the Constitution. 112
investigation and prosecution, is not inherently an argument of the powerful, but that of the If the Court is to avoid illegitimacy in its actions as suggested by Professor Bickel, then it
traditionally oppressed. This is because the politically powerful, as in the past administration, still must ensure that its discharge of the duty to prevent abuse of the President’s executive power does
contain all the advantages that such past formal political power begot. It is the height of not translate to striking down as invalid even a legitimate exercise thereof, especially when the
incongruity that an administration that held power for nine years, successfully evaded all exercise is in keeping with the will of the people. Invalidating the PTC is an unconstitutional
113
congressional investigations, and effectively invoked all legal defenses from investigation for all denial of the legitimate exercise of executive power and a stinging reproach against the people’s
those nine years will be extended the same immunity that the former presidential office gave it. sovereign right. Sadly, there is a wide fissure between the public’s hunger for governance justice
The Philippines will be the laughing stock of the world, incapable of correcting any error, unable through the successful delivery by President Aquino of his promise to get behind the stories on
to erase the perception by many that it is a country where the law only serves the ends of the corruption of the former administration, and the Court’s confirmation of an alleged violation of
powerful. former President Arroyo’s equal protection right. To emphasize, it is not even former President
If evidence will later turn out, congruent to the theory of some quarters as intimated by the Arroyo who is officially raising this matter before the Court.
Solicitor General during the oral arguments, that the reason that former President Arroyo and her Rather than exercise judicial restraint, the majority has pushed the boundaries of judicial
closest relatives and officials have not been prosecuted by the present Ombudsman is because the activism bordering on what former Chief Justice Puno once described as an imperial judiciary:
Ombudsman is not independent but is acting out of loyalty for her appointment to the position,
“[T]he Court should strive to work out a constitutional equilibrium where each branch of government
cannot dominate each other, an equilibrium where each branch in the exercise of its distinct power should be
left alone yet bereft of a license to abuse. It is our hands that will cobble the components of this delicate
constitutional equilibrium. In the discharge of this duty, Justice Frankfurter requires judges to exhibit that ‘rare
disinterestedness of mind and purpose, a freedom from intellectual and social parochialism.’ The call for that
quality of “rare disinterestedness” should counsel us to resist the temptation of unduly inflating judicial power
and deflating the executive and legislative powers. The 1987 Constitution expanded the parameters of
judicial power, but that by no means is a justification for the errant thought that the Constitution
created an imperial judiciary. An imperial judiciary composed of the unelected, whose sole con-
_______________
112 Decision, at p. 42.
113 Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R. No. 170516, 16 July 2008, 558 SCRA 468.
474
474 SUPREME COURT REPORTS ANNOTATED
Biraogo vs. Philippine Truth Commission of 2010
stituency is the blindfolded lady without the right to vote, is counter-majoritarian, hence, inherently inimical to
the central ideal of democracy. We cannot pretend to be an imperial judiciary for in a government whose
cornerstone rests on the doctrine of separation of powers, we cannot be the repository of all
remedies.” (Emphasis supplied)
114
When forgotten, history does have a tendency to repeat itself. Unless an official and 115
comprehensive narrative of findings of fact on large-scale corruption that reportedly occurred
during the previous administration is made public, the country may find the same alleged patterns
of corruption repeating themselves. Worse, public officials subject of the investigation—and who
may actually be guilty—with continued possession or access to power may spin these events and
cause a revision of our history to make those allegations of wrongdoing appear nothing more than
unsubstantiated rumors whispered in secret and perpetuated by bitter opponents. The PTC is a step
towards national healing over a sordid past. The Court must allow the nation to move forward and
the people’s faith in a just and accountable government to be restored.
Petition granted.
Notes.—There is no “executive interference” in the functions of the Supreme Court by the
mere filing of a memorandum by the Secretary of Finance, which memorandum was merely
“noted” to acknowledge its filing—it had not further legal significance. (J.G. Summit Holdings,
Inc. vs. Court of Appeals, 450 SCRA 169 [2005])
While it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope
of judicial inquiry into areas normally left to the political departments to decide, such as those
relating to national security, it has not altogether done away with political questions such as those
which arise in the field of foreign relations. (Bayan (Bagong Alyansang Makabayan vs. Zamora,
342 SCRA 449 [2000])
——o0o——
_______________
114 Puno, Concurring and Dissenting Opinion in Francisco v. House of Representatives, G.R. No. 160261, 10 November
2003, 415 SCRA 44, 211.
115 Getgen, supra note 63, at p. 33.
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