Nos. L-49705-09. February 8, 1979.

* TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED TAMULA, MANGONTAWAR GURO and BONIFACIO LEGASPI, petitioners, vs. The COMMISSION ON ELECTIONS, REGIONAL BOARD OF CANVASSERS for Region XII (Central Mindanao), ABDULLAH DIMAPORO, JESUS AMPARO, ANACLETO BADOY, et al., respondents. Nos. L-49717-21. February 8, 1979. LINANG MANDANGAN, petitioner, vs. THE COMMISSION ON ELECTIONS, The REGIONAL BOARD OF CANVASSERS for Region XII, and ERNESTO ROLDAN, respondents. Election Law; Supreme Court; Certiorari; Appeal; Constitutiona law; Under the new Constitution decisions of the COMELEC may be brought to the Supreme Court on certiorari, that is, on the ground of grave abuse of discretion or lack of jurisdiction.While under the Constitution of 1935, the decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court (Sec. 2, first paragraph, Article X) and pursuant to the Rules of Court, the petition for certiorari or review shall be on the ground that the Commission has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme Court (Sec. 3, Rule 43), and such provisions refer not onl y to election contests but even to pre-proclamation proceedings, the 1973 Constitution provides somewhat differently thus: 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 (Section 11, Article XII c), even as it ordains that the Commission shall be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials (Section 2 (2)). Same; Same; COMELEC is sole judge of pre-proclamation controversies and its decisions final and executory under the Election Code of 1978.Correspondingly, the Election Code of 1978, which is the first legislative construction of the pertinent constitutional provisions, makes the Commission also the sole judge of all pre -proclamation controversies and further provides that any of its decisions, orders or rulings (in such controversies) shall be fina l and executory, just as in election contests, the decision of the commission shall be final, executory and inappealable. (Section 193) Same; Same; Statutory Construction; Same.Withal, as already stated, the legislative construction of the modified pertinent constitutional provision is to the effect that the actuations of the Commission are final, executory and even inappealable. While such construction does not exclude the general certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the Constitution, particularly, of its imperious due process mandate, it correspondingly narrows down the scope and extent of the inquiry the Court is supposed to undertake to what is strictly the office of cer-tiorari as distinguished from review. We are of the considered opinion that the statutory modifications are consistent with the apparent new constitutional intent. Indeed, it is obvious that to say that actuations of the Commission may be brought to the Supreme Court on certiorari technically connotes something leas than saying that the same shall be subject to review by the Supreme Court, when it comes to the measure of the Courts reviewing authority or prerogative in the premises. Same; Same; Certiorari; Appeal; Petition for certiorari distinguished from petition for review on appeal.A review includes digging into the merits and unearthing errors of judgment, while certiorari deals exclusively with grave abuse of discretion, which may not exist even when the decision is otherwise erroneous. Certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an omission to weigh pertinent considerations, a decision arrived at without rational deliberation. While the effects of an error of judgment may not differ from that of an indiscretion, as a

matter of determination to the sound discretion of certain officers or entities, reserving it to the Supreme Court to insure the faithful observance of due process only in cases of patent arbitrariness. Same; Same; Same; Jurisdiction; Constitutional law; Supreme Courts certiorari jurisdiction over COMELEC is not as broad as it used to be under the old Constitution.We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over orders, rulings and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process. Accordingly, it is in this light that We shall proceed to examine the opposing contentions of the parties in these cases. Same; Where returns show that the notes of the candidate with the highest number of votes exceeds the highest possible number of votes, said returns may be deemed spurious even if the total number of excess votes was not more than 40%.We see no cogent reason, and petitioner has not shown any, why returns in voting centers showing that the votes of the candidate obtaining the highest number of votes exceeds the highest possible number of valid votes cast therein should not be deemed as spurious and manufactured just because the total number of excess votes in said voting centers were not more than 40%. Surely, this is not the occasion, considering the historical antecedents relative to the highly questionable manner in which elections have been held in the past in the provinces herein involved, of which the Courts has judicial notice as attested by its numerous decisions in cases involving practically every such, election, for the Court to move a whit back from the standards it has enunciated in those decisions. Same; Administrative law; As the superior administrative body having control and supervision over boards of canvassers, the COMELEC may review the actuations of the Regional Board of Canvassers, such as by extending its inquiry beyond the election records of the voting centers in question. While nominally, the procedure of bringing to the Commission objections to the actuations of boards of canvassers has been quite loosely referred to in certain quarters, even by the Commission and by this Court, such as in the guidelines of May 23, 1978 quoted earlier in this opinion, as an appeal, the fact of the matter is that the authority of the Commission in reviewing such actuations does not spring from any appellant jurisdiction conferred anywhere in the Election Code, but from the plenary prerogative of direct control and supervision endowed to it by the above-quoted provisions of Section 168. And in administrative law, it is a too well settled postulate to need any supporting citation here, that a superior body or office having supervision and control over another may do directly what the latter is supposed to do or ought to have done. Consequently, anything said in Lucman vs. Dimaporo, 33 SCRA 387, cited by petitioner, to the contrary notwithstanding, We cannot fault respondent Comelec for its having extended its inquiry beyond that undertaken by the Board of Canvassers. On the contrary, it must be stated that Comelec correctly and commendably asserted its statutory authority born of its envisaged constitutional duties vis-a-vis the preservation of the purity of elections and electoral processes and procedures in doing what petitioner claims it should not have done. Same; Same; Judicial notice; COMELEC committed no error in taking cognizance of the unsettled peace and order in the localities in Mindanao involved in the case at bar, a situation subject to judicial notice. The same principle should apply in respect to the ruling of the Commission regarding the voting centers affected by military operations. It took cognizance of the fact, not considered by the board of canvassers, that said voting centers had been transferred to the poblaciones. And, if only for purposes of pre-proclamation proceedings, We are persuaded it did not constitute a denial of due process for the Commission to have taken into account, without the need of presentation of evidence by the parties, a matter so publicly notorious as the unsettled situation of peace and order in some localities in the provinces herein involved that they may perhaps be taken judicial notice of, the same being capable of unquestionable demonstration.

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Same; The fact that some voting centers were transferred to the poblacion is not sufficient basis for Supreme Court to rule that the COMELEC should have subjected the returns from other voting centers in said municipalities to the same degree of scrutiny as the former.We cannot, however, go along with the view, expressed in the dissent of our respected Chief Justice, that from the fact that some of the voting centers had been transferred to the poblaciones there is already sufficient basis for Us to rule that the Commission should have also subjected all the returns from the other voting centers of the same municipalities, if not provinces, to the same degree of scrutiny as in the former. The majority of the Court feels precisely alleged by petitioner Mandangan about denial of due process, for it is relatively unsafe to draw adverse conclusions as to the exact conditions of peace and order in those other voting centers without at least some prima facie evidence, to rely on considering that there is no allegation, much less any showing at all that the voting Centers in question are so close to those excluded by the Commission as to warrant the inescapable conclusion that the relevant circumstances found by the Comelec as obtaining in the latter were identical to those in the former. Same; COMELEC may not be faulted for not ordering the opening of ballot boxes although under the circumstances that would have been the next best thing to do, in view of the questionable returns, where the COMELEC refusal was in obedience to guidelines previously issued by the Court.We hold that by having adhered to Our guidelines of June 1, 1978, Comelec certainly cannot be held to be guilty of having gravely abused its discretion, whether in examining and passing on the returns from the voting centers referred to in the second and fourth assignments of error in the canvass or in denying petitioners motion for the opening of the ballot boxes concerned. Same; COMELEC cannot be faulted for acting, on the issues of exclusion or inclusion of which election returns, upon the basis of common sense and perception and without the aid of expert, taking into account the summary nature of pre-proclamation controversies.As We view this point under discussion, what is more factually accurate is that those records complained of were not examined with the aid of experts and that Comelec passed upon the returns concerned using common sense and perception only. And there is nothing basically objectionable in this. The defunct Presidential, Senate and House Electoral Tribunals examined, passed upon the voided millions of votes in several national elections without the assistance of experts and using only common sense and perception. No one over raised any eyebrows about such procedure. Withal, what we discern from the resolution is that Comelec preliminary screened the records that whatever it could not properly pass upon by using common sense and perception it left to the experts to work on. We might disagree with the Comelec as to which voting center should be excluded or included, were We to go over the same records Ourselves, but still a case of grave abuse of discretion would not come out, considering that Comelec cannot be said to have acted whimsically or capriciously or without any rational basis, particularly if it is considered that in many respects and from the very Us to concede that the Commission is in a better position to appreciate and assess the vital circumstances closely and accurately. Castro, C.J., dissenting: Election law; COMELEC should have examined the records of all voting centers under protest, not just some, with the same degree of scrutiny.After the Comelec examined very closely the voting returns, books of voters and voting records from 1,116 voting centers protested by the KB candidates, to the extent of subjecting them to detailed documentary examination and fingerprint comparison by Comelec experts, and thereafter annulled 31.84% of the votes cast, why did it refuse to proceed to subject all the records of the remaining 1,659 voting centers protested by the KB candidates to the same manner of close scrutiny? Same; COMELEC should have ordered opening of ballot boxes.Why did the Comelec deny the motion of the KB candidates for the opening of ballot boxes pertaining to a total of 408 voting centers the voting records of which were not available as they had somehow mysteriously disappearedto determine whether or not the election in each of the said voting centers was a sham? This remedial measure was resorted to by the Comelec in 1969 when it

ordered the opening of a number of ballot boxes in the pre-proclamation contest in Lucman vs. Dimaporo in order to see whether or not there were ballots inside them, without counting the ballots, and determine whether there had been an actual election in each of the disputed precints. In that case the Supreme Court sustained the action of the Comelec. Same; Election returns from voting centers where ballot boxes were found empty should have been excluded from the counting.Why did the Comelec include in the canvass the voting returns from some indicated 100 voting centers when the ballot boxes corresponding thereto were found to be completely empty? And why did the Comelec also include in the canvass the election returns corresponding to almost 200 ballot boxes found to be without padlocks? Same; COMELEC may act on the issues raised by the KB regarding the spurious ballots. No need of an election protest which takes time.Anent the first ground, it is a notorious fact in the history of Philippine politics that an election protest not only is usually inorditure of time, money and effort on the part of the protestant. More than this, should the protestant in the end win, very little time or none at all is left for him to assume and discharge the duties of his office. In the meantime, the person previously proclaimed elected continues to fraudulently represent the people who had in law and in fact duly elected someone else to represent them. Same; COMELEC committed a grave abuse of discretion in the case at bar.Anent the second ground, I squarely traverse the statement that no grave abuse of discretion can be imputed to the Comelec. The grave misgivings I have above articulated demonstrate what to my mind constitute the size and shape of the remissness of the Comelec. And more compelling and overriding a consideration than the overwrought technicality of grave abuse of discretion is the fundamental matter of the faith of the people of Region XII in the electoral process. There will always be the nagging question in the minds of the voters in that Region as to the legitimacy of those who will be proclaimed elected under the Comelec resolution should the Court refuse to direct that body to continue the meticulous search for legitimacy and truth. De Castro, J., concurring: Election law; Constitutional law; The new Constitution broadened the powers of the COMELEC so as to include those previously subject of judicial inquiry.The Commission is thus envisioned to exercise exclusive powers on all electoral matters except the right to vote, such as the enforcement and administration of laws relative to the conduct of elections deciding administrative questions affecting elections, except those involving the right to vote, but also those that heretofore have been regarded, as matters for strictly judicial inquiry, such as the hearing and disposition of election contests, as is doubtlessly shown by the transfer thereto of the powers previously conferred upon the Electoral Tribunal of Congress and the Courts. (see Section 2, par. 2, Article XII, New Constitution). This change may properly be viewed as having the intention to relieve the Courts, particularly the Supreme Court, of those burdens placed upon them relating to the conduct of election and matters incident thereto. It could have been, likewise intended to insulate judicial bodies from the baneful effects of partisan politics, the more deleterious ones being those that could come from the higher seats of political power, such as those in the Assembly and in the provincial and city government levels. Same; Same; Same;.The exclusive character of the power conferred upon the Commission on Elections, and considering that political rights, as distinguished from civil and personal or property rights, are for the most part, if not in their totality, the subject of its authority, should counsel against an expansive intervention by the Supreme Court in the acts of the Commission on Elections. With the confernment of exclusive authority on the electoral process upon it, the Commission may be said to have been given full discretionary authority, the exercise of which would give rise to a controversy involving a political question.

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Same; Same; COMELEC may inquire into the cause for which it ordains the suspension of a proclamation, provided sufficient notice is given to the parties concerned as was done in the case at bar.If the Commission has the power to suspend motu proprio the proclamation of a candidate-elect, it must have the power to conduct inquiry into the cause for which it ordains the suspension of the proclamation, such as making its own examination of the integrity of election returns or inquiring into any relevant matter affecting the purity of the ballot. Notice is required by the legal provision cited, but this must be notice to the party adversely affected, the candidate-elect whose proclamation is suspended. The action taken by the Comelec in examining additional election documents to those examined by the KB experts during the pendency of the controversy with the Regional Board of Canvassers was, therefore, one of which petitioners cannot be heard, nor have any reason, to complain, for it even resulted in one KB candidate getting into the winners column. Same; Same; Supreme Courts power to review the acts of the COMELEC is no more its power of judicial inquiry over acts of the legislature.Expounding more on the one circumstance inclining me to the theory that with the enlarged power and broadened authority of the COMELEC which extends to and cover virtually the entire electoral process, as exclusively as the power of legislation is constitutionally lodged in the lawmaking body, what is given to the Supreme Court as its reviewing authority over acts of the COM-ELEC is no more than what it could exercise under its power of judicial inquiry with respect to acts of the legislative body, which is the transfer to the COMELEC of the powers pertaining to the Electoral Tribunals and the courts under the old Constitution over elec-tion contests, it must not be hard to concede that with the composition of the electoral tribunals in which six of the justices of the Supreme Court sit in said bodies, the Supreme Court could no longer exercise any reviewing authority over the acts of the said electoral Constitutional rights are involved. With this limited concept of this Courts authority over the defunct electoral tribunals now applied to an equally constitutional body that the COMELEC is that took over the function of the Electoral Tribunals, I would hesitate to hold that the Supreme Court may grant the relief as is prayed for in the present petition. [Aratuc vs. Commission on Elections, 88 SCRA 251(1979)] L-49705-09 Lino M. Patajo for petitioners. Estanislao A. Fernandez for private respondents. L-49717-21 Estanislao A. Fernandez for petitioner. Lino M. Patajo for private respondent. Office of the Solicitor General, for Public respondents. BARREDO, J.: Petition in G. R. Nos. L-49705-09 for certiorari with restraining order and preliminary injunction filed by six (6) independent candidates for representatives to tile Interim Batasang Pambansa who had joined together under the banner of the Kunsensiya ng Bayan which, however, was not registered as a political party or group under the 1976 Election Code, P.D. No. 1296, namely Tomatic Aratuc, Sorgio Tocao, Ciscolario Diaz, Fred Tamula, Mangontawar Guro and Bonifacio Legaspi her referred to as petitioners, to review the decision of the respondent Commission on Election (Comelec) resolving their appeal from the Of the respondent Regional Board of Canvasses for Region XII regarding the canvass of the results of the election in said region for representatives to the I.B.P. held on April 7, 1978. Similar petition in G.R. Nos. L49717-21, for certiorari with restraining order and preliminary injunction filed by Linang Mandangan, abo a candidate for representative in the same election in that region, to review the decision of the Comelec declaring respondent Ernesto Roldan as entitled to be proclaimed as one of the eight winners in said election. The instant proceedings are sequels of Our decision in G.R. No. L- 48097, wherein Tomatic Aratuc et al. sought the suspension of the canvass then being undertaken by respondent dent Board in Cotabato city and in which canvass, the returns in 1966 out of a total of 4,107 voting centers in the whole region had already been canvassed showing partial results as follows:

NAMES OF CANDIDATES 1. Roldan, Ernesto (KB) 2. Valdez, Estanislao (KBL) 3. Dimporo, Abdullah (KBL) 4. Tocao, Sergio (KB) 5. Badoy, Anacleto (KBL) 6. Amparo, Jesus (KBL) 7. Pangandaman, Sambolayan (KBL) 8. Sinsuat, Datu Blah (KBL) 9. Baga, Tomas (KBL) 10. Aratuc, Tomatic (KB) 11. Mandangan, Linang(KB) 12. Diaz, Ciscolario (KB) 13. Tamalu, Fred (KB) 14. Legaspi Bonifacio (KB) 15. Guro, Mangontawar (KB) 16. Loma, Nemesio (KB) 17. Macapeges, Malamama (Independent)

NO. OF VOTES 225,674 217,789 199,244 199,062 198,966 184,764 183,646 182,457 171,656 165,795 165,032 159,977 153,734 148,200 139,386 107,455 101,350

(Votes Of the independent candidates who actually were not in contention omitted)" (Page 6, Record, L-49705-09.) A supervening panel headed by Commissioner of Elections, Hon- Venancio S. Duque, had conducted of the complaints of the petitioners therein of alleged irregularities in the election records in all the voting centers in the whole province of Lanao del Sur, the whole City of Marawi, eight (8) towns of Lanao del Norte, namely, Baloi, Karomatan, Matungao, Munai, Nunungan, Pantao Ragat, Tagoloan and Tangcal, seven (7) towns in Maguindanao, namely, Barrira, Datu Piang, Dinaig, Matanog Parang, South Upi and Upi, ten (10) towns in North Cotabato, namely, Carmen, Kabacan, Kidapwan, Magpet, Matalam Midsayap, Pigcawayan, Pikit, Pres. Roxas and Tulonan, and eleven (11) towns in Sultan Kudarat, namely, Bagumbayan, Columbia Don Mariano Marcos, Esperanza, Isulan, Kalamansig, Lebak, Lutayan, Palimbang, President Quirino and Tacurong, by reason for which, petitioners had asked that the returns from said voting centers be excluded from the canvass. Before the start of the hearings, the canvass was suspended but after the supervisory panel presented its report, on May 15, 1978, the Comelec lifted its order of suspension and directed the resumption of the canvass to be done in Manila. This order was the one assailed in this Court. We issued a restraining order.

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After hearing the parties, the Court allowed the resumption of the canvass but issued the following guidelines to be observed thereat: 1. That the resumption of said canvass shall be held in the Comelec main office in Manila starting not later than June 1, 1978; 2. That in preparation therefor, respondent Commission on Elections shall see to it that all the material election paragraph corresponding to all the voting center involved in Election Nos. 78-8, 78-9, 78-10, 78-11 and 78-12 are taken to its main office in Manila, more particularly, the ballot boxes, with the contents, used during the said elections, the books of voters or records of voting and the lists or records of registered voters, on or before May 31, 1978; 3. That as soon as the corresponding records are available, petitioners and their counsel shall be allowed to examine the same under such security measures as the respondent Board may determine, except the contents of the ballot boxes which shall be opened only upon orders of either the respondent Board or respondent Commission, after the need therefor has become evident, the purpose of such examination being to enable petitioners, and their counsel to expeditiously determine which of them they would wish to be scrutinized and passed upon by the Board as supporting their charges of election frauds and anomalies, petitioners and their counsel being admonished in this connection, that no dilatory tactics should be in by them and that only such records substantial objections should be offered by them for the scrutiny by the Board; 4. That none of the election returns reffered to in the petition herein shall be canvassed without first giving the herein petitioners ample opportunity to make their specific objections thereto, if they have any, and to show sufficient basis for the rejection of any of the returns, and, in this connection, the respondent Regional Board of Canvassers should give due consideration to the points raised in the memorandum filed by said petitioners with the Commission on Election in the above cases dated April 26, 1978; 5. That should it appear to the board upon summary scrutiny of the records to be offered by petitioners indication that in the voting center actually held and/or that election returns were prepared either before the day of the election returns or at any other time, without regard thereto or that there has been massive substitution of voters, or that ballots and/or returns were prepared by the same groups of persons or individuals or outside of the voting centers, the Board should exclude the corresponding returns from the canvass; 6. That appeals to the commission on Election of the Board may be made only after all the returns in question in all the above, the above five cases shall have been passed upon by the Board and, accordingly, no proclamation made until after the Commission shall have finally resolved the appeal without prejudice to recourse to this court, if warranted as provided by the Code and the Constitution, giving the parties reasonable time therefor; 7. That the copies of the election returns found in the corresponding ballot boxes shall be the one used in the canvass; 8. That the canvass shall be conducted with utmost dispatch, to the end that a proclamation, if feasible, may be made not later than June 10, 1978; thus, the canvass may be terminated as soon as it is evident that the possible number of votes in the still uncanvassed returns with no longer affect the general results of the elections here in controversy;

9. That respondent Commission shall promulgate such other directive not inconsistent with this resolution y necessary to expedite the proceedings herein contemplated and to accomplish the purposes herein intended. (Pp. 8-9, Record. On June 1, 1978, upon proper motion, said guidelines were modified: ... in the sense that the ballot boxes for the voting centers just referred to need not be taken to Manila, EXCEPT those of the particular voting centers as to which the petitioners have the right to demand that the corresponding ballot boxes be opened in order that the votes therein may be counted because said ballots unlike the election returns, have not been tampered with or substituted, which instances the results of the counting shall be specified and made known by petitioners to the Regional Board of Canvassers not later than June 3, 1978; it being understood, that for the purposes of the canvass, the petitioners shall not be allowed to invoke any objection not already alleged in or comprehend within the allegations in their complaint in the election cases above- mentioned. (Page 8, Id.) Thus respondent Board proceeded with the canvass, with the herein petitioners presenting objections, most of them supported by the report of handwriting and finger print experts who had examined the voting records and lists of voters in 878 voting centers, out of 2,700 which they specified in their complaints or petitions in Election Cases 78-8, 78-9, 78-10, 78-11 and 7812 in the Comelec. In regard to 501 voting centers, the records cf. which, consisting of the voters lists and voting records were not available- and could not be brought to Manila, petitions asked that the results therein be completely excluded from the canvass. On July 11, 1978, respondent Board terminated its canvass and declared the result of the voting to be as follows:

NAME OF CANDIDATE VALDEZ, Estanislao DIMAPORO, Abdullah PANGANDAMAN, Sambolayan SINSUAT, Blah AMPARO, Jesus MANDANGAN, Linang BAGA, Tomas BADOY,Anacleto ROLDAN, Ernesto TOCAO, Sergio ARATUC, Tomatic GURO, Mangontawar

VOTES OBTAIN 436,069 429,351 406,106 403,445 399,997 387,025 386,393 374,933 275,141 239,914 205,829 190,489

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DIAZ, Ciscolario TAMULA, Fred LEGASPI, Bonifacio MACAPEGES, Malamana (Pp. 11-12, Record.)

190,077 180,280 174,396 160,271

OUR POSITION WITH RESPECT TO THE RESOLUTION OF THE HONORABLE COMMISSION OF DECEMBER 11, 1978 We respectfully submit that the Resolution of this case by this Honorable Commission should be limited to the precincts and municipalities involved in the KB'S Petitions in Cases Nos. 78-8 to 78-12, on which evidence had been submitted by the parties, and on which the KB submitted the reports of their handwriting-print. Furthermore, it should be limited by the appeal of the KB. For under the Supreme Court Resolution of May 23, 1978, original jurisdiction was given to the Board, with appeal to this Honorable Commission-Considerations of other matters beyond these would be, in our humble opinion, without jurisdiction. For the present, we beg to inform this Honorable Commission that we stand by the reports and findings of the COMELEC/NBI experts as submitted by them to the Regional Board of Canvassers and as confirmed by the said Regional Board of Canvassers in its Resolution of July 11, 1978, giving the 8 KBL candidates the majorities we have already above mentioned. The Board did more than make a summary scrutiny of the records' required by the Supreme Court Resolution, Guideline No. 5, of May 23, 1978. Hence, if for lack of material time we cannot file any Memorandum within the non-extendible period of seven (7) days, we would just stand by said COMELEC/NBI experts' reports to the Regional Board, as confirmed by the Board (subject to our appeal ad cautelam). The COMELEC sent to the parties copies of the reports of the NBI-COMELEC experts. For lack of material time due to the voluminous reports and number of voting centers involved, the Christmas holidays, and our impression that the COMELEC will exercise only its appellate jurisdiction, specially as per resolution of this Honorable Court of May 23, 1978 (in G.R. No. L48097), we, the KBL, did not comment any more on said reports. (Pp. 5-6, Record, L-49717-21.) On January 13, 1979, the Comelec rendered its resolution being assailed in these cases, declaring the final result of the canvass to be as follows:

Without loss of time, the petitioners brought the resolution of respondent Board to the Comelec. Hearing was held on April 25, 1978, after which , the case was declared submitted for decision. However, on August 30,1978, the Comelec issued a resolution stating inter alia that : In order to enable the Commission to decide the appeal properly : a. It will have to go deeper into the examination of the voting records and registration records and in the case of voting centers whose voting and registration records which have not yet been submitted for the Commission to decide to open the ballot boxes; and b. To interview and get statements under oath of impartial and disinterested persons from the area to determine whether actual voting took place on April 7, 1978, as well as those of the military authorities in the areas affects (Page 12). Record, L-49705-09 .) On December 11, 1978, the Comelec required the parties "to file their respective written comments on the reports they shall periodically receive from the NBI-Comelec team of finger-print and signature experts within the inextendible period of seven (7) days from their receipt thereof". According to counsel for Aratuc, et al., "Petitioners submitted their various comments on the report 4, the principal gist of which was that it would appear uniformly in all the reports submitted by the Comelec-NBI experts that the registered voters were not the ones who voted as shown by the fact that the thumbprints appearing in Form 1 were different from the thumbprints of the voters in Form 5. " But the Comelec denied a motion of petitioners asking that the ballot boxes corresponding to the voting centers the record of which are not available be opened and that a date be set when the statements of witnesses referred to in the August 30, 1978 resolution would be taken, on the ground that in its opinion, it was no longer necessary to proceed with such opening of ballot boxes and taking of statements. For his part, counsel for petitioner M in G.R. No. L-49717-21 filed with Comelec on December 19,1978 a Memorandum. To quote from the petition: On December 19, 1978, the KBL, through counsel, filed a Memorandum for the Kilusang Bagong Lipunan (KBL) Candidates on the Comelec's Resolution of December 11, 1978, a xerox copy of which is attached hereto and made a part hereof as Annex 2, wherein they discussed the following topics: (I) Brief History of the President Case; (II) Summary of Our Position and Submission Before the Honorable commission; and (III) KBL's Appeal Ad Cautelam. And the fourth topic, because of its relevance to the case now before this Honorable Court, we hereby quote for ready reference: IV

CANDIDATES VALDEZ, Estanislao DIMAPORO, Abdullah AMPARO, Jesus BADOY, Anacleto BAGA, Tomas PANGANDAMAN, Sambolayan SINSUAT, Blah ROLDAN, Ernesto MANDANGAN, Linang

VOTES 319,514 289.751 286,180 285,985 271,473 271,393 269,905 268,287 251,226

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TACAO, Sergio DIAZ, Ciscolario ARATUC, Tomatic LEGASPI, Bonifacio TAMULA, Fred GURO, Mangontawar LOMA, Nemesio (Page 14, Record, L-49705-09.)

229,124 187,986 183,316 178,564 177,270 163,449 129,450

8. In not including among those questioned before the Board by petitioners those included among the returns questioned by them in their Memorandum filed with the Commission on April 26, 1978, which Memorandum was attached as Annex 'I' to their petition filed with this Honorable Court G.R. No. L-48097 and which the Supreme Court said in its Guidelines should be considered by the Board in the course of the canvass (Guidelines No. 4). (Pp. 15-16, Record, Id.) On the other hand, the Mandangan petition submits that the Comelec comitted the following errors: 1. In erroneously applying the earlier case of Diaz vs. Commission on Elections (November 29, 1971; 42 SCRA 426), and particularly the highly restrictive criterion that when the votes obtained by the candidates with the highest number of votes exceed the total number of highest possible valid votes, the COMELEC ruled to exclude from the canvass the election return reflecting such rests, under which the COMELEC excluded 1,004 election returns, involving around 100,000 votes, 95 % of which are for KBL candidates, particularly the petitioner Linang Mandangan, and which rule is so patently unfair, unjust and oppressive. 2. In not holding that the real doctrine in the Diaz Case is not the total exclusion of election returns simply because the total number of votes exceed the total number of highest possible valid votes, but 'even if all the votes cast by persons Identified as registered voters were added to the votes cast by persons who can not be definitely ascertained as registered or not, and granting, ad arguendo, that all of them voted for respondent Daoas, still the resulting total is much below the number of votes credited to the latter in returns for Sagada, 'and that ' of the 2,188 ballots cast in Sagada, nearly one-half (1,012) were cast by persons definitely Identified as not registered therein or still more than 40 % of substitute voting which was the rule followed in the later case of Bashier/Basman (Diaz Case, November 19,1971,42 SCRA 426,432). 3. In not applying the rule and formula in the later case of Bashier and Basman vs. Commission on Election(February 24, 1972, 43 SCRA 238) which was the one followed by the Regional Board of Canvassers, to wit: In Basman vs Comelec (L-33728, Feb. 24, 1972) the Supreme Court upheld the Supreme Court upheld the ruling of the Commission setting the standard of 40 % excess votes to justify the exclusion of election returns. In line with the above ruling, the Board of Canvassers may likewise set aside election returns with 40 % substitute votes. Likewise, where excess voting occured and the excess was such as to destroy the presumption of innocent mistake, the returns was excluded. (COMELEC'S Resolution, Annex I hereof, p. 22), which this Honorable Court must have meant when its Resolution of May 23, 1978 (G.R. No. 7), it referred to "massive substitution of voters. 4. In examining, through the NBI/COMELEC experts, the records in more than 878 voting centers examined by the KB experts and passed upon by the Regional Board of Canvassers which was all that was within its appellate jurisdiction is examination of more election records to make a total of 1,085 voting centers (COMELEC'S Resolution, Annex 1 hereof, p. 100), being beyond its jurisdiction and a denial of due process as far as the KBL, particularly the petitioner Mandangan, were concerned because they were informed of it only on December, 1978, long after the case has been submitted for decision in September, 1978; and the statement that the KBL acquiesced to the same is absolutely without foundation.

It is alleged in the Aratuc petition that: The Comelec committee grave abuse of discretion, amounting to lack of jurisdiction: 1. In not pursuing further the examination of the registration records and voting records from the other voting centers questioned by petitioners after it found proof of massive substitute voting in all of the voting records and registration records examined by Comelec and NBI experts; 2. In including in the canvass returns from the voting centers whose book of voters and voting records could not be recovered by the Commission in spite of its repeated efforts to retrieve said records; 3. In not excluding from the canvass returns from voting centers showing a very high percentage of voting and in not considering that high percentage of voting, coupled with massive substitution of voters is proof of manufacturing of election returns; 4. In denying petitioners' petition for the opening of the ballot boxes from voting centers whose records are not available for examination to determine whether or not there had been voting in said voting centers; 5. In not Identifying the ballot boxes that had no padlocks and especially those that were found to be empty while they were shipped to Manila pursuant to the directive of the Commission in compliance with the guidelines of this Honorable Court; 6. In not excluding from the canvass returns where the results of examination of the voting records and registration records show that the thumbprints of the voters in CE Form 5 did not correspond to those of the registered voters as shown in CE Form 1; 7. In giving more credence to the affidavits of chairmen and members of the voting centers, municipal treasurers and other election officials in the voting centers where irregularities had been committed and not giving credence to the affidavits of watchers of petitioners;

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5. In excluding election returns from areas where the conditions of peace and order were allegedly unsettled or where there was a military operation going on immediately before and during election and where the voter turn out was high (90 % to 100 %), and where the people had been asked to evacuate, as a ruling without jurisdiction and in violation of due process because no evidence was at all submitted by the parties before the Regional Board of Canvasssers. (Pp. 23-25, Record, L-47917-21.) Now before discussing the merits of the foregoing contentions, it is necessary to clarify first the nature and extent of the Supreme Court's power of review in the premises. The Aratuc petition is expressly predicated on the ground that respondent Comelec "committed grave abuse of discretion, amounting to lack of jurisdiction" in eight specifications. On the other hand, the Mandangan petition raises pure questions of law and jurisdiction. In other words, both petitions invoked the Court's certiorari jurisdiction, not its appellate authority of review. This is as it should be. While under the Constitution of 1935, "the decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court" (Sec. 2, first paragraph, Article X) and pursuant to the Rules of Court, the petition for "certiorari or review" shall be on the ground that the Commission "has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme Court" (Sec. 3. Rule 43), and such provisions refer not only to election contests but even to pre-proclamation proceedings, the 1973 Constitution provides somewhat differently thus: "Any decision, order or ruling of the Commissionmay be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof" (Section 11, Article XII c), even as it ordains that the Commission shall "be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city official" (Section 2(2).) Correspondingly, the ElectionCode of 1978, which is the first legislative constructionof the pertinent constitutional provisions, makes the Commission also the "sole judge of all pre-proclamation controversies" and further provides that "any of its decisions, orders or rulings (in such contoversies) shall be final and executory", just as in election contests, "the decision of the Commission shall be final, and executory and inappealable." (Section 193) It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutinal body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed ot have definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court". And since instead of maintaining that provision intact, it ordained that the Commission's actuations be instead "brought to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law. Withal, as already stated, the legislative construction of the modified peritinent constitutional provision is to the effect that the actuations of the Commission are final, executory and even inappealable. While such construction does not exclude the general certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the Constitution, particularly, of its imperious due process mandate, it correspondingly narrows down the scope and extent of the inquiry the Court is supposed to undertake to what is strictly the office of certiorari as distinguished from review. We are of the considered opinion that the statutory modifications are consistent with the apparent new constitional intent. Indeed, it is obvious that to say that actuations of the Commission may be brought to the Supreme Court on certiorari technically connotes something less than saying that the same "shall be subject to review by the Supreme Court", when it comes to the measure of the Court's reviewing authority or prerogative in the premises. A review includes digging into the merits and unearthing errors of judgment, while certiorari deals exclusively with grave abuse of discretion, which may not exist even when the decision is otherwise erroneous. certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an omission to weight pertinent considerations, a decision arrived at without rational deliberation. While the effecdts of an error of judgment may not differ from that of an

indiscretion, as a matter of policy, there are matters taht by their nature ought to be left for final determination to the sound discretion of certain officers or entities, reserving it to the Supreme Court to insure the faithful observance of due process only in cases of patent arbitrariness. Such, to Our mind, is the constitutional scheme relative to the Commission on Elections. Conceived by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence and all the needed concommittant powers, it is but proper that the Court should accord the greatest measure of presumption of regularity to its course of action and choice of means in performing its duties, to the end that it may achieve its designed place in the democratic fabric of our government. Ideally, its members should be free from all suspicions of partisan inclinations, but the fact that actually some of them have had stints in the arena of politics should not, unless the contrary is shown, serve as basis for denying to its actuations the respect and consideration that the Constitution contemplates should be accorded to it, in the same manner that the Supreme Court itself which from time to time may have members drawn from the political ranks or even from military is at all times deemed insulated from every degree or form of external pressure and influence as well as improper internal motivations that could arise from such background or orientation. We hold, therefore that under the existing constitution and statutory provisions, the certiorari jurisdiction of the Court over orders, and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process. Accordingly, it is in this light that We the opposing contentions of the parties in this cases. THE MANDANGAN CASE Being more simple in Our view, We shall deal with the petition in G.R. No. L-49717-21 first. The errors assigned in this petition boil down to two main propositions, namely, (1) that it was an error of law on the part of respondent Comelec to have applied to the extant circumstances hereof the ruling of this Court in Diaz vs. Comelec 42 SCRA 426 instead of that of Bashier vs. Comelec 43 SCRA 238; and (2) that respondent Comelec exceeded its jurisdiction and denied due process to petitioner Mandangan in extending its inquiry beyond the election records of "the 878 voting centers examined by the KB experts and passed upon by the Regional Board of Canvassers" and in excluding from the canvass the returns showing 90 to 100 % voting, from voting centers where military operations were by the Army to be going on, to the extent that said voting centers had to be transferred to the poblaciones the same being by evidence. Anent the first proposition, it must be made clear that the Diaz and Bashier rulings are not mutually exclusive of each other, each being an outgrowth of the basic rationale of statistical improbability laid down in Lagumbay vs. Comelec and , 16 SCRA 175. Whether they be apply together or separately or which of them be applied depends on the situation on hand. In the factual milieu of the instant case as found by the Comelec, We see no cogent reason, and petitioner has not shown any, why returns in voting centers showing that the votes of the candidate obtaining highest number of votes of the candidate obtaining the highest number of votes exceeds the highest possible number of valid votes cast therein should not be deemed as spurious and manufactured just because the total number of excess votes in said voting centers were not more than 40 %. Surely, this is not the occasion, consider the historical antecedents relative to the highly questionable manner in which elections have been bad in the past in the provinces herein involved, of which the Court has judicial notice as attested by its numerous decisions in cases involving practically every such election, of the Court to move a whit back from the standards it has enunciated in those decisions. In regard to the jurisdictional and due process points raised by herein petitioner, it is of decisive importance to bear in mind that under Section 168 of the Revised Election Code of 1978, "the Commission (on Elections) shall have direct control and supervision on over the board of canvassers" and that relatedly, Section 175 of the same Code provides that it "shall be the sole judge of all pre-proclamation controversies." While nominally, the procedure of bringing to the Commission objections to the actuations of boards of canvassers has been quite loosely referred to in certain

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quarters, even by the Commission and by this Court, such as in the guidelines of May 23,1978 quoted earlier in this opinion, as an appeal, the fact of the matter is that the authority of the Commission in reviewing such actuations does not spring from any appellate jurisdiction conferred by any specific provision of law, for there is none such provision anywhere in the Election Code, but from the plenary prerogative of direct control and supervision endowed to it by the above-quoted provisions of Section 168. And in administrative law, it is a too well settled postulate to need any supporting citation here, that a superior body or office having supervision and control over another may do directly what the latter is supposed to do or ought to have done. Consequently, anything said in Lucman vs. Dimaporo, 33 SCRA 387, cited by petitioner, to the contrary notwithstanding, We cannot fault respondent Comelec for its having extended its inquiry beyond that undertaken by the Board of Canvass On the contrary, it must be stated that Comelec correctly and commendably asserted its statutory authority born of its envisaged constitutional duties vis-a-vis the preservation of the purity of elections and electoral processes and p in doing what petitioner it should not have done. Incidentally, it cannot be said that Comelec went further than even what Aratuc et al. have asked, since said complaints had impugned from the outset not only the returns from the 878 voting centers examined by their experts but all those mentioned in their complaints in the election cases filed originally with the Comelec enumerated in the opening statements hereof, hence respondent Comelec had that much field to work on. The same principle should apply in respect to the ruling of the Commission regarding the voting centers affected by military operations. It took cognizance of the fact, not considered by the board of canvass, that said voting centers had been transferred to the poblaciones. And, if only for purposes of pre-proclamation proceedings, We are persuaded it did not constitute a denial of due process for the Commission to have taken into account, without the need or presentation of evidence by the parties, a matter so publicly notorious as the unsettled situation of peace and order in localities in the provinces herein involved that their may perhaps be taken judicial notice of, the same being capable of unquestionable demonstration. (See 1, Rule 129) In this connection, We may as well perhaps, say here as later that regrettably We cannot, however, go along with the view, expressed in the dissent of our respected Chief Justice, that from the fact that some of the voting centers had been transferred to the poblaciones there is already sufficient basis for Us to rule that the Commission should have also subjected all the returns from the other voting centers of the some municipalities, if not provinces, to the same degree of scrutiny as in the former. The majority of the Court feels that had the Commission done so, it would have fallen into the error by petitioner Mandangan about denial of due process, for it is relatively unsafe to draw adverse conclusions as to the exact conditions of peace and order in those other voting centers without at list some prima facie evidence to rely on considering that there is no allegation, much less any showing at all that the voting centers in question are so close to those excluded by the Comelec on as to warrant the inescapable conclusion that the relevant circumstances by the Comelec as obtaining in the latter were Identical to those in the former. Premises considered the petition in G.R. Nos. L-49717-21 is hereby dismiss for lack of merit. THE ARATUC ET AL. PETITION Of the eight errors assigned by herein petitioners earlier adverted to, the seventh and the sight do not require any extended disquisition. As to the issue of whether the elections in the voting centers concerned were held on April 7, 1978, the date designated by law, or earlier, to which the seventh alleged error is addressed, We note that apparently petitioners are not seriously pressing on it anymore, as evidenced by the complete absence of any reference thereto during the oral argument of their counsel and the practically cavalier discussion thereof in the petition. In any event, We are satisfied from a careful review of the analysis by the Comelec in its resolution now before Us that it took pains to consider as meticulously as the nature of the evidence presented by both parties would permit all the contentions of petitioners relative to the weight that should be given to such evidence. The detailed discussion of said evidence is contained in not less than nineteen pages (pp. 70-89) of the resolution. In these premises, We are not prepared to hold that Comelec acted wantonly and arbitrarily in drawing its conclusions

adverse to petitioners' position. If errors there are in any of those conclusions, they are errors of judgment which are not reviewable in certiorari, so long as they are founded on substantial evidence. As to eighth assigned error. the thrust of respondents, comment is that the results in the voting centers mentioned in this assignment of error had already been canvassed at the regional canvass center in Cotabato City. Again, We cannot say that in sustaining the board of canvassers in this regard, Comelec gravely abused its discretion, if only because in the guidelines set by this Court, what appears to have been referred to is, rightly or wrongly, the resumption only of the canvass, which does not necessarily include the setting aside and repetition of the canvass already made in Cotabato City. The second and fourth assignments of error concern the voting centers the corresponding voters' record (C.E. Form 1) and record of voting, (C.E. Form 5) of which have never been brought to Manila because they, were not available The is not clear as to how many are these voting centers. According to petitioners they are 501, but in the Comelec resolution in question, the number mentioned is only 408, and this number is directly challenged in the petition. Under the second assignment, it is contended that the Comelec gravely abused its discretion in including in the canvass the election returns from these voting centers and, somewhat alternatively, it is alleged as fourth assignment that the petitioners motion for the opening of the ballot boxes pertaining to said voting centers was arbitraly denied by respondent Comelec. The resolution under scrutiny explains the situation that confronted the Commission in regard to the 408 voting centers reffered to as follows : The Commission had the option of excluding from the canvass the election returns under category. By deciding to exclude, the Commission would be summarily disenfranchising the voters registered in the voting centers affected without any basis. The Commission could also order the inclusion in the canvass of these elections returns under the injunction of the Supreme Court that extremes caution must be exercised in rejecting returns unless these are palpably irregular. The Commission chose to give prima facie validity to the election returns mentioned and uphold the votes cast by the voters in those areas. The Commission held the view that the failure of some election officials to comply with Commission orders(to submit the records) should not parties to such official disobedience. In the case of Lino Luna vs. Rodriguez, 39 Phil. 208, the Supreme Court ruled that when voters have honestly cast their ballots, the same should not be nullified because the officers appointed under the law to direct the election and guard the purity of the ballot have not complied with their duty. (cited in Laurel on Elections, p. 24) On page 14 of the comment of the Solicitor General, however, it is stated that: At all events, the returns corresponding to these voting centers were examined by the Comelec and 141 of such returns were excluded, as follows: SUMMARY PROVINCE Lanao del Norte Lanao del Sur Maguindanao North Cotabato TOTAL 30 342 21 7 EXCLUDED 137 1 1 INCLUDED 30 205 20 6

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Sultan Kudarat totals -----

12 412

2 141

10 271

centers and the corresponding findings of the Comelec on the extent of substitute voting therein as indicated by the result of either the technical examination by experts of the signatures and thumb-prints of the voters threat. To begin with, petitioners' complaint that the Comelec did not examine and study 1,694 of the records in an the 2,775 voting centers questioned by them is hardly accurate. To be more exact, the Commission excluded a total of 1,267 returns coming under four categories namely: 1,001 under the Diaz, supra, ruling, 79 because of 90-100 % turnout of voters despite military operations, 105 palpably manufactured owe and 82 returns excluded by the board of canvass on other grounds. Thus, 45.45 % of the of the petitioners were sustained by the Comelec. In contrast, in the board of canvassers, only 453 returns were excluded. The board was reversed as to 6 of these, and 821 returns were excluded by Comelec over and above those excluded by the board. In other words, the Comelec almost doubled the exclusions by the board. Petitioners would give the impression by their third assignment of error that Comelec refused to consider high percentage of voting, coupled with mass substitute voting, as proof that the pertinent returns had been manufactured. That such was not the case is already shown in the above specifications. To add more, it can be gleaned from the resolution that in t to the 1,065 voting centers in Lanao del Sur and Marawi City where a high percentage of voting appeared, the returns from the 867 voting centers were excluded by the Comelec and only 198 were included a ratio of roughly 78 % to 22 %. The following tabulation drawn from the figures in the resolution shows how the Comelec went over those returns center by center and acted on them individually: 90% 100% VOTING MARAWI CITY AND LANAO DEL SUR NO. OF V/C THAT V/C WITH 90% to 100% MUNICIPALITIES FUNCTIONED VOTING

(Page 301, Record.) This assertion has not been denied by petitioners. Thus, it appears that precisely use of the absence or unavailability of the CE Forms 1 and 5 corresponding to the more than 400 voting centers concerned in our present discussion the Comelec examined the returns from said voting centers to determine their trustworthiness by scrutinizing the purported relevant data appearing on their faces, believing that such was the next best thing that could be done to avoid total disenfranchisement of the voters in all of them On the Other hand, Petitioners' insist that the right thing to do was to order the opening of the ballot boxes involved. In connection with such opposing contentions, Comelec's explanation in its resolution is: ... The commission had it seen fit to so order, could have directed the opening of the ballot boxes. But the Commission did not see the necessity of going to such length in a that was in nature and decided that there was sufficient bases for the revolution of the appeal. That the Commission has discretion to determine when the ballot boxes should be opened is implicit in the guidelines set by the Supreme Court which states that '. . . the ballot bones [which] shall be opened only upon orders of either the respondent Board or respondent Commission, after the need therefor has become evident ... ' (guideline No. 3; emphasissupplied). Furthermore, the Court on June 1, 1978, amended the guidelines that the "ballot boxes for the voting centers ... need not be taken to Manila EXCEPT those of the centers as to which the petitioners have the right to demand that the corresponding ballot boxes be opened ... provided that the voting centers concerned shall be specified and made known by petitioners to the Regional Board of Canvassers not later than June 3,1978 ... ' (Emphasis supplied). The KB, candidates did not take advantage of the option granted them under these guidelines.( Pp 106-107, Record.) Considering that Comelec, if it had wished to do so, had the facilities to Identify on its own the voting centers without CE Forms I and 5, thereby precluding the need for the petitioners having to specify them, and under the circumstances the need for opening the ballot boxes in question should have appeared to it to be quite apparent, it may be contended that Comelec would have done greater service to the public interest had it proceeded to order such opening, as it had announced it had thoughts of doing in its resolution of August 30, 1978. On the other hand, We cannot really blame the Commission too much, since the exacting tenor of the guidelines issued by Us left it with very little elbow room, so to speak, to use its own discretion independently of what We had ordered. What could have saved matters altogether would have been a timely move on the part of petitioners on or before June 3, 1978, as contemplated in Our resolution. After all come to think of it, that the possible outcome of the opening of the ballot boxes would favor the petitioners was not a certainty the contents them could conceivably boomerang against them, such as, for example, if the ballots therein had been found to be regular and preponderantly for their opponents. Having in mind that significantly, petitioners filed their motion for only on January 9, 1979, practically on the eve of the promulgation of the resolution, We hold that by having adhered to Our guidelines of June 1, 1978, Comelec certainly cannot be held to be guilty of having gravely abused its discretion, in examining and passing on the returns from the voting centers reffered to in the second and fourth assignments of error in the canvass or in denying petitioners' motion for the of the ballot boxes concerned. The first, third and sixth assignment of involve related matters and maybe discussed together. They all deal with the inclusion in or exclusion from the canvass of returns on the basis of the percentage of voting in specified voting

No. of V/C Marawi City Bacolod Grande Balabagan Balindong Bayang Binidayan Buadiposo Bunton Bubong Bumbaran Butig Calanogas 151 28 53 22 29 37 41 24 21 (All excluded) 35 23 33 21 112 28 53 22 20 33 10 23

Excluded 107 27 49 15 13 29 10 21

Included 5 1 4 7 7 4 0 2

32 21

1 0

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Ditsaan-Ramain Ganassi Lumba Bayabao Lumbatan Lumbayanague Madalum Madamba Maguing Malabang Marantao Marugong Masiu Pagayawan Piagapo Poona-Bayabao Pualas Saguiaran Sultan Gumander Tamparan Taraka Tubaran TOTALS: Marawi & Lanao del Sur

42 39 64 30 37 14 20 57 59 79 37 27 15 39 44 23 36 35 24 31 23

39 38 63 28 33 13 20 55 47 63 35 26 13 39 44 20 32 31 21 31 19

38 23 47 17 28 6 5 53 5 41 32 24 9 36 42 20 21 31 15 31 19

1 15 16 11 5 7 15 2 42 22 3 2 4 3 CONCLUSION 2 0 11 0 6 0 0

The Commission as earlier stated examined on its own the Books of Voters (Comelec Form No. 1) and the Voters Rewards Comelec Form No. 5) to determine for itself which of these elections form needed further examination by the COMELEC-NBI experts. The Commission, aware of the nature of this pre-proclamation controversy, believes that it can decide, using common sense and perception, whether the election forms in controversy needed further examination by the experts based on the presence or absence of patent signs of irregularity. (Pp. 137-138, Record.) In the face of this categorical assertion of fact of the Commission, the bare charge of petitioners that the records pertaining to the 1,694 voting centers assailed by them should not create any ripple of serious doubt. As We view this point under discussion, what is more factually accurate is that those records complained of were not examined with the aid of experts and that Comelec passed upon the returns concerned "using common sense and perception only." And there is nothing basically objectionable in this. The defunct Presidential Senate and House Electoral Tribunals examine passed upon and voided millions of votes in several national elections without the assistance of experts and "using" only common sense and perception". No one ever raised any eyebrows about such procedure. Withal, what we discern from the resolution is that Comelec preliminary screened the records and whatever it could not properly pass upon by "using common sense and perception" it left to the experts to work on. We might disagree with he Comelec as to which voting center should be excluded or included, were We to go over the same records Ourselves, but still a case of grave abuse of discretion would not come out, considering that Comelec cannot be said to have acted whimsically or capriciously or without any rational basis, particularly if it is considered that in many respects and from the very nature of our respective functions, becoming candor would dictate to Us to concede that the Commission is in a better position to appreciate and assess the vital circumstances closely and accurately. By and large, therefore, the first, third and sixth assignments of error of the petitioners are not well taken. The fifth assignment of error is in Our view moot and academic. The Identification of the ballot boxes in defective condition, in some instances open and allegedly empty, is at best of secondary import because, as already discussed, the records related thereto were after all examined, studied and passed upon. If at all, deeper inquiry into this point would be of real value in an electoral protest.

Before closing, it may not be amiss to state here that the Court had initially agreed to dispose of the cases in a minute resolution, without prejudice to an extended or reasoned out opinion later, so that the Court's decision may be known earlier. Considering, however, that no less than the Honorable Chief Justice has expressed misgivings as to the propriety of yielding to the conclusions of respondent Commission because in his view there are strong considerations warranting farther meticulous inquiry of what he deems to be earmarks of seemingly traditional faults in the manner elections are held in the municipalities and provinces herein involved, and he is joined in this pose by two other distinguished colleagues of Ours, the majority opted to ask for more time to put down at least some of the important considerations that impelled Us to see the matters in dispute the other way, just as the minority bidded for the opportunity to record their points of view. In this manner, all concerned will perhaps have ample basis to place their respective reactions in proper perspective. In this connection, the majority feels it is but meet to advert to the following portion of the ratiocination of respondent Board of Canvassers adopted by respondent Commission with approval in its resolution under question: First of all this Board was guided by the legal doctrine that canvassing boards must exercise "extreme caution" in rejecting returns and they may do so only when the returns are palpably irregular. A conclusion that an election return is obviously manufactured or false and consequently should be disregarded in the canvass must be approached with extreme caution, and only upon the most convincing proof. Any plausible explanation one which is acceptable to a reasonable man in the light of experience and of the probabilities of the situation, should suffice to avoid outright nullification, with the resulting t of those who exercised their right of suffrage. (Anni vs. Isquierdo et at L-35918, Jude 28,1974; Villavon v. Comelec L-32008, August 31,1970;

1,218

1,065

867

198

We are convinced, apart from presuming regularity in the performance of its duties, that there is enough showing in the record that it did examine and study the returns and pertinent records corresponding to all the 2775 voting centers subject of petitioners' complaints below. In one part of its resolution the Comelec states:

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Tagoranao v. Comelec 22 SCRA 978). In the absence of strong evidence establishing the spuriousness of the return, the basis rule of their being accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must be applied, without prejudice to the question being tried on the merits with the presentation of evidence, testimonial and real in the corresponding electoral protest. (Bashier vs. Comelec L33692, 33699, 33728, 43 SCRA 238, February 24, 1972). The decisive factor is that where it has been duly de ed after investigation and examination of the voting and registration records hatactual voting and election by the registered voters had taken place in the questioned voting centers, the election returns cannot be disregarded and excluded with the resting disenfranchisement of the voters, but must be accorded prima facie status as bona fide reports of the results of the voting for canvassing and registration purposes. Where the grievances relied upon is the commission of irregularities and violation of the Election Law the proper remedy is election protest. (Anni vs. Isquierdo et al. Supra). (P. 69, Record, L-49705-09). The writer of this opinion has taken care to personally check on the citations to be doubly sure they were not taken out of context, considering that most, if not all of them arose from similar situations in the very venues of the actual milieu of the instant cases, and We are satisfied they do fit our chosen posture. More importantly, they actually came from the pens of different members of the Court, already retired or still with Us, distinguished by their perspicacity and their perceptive prowess. In the context of the constitutional and legislative intent expounded at the outset of this opinion and evident in the modifications of the duties and responsibilities of the Commission on Elections vis-a-vis the matters that have concerned Us herein, particularly the elevation of the Commission as the "sole judge of preproclamation controversies" as well as of all electoral contests, We find the afore-quoted doctrines compelling as they reveal through the clouds of existing jurisprudence the pole star by which the future should be guided in delineating and circumscribing separate spheres of action of the Commission as it functions in its equally important dual role just indicated bearing as they do on the purity and sanctity of elections in this country. In conclusion, the Court finds insufficient merit in the petition to warrant its being given due course. Petition dismissed, without pronouncement as to costs. Justices Fernando, Antonio and Guerrero who are presently on official missions abroad voted for such dismissal. Separate Opinions CASTRO, C.J., dissenting: 1 At the outset I must state that constraints of time effectively prevent me from writing an extended dissent. Hence, this abbreviated exposition of my views. For a clear understanding of the issues, a summary of the essential events relative to these cases is necessary. On April 7, 1978, elections of representatives to the Batasang Pambansa were held throughout the Philippines. The cases at bar concern only the results of the elections in Region XII (Central Mindanao) which compromises the p s Of Lanao del Sur, Lanao del Norte, Maguindanao, North Cotabato and Sultan Kudarat, and the cities of Marawi, Iligan and Cotabato. (The entire Region had a total of 4,107 voting center but only 3,984 were functions). On June 11, 1978, the Region Board of Canvassers issued a resolution, Over the objection of the Konsensiya ng Bayan (KB) candidates d all the eight Kilusang ng Bagong Lipunan (KBL) candidates elected. Appeal was taken by the KB candidates to the On January 13, 1979, the Comelec its questioned resolution KBL can candidates and one KB candidate as having obtained the first eight places, and ordering the Regional Board of Can to p the winning candidates. The KB candidate forewith the present petition ; in due time the respondents filed their comments.

Oral argument was had before the Court for two days, specifically on January 31 and February 1, 1979. Atty. Lino Patajo argued for and in behalf of the KB candidates, Assemblyman Estanislao Fernandez for the KBL and the private respondents and Solicitor General Estelito P. Mendoza for the public respondents. The Court subjected the three counsels to intensive interrogation. The cases were then sub. muted for decision in the afternoon of February 1. 2. I have carefully read the entire record, more particularly the Comelec resolution of January 13, 1979, and I must confess that until now my mind cannot rest easy on a number of questions sharply in issue, some of which are hereunder briefly discussed. a. After the Comelec examined very closely the voting returns, books of voting and voting records from 1, 116 voting centers protested by the KB candidates, to the extent of subjecting them to detailed documentary examination and finger print comparison by Comelec experts, and thereafter annulled 31.84% of the votes cast, why did it refuse to proceed to subject all the records of the remaining 1,659 voting centers protested by the KB candidates to the same manner of close scrutiny? b. Why did not the Comelec examine, utilizing the same meticulous method, similar documents and records appertaining to a total of 164 voting centers in Lanao del Sur and 19 voting centers in Lanao del Nortetwo provinces where concededly there had been military operationsand an additional number of voting centers in the other provinces, all of which registered a 100 % turnout of voters? The peace and order conditions in the two cities of Iligan and Cotabato on the day of the elections were normal and yet the total percentages of voting were only 73 % and 52 %, lively. How then can the Comelec explained why and how in many voting centers located in areas where there had been military operations there was a voting turnout of 100 %? Assuming that the KB candidates did not call the attention of the Comelecalthough they actually didto the stark improbability of 100 % vote turnout in the said places, because the peace and order conditions were far from normal it perforce devolved on the Comelec to conduct, motu propio, an in-depth and full-blown inquiry into this paradox. The record shows that there was l00 % voting in the whole of each of three municipalities, over 99 % viting in each of thirteen other municipalities, and an average 97 % turnout in five more municipalities. Of inescapable significance is the fact that most of these municipalities are located in the provinces of Lanao del Sur and Lanao del Norte, the past election history of which is replete with the perpetration of massive frauds, terrorism and scandalous substitutions of voters. c. Why did the Comelec deny the motion of the KB candidates for the opening of ballot boxes Pertaining to a total of 408 voting centers the voting record of which were not available as they had somehow mysteriously disappeared to determine whether or not the election in each of the said voting centers was a sham? This remedial measure was resorted to by the Comelec in 1969 when it Order the opening of a number of ballot boxes in the preproclamation contest inLucman vs. Dimaporo in order to see whether or not there were ballots, and determine whether there had been an actual election in each of the disputed precincts. In that case to almost 200 ballot boxes found to be without padlocks? 3. Of incalculable significance is the abscence of any statement in the Comelec resolution that indicates that, granting that all the questions I have above raised would be resolved in favor of the KB candidates, the election results would not be materially altered.Upon the other hand , the KB candidates state categorically, with benefit of extrapolation, that the election results would be considerably changed in their favor. 4. The majority of my brethren anchor their denial of the petition on two principal grounds, namely: a. The issues raised by the KB candidates would be better and properly ventilated in an election protest; and b. No grave abuse of discretion is discernible from the actuations of the Comelec.

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Anent the first ground, it is a notorious fact in the history of Philippine politics that an election protest not only is usually inordinately protracted but as well entails heavy and prohibitive expenditure of time, money and effort on the part of the protestant. More than this, should the protestant in the end win, very little time or none at all is left for him to assume and discharge the duties of his office. In the meantime, the person previously proclaimed elected continues to fraudulently represent the people who had in law and in fact duly elected someone else to represent them. Besides, taking a broad view of the fundamental issues raised by the KB candidates, I am of the opinion that resolution of these issues by the Comelec would not take more than six months of conscientious laborand surely this period is short, very short indeed, compared to the time that win be wasted by the Comelec in deciding a formal electoral protest. Is it not time the Supreme Court asserted its powers in order to excise completely the Old Society pernicious evil of "grab the proclamation at all costs"? Anent the second ground, I squarely traverse the statement that no grave abuse of discretion can be imputed to the Comelec. The grave misgivings I have above articulated demonstrate what to my mind constitute the size and shape of the remissness of the Comelec. And more compelling and over-riding a consideration than the overwrought technicality of "grave abuse of discretion" is the fundamental matter of the faith of the people of Region XII in the electoral process. There will always be the nagging question in the minds of the voters in that Region as to the legitimacy of those who will be proclaimed elected under the Comelec resolution should the Court refuse to direct that body to continue the meticulous for legitimacy and truth. 5. Upon all the foregoing, it behooves the Court to remand these cases to the Comelec, with the direction that body immediately convene and within an unextendible period and as speedily as possible, resolve with definitiveness all the questions I have above posed, under such unequivocal guidelines as the Court may prescribe. For my part, unless and until this is done, I shall continue to enter grave doubt as to the correctness and validity of the results already reached by the Comelec, especially when political history, placed in perspective, pointedly reminds me of the massive frauds, terrorism and scandalous substitutions of voters that have characterized past elections in the two Lanao provinces. DE CASTRO, J., concuring: The present case has afforded Us an early opportunity to examine and define the extent of the power of judicial review as granted to the Supreme Court over any decision, order or ruling of the Commission on Elections under the new Constitution the pertinent provision of which reads: Section 11. Any decision order or ruling of the on may be brought to the Supreme Court on certiorari by the party within thirty days from his receipt of a copy thereof XII, Constitution). The Commission on Elections has been granted powers under the new Constitution which, under the old Constitution, belonged either to the legislative body(Electoral Tribunals) or the courts. This evident from the provision of the new Constitution which reads: (2) Be the sole judge of all contents relating to the elections, returns, and quallifications of all Members of the National Assembly and elective provincial and city officials. (Section 2, Article XII, Constitution). The Commission is thus envisioned to exercise exclusive powers on all electoral matters except the right to vote, such as the enforcement and administration of laws relative to the conduct of elections deciding administrative questions affecting elections, except those involving the right to vote, but also those that heretofore have been

agreed as matters for strictly judicial inquiry, such as the hearing and disposition of election contests, as is doubtlessly shown by the transfer thereto of the powers previously conferred upon the Electoral Tribunal of Congress and the Courts. (see Section 2, par. 2, Article XII, New Constitution). This change may properly be viewed as having the intention to relieve the Courts, particularly the Supreme Court, of those burdens placed upon them relating to the conduct of election and matters incident thereto. It could have been, likewise, intended to insulate judicial bodies from the baneful effects of partisan politics, the more deleterious ones being those that could come from the higher mats of political power, such a those in the Assembly and in the provincial and city government levels. It is, therefore, my view that what was intended by the new Constitution is to limit the intervention of the Supreme Court in the acts of the Commission as constitutional body like said Court, but with broadened powers, allocating to it a domain as exclusive as that of the legislative body (which includes the President or Prime Minister) on matters of lawmaking , to that of "judicial inquiry". This power is confined to justifiable questions not of political nature, and always involving alleged violation of constitutional rights or the constitution itself.. For a controversy of a political character, commonly referred to as "Political questions", is excluded from the scope of the Supreme Courts power of judicial inquiry. 1 The exclusive character of the Power conferred upon the Commission on Elections, and considering that political rights, as distinguished from civil and personal Or Property rights, 2 are for the most part, if not in their totality, the subject of its authority, should counsel an expansive intervention by the Supreme Court in the acts of the Commission on Election. With the confernment of exclusive authority on the electoral process upon it, the Commission may be said to have been given hill discretionary authority, the exercise of which would give rise to a controversy involving a political question. 3 What then is the test or criterion in de whether the Supreme Court may exercise its power under Article XII, Section 11 of the new Constitution? It is my humble submission that the aforecited provision is merely a reassertion of the power of the Supreme Court as guardian of the Constitution and protector of constitutional rights, of which, under no circumstance, could it be deprived, if our present Constitution system is to be maintained. For it is a power constitutionally assigned to it as the essence of the high judicial power of the Supreme Court, for the orderly and salutary apportionment of governmental powers among the different b of the government, as well as the Constitution bodies created to deal more effectively with specific matters requiring governmental actions. Examining the instant petition, nothing reveals itself as raising more than questions merely affecting the conduct of the election held on April 7, 1978, much less a truly constitutional question, aside perhaps from the alegation that the COMELEC undertook an examination of election records beyond those examined during the pendency of the controversy before the Regional Board of Canvassers, allegedly without notice to the petitioners, thus intimating a violation of due process. This particular matter, however, can easily be disposed of by citing the provision of Section 175 of the Electoral Code of 1978 which reads: ... The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and heating order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 hereof. If the Commission has the power to suspend motu proprio the proclamation of a candidate-elect it must have the power to conduct inquiry into the cause for which it ordains the suspension of the proclamation such as making its own examination of the integrity of election returns or inquiring into any relevant matter affecting the purity of the ballot. Notice is required by the legal provision cited, but this must be notice to the party adversely affected, the candidate-elect whose proclamation is suspended. The action taken by the COMELEC in e additional election documents to those examined by the KB experts during the pendency of the controversy with the Regional Board of Canvassers was, therefore, one of which petitioners cannot be heard, nor have any reason, one of which petitioners cannot be heard, nor have any reason, to complain, for it even resulted in one KB candidate getting into the winners column. If the COMELEC stopped at a certain point in its examination, instead of going through all those questioned by the petitioners, evidently due to time constraint as fixed in the guidelines, set by this Court, and the character of pre-proclamation proceedings , it cannot be charged with abuse of discretion, much less a grave one. it did not have

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to conduct the additional examination, in the first place. The controversy which was heard and decided in the first instance, by the Regional Board of Canvassers, with guidelines set by this Court, was appealed to the COMELEC. The latter's appellate authority was thus limited to a review of the decision of the Board on the basis of the evidence presented before it, rendering its own decision on the basis of the evidence, and no more. It incorporated the result of its own examination of additional election returns, and found one KB as one of the candidate, a fact clearly showing that COMELEC did examine the said documents, otherwise , the result as previously declared by the Board of Canvassers with a clean sweep of the KBL candidate would have remained unaltered. Expounding more on the one circumstance inclining me to the theory that with the enlarged power and broadened authority of the COMELEC which to and cover virtually the entire electoral process, as exclusively as the power of legislation is constitutionally lodged in the law-making body, what is given to the Supreme Court as its reviewing authority over acts of the COMELEC is no more than what it could exercise under its power of judicial inquiry with to acts of the legislative body, which is the transfer to the COMELEC of the powers pertaining to the Electoral Tribunals and the courts under the old Constitution over election contests, it must not be hard to concede that with the composition of the electoral tribunals in which six of the justices of the Supreme Court sit in said bodies, the Supreme Court crowd no longer exercise any reviewing authority over the acts of the said electoral tribunals except possibly when violation of the Constitution or constitution rights are involved. With this limited concept of this Court's authority over the defunct electoral tribunals now applied to an equally constitutional body that the COMELEC is that took over the function of the Election Tribunal would hesitate to hold that Supreme Court may grant the relief as in prayed for in the present petition. If this is so under the law and the Constitution, it should also be upon consideration of public policy. The last elections were called by the President as a test or t as to how the vital reforms and changes of political and social discipline and moral values he has instituted to evolve a new order have affected the thinking and the attitudes of our Tribunal should be extreme caution, if not restraint, in any act on our part that might reflect on the success or failure of that experiment intended, at the time as a big stride in the way back to normalization. This is specially true in the field of politics where the ills of the Old Society has been most grave, because our elections then as a democratic process, have tarnished the image of our country as a representative democracy. Except on very compelling reasons then, which I believe do not exist in the case before Us, should we make any pronouncement that would detract on how successful the last political exercise had been, as the first election held under the new Constitution. We must refrain from imputing to the COMELEC which has been enlarged with fresh mandate and a bigger trust by the Constitution failure in the performance of its functions either by willfull neglect, official incompetence, much less by deliberate partiality, in the first real test of its capability. In the light of the foregoing, I vote, in concurrence with the majority, to dismiss the petition, first, as to the matter allegedly involving a violation of the petitioners' right of due process on the ground that there was no denial thereof, and second, as to the other matters involving no violation of constitutional rights, on the ground they are purely political questions, and that in any case, no grave abuse of discretion has been committed by, much leas is there lack or excess of jurisdiction on the part of, the Commission on Elections.

Executive Officer; and the Presidents of Philippine Petroleum Dealer's Association, Caltex Dealer's Co., Petron Dealer's Asso., Shell Dealer's Asso. of the Phil., Liquefied Petroleum Gas Institute of the Phils., any and all concerned gasoline and petrol dealers or stations; and such other persons, officials, and parties, acting for and on their behalf; or in representation of and/ or under their authority, respondents. G.R. Nos. 95119-21. December 18, 1990.* OLIVER O. LOZANO, petitioner, vs. ENERGY REGULATORY BOARD (ERB), PILIPINAS SHELL PETROLEUM CORPORATION, CALTEX (PHIL.), INC., and PETRON CORPORATION, respondents. Energy Regulatory Board; Due Process; Executive Order 172; While under E.O. 172, a hearing is indispensable, the Board is not precluded from ordering, ex parte, a provisional increase in the price of petroleum products.Senator Maceda and Atty. Lozano, in questioning the lack of a hearing, have overlooked the provisions of Section 8 of Executive Order No. 172, which we quote: "SECTION 8. Authority to Grant Provisional Relief. The Board may, upon the filing of an application, petition or complaint or at any stage thereafter and without prior hearing, on the basis of supporting papers duly verified or authenticated, grant provisional relief on motion of a party in the case or on its own initiative, without prejudice to a final decision after hearing, should the Board find that the pleadings, together with such affidavits, documents and other evidence which may be submitted in support of the motion, substantially support the provisional order: Provided, That the Board shall immediately schedule and conduct a hearing thereon within thirty (30) days thereafter, upon publication and notice to all affected parties. x x x What must be stressed is that while under Executive Order No. 172, a hearing is indispensable, it does not preclude the Board from ordering, ex parte, a provisional increase, as it did here, subject to its final disposition of whether or not: (1) to make it permanent; (2) to reduce or increase it further; or (3) to deny the application. Section 3, paragraph (e) is akin to a temporary restraining order or a writ of preliminary attachment issued by the courts, which are given ex parte, and which are subject to the resolution of the main case. Same; Oil Price Stabilization Fund; The OPSF must not be understood to be a funding designed to guarantee oil firms' profits; It is established precisely to protect the consuming public from the erratic movement of oil prices and to preclude oil companies from taking advantage of fluctuations occurring every so often.The OPSF, as the Court held in the aforecited CACP cases, must not be understood to be a funding designed to guarantee oil firms' profits although as a subsidy, or a trust account, the Court has no doubt that oil firms make money from it. As we held there, however, the OPSF was established precisely to protect the consuming public from the erratic movement of oil prices and to preclude oil companies from taking advantage of fluctuations occurring every so often. As a buffer mechanism, it stabilizes domestic prices by bringing about a uniform rate rather than leaving pricing to the caprices of the market. PARAS, J., Dissenting: Energy Regulatory Board; Due Process; The ERB gravely abused its discretion in approving the increase in oil prices without a prior hearing; "Public Interest" necessitated a prior hearing. In fixing the oil prices complained of, the Energy Regulatory Board (ERB) gravely abused its discretion(1) in approving the prices without due process of law, and (2) in exercising the taxing power in gross violation of the 1987 Constitution which vests such power only in Congress. With respect to due process, it will be noted that it is Sec. 3(e) (and not Sec. 8) of Ex. Order No. 172 which should apply to the instant case (and therefore a hearing is essential) for it is Sec. 3(e) that refers to "the temporary adjustment of the levels of prices of petroleum products" or instances "when public interest so requires." Sec. 8, which is relied upon by the majority opinion, does NOT speak of price increases. Additionally it is clear that in the instant case, "public interest" [also mentioned in Sec. 3 (e)] necessitated a prior hearing.

G.R. Nos. 95203-05. December 18, 1990.* SENATOR ERNESTO MACEDA, petitioner, vs. ENERGY REGULATORY BOARD (ERB); MARCELO N. FERNANDO, ALEJANDRO B. AFURONG; REX V. TANTIONGCO; and OSCAR E. ALA, in their collective official capacities as Chairman and Members of the Board (ERB), respectively; CATALINO MACARAIG, in his quadruple official capacities as Executive Secretary, Chairman of Philippine National Oil Company; Office of the Energy Affairs, and with MANUEL ESTRELLA, in their respective official capacities as Chairman and President of the Petron Corporation; PILIPINAS SHELL PETROLEUM CORPORATION; with CESAR BUENAVENTURA and REY GAMBOA as chairman and President, respectively; CALTEX PHILIPPINES with FRANCIS ABLAN, President and Chief

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Same; Taxation; When revenue is earned by the government from the consuming public (except when only licenses are concerned), there is an exercise of the taxing power.Anent the unconstitutional use of the taxing power, the decision of the majority says that "the Board Order authorizing the proceeds generated by the increases" is "authorized by Presidential Decree No. 1456, as amended by Executive Order No. 137" (See Decision, pp. 7-8). Assuming that such is authorized by law, still a law, no matter how imperative, cannot prevail over the Constitution which grants only to Congress the power to tax. And indeed, there can be no denying the fact that when revenue is earned by the government from the consuming public (except when only licenses are concerned) there is an exercise of the taxing power. [Maceda vs. Energy Regulatory Board, 192 SCRA 363(1990)]

provisional increase of ONE PESO AND FORTY-TWO CENTAVOS (P1.42) per liter in the wholesale posted prices of their various petroleum products enumerated below, refined and/or marketed by them locally. 3 The petitioners submit that the above Order had been issued with grave abuse of discretion, tantamount to lack of jurisdiction, and correctible by Certiorari. The petitioner, Senator Ernesto Maceda, 4 also submits that the same was issued without proper notice and hearing in violation of Section 3, paragraph (e), of Executive Order No. 172; that the Board, in decreeing an increase, had created a new source for the Oil Price Stabilization Fund (OPSF), or otherwise that it had levied a tax, a power vested in the legislature, and/or that it had "re-collected", by an act of taxation, ad valorem taxes on oil which Republic Act No. 6965 had abolished. The petitioner, Atty. Oliver Lozano, 5 likewise argues that the Board's Order was issued without notice and hearing, and hence, without due process of law.

DECISION SARMIENTO, J.: The petitioners pray for injunctive relief, to stop the Energy Regulatory Board (Board hereinafter) from implementing its Order, dated September 21, 1990, mandating a provisional increase in the prices of petroleum and petroleum products, as follows: PRODUCTS IN PESOS PER LITER OPSF Premium Gasoline 1.7700 Regular Gasoline 1.7700 Avturbo 1.8664 Kerosene 1.2400 Diesel Oil 1.2400 Fuel Oil 1.4900 Feedstock 1.4900 LPG 0.8487 Asphalts 2.7160 Thinners 1.7121 1 It appears that on September 10, 1990, Caltex (Philippines), Inc., Pilipinas Shell Petroleum Corporation, and Petron Corporation proferred separate applications with the Board for permission to increase the wholesale posted prices of petroleum products, as follows: Caltex P3.2697 per liter Shell 2.0338 per liter Petron 2.00 per liter 2 and meanwhile, for provisional authority to increase temporarily such wholesale posted prices pending further proceedings.:On September 21, 1990, the Board, in a joint (on three applications) Order granted provisional relief as follows: WHEREFORE, considering the foregoing, and pursuant to Section 8 of Executive Order No. 172, this Board hereby grants herein applicants' prayer for provisional relief and, accordingly, authorizes said applicants a weighted average

The intervenor, the Trade Union of the Philippines and Allied Services (TUPAS/FSM)-W.F.T.U., 6 argues on the other hand, that the increase cannot be allowed since the respondents oil companies had not exhausted their existing oil stock which they had bought at old prices and that they cannot be allowed to charge new rates for stock purchased at such lower rates. The Court set the cases (in G.R. Nos. 95203-05) for hearing on October 25, 1990, in which Senator Maceda and his counsel, Atty. Alexander Padilla, argued. The Solicitor General, on behalf of the Board, also presented his arguments, together with Board Commissioner Rex Tantiangco. Attys. Federico Alikpala, Jr. and Joselia Poblador represented the oil firms (Petron and Caltex, respectively). The parties were thereafter required to submit their memorandums after which, the Court considered the cases submitted for resolution. On November 20, 1990, the Court ordered these cases consolidated. On November 27, 1990, we gave due course to both petitions. The Court finds no merit in these petitions. Senator Maceda and Atty. Lozano, in questioning the lack of a hearing, have overlooked the provisions of Section 8 of Executive Order No. 172, which we quote: "SECTION 8. Authority to Grant Provisional Relief . The Board may, upon the filing of an application, petition or complaint or at any stage thereafter and without prior hearing, on the basis of supporting papers duly verified or authenticated, grant provisional relief on motion of a party in the case or on its own initiative, without prejudice to a final decision after hearing, should the Board find that the pleadings, together with such affidavits, documents and other evidence which may be submitted in support of the motion, substantially support the provisional order: Provided, That the Board shall immediately schedule and conduct a hearing thereon within thirty (30) days thereafter, upon publication and notice to all affected parties.: nad As the Order itself indicates, the authority for provisional increase falls within the above provision. There is no merit in the Senator's contention that the "applicable" provision is Section 3, paragraph (e) of the Executive Order, which we quote: (e) Whenever the Board has determined that there is a shortage of any petroleum product, or when public interest so requires, it may take such steps as it may consider necessary, including the temporary adjustment of the levels of prices of petroleum products and the payment to the Oil Price Stabilization Fund created under Presidential Decree No. 1956 by persons or entities engaged in the petroleum industry of such amounts as may be determined by the Board, which will enable the importer to recover its cost of importation. What must be stressed is that while under Executive Order No. 172, a hearing is indispensable, it does not preclude the Board from ordering, ex parte, a provisional increase, as it did here, subject to its final disposition of whether or not: (1) to make it permanent; (2) to reduce or increase it further; or (3) to deny the application. Section 37 paragraph (e) is akin to a temporary restraining order or a writ of preliminary attachment issued by the courts, which are given ex parte, and which are subject to the resolution of the main case.

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Section 3, paragraph (e) and Section 8 do not negate each other, or otherwise, operate exclusively of the other, in that the Board may resort to one but not to both at the same time. Section 3(e) outlines the jurisdiction of the Board and the grounds for which it may decree a price adjustment, subject to the requirements of notice and hearing. Pending that, however, it may order, under Section 8, an authority to increase provisionally, without need of a hearing, subject to the final outcome of the proceeding. The Board, of course, is not prevented from conducting a hearing on the grant of provisional authority which is of course, the better procedure however, it cannot be stigmatized later if it failed to conduct one. As we held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board. 7 In the light of Section 8 quoted above, public respondent Board need not even have conducted formal hearings in these cases prior to issuance of its Order of 14 August 1987 granting a provisional increase of prices. The Board, upon its own discretion and on the basis of documents and evidence submitted by private respondents, could have issued an order granting provisional relief immediately upon filing by private respondents of their respective applications. In this respect, the Court considers the evidence presented by private respondents in support of their applications i.e., evidence showing that importation costs of petroleum products had gone up; that the peso had depreciated in value; and that the Oil Price Stabilization Fund (OPSF) had by then been depleted as substantial and hence constitutive of at least prima facie basis for issuance by the Board of a provisional relief order granting an increase in the prices of petroleum products. 8 We do not therefore find the challenged action of the Board to have been done in violation of the due process clause. The petitioners may contest however, the applications at the hearings proper. Senator Maceda's attack on the Order in question on premises that it constitutes an act of taxation or that it negates the effects of Republic Act No. 6965, cannot prosper. Republic Act No. 6965 operated to lower taxes on petroleum and petroleum products by imposing specific taxes rather than ad valorem taxes thereon; it is, not, however, an insurance against an "oil hike", whenever warranted, or is it a price control mechanism on petroleum and petroleum products. The statute had possibly forestalled a larger hike, but it operated no more.: nad The Board Order authorizing the proceeds generated by the increase to be deposited to the OPSF is not an act of taxation. It is authorized by Presidential Decree No. 1956, as amended by Executive Order No. 137, as follows: SECTION 8. There is hereby created a Trust Account in the books of accounts of the Ministry of Energy to be designated as Oil Price Stabilization Fund (OPSF) for the purpose of minimizing frequent price changes brought about by exchange rate adjustments and/or changes in world market prices of crude oil and imported petroleum products. The Oil Price Stabilization Fund (OPSF) may be sourced from any of the following: a) Any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum products subject to tax under this Decree arising from exchange rate adjustment, as may be determined by the Minister of Finance in consultation with the Board of Energy; b) Any increase in the tax collection as a result of the lifting of tax exemptions of government corporations, as may be determined by the Minister of Finance in consultation with the Board of Energy; c) Any additional amount to be imposed on petroleum products to augment the resources of the Fund through an appropriate Order that may be issued by the Board of Energy requiring payment by persons or companies engaged in the business of importing, manufacturing and/or marketing petroleum products; d) Any resulting peso cost differentials in case the actual peso costs paid by oil companies in the importation of crude oil and petroleum products is less than the peso costs computed using the reference foreign exchange rates as fixed by the Board of Energy. Anent claims that oil companies cannot charge new prices for oil purchased at old rates, suffice it to say that the increase in question was not prompted alone by the increase in world oil prices arising from tension in the Persian Gulf. What the Court gathers from the pleadings as well as events of which it takes judicial notice, is that: (1) as of June 30, 1990, the OPSF has incurred a deficit of P6.1 Billion; (2) the exchange rate has fallen to P28.00 to $1.00; (3) the country's balance of payments is expected to reach $1 Billion; (4) our trade deficit is at $2.855 Billion as of the first nine months of the year.

Evidently, authorities have been unable to collect enough taxes necessary to replenish the OPSF as provided by Presidential Decree No. 1956, and hence, there was no available alternative but to hike existing prices. The OPSF, as the Court held in the aforecited CACP cases, must not be understood to be a funding designed to guarantee oil firms' profits although as a subsidy, or a trust account, the Court has no doubt that oil firms make money from it. As we held there, however, the OPSF was established precisely to protect the consuming public from the erratic movement of oil prices and to preclude oil companies from taking advantage of fluctuations occurring every so often. As a buffer mechanism, it stabilizes domestic prices by bringing about a uniform rate rather than leaving pricing to the caprices of the market. In all likelihood, therefore, an oil hike would have probably been imminent, with or without trouble in the Gulf, although trouble would have probably aggravated it.: nad The Court is not to be understood as having prejudged the justness of an oil price increase amid the above premises. What the Court is saying is that it thinks that based thereon, the Government has made out a prima facie case to justify the provisional increase in question. Let the Court therefore make clear that these findings are not final; the burden, however, is on the petitioners' shoulders to demonstrate the fact that the present economic picture does not warrant a permanent increase. There is no doubt that the increase in oil prices in question (not to mention another one impending, which the Court understands has been under consideration by policy-makers) spells hard(er) times for the Filipino people. The Court can not, however, debate the wisdom of policy or the logic behind it (unless it is otherwise arbitrary), not because the Court agrees with policy, but because the Court is not the suitable forum for debate. It is a question best judged by the political leadership which after all, determines policy, and ultimately, by the electorate, that stands to be better for it or worse off, either in the short or long run. At this point, the Court shares the indignation of the people over the conspiracy of events and regrets its own powerlessness, if by this Decision it has been powerless. The constitutional scheme of things has simply left it with no choice. In fine, we find no grave abuse of discretion committed by the respondent Board in issuing its questioned Order. WHEREFORE, these petitions are DISMISSED. No costs. SO ORDERED. Separate Opinions PARAS, J., dissenting: I dissent. In fixing the oil prices complained of, the Energy Regulatory Board (ERB) gravely abused its discretion (1) in approving the prices without due process of law, and (2) in exercising the taxing power in gross violation of the 1987 Constitution which vests such power only in Congress.: nad With respect to due process, it will be noted that it is Sec. 3(e) (and not Sec. 8) of Ex. Order No. 172 which should apply to the instant case (and therefore a hearing is essential) 1 for it is Sec. 3(e) that refers to "the temporary adjustment of the levels of prices of petroleum products" or instances "when public interest so requires." Sec. 8, which is relied upon by the majority opinion, does NOT speak of price increases. Additionally it is clear that in the instant case, "public interest" [also mentioned in Sec. 3 (e)] necessitated a prior hearing. Anent the unconstitutional use of the taxing power, the decision of the majority says that "the Board Order authorizing the proceeds generated by the increases" is "authorized by Presidential Decree No. 1456, as amended by Executive Order No. 137" (See Decision, pp. 7-8). Assuming that such is authorized by law, still a law, no matter how imperative, cannot prevail over the Constitution which grants only to Congress the power to tax. And indeed, there can be no denying the fact that when revenue is earned by the government from the consuming public (except when only licenses are concerned) there is an exercise of the taxing power.

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I am of course aware of the dangerous economic quagmire to which our country has been plunged by the sadism precipitating the Middle East crisis, but certainly one error cannot be corrected by another error. Besides there are more significant and clear-cut reasons for our economic crisis: namely, the intentional depreciation (actually, a devaluation) of our already demeaned currency, our unfortunate liberalization of imports, and our slavish subservience to the dictates of the IMF. Endnotes 1. Rollo, 45. 2. Id., 32. 3. Id., 44-45. 4. He is the petitioner in G.R. Nos. 95203-05. 5. He is the other petitioner in G.R. Nos. 95119-21. 6. It is the intervenor in G.R. Nos. 95203-05. 7. Nos. 78888-90, 79501-03, 79590-92, June 23, 1988, 162 SCRA 521. 8. Supra, at 535.

The defendants have been convicted upon a complaint charging them with the offense of writing, publishing, and circulating a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands. The complaint is based upon section 8 of Act No. 292 of the Commission, which is as follows: Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities, or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding two years, or both, in the discretion of the court. The alleged libel was published as an editorial in the issue of the "Manila Freedom" of April 6, 1902, under the caption of "A few hard facts." The Attorney-General in his brief indicates the following passages of the article as those upon which he relies to sustain the conviction: Sidney Adamson, in a late letter in "Leslie's Weekly," has the following to say of the action of the Civil Commission in appointing rascally natives to important Government positions: "It is a strong thing to say, but nevertheless true, that the Civil Commission, through its exinsurgent office holders, and by its continual disregard for the records of natives obtained during the military rule of the Islands, has, in its distribution of offices, constituted a protectorate over a set of men who should be in jail or deported. . . . [Reference is then made to the appointment of one Tecson as justice of the peace.] This is the kind of foolish work that the Commission is doing all over the Islands, reinstating insurgents and rogues and turning down the men who have during the struggle, at the risk of their lives, aided the Americans." xxx xxx xxx There is no doubt but that the Filipino office holders of the Islands are in a good many instances rascals. xxx xxx xxx The commission has exalted to the highest positions in the Islands Filipinos who are alleged to be notoriously corrupt and rascally, and men of no personal character. xxx xxx xxx Editor Valdez, of "Miau," made serious charges against two of the native Commissioners charges against Trinidad H. Pardo de Tavera, which, if true, would brand the man as a coward and a rascal, and with what result? . . . [Reference is then made to the prosecution and conviction of Valdez for libel "under a law which specifies that the greater the truth the greater the libel."] Is it the desire of the people of the United States that the natives against whom these charges have been made (which, if true, absolutely vilify their personal characters) be permitted to retain their seats on the Civil Commission, the executive body of the Philippine Government, without an investigation?

PARAS, J., dissenting: 1. The majority opinion itself concedes that when See. 3(e) is applicable, a hearing is indispensable (See Decision, p. 6).

[No. 1051. May 19, 1903.] THE UNITED STATES, complainant and appellee, vs. FRED L. DORR ET AL., defendants and appellants. 1.CRIMINAL LAW; SEDITION; GOVERNMENT DEFINED.The term "government" as employed in Act No. 292 of the United States Philippine Commission is used in the abstract sense of the existing political system as distinguished from the concrete organism of the Government. 2.CRIMINAL PROCEDURE; COMPLAINT OR INFORMATION.When an offense may be committed in any of several different modes, and the complaint alleges the crime to have been committed in two or more modes, it is sufficient to prove the offense committed in any one of them. 3.ID.; SEDITION.The publication of an article can not be punished under Act No. 202 of the United States Philippine Commission as having seditious tendencies unless it has a tendency to produce disaffection or a feeling incompatible with a disposition to remain loyal to the Government and obedient to its laws. 4.ID.; ID.The publication of an article abusive of the United States Philippine Commission and its members is not a libel upon the Government and does not fall within said Act No. 292 of the United States Philippine Commission. [United States vs. Dorr, 2 Phil., 332(1903)] G.R. No. 1051 LADD, J.: May 19, 1903

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xxx xxx xxx It is a notorious fact that many branches of the Government organized by the Civil Commission are rotten and corrupt. The fiscal system, upon which life, liberty, and justice depends, is admitted by the AttorneyGeneral himself to be most unsatisfactory. It is a fact that the Philippine judiciary is far from being what it should. Neither fiscals nor judges can be persuaded to convict insurgents when they wish to protect them. xxx xxx xxx Now we hear all sorts of reports as to rottenness existing in the province [of Tayabas], and especially the northern end of it; it is said that it is impossible to secure the conviction of lawbreakers and outlaws by the native justices, or a prosecution by the native fiscals. xxx xxx xxx The long and short of it is that Americans will not stand for an arbitrary government, especially when evidences of carpetbagging and rumors of graft are too thick to be pleasant. We do not understand that it is claimed that the defendants succeeded in establishing at the trial the truth of any of the foregoing statements. The only question which we have considered is whether their publication constitutes an offense under section 8 of Act No. 292, above cited. Several allied offenses or modes of committing the same offense are defined in that section, viz: (1) The uttering of seditious words or speeches; (2) the writing, publishing, or circulating of scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands; (3) the writing, publishing, or circulating of libels which tend to disturb or obstruct any lawful officer in executing his office; (4) or which tend to instigate others to cabal or meet together for unlawful purposes; (5) or which suggest or incite rebellious conspiracies or riots; (6) or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government; (7) knowingly concealing such evil practices. The complaint appears to be framed upon the theory that a writing, in order to be punishable as a libel under this section, must be of a scurrilous nature and directed against the Government of the United States or the Insular Government of the Philippine Islands, and must, in addition, tend to some one of the results enumerated in the section. The article in question is described in the complaint as "a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands, which tends to obstruct the lawful officers of the United States and the Insular Government of the Philippine Islands in the execution of their offices, and which tends to instigate others to cabal and meet together for unlawful purposes, and which suggests and incites rebellious conspiracies, and which tends to stir up the people against the lawful authorities, and which disturbs the safety and order of the Government of the United States and the Insular Government of the Philippine Islands." But it is "a wellsettled rule in considering indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more modes specified, it is sufficient to prove the offense committed in any one of them, provided that it be such as to constitute the substantive offense" (Com. vs. Kneeland, 20 Pick., Mass., 206, 215), and the defendants may, therefore, be convicted if any one of the substantive charges into which the complaint may be separated has been made out. We are all, however, agreed upon the proposition that the article in question has no appreciable tendency to "disturb or obstruct any lawful officer in executing his office," or to "instigate" any person or class of persons "to cabal or meet together for unlawful purposes," or to "suggest or incite rebellious conspiracies or riots," or to "stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government." All these various tendencies, which are described in section 8 of Act No. 292, each one of which is made an element of a certain form of libel, may be characterized in general terms as seditious tendencies. This is recognized in the

description of the offenses punished by this section, which is found in the title of the act, where they are defined as the crimes of the "seditious utterances, whether written or spoken." Excluding from consideration the offense of publishing "scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands," which may conceivably stand on a somewhat different footing, the offenses punished by this section all consist in inciting, orally or in writing, to acts of disloyalty or disobedience to the lawfully constituted authorities in these Islands. And while the article in question, which is, in the main, a virulent attack against the policy of the Civil Commission in appointing natives to office, may have had the effect of exciting among certain classes dissatisfaction with the Commission and its measures, we are unable to discover anything in it which can be regarded as having a tendency to produce anything like what may be called disaffection, or, in other words, a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. There can be no conviction, therefore, for any of the offenses described in the section on which the complaint is based, unless it is for the offense of publishing a scurrilous libel against the Government of the of the United States or the Insular Government of the Philippine Islands. Can the article be regarded as embraced within the description of "scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands?" In the determination of this question we have encountered great difficulty, by reason of the almost entire lack of American precedents which might serve as a guide in the construction of the law. There are, indeed, numerous English decisions, most of them of the eighteenth century, on the subject of libelous attacks upon the "Government, the constitution, or the law generally," attacks upon the Houses of Parliament, the Cabinet, the Established Church, and other governmental organisms, but these decisions are not now accessible to us, and, if they were, they were made under such different conditions from those which prevail at the present day, and are founded upon theories of government so foreign to those which have inspired the legislation of which the enactment in question forms a part, that they would probably afford but little light in the present inquiry. In England, in the latter part of the eighteenth century, any "written censure upon public men for their conduct as such," as well as any written censure "upon the laws or upon the institutions of the country," would probably have been regarded as a libel upon the Government. (2 Stephen, History of the Criminal Law of England, 348.) This has ceased to be the law in England, and it is doubtful whether it was ever the common law of any American State. "It is true that there are ancient dicta to the effect that any publication tending to "possess the people with an ill opinion of the Government" is a seditious libel ( per Holt, C. J., in R. vs. Tuchin, 1704, 5 St. Tr., 532, and Ellenborough, C. J., in R. vs. Cobbett, 1804, 29 How. St. Tr., 49), but no one would accept that doctrine now. Unless the words used directly tend to foment riot or rebellion or otherwise to disturb the peace and tranquility of the Kingdom, the utmost latitude is allowed in the discussion of all public affairs." (11 Enc. of the Laws of England, 450.) Judge Cooley says (Const. Lim., 528): "The English common law rule which made libels on the constitution or the government indictable, as it was administered by the courts, seems to us unsuited to the condition and circumstances of the people of America, and therefore never to have been adopted in the several States." We find no decisions construing the Tennessee statute (Code, sec. 6663), which is apparently the only existing American statute of a similar character to that in question, and from which much of the phraseology of then latter appears to have been taken, though with some essential modifications. The important question is to determine what is meant in section 8 of Act No. 292 by the expression "the Insular Government of the Philippine Islands." Does it mean in a general and abstract sense the existing laws and institutions of the Islands, or does it mean the aggregate of the individuals by whom the government of the Islands is, for the time being, administered? Either sense would doubtless be admissible. We understand, in modern political science, . . . by the term government, that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are unnecessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Government is the aggregate of authorities which rule a society. By " dministration, again, we understand in modern times, and especially in more or less free countries, the aggregate of those persons in whose hands the reins of government are for the time being (the chief ministers or heads of departments)."

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(Bouvier, Law Dictionary, 891.) But the writer adds that the terms "government" and "administration" are not always used in their strictness, and that "government" is often used for "administration." In the act of Congress of July 14, 1798, commonly known as the "Sedition Act," it is made an offense to "write, print, utter, or published," or to "knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said Government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute, or to excite against them or either or any of them the hatred of the good people of the United States," etc. The term "government" would appear to be used here in the abstract sense of the existing political system, as distinguished from the concrete organisms of the Government the Houses of Congress and the Executive which are also specially mentioned. Upon the whole, we are of the opinion that this is the sense in which the term is used in the enactment under consideration. It may be said that there can be no such thing as a scurrilous libel, or any sort of a libel, upon an abstraction like the Government in the sense of the laws and institutions of a country, but we think an answer to this suggestion is that the expression "scurrilous libel" is not used in section 8 of Act No. 292 in the sense in which it is used in the general libel law (Act No. 277) that is, in the sense of written defamation of individuals but in the wider sense, in which it is applied in the common law to blasphemous, obscene, or seditious publications in which there may be no element of defamation whatever. "The word 'libel' as popularly used, seems to mean only defamatory words; but words written, if obscene, blasphemous, or seditious, are technically called libels, and the publication of them is, by the law of England, an indictable offense." (Bradlaugh vs. The Queen, 3 Q. B. D., 607, 627, per Bramwell L. J. See Com. vs. Kneeland, 20 Pick., 206, 211.) While libels upon forms of government, unconnected with defamation of individuals, must in the nature of things be of uncommon occurrence, the offense is by no means an imaginary one. An instance of a prosecution for an offense essentially of this nature is Republica vs. Dennie, 4 Yeates (Pa.), 267, where the defendant was indicted "as a factious and seditious person of a wicked mind and unquiet and turbulent disposition and conversation, seditiously, maliciously, and willfully intending, as much as in him lay, to bring into contempt and hatred the independence of the United States, the constitution of this Commonwealth and of the United States, to excite popular discontent and dissatisfaction against the scheme of polity instituted, and upon trial in the said United States and in the said Commonwealth, to molest, disturb, and destroy the peace and tranquility of the said United States and of the said Commonwealth, to condemn the principles of the Revolution, and revile, depreciate, and scandalize the characters of the Revolutionary patriots and statesmen, to endanger, subvert, and totally destroy the republican constitutions and free governments of the said United States and this Commonwealth, to involve the said United States and this Commonwealth in civil war, desolation, and anarchy, and to procure by art and force a radical change and alteration in the principles and forms of the said constitutions and governments, without the free will, wish, and concurrence of the people of the said United States and this Commonwealth, respectively," the charge being that "to fulfill, perfect, and bring to effect his wicked, seditious, and detestable intentions aforesaid he . . . falsely, maliciously, factiously, and seditiously did make, compose, write, and publish the following libel, to wit; 'A democracy is scarcely tolerable at any period of national history. Its omens are always sinister and its powers are unpropitious. With all the lights or experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France and terminated in despotism. it was tried in England and rejected with the utmost loathing and abhorrence. It is on its trial here and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villainy of some men can devise, the folly of others receive, and both establish, in despite of reason, reflection, and sensation.'"

An attack upon the lawfully established system of civil government in the Philippine Islands, like that which Dennie was accused of making upon the republican form of government lawfully established in the United States and in the State of Pennsylvania would, we think, if couched in scandalous language, constitute the precise offense described in section 8 of Act No. 292 as a scurrilous libel against the Insular Government of the Philippine Islands. Defamation of individuals, whether holding official positions or not, and whether directed to their public conduct or to their private life, may always be adequately punished under the general libel law. Defamation of the Civil Commission as an aggregation, it being "a body of persons definite and small enough for its individual members to be recognized as such" (Stephen, Digest of the Criminal Law, art. 277), as well as defamation of any of the individual members of the Commission or of the Civil Governor, either in his public capacity or as a private individual, may be so punished. The general libel law enacted by the Commission was in force when Act No. 292, was passed. There was no occasion for any further legislation on the subject of libels against the individuals by whom the Insular Government is administered against the Insular Government in the sense of the aggregate of such individuals. There was occasion for stringent legislation against seditious words or libels, and that is the main if not the sole purpose of the section under consideration. It is not unreasonable to suppose that the Commission, in enacting this section, may have conceived of attacks of a malignant or scurrilous nature upon the existing political system of the United States, or the political system established in these Islands by the authority of the United States, as necessarily of a seditious tendency, but it is not so reasonable to suppose that they conceived of attacks upon the personnel of the government as necessarily tending to sedition. Had this been their view it seems probable that they would, like the framers of the Sedition Act of 1798, have expressly and specifically mentioned the various public officials and collegiate governmental bodies defamation of which they meant to punish as sedition. The article in question contains no attack upon the governmental system of the United States, and it is quite apparent that, though grossly abusive as respects both the Commission as a body and some of its individual members, it contains no attack upon the governmental system by which the authority of the United States is enforced in these Islands. The form of government by a Civil Commission and a Civil Governor is not assailed. It is the character of the men who are intrusted with the administration of the government that the writer is seeking to bring into disrepute by impugning the purity of their motives, their public integrity, and their private morals, and the wisdom of their policy. The publication of the article, therefore, no seditious tendency being apparent, constitutes no offense under Act No. 292, section 8. The judgment of conviction is reversed and the defendants are acquitted, with costs de oficio. Arellano, C.J. Torres, Willard and Mapa, JJ., concur.

G.R. No. 86695. September 3, 1992.* MARIA ELENA MALAGA, doing business under the name B.E. CONSTRUCTION; JOSIELEEN NAJARRO, doing business under the name BEST BUILT CONSTRUCTION; JOSE N. OCCEA, doing business under the name THE FIRM OF JOSE N. OCCEA; and the ILOILO BUILDERS CORPORATION, petitioners, vs. MANUEL R. PENACHOS, JR., ALFREDO MATANGGA, ENRICO TICAR AND TERESITA VILLA-NUEVA, in their respective capacities as Chairman and Members of the Pre-qualification Bids and Awards Committee (PBAC)-BENIGNO PANISTANTE, in his capacity as President of Iloilo State College of Fisheries, as well as in their respective personal capacities; and HON. LODRIGIO L. LEBAQUIN, respondents. Administrative Law; Government instrumentality, defined; Iloilo State College of Fisheries is a government instrumentality; Applicability of P.D. 188.The 1987 Administrative Code defines a government instrumentality as follows: Instrumentality refers to any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers,

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administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions, and government-owned or controlled corporations. (Sec. 2 (5) Introductory Provisions). The same Code describes a chartered institution thus: Chartered institutionrefers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges, and the monetary authority of the state. (Sec. 2 (12) Introductory Provisions). It is clear from the above definitions that ISCOF is a chartered institution and is therefore covered by P.D. 1818. Government contracts; Public bidding requirement; Injunctions in cases involving infrastructure projects. It is apparent that the present controversy did not arise from the discretionary acts of the administrative body nor does it involve merely technical matters. What is involved here is non-compliance with the procedural rules on bidding which required strict observance. The purpose of the rules implementing P.D. 1594 is to secure competitive bidding and to prevent favoritism, collusion and fraud in the award of these contracts to the detriment of the public. This purpose was defeated by the irregularities committed by PBAC. It has been held that the three principles in public bidding are the offer to the public, an opportunity for competition and a basis for exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption. Same; Same; Same.P.D. 1818 was not intended to shield from judicial scrutiny irregularities committed by administrative agencies such as the anomalies above described. Hence, the challenged restraining order was not improperly issued by the respondent judge and the writ of preliminary injunction should not have been denied. We note from Annex Q of the private respondents memorandum, however, that the subject project has already been 100% completed as to the Engineering Standard. This fait accompli has made the petition for a writ of preliminary injunction moot and academic. Same; Same; Same; Liabilities of private respondents.It has been held in a long line of cases that a contract granted without the competitive bidding required by law is void, and the party to whom it is awarded cannot benefit from it. It has not been shown that the irregularities committed by PBAC were induced by or participated in by any of the contractors. Hence, liability shall attach only to the private respondents for the prejudice sustained by the petitioners as a result of the anomalies described above. [Malagas vs. Penachos, Jr., 213 SCRA 516(1992)] DECISION CRUZ, J.: This controversy involves the extent and applicability of P.D. 1818, which prohibits any court from issuing injunctions in cases involving infrastructure projects of the government. The facts are not disputed. The Iloilo State College of Fisheries (henceforth ISCOF) through its Pre-qualification, Bids and Awards Committee (henceforth PBAC) caused the publication in the November 25, 26, 28, 1988 issues of the Western Visayas Daily an Invitation to Bid for the construction of a Micro Laboratory Building at ISCOF. The notice announced that the last day for the submission of pre-qualification requirements (PRE C-1)*was December 2, 1988, and that the bids would be received and opened on December 12, 1988, at 3 o'clock in the afternoon.[1] Petitioners Maria Elena Malaga and Josieleen Najarro, respectively doing business under the name of B.E. Construction and Best Built Construction, submitted their pre-qualification documents at two o'clock in the afternoon of December 2, 1988. Petitioner Jose Occea submitted his own PRE-C1 on December 5, 1988. All three of them were not allowed to participate in the bidding because their documents were considered late, having been submitted

after the cut-off time of ten o'clock in the morning of December 2, 1988. On December 12, 1988, the petitioners filed a complaint with the Regional Trial Court of Iloilo against the chairman and members of PBAC in their official and personal capacities. The plaintiffs claimed that although they had submitted their PRE-C1 on time, the PBAC refused without just cause to accept them. As a result, they were not included in the list of pre-qualified bidders, could not secure the needed plans and other documents, and were unable to participate in the scheduled bidding. In their prayer, they sought the resetting of the December 12, 1988 bidding and the acceptance of their PRE-C1 documents. They also asked that if the bidding had already been conducted, the defendants be directed not to award the project pending resolution of their complaint. On the same date, Judge Lodrigio L. Lebaquin issued a restraining order prohibiting PBAC from conducting the bidding and awarding the project.[2] On December 16, 1988, the defendants filed a motion to lift the restraining order on the ground that the court was prohibited from issuing restraining orders, preliminary injunctions and preliminary mandatory injunctions by P.D. 1818. The decree reads pertinently as follows: Section 1. No Court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or amining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. The movants also contended that the question of the propriety of a preliminary injunction had become moot and academic because the restraining order was received late, at 2 o'clock in the afternoon of December 12, 1988, after the bidding had been conducted and closed at eleven thirty in the morning of that date. In their opposition to the motion, the plaintiffs argued against the applicability of P.D. 1818, pointing out that while ISCOF was a state college, it had its own charter and separate existence and was not part of the national government or of any local political subdivision. Even if P.D.1818 were applicable, the prohibition presumed a valid and legal government project, not one tainted with anomalies like the project at bar. They also cited Filipinas Marble Corp. vs. IAC,[3] where the Court allowed the issuance of a writ of preliminary injunction despite a similar prohibition found in P.D. 385. The Court therein stated that: The government, however, is bound by basic principles of fairness and decency under the due process clause of the Bill of Rights. P.D. 385 was never meant to protect officials of government-lending institutions who take over the management of a borrower corporation, lead that corporation to bankruptcy through mismanagement or misappropriation of its funds, and who, after ruining it, use the mandatory provisions of the decree to avoid the consequences of their misdeeds (p. 188, underscoring supplied). On January 2, 1989, the trial court lifted the restraining order and denied the petition for preliminary injunction. It declared that the building sought to be constructed at the ISCOF was an infrastructure project of the government falling within the coverage of P.D. 1818. Even if it were not, the petition for the issuance of a writ of preliminary injunction would still fail because the sheriff's return showed that PBAC was served a copy of the restraining order after the bidding sought to be restrained had already been held. Furthermore, the members of the PBAC could not be restrained from awarding the project because the authority to do so was lodged in the President of the ISCOF, who was not a party to the case.[4] In the petition now before us, it is reiterated that P.D. 1818 does not cover the ISCOF because of its separate and distinct corporate personality. It is also stressed again that the prohibition under P.D. 1818 could not apply to the

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present controversy because the project was vitiated with irregularities, to wit: 1. The invitation to bid as published fixed the deadline of submission of pre-qualification document on December 2, 1988 without indicating any time, yet after 10:00 o'clock of the given date, the PBAC already refused to accept petitioners' documents. 2. The time and date of bidding was published as December 12, 1988 at 3:00 p.m. yet it was held at 10:00 o'clock in the morning. 3. Private respondents, for the purpose of inviting bidders to participate, issued a mimeographed "Invitation to Bid" form, which by law (P.D. 1594 and Implementing Rules, Exh. B-1) is to contain the particulars of the project subject of bidding for the purposes of (i) enabling bidders to make an intelligent and accurate bids; (ii) for PBAC to have a uniform basis for evaluating the bids; (iii) to prevent collusion between a bidder and the PBAC, by opening to all the particulars of a project. Additionally, the Invitation to Bid prepared by the respondents and the Itemized Bill of Quantities therein were left blank.[5] And although the project in question was a "Construction," the private respondents used an Invitation to Bid form for "Materials."[6] The petitioners also point out that the validity of the writ of preliminary injunction had not yet become moot and academic because even if the bids had been opened before the restraining order was issued, the project itself had not yet been awarded. The ISCOF president was not an indispensable party because the signing of the award was merely a ministerial function which he could perform only upon the recommendation of the Award Committee. At any rate, the complaint had already been duly amended to include him as a party defendant. In their Comment, the private respondents maintain that since the members of the board of trustees of the ISCOF are all government officials under Section 7 of P.D. 1523 and since the operations and maintenance of the ISCOF are provided for in the General Appropriations Law, it should be considered a government institution whose infrastructure project is covered by P.D. 1818. Regarding the schedule for pre-qualification, the private respondents insist that PBAC posted on the ISCOF bulletin board an announcement that the deadline for the submission of pre-qualification documents was at 10 o'clock of December 2, 1988, and the opening of bids would be held at 1 o'clock in the afternoon of December 12, 1988. As of ten o'clock in the morning of December 2, 1988, B.E. Construction and Best Built Construction had filed only their letters of intent. At two o'clock in the afternoon, B.E. and Best Built file through their common representative, Nenette Garuello, their pre-qualification documents which were admitted but stamped "submitted late." The petitioners were informed of their disqualification on the same date, and the disqualification became final on December 6, 1988. Having failed to take immediate action to compel PBAC to pre-qualify them despite their notice of disqualification, they cannot now come to this Court to question the bidding proper in which they had not participated. In the petitioners' Reply, they raise as an additional irregularity the violation of the rule that where the estimated project cost is from P1M to P5M, the issuance of plans, specifications and proposal book forms should be made thirty days before the date of bidding.[7] They point out that these forms were issued only on December 2, 1988, and not at the latest on November 12, 1988, the beginning of the 30-day period prior to the scheduled bidding. In their Rejoinder, the private respondents aver that the documents of B.E. and Best Built were received although filed late and were reviewed by the Award Committee, which discovered that the contractors had expired licenses. B.E.'s temporary certificate of Renewal of Contractor's License was valid only until September 30, 1988, while Best Built's license was valid only up to June 30, 1988. The Court has considered the arguments of the parties in light of their testimonial and documentary evidence and the applicable laws and jurisprudence. It finds for the petitioners. The 1987 Administrative Code defines a government instrumentality as follows: Instrumentality refers to any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies,

chartered institutions, and government-owned or controlled corporations. (Sec. 2 (5) Introductory Provisions). The same Code describes a chartered institution thus: Chartered institution - refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges, and the monetary authority of the state. (Sec. 2 (12) Introductory Provisions). It is clear from the above definitions that ISCOF is a chartered institution and is therefore covered by P.D. 1818. There are also indications in its charter that ISCOF is a government instrumentality. First, it was created in pursuance of the integrated fisheries development policy of the State, a priority program of the government to effect the socio-economic life of the nation. Second, the Treasurer of the Republic of the Philippines shall also be the exofficio Treasurer of the state college with its accounts and expenses to be audited by the Commission on Audit or its duly authorized representative. Third, heads of bureaus and offices of the National Government are authorized to loan or transfer to it, upon request of the president of the state college, such apparatus, equipment, or supplies and even the services of such employees as can be spared without serious detriment to public service. Lastly, an additional amount of P1.5M had been appropriated out of the funds of the National Treasury and it was also decreed in its charter that the funds and maintenance of the state college would henceforth be included in the General Appropriations Law.[8] Nevertheless, it does not automatically follow that ISCOF is covered by the prohibition in the said decree. In the case of Datiles and Co. vs. Sucaldito,[9] this Court interpreted a similar prohibition contained in P.D. 605, the law after which P.D. 1818 was patterned. It was there declared that the prohibition pertained to the issuance of injunctions or restraining orders by courts against administrative acts in controversies involving facts or the exercise of discretion in technical cases. The Court observed that to allow the courts to judge these matters would disturb the smooth functioning of the administrative machinery. Justice Teodoro Padilla made it clear, however, that on issues definitely outside of this dimension and involving questions of law, courts could not be prevented by P.D. No. 605 from exercising their power to restrain or prohibit administrative acts. We see no reason why the above ruling should not apply to P.D. 1818. There are at least two irregularities committed by PBAC that justified injunction of the bidding and the award of the project. First, PBAC set deadlines for the filing of the PRE-C1 and the opening of bids and then changed these deadlines without prior notice to prospective participants. Under the Rules Implementing P.D. 1594, prescribing policies and guidelines for government infrastructure contracts, PBAC shall provide prospective bidders with the Notice to Pre-qualification and other relevant information regarding the proposed work. Prospective contractors shall be required to file their ARC-Contractors Confidential Application for Registration & Classifications & the PRE-C2 Confidential Pre-qualification Statement for the Project (prior to the amendment of the rules, this was referred to as Pre-C1) not later than the deadline set in the published Invitation to Bid, after which date no PRE-C2 shall be submitted and received. Invitations to Bid shall be advertised for at least three times within a reasonable period but in no case less than two weeks in at least two newspapers of general circulations.[10] PBAC advertised the pre-qualification deadline as December 2, 1988, without stating the hour thereof, and announced that the opening of bids would be at 3 o'clock in the afternoon of December 12, 1988. This schedule was changed and a notice of such change was merely posted at the ISCOF bulletin board. The notice advanced the cutoff time for the submission of pre-qualification documents to 10 o'clock in the morning of December 2, 1988, and the opening of bids to 1 o'clock in the afternoon of December 12, 1988. The new schedule caused the pre-disqualification of the petitioners as recorded in the minutes of the PBAC meeting held on December 6, 1988. While it may be true that there were fourteen contractors who were pre-qualified despite

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the change in schedule, this fact did not cure the defect of the irregular notice. Notably, the petitioners were disqualified because they failed to meet the new deadline and not because of their expired licenses.** We have held that where the law requires a previous advertisement before government contracts can be awarded, non-compliance with the requirement will, as a general rule, render the same void and of no effect.[11] The fact that an invitation for bids has been communicated to a number of possible bidders is not necessarily sufficient to establish compliance with the requirements of the law if it is shown that other possible bidders have not been similarly notified.[12] Second, PBAC was required to issue to pre-qualified applicants the plans, specifications and proposal book forms for the project to be bid thirty days before the date of bidding if the estimated project cost was between P1M and P5M. PBAC has not denied that these forms were issued only on December 2, 1988, or only ten days before the bidding scheduled for December 12, 1988. At the very latest, PBAC should have issued them on November 12, 1988, or 30 days before the scheduled bidding. It is apparent that the present controversy did not arise from the discretionary acts of the administrative body nor does it involve merely technical matters. What is involved here is non-compliance with the procedural rules on bidding which required strict observance. The purpose of the rules implementing P.D. 1594 is to secure competitive bidding and to prevent favoritism, collusion and fraud in the award of these contracts to the detriment of the public. This purpose was defeated by the irregularities committed by PBAC. It has been held that the three principles in public bidding are the offer to the public, an opportunity for competition and a basis for exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption.[13] In the case at bar, it was the lack of proper notice regarding the pre-qualification requirement and the bidding that caused the elimination of petitioners B.E. and Best Built. It was not because of their expired licenses, as private respondents now claim. Moreover, the plans and specifications which are the contractors' guide to an intelligent bid, were not issued on time, thus defeating the guaranty that contractors be placed on equal footing when they submit their bids. The purpose of competitive bidding is negated if some contractors are informed ahead of their rivals of the plans and specifications that are to be the subject of their bids. P.D. 1818 was not intended to shield from judicial scrutiny irregularites committed by administrative agencies such as the anomalies above described. Hence, the challenged restraining order was not improperly issued by the respondent judge and the writ of preliminary injunction should not have been denied. We note from Annex Q of the private respondent's memorandum, however, that the subject project has already been "100% completed as to the Engineering Standard." This fait accompli has made the petition for a writ of preliminary injunction moot and academic. We come now to the liabilities of the private respondents. It has been held in a long line of cases that a contract granted without the competitive bidding required by law is void, and the party to whom it is awarded cannot benefit from it.[14] It has not been shown that the irregularities committed by PBAC were induced by or participated in by any of the contractors. Hence, liability shall attach only to the private respondents for the prejudice sustained by the petitioners as a result of the anomalies described above. As there is no evidence of the actual loss suffered by the petitioners, compensatory damage may not be awarded to them. Moral damages do not appear to be due either. Even so, the Court cannot close its eyes to the evident bad faith that characterized the conduct of the private respondents, including the irregularities in the announcement of the bidding and their efforts to persuade the ISCOF president to award the project after two days from receipt of the restraining order and before they moved to lift such order. For such questionable acts, they are liable in nominal damages at least in accordance with Article 2221 of the Civil Code, which states: Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant may be vindicated or, recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.

These damages are to be assessed against the private respondents in the amount of P10,000.00 each, to be paid separately for each of petitioners B.E. Construction and Best Built Construction. The other petitioner, Occea Builders, is not entitled to relief because it admittedly submitted its pre-qualification documents on December 5, 1988, or three days after the deadline. WHEREFORE, judgment is hereby rendered: a) upholding the restraining order dated December 12, 1988, as not covered by the prohibition in P.D. 1818; b) ordering the chairman and the members of the PBAC board of trustees, namely, Manuel R. Penachos, Jr., Alfredo Matangga, Enrico Ticar, and Teresita Villanueva, to each pay separately to petitioners Maria Elena Malaga and Josieleen Najarro nominal damages of P10,000.00 each; and c) removing the said chairman and members from the PBAC board of trustees, or whoever among them is still incumbent therein, for their malfeasance in office. Costs against PBAC. Let a copy of this decision be sent to the Office of the Ombudsman. SO ORDERED.Grio-Aquino, Medialdea, and Bellosillo, JJ., concur. * Implementing Rules and Regulations on PD 1594 (Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts) as amended. Official Gazette, Vol. 84, No. 23, p. 3340-3365, June 6, 1988. [1] Annex A, Rollo, p. 134. [2] Annex B, Rollo, p. 31. [3] 142 SCRA 180. [4] Annex F, Rollo, pp. 44-48. [5] Exhibit E-2, Rollo of Exhibits. [6] Exhibit E-3-a, Rollo of Exhibits. [7] Rollo, p. 87. [8] Presidential Decree No. 1523. [9] 186 SCRA 704. [10] IB 13 1.2-19, Implementing Rules and Regulations of P.D. 1594 as amended. ** B.E. & Best Built's licenses were valid until June 30, 1989. (Ex. P & O respectively: both were marked on December 28, 1988) [11] Caltex Phil. v. Delgado Bros., 96 Phil. 368. [12] 51 CT. Cl. 211, 214, 249, U.S. 313, 39 S. Ct. 300 25 Comp. Gen. 859. [13] Hannan v. Board of Education, 25 Okla. 372. [14] Johnson County Savings Bank, et al. v. City of Creston, 212 Iowa 929, 231 N.W. 705; Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Richardson v. Grant County (c.c.) 27 F. 495; People v. Gleason, 121 N.Y. 631; 25 N.E. 4; Wagner v. Milwaukee, 196 Wis. 328, 220 N.W. 207.

G.R. No. 135945. March 7, 2001.* THE UNITED RESIDENTS OF DOMINICAN HILL, INC., represented by its President RODRIGO S. MACARIO, SR., petitioner, vs. COMMISSION ON THE SETTLEMENT OF LAND PROBLEMS, represented by its Commissioner, RUFINO V. MIJARES; MARIO PADILAN, PONCIANO BASILAN, HIPOLITO ESLAVA, WILLIAM LUMPISA, PACITO MOISES, DIONISIO ANAS, NOLI DANGLA, NAPOLEON BALESTEROS, ELSIE MOISES, SEBIO LACWASAN, BEN FLORES, DOMINGO CANUTAB, MARCELINO GABRIANO, TINA TARNATE, ANDREW ABRAZADO, DANNY LEDDA, FERNANDO DAYAO, JONATHAN DE LA PENA, JERRY PASSION, PETER AGUINSOD, and LOLITA DURAN, respondents. Actions; Declaratory Relief; Jurisdiction; The Supreme Court does not possess original jurisdiction to entertain petitions for declaratory relief.To the extent that the instant case is denominated as one for declaratory relief, we initially clarify that we do not possess original jurisdiction to entertain such petitions. Such is vested in the Regional Trial Courts. Accordingly, we shall limit our review to ascertaining if the proceedings before public respondent

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COSLAP are without or in excess, of its jurisdiction. In this wise, a recounting of the history of the COSLAP may provide useful insights into the extent of its powers and functions. Administrative Law; Commission on the Settlement of Land Problems (COSLAP); Origin. The COSLAP was created by virtue of Executive Order No. 561 dated September 21, 1979. Its forerunner was the Presidential Action Committee on Land Problems (PACLAP) founded on July 31, 1970 by virtue of Executive Order No. 251. As originally conceived, the committee was tasked to expedite and coordinate the investigation and resolution of land disputes, streamline and shorten administrative procedures, adopt bold and decisive measures to solve land problems, and/or recommend other solutions. It was given the power to issue subpoenas duces tecum and ad testificandum and to call upon any department, office, agency or instrumentality of the government, including government owned or controlled corporations and local government units, for assistance in the performance of its functions. At the time, the PACLAP did not exercise quasi-judicial functions. Same; Same; Statutory Construction; Ejusdem Generis; Words and Phrases; Agency of the Government, Department, Bureau Office, Instrumentality, Defined; Applying the principle in statutory construction of ejusdem generis, i.e., where general words follow an enumeration or persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned, se ction 3(2) of Executive Order 561 patently indicates that the COSLAPs dispositions are binding on administrative or executive agencies.Section 3(2) of Executive Order 561 speaks of any resolution, order or decision of the COSLAP as having the force and effect of a regular administrative resolution, order or decision. The qualification places an unmistakable emphasis on the administrative character of the COSLAPs determinations, amplified by the statement that such resolutions, orders or decisions shall be binding upon the parties therein and upon the agency having jurisdiction over the same. An agency is defined by statute as any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. A department, on the other hand, refers to an executive department created by law. Whereas, a bureau is understood to refer to any, principal subdivision of any department. In turn, an office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. An instrumentality is deemed to refer to any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. Applying the principle in statutory construction of ejusdem generis, i.e., where general words follow an enumeration or persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned, section 3(2) of Executive Order 561 patently indicates that the COSLAPs dispositions are binding on administrative or executive agencies. The history of the COSLAP itself bolsters this view. Prior enactments enumerated its member agencies among which it was to exercise a coordinating function. Same; Same; Words and Phrases; Quasi-judicial Function, Explained; The COSLAP discharges quasi-judicial functions.The COSLAP discharges quasi-judicial functions: Quasi-judicial function is a term which applies to the actions, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. Same; Same; Separation of Powers; Administrative agencies are not considered courtsthey are neither part of the judicial system nor are they deemed judicial tribunals; The doctrine of separation of powers observed in our system

of government reposes the three (3) great powers into its three (3) branches the legislative, the executive, and the judiciaryeach department being co-equal and coordinate, and supreme in its own sphere, and, accordingly, the executive department may not, by its own fiat, impose the judgment of one of its own agencies, upon the judiciary. It does not depart from its basic nature as an administrative agency, albeit one that exercises quasi-judicial functions. Still, administrative agencies are not considered courts; they are neither part of the judicial system nor are they deemed judicial tribunals. The doctrine of separation of powers observed in our system of government reposes the three (3) great powers into its three (3) branchesthe legislative, the executive, and the judiciaryeach department being co-equal and coordinate, and supreme in its own sphere. Accordingly, the executive department may not, by its own fiat, impose the judgment of one of its own agencies, upon the judiciary. Indeed, under the expanded jurisdiction of the Supreme Court, it is empowered to determine whether or not there has been grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of the Government. Actions; Pleadings and Practice; Forum Shopping; Words and Phrases; Forum shopping exists when a party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by some other court.There is an equally persuasive reason to grant the petition. As an additional ground for the annulment of the assailed status quo order of COSLAP, UNITED accuses private respondents of engaging in forum shopping. Forum shopping exists when a party repetitively avail[s] of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by some other court. Same; Same; Same; Same; Statutory Construction; Supreme Court Administrative Circular No. 04-94s use of the word shall imports an imperative obligation inconsistent with the idea of discretion.The said Administrative Circulars use of the auxiliary verb shall imports an imperative obligation x x x inconsistent with the idea of discretion. Hence, compliance therewith is mandatory. Same; Same; Same; The certification against forum shopping must be executed by the plaintiff or principal party, and not by his counselthe certification is a peculiar personal representation on the part of the principal party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action.A scrutiny of the pleadings filed before the trial courts and the COSLAP sufficiently establishes private respondents propensity for forum shopping. We lay the premise that the certification against forum shopping must be executed by the plaintiff or principal party, and not by his counsel. Hence, one can deduce that the certification is a peculiar personal representation on the part of the principal party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action. In the case at bar, private respondents litany of omissions range from failing to submit the required certification against forum shopping to filing a false certification, and then to forum shopping itself. First, the petition filed before the COSLAP conspicuously lacked a certification against forum shopping. Second, it does not appear frem the record that the ASSOCIATION informed Branch 4 of the Regional Trial Court of Baguio City before which Civil Case No. 3316-R was pending, that another action, Civil Case No. 3382-R, was filed before Branch 61 of the same court. Another group of homeless residents of Dominican Hill, the LAND REFORM BENEFICIARIES ASSOCIATION, INC. initiated the latter case. The aforesaid plaintiff, however, does not hesitate to admit that it filed the second case in representation of private respondent, as one of its affiliates. In the same manner, the certification against forum shopping accompanying the complaint in Civil Case No. 3382-R does not mention the pendency of Civil Case No. 3316-R In fact, the opposite assurance was given, that there was no action pending before any other tribunal.

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Another transgression is that both branches of the trial court do not appear to have been notified of the filing of the subject COSLAP Case No. 98-253. Same; Same; Same; The willful attempt by a party to obtain a preliminary injunction in another court after it failed to acquire the same from the original court constitutes grave abuse of the judicial process.It is evident from the foregoing facts that private respondents, in filing multiple petitions, have mocked our attempts to eradicate forum shopping and have thereby upset the orderly administration of justice. They sought recourse from three (3) different tribunals in order to obtain the writ of injunction they so desperately desired. The willful attempt by private respondents to obtain a preliminary injunction in another court after it failed to acquire the same from the original court constitutes grave abuse of the judicial process. Same; Same; Same; Forum shopping is evident where the elements of litis pendentia or res judicata are present. It has been held that forum shopping is evident where the elements of litis pendentia or res judicata are present. Private respondents subterfuge comes to naught, for the effects of res judicata or litis pendentia may not be avoided by varying the designation of the parties or changing the form of the action or adopting a different mode of presenting ones case. Same; Same; Same; A partys willful and deliberate act of forum shopping is punishable by summary dismissal of the actions filed.In view of the foregoing, all that remains to be done is the imposition of the proper penalt y. A partys willful and deliberate act of forum shopping is punishable by summary dismissal of the actions filed. The summary dismissal of both COSLAP Case No. 98-253 Civil Case No. 3316-R is therefore warranted under the premises. We shall refrain from making any pronouncement on Civil Case No. 3382-R, the dismissal of which was elevated on appeal to the Court of Appeals where it is pending. [United Residents of Dominican Hill, Inc. vs. Commission on the Settlement of Land Problems, 353 SCRA 782(2001)] DE LEON, JR., J.: Before us is a petition for prohibition and declaratory relief seeking the annulment of a status quo order 1 dated September 29, 1998 issued by the public respondent Commission on the Settlement of Land Problems (COSLAP, for brevity) in COSLAP Case No. 98-253. The facts are: The property being fought over by the parties is a 10.36-hectare property in Baguio City called Dominican Hills, formerly registered in the name of Diplomat Hills, Inc. It appeared that the property was mortgaged to the United Coconut Planters Bank (UCPB) which eventually foreclosed the mortgage thereon and acquired the same as highest bidder. On April 11, 1983, it was donated to the Republic of the Philippines by UCPB through its President, Eduardo Cojuangco. The deed of donation stipulated that Dominican Hills would be utilized for the "priority programs, projects, activities in human settlements and economic development and governmental purposes" of the Ministry of Human Settlements. On December 12, 1986, the then President Corazon C. Aquino issued Executive Order No. 85 abolishing the Office of Media Affairs and the Ministry of Human Settlements. All agencies under the latter's supervision as well as all its assets, programs and projects, were transferred to the Presidential Management Staff (PMS).2 On October 18, 1988, the PMS received an application from petitioner UNITED RESIDENTS OF DOMINICAN HILL, INC. (UNITED, for brevity), a community housing association composed of non-real property owning residents of Baguio City, to acquire a portion of the Dominican Hills property. On February 2, 1990, PMS Secretary Elfren Cruz referred the application to the HOME INSURANCE GUARANTY CORPORATION (HIGC). HIGC consented to act as

originator for UNITED.3 Accordingly, on May 9, 1990, a Memorandum of Agreement was signed by and among the PMS, the HIGC, and UNITED. The Memorandum of Agreement called for the PMS to sell the Dominican Hills property to HIGC which would, in turn, sell the same to UNITED. The parties agreed on a selling price of P75.00 per square meter. Thus, on June 12, 1991, HIGC sold 2.48 hectares of the property to UNITED. The deed of conditional sale provided that ten (10) per cent of the purchase price would be paid upon signing, with the balance to be amortized within one year from its date of execution. After UNITED made its final payment on January 31, 1992, HIGC executed a Deed of Absolute Sale dated July 1, 1992. Petitioner alleges that sometime in 1993, private respondents entered the Dominican Hills property allocated to UNITED and constructed houses thereon. Petitioner was able to secure a demolition order from the city mayor. 4 Unable to stop the razing of their houses, private respondents, under the name DOMINICAN HILL BAGUIO RESIDENTS HOMELESS ASSOCIATION (ASSOCIATION, for brevity) filed an action5 for injunction docketed as Civil Case No. 3316-R, in the Regional Trial Court of Baguio City, Branch 4. Private respondents were able to obtain a temporary restraining order but their prayer for a writ of preliminary injunction was later denied in an Order dated March 18, 1996.6 While Civil Case No. 3316-R was pending, the ASSOCIATION, this time represented by the Land Reform Beneficiaries Association, Inc. (BENEFICIARIES, for brevity), filed Civil Case No. 3382-R before Branch 61 of the same court. The complaint7 prayed for damages, injunction and annulment of the said Memorandum of Agreement between UNITED and HIGC. Upon motion of UNITED, the trial court in an Order dated May 27, 1996 dismissed Civil Case No. 3382-R.8 The said Order of dismissal is currently on appeal with the Court of Appeals.9 Demolition Order No. 1-96 was subsequently implemented by the Office of the City Mayor and the City Engineer's Office of Baguio City. However, petitioner avers that private respondents returned and reconstructed the demolished structures. To forestall the re-implementation of the demolition order, private respondents filed on September 29, 1998 a petition10 for annulment of contracts with prayer for a temporary restraining order, docketed as COSLAP Case No. 98-253, in the Commission on the Settlement of Land Problems (COSLAP) against petitioner, HIGC, PMS, the City Engineer's Office, the City Mayor, as well as the Register of Deeds of Baguio City. On the very same day, public respondent COSLAP issued the contested order requiring the parties to maintain the status quo. Without filing a motion for reconsideration from the aforesaid status quo order, petitioner filed the instant petition questioning the jurisdiction of the COSLAP. The issues we are called upon to resolve are: 1 IS THE COMMISSION ON THE SETTLEMENT OF LAND PROBLEMS [COSLAP] CREATED UNDER EXECUTIVE ORDER NO. 561 BY THE OFFICE OF THE PHILIPPINES [sic] EMPOWERED TO HEAR AND TRY A PETITION FOR ANNULMENT OF CONTRACTS WITH PRAYER FOR A TEMPORARY RESTRAINING ORDER AND THUS, ARROGATE UNTO ITSELF THE POWER TO ISSUE STATUS QUO ORDER AND CONDUCT A HEARING THEREOF [sic]? 2

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ASSUMING THAT THE COMMISSION ON THE SETTLEMENT OF LAND PROBLEMS [COSLAP] HAS JURISDICTION ON THE MATTER, IS IT EXEMPTED FROM OBSERVING A CLEAR CASE OF FORUM SHOPPING ON THE PART OF THE PRIVATE RESPONDENTS? To the extent that the instant case is denominated as one for declaratory relief, we initially clarify that we do not possess original jurisdiction to entertain such petitions.11 Such is vested in the Regional Trial Courts.12Accordingly, we shall limit our review to ascertaining if the proceedings before public respondent COSLAP are without or in excess, of its jurisdiction. In this wise, a recounting of the history of the COSLAP may provide useful insights into the extent of its powers and functions. The COSLAP was created by virtue of Executive Order No. 561 dated September 21, 1979. Its forerunner was the Presidential Action Committee on Land Problems (PACLAP) founded on July 31, 1970 by virtue of Executive Order No. 251. As originally conceived, the committee was tasked "to expedite and coordinate the investigation and resolution of land disputes, streamline and shorten administrative procedures, adopt bold and decisive measures to solve land problems, and/or recommend other solutions." It was given the power to issue subpoenas duces tecum and ad testificandum and to call upon any department, office, agency or instrumentality of the government, including government owned or controlled corporations and local government units, for assistance in the performance of its functions. At the time, the PACLAP did not exercise quasi-judicial functions. On March 19, 1971, Executive Order No. 305 was issued reconstituting the PACLAP. 13 The committee was given exclusive jurisdiction over all cases involving public lands and other lands of the public domain and accordingly was tasked: 1. To investigate, coordinate, and resolve expeditiously land disputes, streamline administrative procedures, and in general, to adopt bold and decisive measures to solve problems involving public lands and lands of the public domain; 2. To coordinate and integrate the activities of all government agencies having to do with public lands or lands of the public domain; 3. To study and review present policies as embodied in land laws and administrative rules and regulations, in relation to the needs for land of the agro-industrial sector and small farmers, with the end in view to evolving and recommending new laws and policies and establishing priorities in the grant of public land, and the simplification of processing of land applications in order to relieve the small man from the complexities of existing laws, rules and regulations; 4. To evolve and implement a system for the speedy investigation and resolution of land disputes; 5. To receive all complaints of settlers and small farmers, involving public lands or other lands of the public domain; 6. To look into the conflicts between Christians and non-Christians, between corporations and small settlers and farmers; cause the speedy settlement of such conflicts in accordance with priorities or policies established by the Committee; and 7. To perform such other functions as may be assigned to it by the President. Thereafter, the PACLAP was reorganized pursuant to Presidential Decree No. 832 dated November 27, 1975. 14Its jurisdiction was revised thus:

xxx

xxx

xxx

2. Refer for immediate action any land problem or dispute brought to the attention of the PACLAP, to any member agency having jurisdiction thereof: Provided, that when the Executive Committee decides to act on a case, its resolution, order or decision thereon, shall have the force and effect of a regular administrative resolution, order or decision, and shall be binding upon the parties therein involved and upon the member agency having jurisdiction thereof; xxx xxx xxx

Notably, the said Presidential Decree No. 832 did not contain any provision for judicial review of the resolutions, orders or decisions of the PACLAP. On September 21, 1979, the PACLAP was abolished and its functions transferred to the present Commission on the Settlement of Land Problems by virtue of Executive Order No. 561. This reorganization, effected in line with Presidential Decree No. 1416, brought the COSLAP directly under the Office of the President. 15 It was only at this time that a provision for judicial review was made from resolutions, orders or decisions of the said agency, as embodied in section 3(2) thereof, to wit: Powers and functions. The Commission shall have the following powers and functions: 1. Coordinate the activities, particularly the investigation work, of the various government offices and agencies involved in the settlement of land problems or disputes, and streamline administrative procedures to relieve small settlers and landholders and members of cultural minorities of the expense and time-consuming delay attendant to the solution of such problems or disputes; 2. Refer and follow-up for immediate action by the agency having appropriate jurisdiction any land problem or dispute referred to the Commission: Provided, that the Commission may, in the following cases, assume jurisdiction and resolve land problems or disputes which are critical and explosive in nature considering, for instance, the large number of the parties involved, the presence or emergence of social tension or unrest, or other similar critical situations requiring immediate action: (a) Between occupants/squatters and pasture lease agreement holders or timber concessionaires; (b) Between occupants/squatters and government reservation grantees; (c) Between occupants/squatters and public land claimants or applicants; (d) Petitions for classification, release and/or subdivision of lands of the public domain; and (e) Other similar land problems of grave urgency and magnitude. The Commission shall promulgate such rules of procedure as will insure expeditious resolution and action on the above cases. The resolution, order or decision of the Commission on any of the foregoing cases shall have the force and effect of a regular administrative resolution, order or decision and shall be binding

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upon the parties therein and upon the agency having jurisdiction over the same. Said resolution, order or decision shall become final and executory within thirty (30) days from its promulgation and shall be appealable by certiorari only to the Supreme Court. xxx xxx xxx

In the performance of its functions and discharge of its duties, the Commission is authorized, through the Commission, to issue subpoena and subpoena duces tecum for the appearance of witnesses and the production of records, books and documents before it. It may also call upon any ministry, office, agency or instrumentality of the National Government, including government-owned or controlled corporations, and local governments for assistance. This authority is likewise, conferred upon the provincial offices as may be established pursuant to Section 5 of this Executive Order. In Baaga v. Commission on the Settlement of Land Problems,16 we characterized the COSLAP's jurisdiction as being general in nature, as follows: Petitioners also contend in their petition that the COSLAP itself has no jurisdiction to resolve the protest and counter-protest of the parties because its power to resolve land problems is confined to those cases "which are critical and explosive in nature." This contention is devoid of merit. It is true that Executive Order No. 561 provides that the COSLAP may take cognizance of cases which are "critical and explosive in nature considering, for instance, the large number of parties involved, the presence or emergence of social tension or unrest, or other similar critical situations requiring immediate action." However, the use of the word "may" does not mean that the COSLAP's jurisdiction is merely confined to the above mentioned cases. The provisions of the said Executive Order are clear that the COSLAP was created as a means of providing a more effective mechanism for the expeditious settlement of land problems in general, which are frequently the source of conflicts among settlers, landowners and cultural minorities. Besides, the COSLAP merely took over from the abolished PACLAP whose functions, including its jurisdiction, power and authority to act on, decide and resolve land disputes (Sec. 2, P.D. No. 832) were all assumed by it. The said Executive Order No. 561 containing said provision, being enacted only on September 21, 1979, cannot affect the exercise of jurisdiction of the PACLAP Provincial Committee of Koronadal on September 29, 1978. Neither can it affect the decision of the COSLAP which merely affirmed said exercise of jurisdiction. Given the facts of the case, it is our view that the COSLAP is not justified in assuming jurisdiction over the controversy. As matters stand, it is not the judiciary's place to question the wisdom behind a law; 17 our task is to interpret the law. We feel compelled to observe, though, that by reason of the ambiguous terminology employed in Executive Order No. 561, the power to assume jurisdiction granted to the COSLAP provides an ideal breeding ground for forum shopping, as we shall explain subsequently. Suffice it to state at this stage that the COSLAP may not assume jurisdiction over cases which are already pending in the regular courts. The reason is simple. Section 3(2) of Executive Order 561 speaks of any resolution, order or decision of the COSLAP as having the "force and effect of a regular administrative resolution, order or decision." The qualification places an unmistakable emphasis on the administrative character of the COSLAP's determination, amplified by the statement that such resolutions, orders or decisions "shall be binding upon the parties therein and upon the agency having jurisdiction over the same." An agency is defined by statute as "any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein."18 A department, on the other hand, "refers to anexecutive department created by law."19 Whereas, a bureau is understood to refer "to any principal subdivision of any department." 20 In turn, an office "refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation."21 An instrumentality is deemed to refer "to any agency of the National

Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations."22 Applying the principle in statutory construction ofejusdem generis, i.e., "where general words follow an enumeration or persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned,"23 section 3(2) of Executive Order 561 patently indicates that the COSLAP's dispositions are binding on administrative or executiveagencies. The history of the COSLAP itself bolsters this view. Prior enactments enumerated its member agencies among which it was to exercise a coordinating function. The COSLAP discharges quasi-judicial functions: "Quasi-judicial function" is a term which applies to the actions, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature."24 However, it does not depart from its basic nature as an administrative agency, albeit one that exercises quasi-judicial functions. Still, administrative agencies are not considered courts; they are neither part of the judicial system nor are they deemed judicial tribunals.25 The doctrine of separation of powers observed in our system of government reposes the three (3) great powers into its three (3) branches the legislative, the executive, and the judiciary each department being co-equal and coordinate, and supreme in its own sphere. Accordingly, the executive department may not, by its own fiat, impose the judgment of one of its own agencies, upon the judiciary. Indeed, under the expanded jurisdiction of the Supreme Court, it is empowered "to determine whether or not there has been grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of the Government."26 There is an equally persuasive reason to grant the petition. As an additional ground for the annulment of the assailed status quo order of COSLAP, UNITED accuses private respondents of engaging in forum shopping. Forum shopping exists when a party "repetitively avail[s] of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by some other court."27 In this connection, Supreme Court Administrative Circular No. 04-94 dated February 8, 1994 provides: Revised Circular No. 28-91, dated February 8, 1994, applies to and governs the filing of petitions in the Supreme Court and the Court of Appeals and is intended to prevent the multiple filing of petitions or complaints involving the same issues in other tribunals or agencies as a form of forum shopping. Complementary thereto and for the same purpose, the following requirements, in addition to those in pertinent provisions of the Rules of Court and existing circulars, shall be strictly complied with in the filing of complaints, petitions, applications or other initiatory pleadings in all courts and agencies other than the Supreme Court and the Court of Appeals and shall be subject to the sanctions provided hereunder. 1. The plaintiff, petitioner, applicant or principal part seeking relief in the complaint, petition, application or other initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and simultaneously filed therewith, to the truth of the following facts and undertakings: (a) he has not theretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (b) to the best of his knowledge, no such action or proceedings is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or proceeding which is either pending or may have been terminated, he must state the

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status thereof; and (d) if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed. The complaint and other initiatory pleadings referred to and subject of this Circular are the original civil complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention, petition, or application wherein a party asserts his claim for relief. 2. Any violation of this Circular shall be a cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion and after hearing. However, any clearly willful and deliberate forum shopping by any other party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action shall be a ground for the summary dismissal thereof and shall constitute contempt of court . Furthermore, the submission of a false certification or non-compliance with the undertakings therein, as provided in Paragraph 1 hereof, shall constitute indirect contempt of court, without prejudice to disciplinary proceedings against the counsel and the filing of a criminal action against the part. [emphasis supplied] xxx xxx xxx

shopping to filing a false certification, and then to forum shopping itself. First, the petition filed before the COSLAP conspicuously lacked a certification against forum shopping. Second, it does not appear from the record that the ASSOCIATION informed Branch 4 of the Regional Trial Court of Baguio City before which Civil Case No. 3316-R was pending, that another action, Civil Case No. 3382-R, was filed before Branch 61 of the same court. Another group of homeless residents of Dominican Hill, the LAND REFORM BENEFICIARIES ASSOCIATION, INC. initiated the latter case. The aforesaid plaintiff, however, does not hesitate to admit that it filed the second case in representation of private respondent, as one of its affiliates. In the same manner, the certification against forum shopping accompanying the complaint in Civil Case No. 3382-R does not mention the pendency of Civil Case No. 3316-R. In fact, the opposite assurance was given, that there was no action pending before any other tribunal. Another transgression is that both branches of the trial court do not appear to have been notified of the filing of the subject COSLAP Case No. 98-253. It is evident from the foregoing facts that private respondents, in filing multiple petitions, have mocked our attempts to eradicate forum shopping and have thereby upset the orderly administration of justice. They sought recourse from three (3) different tribunals in order to obtain the writ of injunction they so desperately desired. "The willful attempt by private respondents to obtain a preliminary injunction in another court after it failed to acquire the same from the original court constitutes grave abuse of the judicial process."32 In this connection, we expounded on forum shopping in Viva Productions, Inc. v. Court of Appeals33 that: Private respondent's intention to engage in forum shopping becomes manifest with undoubted clarity upon the following considerations. Notably, if not only to ensure the issuance of an injunctive relief, the significance of the action for damages before the Makati court would be nil. What damages against private respondent would there be to speak about if the Paraaque court already enjoins the performance of the very same act complained of in the Makati court? Evidently, the action for damages is premature if not for the preliminary injunctive relief sought. Thus, we find grave abuse of discretion on the part of the Makati court, being a mere co-equal of the Paraaque court, in not giving due deference to the latter before which the issue of the alleged violation of the sub-judice rule had already been raised and submitted. In such instance, the Makati court, if it was wary of dismissing the action outrightly under Administrative Circular No. 04-94, should have, at least, ordered the consolidation of its case with that of the Paraaque court, which had first acquired jurisdiction over the related case x x x, or it should have suspended the proceedings until the Paraaque court may have ruled on the issue x x x. xxx xxx xxx

The said Administrative Circular's use of the auxiliary verb "shall" imports "an imperative obligation . . . inconsistent with the idea of discretion."28 Hence, compliance therewith is mandatory.29 It bears stressing that there is a material distinction between the requirement of submission of the certification against forum shopping from the undertakings stated therein. Accordingly, x x x [f]ailure to comply with this requirement cannot be excused by the fact that plaintiff is not guilty of forum shopping. The Court of Appeals, therefore, erred in concluding that Administrative Circular No. 0494 did not apply to private respondent's case merely because her complaint was not based on petitioner's cause of action. The Circular applies to any complaint, petition, application, or other initiatory pleading, regardless of whether the party filing it has actually committed forum shopping. Every party filing a complaint or any other initiatory pleading is required to swear under oath that he has not committed nor will he commit forum shopping. Otherwise, we would have an absurd situation where the parties themselves would be the judge of whether their actions constitute a violation of said Circular, and compliance therewith would depend on their belief that they might or might not have violated the requirement. Such interpretation of the requirement would defeat the very purpose of Circular 04-94. Indeed, compliance with the certification against forum shopping is separate from, and independent of, the avoidance of forum shopping itself. Thus, there is a difference in the treatment in terms of imposable sanctions between failure to comply with the certification requirement and violation of the prohibition against forum shopping. The former is merely a cause for the dismissal, without prejudice, of the complaint or initiatory pleading, while the latter is a ground for summary dismissal thereof and constitutes direct contempt.30 A scrutiny of the pleadings filed before the trial courts and the COSLAP sufficiently establishes private respondents' propensity for forum shopping. We lay the premise that the certification against forum shopping must be executed by the plaintiff or principal party, and not by his counsel.31 Hence, one can deduce that the certification is a peculiar personal representation on the part of the principal party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action. In the case at bar, private respondents' litany of omissions range from failing to submit the required certification against forum

Thus, while we might admit that the causes of action before the Makati court and the Paraaque court are distinct, and that private respondent cannot seek civil indemnity in the contempt proceedings, the same being in the nature of criminal contempt, we nonetheless cannot ignore private respondent's intention of seeking exactly identical reliefs when it sought the preliminary relief of injunction in the Makati court. As earlier indicated, had private respondent been completely in good faith there would have been no hindrance in filing the action for damages with the regional trial court of Paraaque and having it consolidated with the contempt proceedings before Branch 274, so that the same issue on the alleged violation of the sub judicerule will not have to be passed upon twice, and there would be no possibility of having two courts of concurrent jurisdiction making two conflicting resolutions. Yet from another angle, it may be said that when the Paraaque court acquired jurisdiction over the said issue, it excluded all other courts of concurrent jurisdiction from acquiring jurisdiction over the same. To hold otherwise would be to risk instances where courts of concurrent jurisdiction might have conflicting orders. This will create havoc and result in an extremely disordered administration of justice. Therefore, even on the assumption that the Makati court may acquire jurisdiction over the subject matter of the action for damages, without prejudice to the application of Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction over the issue of whether or not petitioner has violated the sub judice rule.

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At best, the Makati court may hear the case only with respect to the alleged injury suffered by private respondent after theParaaque court shall have ruled favorably on the said issue. We also noted several indications of private respondents' bad faith. The complaint filed in Civil Case No. 3316-R was prepared by the ASSOCIATION's counsel, Atty. Conrado Villamor Catral, Jr. whereas the complaint filed in Civil Case No. 3382-R was signed by a different lawyer, Atty. Thomas S. Tayengco. With regard to the petition filed with the COSLAP, the same was signed by private respondents individually. As to the latter case, we noted that the petition itself could not have been prepared by ordinary laymen, inasmuch as it exhibits familiarity with statutory provisions and legal concepts, and is written in a lawyerly style. In the same manner, the plaintiffs in the three (3) different cases were made to appear as dissimilar: in Civil Case No. 3316-R, the plaintiff was ASSOCIATION of which private respondent Mario Padilan was head, while the plaintiff in Civil Case No. 3382-R was the BENEFICIARIES. Before the COSLAP, private respondents themselves were the petitioners, led again by Padilan.34 Private respondents also attempted to vary their causes of action: in Civil Case No. 3382-R and COSLAP Case No. 98-253, they seek the annulment of the Memorandum of Agreement executed by and among UNITED, the PMS, and HIGC as well as the transfer certificates of title accordingly issued to petitioner. All three (3) cases sought to enjoin the demolition of private respondents' houses. It has been held that forum shopping is evident where the elements of litis pendentia or res judicata are present. Private respondents' subterfuge comes to naught, for the effects of res judicata or litis pendentia may not be avoided by varying the designation of the parties or changing the form of the action or adopting a different mode of presenting one's case.35 In view of the foregoing, all that remains to be done is the imposition of the proper penalty. A party's willful and deliberate act of forum shopping is punishable by summary dismissal of the actions filed. 36 The summary dismissal of both COSLAP Case No. 98-253 and Civil Case No. 3316-R is therefore warranted under the premises. We shall refrain from making any pronouncement on Civil Case No. 3382-R, the dismissal of which was elevated on appeal to the Court of Appeals where it is still pending. WHEREFORE, the petition is hereby GRANTED. The status quo order dated September 29, 1998 issued in COSLAP Case No. 98-253 by respondent Commission On The Settlement Of Land Problems (COSLAP) is hereby SET ASIDE; and the petition filed in COSLAP Case No. 98-253 and the complaint in Civil Case No. 3316-R are hereby DISMISSED for lack of jurisdiction and forum shopping. Costs against private respondents. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ ., concur. Footnotes
1 2

11 12

Annex "B" of the Petition, Rollo, p. 32. Memorandum Order No. 85 dated April 30, 1987. 3 HIGC likewise agreed to act as originator in a separate memorandum of agreement for one other applicant, the 11501 Association, Inc., of a different portion of Dominican Hills. 4 Annex "E" of the Petition, Rollo, p. 77. 5 Complaint, Annex "F" of the Petition, Rollo, pp. 79-83. 6 Annex "G" of the Petition, Rollo, p. 84. 7 Annex "H" of the Petition, Rollo, pp. 85-91. 8 Annex "I" of the Petition, Rollo, pp. 92-93. 9 CA-G.R CV No. 53326. 10 Annex "A-1" of the Petition, Rollo, pp. 26-31.

Tano, et al. v. Socrates, et al., 278 SCRA 154, 172 (1997). In relation thereto, Section 1, Rule 63 of the 1997 Rules of Civil Procedure states: "Who may file petition. Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder xxxx." 13 The membership of the committee was as follows: Secretary of Agriculture and Natural Resources Chairman Small Farmers Commission Chairman Action Officer Deputy Governor, Land Authority Member Undersecretary of Justice Member Undersecretary of National Defense Member PANAMIN Chairman Member Chief of Constabulary Member Commissioner on National Integration Member Director of Lands Member Director of Forestry Member Agrarian Counsel Member Land Registration Commissioner Member 14 The composition of the committee was likewise changed. Thus: Secretary of Natural Resources Chairman PANAMIN Secretary Member Deputy Executive Secretary Member Undersecretary of Agriculture Member Undersecretary of Justice Member Undersecretary of Agrarian Reform Member Undersecretary of National Defense Member Chief of Constabulary Member Commissioner of Land Registration Member Chief, Citizens Legal Assistance Office Member Director of Lands Member Director of Forest Development Member Director of Mines Member 15 Currently, the COSLAP is a constituent unit of the Department of Justice, per Book IV, Title III, Chapter 11, section 32 of Executive Order No. 292, otherwise known as "The Revised Administrative Code of 1987." The provision reads: "The Commission on the Settlement of Land Problems shall be responsible for the settlement of land problems involving small landowners and members of cultural minorities. It shall also perform such other functions, as are now or may hereafter be provided by law." 16 181 SCRA 599, 607-608 (1990). 17 Commissioner of Internal Revenue, et al. v. Santos, et al., 277 SCRA 617, 630 (1997). 18 Section 2, Introductory Provisions, Executive Order No. 292, otherwise known as the "Administrative Code of 1987." 19 Id. The definition adds: For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation." 20 Id. The second sentence of the definition states: "For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau regardless of actual name or designation, as in the case of department-wide regional offices." 21 Id. 22 Id. Definitions of a regulatory agency, chartered institution, and government-owned or controlled corporation are as follows: "(11) Regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (12) Chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges, and the monetary authority of the state. (13) Government-owned or

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controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock: Provided, that government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations." 23 PNOC Shipping and Transport Corporation v. Court of Appeals, 297 SCRA 402, 422 (1998). 24 Midland Insurance Corporation v. Intermediate Appellate Court, 143 SCRA 458, 462 (1986). 25 2 Am Jur 2d, Administrative Law 29. 26 Section 1, Article VIII, 1987 Constitution. 27 Gatmaytan v. Court of Appeals, 267 SCRA 487, 500 (1997). 28 Don Tino Realty and Development Corporation v. Florentino, 314 SCRA 197, 204-205 (1999); Codoy v. Calugay, 312 SCRA 333, 342 (1999). 29 Robern Development Corporation v. Quitain, 315 SCRA 150, 160 (1999); Melo v. Court of Appeals, 318 SCRA 94, 102 (1999). The circular is mandatory likewise for labor cases (e.g, Maricalum Mining Corporation v. National Labor Relations Commission, 298 SCRA 378, 384 [1998]), and election cases (Loyola v. Court of Appeals, 245 SCRA 477, 484 [1995]). 30 Melo v. Court of Appeals, supra. 31 Escorpizo v. University of Baguio, 306 SCRA 497, 503 (1999); Far Eastern Shipping Company v. Court of Appeals, 297 SCRA 30, 53 (1998). 32 Fil-Estate Golf and Development, Inc. v. Court of Appeals, 265 SCRA 614, 633 (1996). 33 269 SCRA 664, 671-674 (1997). 34 Petitioners in COSLAP Case No. 98-253 who also claimed damages in Civil Case No. 3382-R include Ponciano Basilan, Pacito Moisa, Dionisio Anas, Noli Dangla, Napoleon Ballesteros, Domingo Canutab, Marcelino Gabriano and Jonathan de la Pea (See Rollo, pp. 67-68) 35 Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522 (1999). 36 Prubankers Association v. Prudential Bank & Trust Company, 302 SCRA 74, 84 (1999).

agencies the jurisdiction to investigate and decide matters involving disciplinary actions against officers and employees in the PPA. Same; Same; Preventive suspension may be lifted even if the disciplining authority has not finally decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been exhausted.Parenthetically, the period of preventive suspension is limited. It may be lifted even if the disciplining authority has not finally decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been exhausted. The employee concerned may then be reinstated. However, the said ninety-day period may be interrupted. Section 42 of P.D. No. 807 also mandates that any fault, negligence or petition of a suspended employee may not be considered in the computation of the said period. Thus, when a suspended employee obtains from a court of justice a restraining order or a preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such court order should be excluded in the reckoning of the permissible period of the preventive suspension. Same; Same; By vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be charged with an administrative offense. Although the foregoing section does not expressly provide for a mechanism for an administrative investigation of personnel, by vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be charged with an administrative offense. During such investigation, the PPA General Manager, as earlier stated, may subject the employee concerned to preventive suspension. The investigation should be conducted in accordance with the procedure set out in Sec. 38 of P.D. No. 807. [Beja, Sr. vs. Court of Appeals, 207 SCRA 689(1992)] ROMERO, J.:

G.R. No. 97149. March 31, 1992.* FIDENCIO Y. BEJA, SR., petitioner, vs. COURT OF APPEALS, HONORABLE REINERIO O. REYES, in his capacity as Secretary of the Department of Transportation and Communications; COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine Ports Authority; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, ADMINISTRATIVE ACTION BOARD; and JUSTICE ONOFRE A. VILLALUZ, in his capacity as Chairman of the Administrative Action Board, DOTC, respondents. Administrative Law; Suspension; Preventive suspension distinct from the administrative penalty of removal from office such as one mentioned in Sec. 8 (d) of P.D. No. 857.Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8 (d) of P.D. No. 857. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. Same; Same; The PPA general manager is the disciplining authority who may by himself and without the approval of the PPA Board of Directors subject a respondent in an administrative case to preventive suspension.The PPA general manager is the disciplining authority who may, by himself and without the approval of the PPA Board of Directors, subject a respondent in an administrative case to preventive suspension. His disciplinary powers are sanctioned, not only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of

The instant petition for certiorari questions the jurisdiction of the Secretary of the Department of Transportation and Communications (DOTC) and/or its Administrative Action Board (AAB) over administrative cases involving personnel below the rank of Assistant General Manager of the Philippine Ports Authority (PPA), an agency attached to the said Department. Petitioner Fidencio Y. Beja, Sr. 1 was first employed by the PPA as arrastre supervisor in 1975. He became Assistant Port Operations Officer in 1976 and Port Operations Officer in 1977. In February 1988, as a result of the reorganization of the PPA, he was appointed Terminal Supervisor. On October 21, 1988, the PPA General Manager, Rogelio A. Dayan, filed Administrative Case No. 11-04-88 against petitioner Beja and Hernando G. Villaluz for grave dishonesty, grave misconduct, willful violation of reasonable office rules and regulations and conduct prejudicial to the best interest of the service. Beja and Villaluz allegedly erroneously assessed storage fees resulting in the loss of P38,150.77 on the part of the PPA. Consequently, they were preventively suspended for the charges. After a preliminary investigation conducted by the district attorney for Region X, Administrative Case No. 11-04-88 was "considered closed for lack of merit." On December 13, 1988, another charge sheet, docketed as Administrative Case No. 12-01-88, was filed against Beja by the PPA General Manager also for dishonesty, grave misconduct, violation of reasonable office rules and regulations, conduct prejudicial to the best interest of the service and for being notoriously undesirable. The charge consisted of six (6) different specifications of administrative offenses including fraud against the PPA in the total amount of P218,000.00. Beja was also placed under preventive suspension pursuant to Sec. 41 of P.D. No. 807.

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The case was redocketed as Administrative Case No. PPA-AAB-1-049-89 and thereafter, the PPA general manager indorsed it to the AAB for "appropriate action." At the scheduled hearing, Beja asked for continuance on the ground that he needed time to study the charges against him. The AAB proceeded to hear the case and gave Beja an opportunity to present evidence. However, on February 20, 1989, Beja filed a petition for certiorari with preliminary injunction before the Regional Trial Court of Misamis Oriental. 2 Two days later, he filed with the AAB a manifestation and motion to suspend the hearing of Administrative Case No. PPA-AAB-1-049-89 on account of the pendency of the certiorari proceeding before the court. AAB denied the motion and continued with the hearing of the administrative case. Thereafter, Beja moved for the dismissal of the certiorari case below and proceeded to file before this Court a petition for certiorari with preliminary injunction and/or temporary restraining order. The case was docketed as G.R. No. 87352 captioned "Fidencio Y. Beja v. Hon. Reinerio 0. Reyes, etc., et al." In the en banc resolution of March 30, 1989, this Court referred the case to the Court of Appeals for "appropriate action." 3 G.R. No. 87352 was docketed in the Court of Appeals as CA-G.R. SP No. 17270. Meanwhile, a decision was rendered by the AAB in Administrative Case No. PPA-AAB-049-89. Its dispositive portion reads: WHEREFORE, judgment is hereby rendered, adjudging the following, namely: a) That respondents Geronimo Beja, Jr. and Hernando Villaluz are exonerated from the charge against them; b) That respondent Fidencio Y. Beja be dismissed from the service; c) That his leave credits and retirement benefits are declared forfeited; d) That he be disqualified from re-employment in the government service; e) That his eligibility is recommended to be cancelled. Pasig, Metro Manila, February 28, 1989. On December 10, 1990, after appropriate proceedings, the Court of Appeals also rendered a decision 4 in CA-G.R. SP No. 17270 dismissing the petition for certiorari for lack of merit. Hence, Beja elevated the case back to this Court through an "appeal by certiorari with preliminary injunction and/or temporary restraining order." We find the pleadings filed in this case to be sufficient bases for arriving at a decision and hence, the filing of memoranda has been dispensed with. In his petition, Beja assails the Court of Appeals for having "decided questions of substance in a way probably not in accord with law or with the applicable decisions" of this Court. 5 Specifically, Beja contends that the Court of Appeals failed to declare that: (a) he was denied due process; (b) the PPA general manager has no power to issue a preventive suspension order without the necessary approval of the PPA board of directors; (c) the PPA general manager has no power to refer the administrative case filed against him to the DOTC-AAB, and (d) the DOTC Secretary, the Chairman of the DOTC-AAB and DOTC-AAB itself as an adjudicatory body, have no jurisdiction to try the administrative case against him. Simply put, Beja challenges the legality of the preventive suspension and the jurisdiction of the DOTC Secretary and/or the AAB to initiate and hear administrative cases against PPA personnel below the rank of Assistant General Manager. Petitioner anchors his contention that the PPA general manager cannot subject him to a preventive suspension on the following provision of Sec. 8, Art. V of Presidential Decree No. 857 reorganizing the PPA: (d) the General Manager shall, subject to the approval of the Board, appoint and remove personnel below the rank of Assistant General Manager. (Emphasis supplied.)

Petitioner contends that under this provision, the PPA Board of Directors and not the PPA General Manager is the "proper disciplining authority. 6 As correctly observed by the Solicitor General, the petitioner erroneously equates "preventive suspension" as a remedial measure with "suspension" as a penalty for administrative dereliction. The imposition of preventive suspension on a government employee charged with an administrative offense is subject to the following provision of the Civil Service Law, P.D. No. 807: Sec. 41. Preventive Suspension. The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. 7 Thus, preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No 857. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. The PPA general manager is the disciplining authority who may, by himself and without the approval of the PPA Board of Directors, subject a respondent in an administrative case to preventive suspension. His disciplinary powers are sanctioned, not only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of agencies the "jurisdiction to investigate and decide matters involving disciplinary actions against officers and employees" in the PPA. Parenthetically, the period of preventive suspension is limited. It may be lifted even if the disciplining authority has not finally decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been exhausted. The employee concerned may then be reinstated. 8 However, the said ninety-day period may be interrupted. Section 42 of P.D. No. 807 also mandates that any fault, negligence or petition of a suspended employee may not be considered in the computation of the said period. Thus, when a suspended employee obtains from a court of justice a restraining order or a preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such court order should be excluded in the reckoning of the permissible period of the preventive suspension. 9 With respect to the issue of whether or not the DOTC Secretary and/or the AAB may initiate and hear administrative cases against PPA Personnel below the rank of Assistant General Manager, the Court qualifiedlyrules in favor of petitioner. The PPA was created through P.D. No. 505 dated July 11, 1974. Under that Law, the corporate powers of the PPA were vested in a governing Board of Directors known as the Philippine Port Authority Council. Sec. 5(i) of the same decree gave the Council the power "to appoint, discipline and remove, and determine the composition of the technical staff of the Authority and other personnel." On December 23, 1975, P.D. No. 505 was substituted by P.D. No. 857, See. 4(a) thereof created the Philippine Ports Authority which would be "attached" to the then Department of Public Works, Transportation and Communication. When Executive Order No. 125 dated January 30, 1987 reorganizing the Ministry of Transportation and Communications was issued, the PPA retained its "attached" status. 10 Even Executive Order No. 292 or the Administrative Code of 1987 classified the PPA as an agency "attached" to the Department of Transportation and Communications (DOTC). Sec. 24 of Book IV, Title XV, Chapter 6 of the same Code provides that the agencies

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attached to the DOTC "shall continue to operate and function in accordance with the respective charters or laws creating them, except when they conflict with this Code." Attachment of an agency to a Department is one of the three administrative relationships mentioned in Book IV, Chapter 7 of the Administrative Code of 1987, the other two being supervision and control and administrative supervision. "Attachment" is defined in Sec. 38 thereof as follows: (3) Attachment. (a) This refers to the lateral relationship between the Department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination shall be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency; (b) Matters of day-to-day administration or all those pertaining to internal operations shall he left to the discretion or judgment of the executive officer of the agency or corporation. In the event that the Secretary and the head of the board or the attached agency or corporation strongly disagree on the interpretation and application of policies, and the Secretary is unable to resolve the disagreement, he shall bring the matter to the President for resolution and direction; (c) Government-owned or controlled corporations attached to a department shall submit to the Secretary concerned their audited financial statements within sixty (60) days after the close of the fiscal year; and (d) Pending submission of the required financial statements, the corporation shall continue to operate on the basis of the preceding year's budget until the financial statements shall have been submitted. Should any government-owned or controlled corporation incur an operation deficit at the close of its fiscal year, it shall be subject to administrative supervision of the department; and the corporation's operating and capital budget shall be subject to the department's examination, review, modification and approval. (emphasis supplied.) An attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the "lateral relationship" between the Department and the attached agency. The attachment is merely for "policy and program coordination." With respect to administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced by the fact that even an agency under a Department's administrative supervision is free from Departmental interference with respect to appointments and other personnel actions "in accordance with the decentralization of personnel functions" under the Administrative Code of 1987. 11 Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision and control shall not apply to chartered institutions attached to a Department. 12 Hence, the inescapable conclusion is that with respect to the management of personnel, an attached agency is, to a certain extent, free from Departmental interference and control. This is more explicitly shown by P.D. No. 857 which provides: Sec. 8. Management and Staff. a) The President shall, upon the recommendation of the Board, appoint the General Manager and the Assistant General Managers.

(b) All other officials and employees of the Authority shall be selected and appointed on the basis of merit and fitness based on a comprehensive and progressive merit system to be established by the Authority immediately upon its organization and consistent with Civil Service rules and regulations.The recruitment, transfer, promotion, and dismissal of all personnel of the Authority, including temporary workers, shall be governed by such merit system. (c) The General Manager shall, subject to the approval of the Board, determine the staffing pattern and the number of personnel of the Authority, define their duties and responsibilities, and fix their salaries and emoluments. For professional and technical positions, the General Manager shall recommend salaries and emoluments that are comparable to those of similar positions in other government-owned corporations, the provisions of existing rules and regulations on wage and position classification notwithstanding. (d) The General Manager shall, subject to the approval by the Board, appoint and remove personnel below the rank of Assistant General Manager. xxx xxx xxx (emphasis supplied.) Although the foregoing section does not expressly provide for a mechanism for an administrative investigation of personnel, by vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be charged with an administrative offense. During such investigation, the PPA General Manager, as earlier stated, may subject the employee concerned to preventive suspension. The investigation should be conducted in accordance with the procedure set out in Sec. 38 of P.D. No. 807. 13 Only after gathering sufficient facts may the PPA General Manager impose the proper penalty in accordance with law. It is the latter action which requires the approval of the PPA Board of Directors. 14 From an adverse decision of the PPA General Manager and the Board of Directors, the employee concerned mayelevate the matter to the Department Head or Secretary. Otherwise, he may appeal directly to the Civil Service Commission. The permissive recourse to the Department Secretary is sanctioned by the Civil Service Law (P.D. No. 807) under the following provisions: Sec. 37. Disciplinary Jurisdiction. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. The decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is

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removal, in which case the same shall be executory only after confirmation by the department head. xxx xxx xxx (Emphasis supplied.) It is, therefore, clear that the transmittal of the complaint by the PPA General Manager to the AAB was premature. The PPA General Manager should have first conducted an investigation, made the proper recommendation for the imposable penalty and sought its approval by the PPA Board of Directors. It was discretionary on the part of the herein petitioner to elevate the case to the then DOTC Secretary Reyes. Only then could the AAB take jurisdiction of the case. The AAB, which was created during the tenure of Secretary Reyes under Office Order No. 88-318 dated July 1, 1988, was designed to act, decide and recommend to him "all cases of administrative malfeasance, irregularities, grafts and acts of corruption in the Department." Composed of a Chairman and two (2) members, the AAB came into being pursuant to Administrative Order No. 25 issued by the President on May 25, 1987. 15 Its special nature as a quasi-judicial administrative body notwithstanding, the AAB is not exempt from the observance of due process in its proceedings. 16 We are not satisfied that it did so in this case the respondents protestation that petitioner waived his right to be heard notwithstanding. It should be observed that petitioner was precisely questioning the AAB's jurisdiction when it sought judicial recourse. WHEREFORE, the decision of the Court of Appeals is AFFIRMED insofar as it upholds the power of the PPA General Manager to subject petitioner to preventive suspension and REVERSED insofar as it validates the jurisdiction of the DOTC and/or the AAB to act on Administrative Case No. PPA-AAB-1-049-89 and rules that due process has been accorded the petitioner. The AAB decision in said case is hereby declared NULL and VOID and the case in REMANDED to the PPA whose General Manager shall conduct with dispatch its reinvestigation. The preventive suspension of petitioner shall continue unless after a determination of its duration, it is found that he had served the total of ninety (90) days in which case he shall be reinstated immediately. SO ORDERED. Footnotes 1 Petitioner was referred to as "Fidencio Y. Beja" in the proceedings below. He appears as "Fidencio Y. Beja, Sr." for the first time in this forum. 2 Case No. 89-053. 3 Two other cases involving substantially the same issues were likewise referred by the Court to the Court of Appeals: G.R. Nos. 86468-69 (Leopoldo F. Bungubung v. Hon. Reinerio 0. Reyes, et al.) and G.R. No. 86646 (Reinerio 0. Reyes, et al. vs. Cristeto O. Dinopol, et al.). 4 Penned by Justice Venancio D. Aldecoa, Jr. and concurred in by Justices Fidel P. Purisima and Abelardo M. Dayrit. 5 Petition, p. 3; Rollo, p. 4. 6 Petition, pp. 13-14; Rollo, pp. 14-15. 7 Bautista v. Peralta, L-21967, September 29, 1966, 18 SCRA 223,225-226. 8 See. 42, P.D. No. 807. 9 Orbos v. Bungubung, G.R. No. 92358, November 21, 1990, 191SCRA 563. 10 Sec. 18 (a). 11 Sec. 38 (2), par. (b).

12 Sec. 39 (2). 13 Sec. 38. Procedure in Administrative Cases Against Non - Presidential Appointees. (a) Administrative proceedings may be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn written complaint of any other persons. (b) In the case of a complaint filed by any other persons, the complainant submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. If a prima facie case exists, he shall notify the respondent in writing, of the charges against the latter, to which shall he attached copies of the complaint, sworn statements and other documents submitted, and the respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writing under oath, together with supporting sworn statements and documents, in which he shall indicate whether or not he elects a formal investigation if his answer is not considered satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss the case. (c) Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the allegations of the complaint and the answer of the respondent, including the supporting documents, the merits of the case cannot be decided judiciously without conducting such an investigation. (d) The investigation shall be held not earlier than five days nor later than ten days from the date of receipt of respondent's answer by the disciplining authority, and shall be finished within thirty days from the filing of the charges, unless the period is extended by the Commission in meritorious cases. The decision shall be rendered by the disciplining authority within thirty days from the termination of the investigation or submission of the report of the investigator, which report shall be submitted within fifteen days from the conclusion of the investigation. (e) The direct evidence for the complainant and the respondent shall consist of the sworn statement and documents submitted in support of the complaint or answer, as the case may be, without prejudice to the presentation of additional evidence deemed necessary but was unavailable at the time of the filing of the complaint or answer, upon which the crossexamination, by respondent and the complainant, respectively, shall be based. Following crossexamination, there may be redirect and recross-examination. (f) Either party may avail himself of the service of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum. (g) The investigation shall be conducted only for the purpose of ascertaining the truth and without necessarily adhering to technical rules applicable in judicial proceedings. It shall be conducted by the disciplining authority concerned or his authorized representative. The phrase any other party shall be understood to be a complainant other than those referred to in subsection (a) hereof. 14 Under the last paragraph of Sec. 36 of P.D. No. 807, the disciplining authority may impose the penalty of removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand. 15 Respondents' Comment, p. 1; Rollo, p. 85.

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16 Lupo v. Administrative Action Board, G.R. No. 89687, September 26, 1990, 190 SCRA 69.

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