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Endencia vs. David

on November 6, 2010

Separation of Powers

Saturnino David, the then Collector of InternalRevenue, ordered the taxing of Justice Pastor

Endencias and Justice Fernando Jugos salary

pursuant to Sec 13 of RA 590 which provides that

SEC. 13. No salary wherever received by any

public officer of the Republic of the Philippines shall

be considered as exempt from the income tax,

payment of which is hereby declared not to be a

diminution of his compensation fixed by the

Constitution or by law. According to the brief of the

Solicitor General on behalf of appellant Collector of

Internal Revenue, our decision in the case of

Perfecto vs. Meer, supra, was not received favorably

by Congress, because immediately after its

promulgation, Congress enacted Republic Act No.

590. To bring home his point, the Solicitor General

reproduces what he considers the pertinent

discussion in the Lower House of House Bill No. 1127

which became Republic Act No. 590.

ISSUE: Whether or not Sec 13 of RA 590 is

constitutional.

HELD: By legislative fiat as enunciated in section

13, Republic Act No. 590, Congress says that taxing

the salary of a judicial officer is not a decrease of

compensation. This is a clear example ofinterpretation or ascertainment of the meaning of

the phrase which shall not be diminished during

their continuance in office, found in section 9,

Article VIII of the Constitution, referring to the

salaries of judicial officers. This act of interpreting

the Constitution or any part thereof by the

Legislature is an invasion of the well-defined and

established province and jurisdiction of the Judiciary.The rule is recognized elsewhere that the

legislature cannot pass any declaratory act, or act

declaratory of what the law was before its passage,

so as to give it any binding weight with the courts. A

legislative definition of a word as used in a statute is

not conclusive of its meaning as used elsewhere;

otherwise, the legislature would be usurping a

judicial function in defining a term. ** The reason

behind the exemption in the Constitution, as

interpreted by the United States Federal Supreme

Court and this Court, is to preserve the

independence of the Judiciary, not only of this High

Tribunal but of the other courts, whose present

membership number more than 990 judicial


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officials. The independence of the judges is of far

greater importance than any revenue that could

come from taxing their salaries.

The doctrine laid down in the case of Perfecto vs.Meer, to the effect that the collection of income tax

on the salary of a judicial officer is a diminution

thereof and so violates the Constitution. The

interpretation and application of the Constitution

and of statutes is within the exclusive province and

jurisdiction of the judicial department, and that in

enacting a law, the Legislature may not legally

provide therein that it be interpreted in such a waythat it may not violate a Constitutional prohibition,

thereby tying the hands of the courts in their task of

later interpreting said statute, especially when the

interpretation sought and provided in said statute

runs counter to a previous interpretation already

given in a case by the highest court of the land.


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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 190529 April 29, 2010

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI),represented by its Secretary-General GEORGE "FGBFGEORGE" DULDULAO, Petitioner,vs.COMMISSION ON ELECTIONS, Respondent.

R E S O L U T I O N

BRION, J.:

The Philippine Guardians Brotherhood, Inc. (PGBI) seeks inthis petition for certiorari1 and in the motion forreconsideration it subsequently filed to nullify Commissionon Elections (COMELEC) Resolution No. 8679 datedOctober 13, 2009 insofar as it relates to PGBI, and the

Resolution dated December 9, 2009 denying PGBIs motionfor reconsideration in SPP No. 09-004 (MP). Via theseresolutions, the COMELEC delisted PGBI from the roster ofregistered national, regional or sectoral parties,organizations or coalitions under the party-list system.

BACKGROUND

Section 6(8) of Republic Act No. 7941 (RA 7941), otherwiseknown as the Party-List System Act, provides:

Section 6. Removal and/or Cancellation of Registration. The COMELEC may motu proprio or upon verifiedcomplaint of any interested party, remove or cancel, afterdue notice and hearing, the registration of any national,regional or sectoral party, organization or coalition on any ofthe following grounds:

x x x x

(8) It fails to participate in the last two (2) precedingelections or fails to obtain at least two per centum (2%) ofthe votes cast under the party-list system in the two (2)

preceding elections for the constituency in which it hasregistered.[Emphasis supplied.]

The COMELEC replicated this provision in COMELECResolution No. 2847 the Rules and RegulationsGoverning the Election of the Party-List Representativesthrough the Party-List System which it promulgated onJune 25, 1996.

For the upcoming May 2010 elections, the COMELEC en

banc issued on October 13, 2009 Resolution No. 8679deleting several party-list groups or organizations from thelist of registered national, regional or sectoral parties,organizations or coalitions. Among the party-listorganizations affected was PGBI; it was delisted because itfailed to get 2% of the votes cast in 2004 and it did notparticipate in the 2007 elections. Nevertheless, theCOMELEC stated in this Resolution that any national,regional sectoral party or organizations or coalitionsadversely affected can personally or through its authorized
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representative file a verified opposition on October 26,2009.

PGBI filed its Opposition to Resolution No. 8679, butlikewise sought, through its pleading, the admission adcautelam of its petition for accreditation as a party-listorganization under the Party-List System Act. Among otherarguments, PGBI asserted that:

(1) The assailed resolution negates the right ofmovant and those similarly situated to invokeSection 4 of R.A. No. 7941, which allows any party,organization and coalition already registered with theCommission to no longer register anew; the partythough is required to file with the Commission, not

later than ninety (90) days before the election, amanifestation of its desire to participate in the party-list system; since PGBI filed a Request/Manifestationseeking a deferment of its participation in the 2007elections within the required period prior to the 2007elections, it has the option to choose whether or notto participate in the next succeeding election underthe same conditions as to rights conferred andresponsibilities imposed;

(2) The Supreme Courts ruling in G.R. No. 177548 Philippine Mines Safety Environment Association,also known as "MINERO" v. Commission onElections cannot apply in the instant controversyfor two reasons: (a) the factual milieu of the citedcase is removed from PGBIs; (b) MINERO, prior todelisting, was afforded the opportunity to be heard,while PGBI and the 25 others similarly affected byResolution No. 8679 were not. Additionally, therequirement of Section 6(8) has been relaxed by the

Courts ruling in G.R. No. 179271 (Banat v.COMELEC) and the exclusion of PGBI and the 25other party-list is a denial of the equal protection ofthe laws;

(3) The implementation of the challenged resolutionshould be suspended and/or aborted to prevent amiscarriage of justice in view of the failure to notifythe parties in accordance with the same Section 6(8)or R.A. No. 7941.2

The COMELEC denied PGBIs motion/opposition for lack ofmerit.

First, the COMELEC observed that PGBI clearly

misunderstood the import of Section 4 of R.A. 7941.3 Theprovision simply means that without the requiredmanifestation or if a party or organization does notparticipate, the exemption from registration does not ariseand the party, organization or coalition must go through theprocess again and apply for requalification; a request fordeferment would not exempt PGBI from registering anew.

Second, the MINERO ruling is squarely in point, asMINERO failed to get 2% of the votes in 2001 and did not

participate at all in the 2004 elections.

Third, PGBI was given an opportunity to be heard or to seekthe reconsideration of the action or ruling complained of the essence of due process; this is clear from ResolutionNo. 8679 which expressly gave the adversely affectedparties the opportunity to file their opposition.
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As regards the alternative relief of application foraccreditation, the COMELEC found the motion to havebeen filed out of time, as August 17, 2009 was the deadlinefor accreditation provided in Resolution 8646. The motionwas obviously filed months after the deadline.

PGBI came to us in its petition for certiorari, arguing thesame positions it raised with the COMELEC when it movedto reconsider its delisting.

We initially dismissed the petition in light of our ruling inPhilippine Mines Safety Environment Association, alsoknown as "MINERO" v. Commission on Elections(Minero);4 we said that no grave abuse of discretion existsin a ruling that correctly applies the prevailing law and

jurisprudence. Applying Section 6(8) of RA 7941, the Courtdisqualified MINERO under the following reasoning:

Since petitioner by its own admission failed to get 2% of thevotes in 2001 and did not participate at all in the 2004elections, it necessarily failed to get at least two per centum(2%) of the votes cast in the two preceding elections.COMELEC, therefore, is not duty bound to certify it.

PGBI subsequently moved to reconsider the dismissal of its

petition. Among other arguments, PGBI claimed that thedismissal of the petition was contrary to law, the evidenceand existing jurisprudence. Essentially, PGBI asserts thatSection 6(8) of RA 7941 does not apply if one is to followthe tenor and import of the deliberations inclusive of theinterpellations in Senate Bill No. 1913 on October 19, 1994.It cited the following excerpts from the Records of theSenate:

Senator Gonzales: On the other hand, Mr. President, underground no. (7), Section 5 there are actually two grounds itstates: " Failure to participate in the last two (2) precedingelections or its failure to obtain at least ten percent (10%) ofthe votes case under the party-list system in either of thelast two (2) preceding elections for the constituency inwhich it has registered"

In short, the first ground is that, it failed to participate in thelast two (2) preceding elections. The second is, failure toobtain at least 10 percent of the votes cast under the party-list system in either of the last two preceding elections, Mr.President,

Senator Tolentino: Actually, these are two separate

grounds.

Senator Gonzales: There are actually two grounds,Mr. President.

Senator Tolentino: Yes, Mr.President.5 [Underscoring supplied.]

PGBI thus asserts that Section 6(8) does not apply to itssituation, as it is obvious that it failed to participate in one

(1) but not in the two (2) preceding elections. Implied in thisis that it also failed to secure the required percentage in one(1) but not in the two (2) preceding elections.

Considering PGBIs arguments, we granted the motion andreinstated the petition in the courts docket.

THE ISSUES
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We are called upon to resolve: (a) whether there is legalbasis for delisting PGBI; and (b) whether PGBIs right todue process was violated.

OUR RULING

We find the petition partly impressed with merit.

a. The Minero Ruling

Our Minero ruling is an erroneous application of Section6(8) of RA 7941; hence, it cannot sustain PGBIs delistingfrom the roster of registered national, regional or sectoralparties, organizations or coalitions under the party-listsystem.

First, the law is clear the COMELEC may motu proprio orupon verified complaint of any interested party, remove orcancel, after due notice and hearing, the registration of anynational, regional or sectoral party, organization or coalitionif it: (a) fails to participate in the last two (2) precedingelections; or (b) fails to obtain at least two per centum (2%)of the votes cast under the party-list system in the two (2)preceding elections for the constituency in which it hasregistered.6 The word "or" is a disjunctive term signifying

disassociation and independence of one thing from theother things enumerated; it should, as a rule, be construedin the sense in which it ordinarily implies, as a disjunctiveword.7 Thus, the plain, clear and unmistakable language ofthe law provides for two (2) separate reasons for delisting.

Second, Minero is diametrically opposed to the legislativeintent of Section 6(8) of RA 7941, as PGBIs citedcongressional deliberations clearly show.

Minero therefore simply cannot stand. Its basic defect lies inits characterization of the non-participation of a party-listorganization in an election as similar to a failure to garnerthe 2% threshold party-list vote. What Minero effectivelyholds is that a party list organization that does notparticipate in an election necessarily gets, by default, lessthan 2% of the party-list votes. To be sure, this is aconfused interpretation of the law, given the laws clear andcategorical language and the legislative intent to treat thetwo scenarios differently. A delisting based on a mixture orfusion of these two different and separate grounds fordelisting is therefore a strained application of the law injurisdictional terms, it is an interpretation not within thecontemplation of the framers of the law and hence is agravely abusive interpretation of the law.8

What we say here should of course take into account ourruling in Barangay Association for Advancement andNational Transparency v. COMELEC9 (Banat) where wepartly invalidated the 2% party-list vote requirementprovided in RA 7941 as follows:

We rule that, in computing the allocation ofadditionalseats, the continued operation of the two percent thresholdfor the distribution of the additional seats as found in the

second clause of Section 11(b) of R.A. No. 7941is unconstitutional. This Court finds that the two percentthreshold makes it mathematically impossible to achieve themaximum number of available party list seats when thenumber of available party list seats exceeds 50. Thecontinued operation of the two percent threshold in thedistribution of the additional seats frustrates the attainmentof the permissive ceiling that 20% of the members of theHouse of Representatives shall consist of party-listrepresentatives.
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The disqualification for failure to get 2% party-list votes intwo (2) preceding elections should therefore be understoodin light of the Banat ruling that party-list groups ororganizations garnering less than 2% of the party-list votesmay yet qualify for a seat in the allocation of additionalseats.

We need not extensively discuss Banats significance,except to state that a party-list group or organization whichqualified in the second round of seat allocation cannot nowvalidly be delisted for the reason alone that it garnered lessthan 2% in the last two elections. In other words, theapplication of this disqualification should henceforth becontingent on the percentage of party-list votes garnered bythe last party-list organization that qualified for a seat in the

House of Representatives, a percentage that is less thanthe 2% threshold invalidated in Banat. The disqualificationshould now necessarily be read to apply to party-list groupsor organizations that did not qualify for a seat in the twopreceding elections for the constituency in which itregistered.

To reiterate, (a) Section 6(8) of RA 7941 provides for twoseparate grounds for delisting; these grounds cannot bemixed or combined to support delisting; and (b) thedisqualification for failure to garner 2% party-list votes intwo preceding elections should now be understood, in lightof the Banat ruling, to mean failure to qualify for a party-listseat in two preceding elections for the constituency in whichit has registered. This, we declare, is how Section 6(8) ofRA 7941 should be understood and applied. We do sounder our authority to state what the law is,10 and as anexception to the application of the principle of stare decisis.

The doctrine of stare decisis et non quieta movere (toadhere to precedents and not to unsettle things which areestablished) is embodied in Article 8 of the Civil Code of thePhilippines which provides, thus:

ART. 8. Judicial decisions applying or interpreting the lawsor the Constitution shall form a part of the legal system ofthe Philippines.

The doctrine enjoins adherence to judicial precedents. Itrequires courts in a country to follow the ruleestablished in a decision of its Supreme Court. Thatdecision becomes a judicial precedent to be followed insubsequent cases by all courts in the land. The doctrine ofstare decisis is based on the principle that once a question

of law has been examined and decided, it should bedeemed settled and closed to further argument.11Thedoctrine is grounded on the necessity for securing certaintyand stability of judicial decisions, thus:

Time and again, the court has held that it is a verydesirable and necessary judicial practice thatwhen acourt has laid down a principle of law as applicable to acertain state of facts, it will adhere to that principle andapply it to all future cases in which the facts are

substantially the same. Stare decisis et non quieta movere.Stand by the decisions and disturb not what is settled. Staredecisis simply means that for the sake of certainty, aconclusion reached in one case should be applied tothose that follow if the facts are substantially the same,even though the parties may be different. It proceeds fromthe first principle of justice that, absent any powerfulcountervailing considerations, like cases ought to bedecided alike. Thus, where the same questions relating tothe same event have been put forward by the parties
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similarly situated as in a previous case litigated and decidedby a competent court, the rule of stare decisis is a bar toany attempt to relitigate the same issue.12

The doctrine though is not cast in stone for upon a showingthat circumstances attendant in a particular case overridethe great benefits derived by our judicial system from thedoctrine of stare decisis, the Court is justified in setting itaside.13

As our discussion above shows, the most compellingreason to abandon Minero exists; it was clearly anerroneous application of the law an application that theprinciple of stability or predictability of decisions alonecannot sustain. Minero did unnecessary violence to the

language of the law, the intent of the legislature, and to therule of law in general. Clearly, we cannot allow PGBI to beprejudiced by the continuing validity of an erroneous ruling.Thus, we now abandon Minero and strike it out from ourruling case law.

We are aware that PGBIs situation a party list group ororganization that failed to garner 2% in a prior election andimmediately thereafter did not participate in the precedingelection is something that is not covered by Section 6(8)

of RA 7941. From this perspective, it may be an unintendedgap in the law and as such is a matter for Congress toaddress. We cannot and do not address matters over whichfull discretionary authority is given by the Constitution to thelegislature; to do so will offend the principle of separation ofpowers. If a gap indeed exists, then the present caseshould bring this concern to the legislatures notice.

b. The Issue of Due Process

On the due process issue, we agree with the COMELECthat PGBIs right to due process was not violated for PGBIwas given an opportunity to seek, as it did seek, areconsideration of Resolution No. 8679. The essence ofdue process, we have consistently held, is simply theopportunity to be heard; as applied to administrativeproceedings, due process is the opportunity to explain onesside or the opportunity to seek a reconsideration of theaction or ruling complained of. A formal or trial-type hearingis not at all times and in all instances essential. Therequirement is satisfied where the parties are afforded fairand reasonable opportunity to explain their side of thecontroversy at hand. What is frowned upon is absolute lackof notice and hearing x x x.14 We find it obvious under theattendant circumstances that PGBI was not denied due

process. In any case, given the result of this Resolution,PGBI has no longer any cause for complaint on dueprocess grounds.

WHEREFORE, premises considered, we GRANT thepetition and accordingly ANNUL COMELEC Resolution No.8679 dated October 13, 2009 insofar as the petitioner PGBIis concerned, and the Resolution dated December 9, 2009which denied PGBIs motion for reconsideration in SPP No.09-004 (MP). PGBI is qualified to be voted upon as a party-list group or organization in the coming May 2010 elections.

SO ORDERED.

ARTURO D. BRIONAssociate Justice

WE CONCUR:
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REYNATO S. PUNOChief Justice

ANTONIO T. CARPIO

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIOMORALES

Associate Justice

PRESBITERO J.VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B.NACHURA

Associate Justice

TERESITA J.LEONARDO-DE

CASTROAssociate Justice

DIOSDADO M.PERALTA

Associate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DELCASTILLO

Associate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S.

VILLARAMA, JR.Associate Justice

JOSE PORTUGAL

PEREZAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it ishereby certified that the conclusions in the aboveResolution had been reached in consultation before thecase was assigned to the writer of the opinion of the Court.


Footnotes

1 Filed under Rule 65 of the RULES OF COURT.

2 Rollo, pp. 42-48.

3 Sec. 4. Manifestation to Participate in the Party-ListSystem. Any party, organization or coalitionalready registered with the Commission need notregister anew. However, such party, organization orcoalition shall file with the Commission, not later thanninety (90) days before the election, a manifestationof its desire to participate in the party-list system.

4

G.R. No. 177548, May 10, 2007; see rollo of G.R.No. 177548, pp. 46-48.

5 Rollo, pp. 74-75.

6 Numbering supplied.
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7 Agpalo, Statutory Construction, p. 204 (2003); seealso The Heirs of George Poe v. Malayan InsuranceCompany, Inc. G.R. No. 156302, April 7, 2009.

8 See Varias v. Commission on Elections, G.R. No.189078, February 11, 2010 where we held that theuse of wrong considerations is an act not incontemplation of law a jurisdictional error for this isone way of gravely abusing ones discretion.

9 G.R. No. 179271, April 21, 2009.

10 Marbury v. Madison (1 Cranch [5 US] 137, 2 L ed60 [1803]) holds that "it is emphatically theprovince and duty of the judicial department to

say what the law is."

11 See Lazatin v. Desierto, G.R. No. 147097, June 5,2009, citing Fermin v. People, G.R. No. 157643,March 28, 2008, 550 SCRA 132.

12 Id., citing Chinese Young Men's ChristianAssociation of the Philippine Islands v. RemingtonSteel Corporation, G.R. No. 159422, March 28,2008, 550 SCRA 180.

13 Ibid.

14 Bautista v. Comelec, 460 Phil, 459, 478 (2003).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

This case stems from the Commission on Elections(COMELEC) En Banc resolution removing petitionerPhilippine Guardians Brotherhood, Inc. (PGBI) from theroster of registered party-list organizations because of itsfailure to obtain at least 2% party-list votes in the May 2004election and to participate in the May 2007 election.

I agree with the view of Justice Arturo D. Brion thatRepublic Act (R.A.) 7941 provides for two separate groundsfor delisting a party-list organization, namely: a) failure toparticipate in the last two preceding elections; or b) failure

to garner at least 2% of the votes cast under the party-listsystem in the two preceding elections for the constituencyin which it has registered.

I also agree that because of the Courts decision inBANAT,1the needed minimum 2% of the votes cast in thetwo preceding elections should now be understood to meanthe actual percentage of the votes garnered by the lastparty-list organization that qualified for a seat in the Houseof Representatives. But this could not apply to PGBI

because BANAT took effect only in the preceding May 2007elections and PGBI did not run in the same. It ran in thepreceding May 2004 elections, when the BANAT ruling didnot yet exist, but failed to get at least 2% of the votes cast inthose elections.

I must disagree with the ponencias view that the Courtshould reverse the Minero ruling2 that invoked Section 6(8)of R.A. 7941, which provides:
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Section 6. Refusal and/or Cancellation of Registration. --The COMELEC may, motu proprio or upon verifiedcomplaint of any interested party, refuse or cancel, afterdue notice and hearing, the registration of any national,regional, or sectoral party, organization or coalition on anyof the following grounds:

x x x x

(8) It fails to participate in the last two (2) precedingelections fails to obtain at least two per centum (2%) of thevotes cast under the party-list system in the two (2)preceding elections for the constituency in which it hasregistered.

Since by its own admission, Minero failed to get at least 2%of the votes in the 2001 elections and did not participate atall in the 2004 elections, the Court held that it necessarilyfailed to get at least 2% of the votes cast in the twopreceding elections. The COMELEC was thus justified incanceling its registration.

The ponencia would allow PGBI to remain in the register ofparty-list organizations and avert disqualificationsbecause, according to it, PGBI cannot be said to

have failed to get at least 2% of the votes cast inthe two preceding elections because it only ran inone of those two elections. It cannot also be saidto have failed to take part in the two precedingelections because it ran in one of them. What isneeded, the ponencia claims, are two strikes for the sameground in the two preceding elections.

But it is evident from Section 6(8) above that the legislatureintended the two separate testsfailure to take part in the

last two preceding elections or failure to garner at least 2%of the votes cast in such electionsto be complimentary.Their purpose is to put every party-list organization, whichwon the right to be registered, to a two-election wringer, avoters preference test, for lack of a better term to describeit.

This means that, to remain in the party-list register andenjoy the right to take part in the party-list election, a partymust prove by the results of the preceding two electionsthat it retains the required level of voters preference. Failingin this, such party shall be dropped by the COMELEC,without prejudice to its applying for new registration after amandatory one-term rest.

If the ponencias views were to be followed, petitioner PGBIwould be able to circumvent the voters preference test thatit needs to pass to remain in the register of party-listorganizations. It would succeed in putting one over theparties that exerted efforts to get the required level ofvoters preference. The following example should illustratethe unfair result:

The register of party-list organizations cannot be allowed togrow infinitely. The system cannot tolerate sectoral partieswith low-levels of voters preference to remain on the ballot.For this reason, the legislature established a mechanism for

Election Year Party-List X Party-List Y PGBI Party

May 2004 Deficient votes Did not run Deficient votes

May 2007 Deficient votes Did not run Did not run

May 2010 Cancelled Cancelled Not cancelled


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attrition, the enforcement of which is an importantresponsibility of the COMELEC.

The Court must not abandon Minero. I vote to deny PGBIsmotion for reconsideration.

ROBERTO A. ABADAssociate Justice

Footnotes

1 Barangay Association for National Advancement

and Transparency v. Commission on Elections, G.R.No. 179295, April 21, 2009.

2 Philippine Mine Safety & Environment Association,also known as "MINERO" v. Commission onElections, G.R. No. 177548, May 10, 2007.
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Manila

SECOND DIVISION

G.R. No. L-30061 February 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,vs.JOSE JABINAL Y CARMEN, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar andSolicitor Antonio M. Martinez for plaintiff-appellee.

Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J.:p

Appeal from the judgment of the Municipal Court ofBatangas (provincial capital), Batangas, in Criminal CaseNo. 889, finding the accused guilty of the crime of IllegalPossession of Firearm and Ammunition and sentencing himto suffer an indeterminate penalty ranging from one (1) yearand one (1) day to two (2) years imprisonment, with theaccessories provided by law, which raises in issue thevalidity of his conviction based on a retroactive applicationof Our ruling in People v. Mapa. 1

The complaint filed against the accused reads:

That on or about 9:00 o'clock, p.m., the 5thday of September, 1964, in the poblacion,Municipality of Batangas, Province ofBatangas, Philippines, and within thejurisdiction of this Honorable Court, theabove-named accused, a person notauthorized by law, did then and there wilfully,unlawfully and feloniously keep in hispossession, custody and direct control arevolver Cal. .22, RG8 German Made withone (1) live ammunition and four (4) emptyshells without first securing the necessarypermit or license to possess the same.

At the arraignment on September 11, 1964, the accusedentered a plea of not guilty, after which trial was accordinglyheld.

The accused admitted that on September 5, 1964, he wasin possession of the revolver and the ammunition describedin the complaint, without the requisite license or permit. He,however, claimed to be entitled to exoneration because,although he had no license or permit, he had anappointment as Secret Agent from the Provincial Governorof Batangas and an appointment as Confidential Agent fromthe PC Provincial Commander, and the said appointmentsexpressly carried with them the authority to possess andcarry the firearm in question.

Indeed, the accused had appointments from the above-mentioned officials as claimed by him. His appointmentfrom Governor Feliciano Leviste, dated December 10, 1962,reads:


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Reposing special trust and confidence in yourcivic spirit, and trusting that you will be aneffective agent in the detection of crimes andin the preservation of peace and order in theprovince of Batangas, especially with respect

to the suppression of trafficking in explosives,jueteng, illegal cockfighting, cattle rustling,robbery and the detection of unlicensedfirearms, you are hereby appointeda SECRET AGENTof the undersigned, theappointment to take effect immediately, or assoon as you have qualified for the position.As such Secret Agent, your duties shall bethose generally of a peace officer andparticularly to help in the preservation of

peace and order in this province and to makereports thereon to me once or twice a month.It should be clearly understood that anyabuse of authority on your part shall beconsidered sufficient ground for the automaticcancellation of your appointment andimmediate separation from the service. Inaccordance with the decision of the SupremeCourt in G.R. No. L-12088 dated December23, 1959, you will have the right to bear afirearm, particularly described below, for usein connection with the performance of yourduties.

By virtue hereof, you may qualify and enterupon the performance of your duties by takingyour oath of office and filing the originalthereof with us.

Very truly yours,

(Sgd.) FELICIProvincial r

FIREARM AUTHORIZED TO CARRY:

Kind: ROHM-Revolver

Make: German

SN: 64

Cal: .22

On March 15, 1964, the accused was also appointed by thePC Provincial Commander of Batangas as Confidential

Agent with duties to furnish information regarding smugglingactivities, wanted persons, loose firearms, subversives andother similar subjects that might affect the peace and ordercondition in Batangas province, and in connection withthese duties he was temporarily authorized to possess aROHM revolver, Cal. .22 RG-8 SN-64, for his personalprotection while in the performance of his duties.

The accused contended before the court a quo that in viewof his above-mentioned appointments as Secret Agent and

Confidential Agent, with authority to possess the firearmsubject matter of the prosecution, he was entitled toacquittal on the basis of the Supreme Court's decisionin People vs. Macarandang2 and People vs. Lucero. 3 Thetrial court, while conceding on the basis of the evidence ofrecord the accused had really been appointed Secret Agentand Confidential Agent by the Provincial Governor and thePC Provincial Commander of Batangas, respectively, withauthority to possess and carry the firearm described in the


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complaint, nevertheless held the accused in its decisiondated December 27, 1968, criminally liable for illegalpossession of a firearm and ammunition on the ground thatthe rulings of the Supreme Court in the casesofMacarandangand Lucero were reversed and abandoned

in People vs. Mapa, supra. The court considered asmitigating circumstances the appointments of the accusedas Secret Agent and Confidential Agent.

Let us advert to Our decisions in People v. Macarandang,supra, People v. Lucero, supra, and People v. Mapa, supra.In Macarandang, We reversed the trial court's judgment ofconviction against the accused because it was shown thatat the time he was found to possess a certain firearm andammunition without license or permit, he had an

appointment from the Provincial Governor as Secret Agentto assist in the maintenance of peace and order and in thedetection of crimes, with authority to hold and carry the saidfirearm and ammunition. We therefore held that while it istrue that the Governor has no authority to issue any firearmlicense or permit, nevertheless, section 879 of the RevisedAdministrative Code provides that "peace officers" areexempted from the requirements relating to the issuance oflicense to possess firearms; and Macarandang'sappointment as Secret Agent to assist in the maintenanceof peace and order and detection of crimes, sufficientlyplaced him in the category of a "peace officer" equivalenteven to a member of the municipal police who undersection 879 of the Revised Administrative Code areexempted from the requirements relating to the issuance oflicense to possess firearms. In Lucero, We held that underthe circumstances of the case, the granting of thetemporary use of the firearm to the accused was anecessary means to carry out the lawful purpose of thebatallion commander to effect the capture of a Huk leader.

In Mapa, expressly abandoning the doctrinein Macarandang, and by implication, that in Lucero, Wesustained the judgment of conviction on the followingground:

The law is explicit that except as thereafterspecifically allowed, "it shall be unlawful forany person to ... possess any firearm,detached parts of firearms or ammunitiontherefor, or any instrument or implement usedor intended to be used in the manufacture offirearms, parts of firearms, or ammunition."(Sec. 878, as amended by Republic Act No.4, Revised Administrative Code.) The nextsection provides that "firearms and

ammunition regularly and lawfully issued toofficers, soldiers, sailors, or marines [of theArmed Forces of the Philippines], thePhilippine Constabulary, guards in theemployment of the Bureau of Prisons,municipal police, provincial governors,lieutenant governors, provincial treasurers,municipal treasurers, municipal mayors, andguards of provincial prisoners and jails," arenot covered "when such firearms are inpossession of such officials and publicservants for use in the performance of theirofficial duties." (Sec. 879, RevisedAdministrative Code.)

The law cannot be any clearer. No provisionis made for a secret agent. As such he is notexempt. ... .


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It will be noted that when appellant was appointed SecretAgent by the Provincial Government in 1962, andConfidential Agent by the Provincial Commander in 1964,the prevailing doctrine on the matter was that laid down byUs in People v. Macarandang(1959) and People v.

Lucero (1958). Our decision in People v. Mapa reversingthe aforesaid doctrine came only in 1967. The sole questionin this appeal is: Should appellant be acquitted on the basisof Our rulings in Macarandangand Lucero, or should hisconviction stand in view of the complete reversal ofthe Macarandangand Lucero doctrine in Mapa? TheSolicitor General is of the first view, and he accordinglyrecommends reversal of the appealed judgment.

Decisions of this Court, although in themselves not laws,

are nevertheless evidence of what the laws mean, and thisis the reason why under Article 8 of the New Civil Code"Judicial decisions applying or interpreting the laws or theConstitution shall form a part of the legal system ... ." Theinterpretation upon a law by this Court constitutes, in a way,a part of the law as of the date that law originally passed,since this Court's construction merely establishes thecontemporaneous legislative intent that law thus construedintends to effectuate. The settled rule supported bynumerous authorities is a restatement of legal maxim "legisinterpretatio legis vim obtinet" the interpretation placedupon the written law by a competent court has the force oflaw. The doctrine laid downin Lucero andMacarandangwas part of the jurisprudence,hence of the law, of the land, at the time appellant wasfound in possession of the firearm in question and when hearraigned by the trial court. It is true that the doctrine wasoverruled in the Mapa case in 1967, but when a doctrine ofthis Court is overruled and a different view is adopted, thenew doctrine should be applied prospectively, and should

not apply to parties who had relied on the old doctrine andacted on the faith thereof. This is especially true in theconstruction and application of criminal laws, where it isnecessary that the punishability of an act be reasonablyforeseen for the guidance of society.

It follows, therefore, that considering that appellantconferred his appointments as Secret Agent andConfidential Agent and authorized to possess a firearmpursuant to the prevailing doctrine enunciatedin MacarandangandLucero, under which no criminal liabilitywould attach to his possession of said firearm in spite of theabsence of a license and permit therefor, appellant must beabsolved. Certainly, appellant may not be punished for anact which at the time it was done was held not to be

punishable.

WHEREFORE, the judgment appealed from is herebyreversed, and appellant is acquitted, with costs de oficio.

Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ.,concur.

Fernando, J., took no part.

Footnotes

1 L-22301, August 30, 1967, 20 SCRA 1164.

2 106 Phil. (1959), 713.

3 103 Phil. (1958), 500.


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Manila

SECOND DIVISION

G.R. No. 177333 April 24, 2009

PHILIPPINE AMUSEMENT AND GAMINGCORPORATION (PAGCOR) represented by ATTY.CARLOS R. BAUTISTA, JR., Petitioner,vs.PHILIPPINE GAMING JURISDICTION INCORPORATED

(PEJI), ZAMBOANGA CITY SPECIAL ECONOMIC ZONEAUTHORITY, et al., Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Before the Court is a petition for Prohibition.

Republic Act No. 7903 (R.A. No. 7903), which was enacted

into law on February 23, 1995, created the Zamboanga CitySpecial Economic Zone (ZAMBOECOZONE) and theZAMBOECOZONE Authority. Among other things, the lawgives the ZAMBOECOZONE Authority the following powerunder Sec. 7 (f), viz:

Section 7.

x x x x

(f) To operate on its own, either directly or through asubsidiary entity, or license to others, tourism-relatedactivities, including games, amusements and recreationaland sports facilities;

x x x x

Apparently in the exercise of its power granted under theabove provision, public respondent ZAMBOECOZONEAuthority passed Resolution No. 2006-08-03 dated August19, 2006 approving the application of private respondentPhilippine E-Gaming Jurisdiction, Inc. (PEJI) to be a MasterLicensor/Regulator of on-line/internet/electronicgaming/games of chance.

PEJI forthwith undertook extensive advertising campaignsrepresenting itself as such licensor/regulator to theinternational business and gaming community, drawing thePhilippine Amusement and Gaming Corporation (PAGCOR)to file the present petition for Prohibition which assails theauthority of the ZAMBOECOZONE Authority to operate,license, or regulate the operation of games of chance in theZAMBOECOZONE.

PAGCOR contends that R.A. No. 7903, specifically Section7(f) thereof, does not give power or authority to theZAMBOECOZONE Authority to operate, license, or regulatethe operation of games of chance in theZAMBOECOZONE. Citing three (3) statutes, which it claimsare in pari materia with R.A. No. 7903 as it likewise createdeconomic zones and provided for the powers and functionsof their respective governing and administrative authorities,PAGCOR posits that the grant therein of authority tooperate games of chance is clearly expressed, but it is notsimilarly so in Section 7(f) of R.A. No. 7903.


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Thus PAGCOR cites these three statutes and theirrespective pertinent provisions:

Republic Act No. 7227, or the "Bases Conversion andDevelopment Authority Act" enacted on March 13, 1992:

Section 13. The Subic Bay Metropolitan Authority.

x x x x

(b) Powers and functions of the Subic Bay MetropolitanAuthority. The Subic Bay Metropolitan Authority,otherwise known as the Subic Authority, shall have thefollowing powers and functions:

x x x x

(7) To operate directly or indirectly or license tourism-related activities subject to priorities and standards set bythe Subic Authority including games and amusements,except horse-racing, dog-racing and casino gambling whichshall continue to be licensed by the Philippine Amusementand Gaming Corporation (PAGCOR) upon recommendationof the Conversion Authority; to maintain and preserve theforested areas as a national park;

x x x x

Republic Act No. 7922 or the "Cagayan Economic Zone Actof 1995" enacted on February 24, 1995:

Section 6. Powers and Functions of the Cagayan EconomicZone Authority The Cagayan Economic Zone Authorityshall have the following powers and functions:

x x x x

(f) To operate on its own, either directly or through asubsidiary entity, or license to others, tourism-relatedactivities, including games, amusements, recreational andsports facilities such as horse-racing, dog-racing gambling,casinos, golf courses, and others, under priorities andstandards set by the CEZA;

x x x x

And Republic Act No. 7916 or the "Special Economic ZoneAct of 1995," enacted on February 24, 1995 authorizingother economic zones established under the defunct ExportProcessing Zone Authority (EPZA) and its successor

Philippine Economic Zone Authority (PEZA) to establishcasinos and other games of chance under the license ofPAGCOR by way of the ipso facto clause, viz:

SECTION 51. Ipso Facto Clause. - All privileges, benefits,advantages or exemptions granted to special economiczones under Republic Act No. 7227 shall ipso facto beaccorded to special economic zones already created or tobe created under this Act. The free port status shall not bevested upon the new special economic zones.

PAGCOR maintains that, compared with the above-quotedprovisions of the ecozone-related statutes, Section 7(f) ofR.A. No. 7903 does not categorically empower theZAMBOECOZONE Authority to operate, license, orauthorize entities to operate games of chance in the area,as the words "games" and "amusement" employed thereindo not include "games of chance." Hence, PAGCORconcludes, ZAMBOECOZONE Authoritys grant of licenseto private respondent PEJI encroached on its (PAGCORs)


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authority under Presidential Decree No. 1869 vis-a-vis theabove-stated special laws to centralize and regulate allgames of chance.

ZAMBOECOZONE Authority, in its Comment,1contends

that PAGCOR has no personality to file the present petitionas it failed to cite a superior law which proves its claim ofhaving been granted exclusive right and authority to licenseand regulate all games of chance within the Philippines; andthat, contrary to PAGCORs assertion, the words "games"and "amusements" in Section 7(f) of R.A. No. 7903 include"games of chance" as was the intention of the lawmakerswhen they enacted the law.

In its Reply Ex Abundante Ad Cautelam,2 PAGCOR cites

the November 27, 2006 Opinion3

rendered by the Office ofthe President through Deputy Executive Secretary for LegalAffairs Manuel B. Gaite, the pertinent portions of whichread:

Coming to the issue at hand, the ZAMBOECOZONECharter simply allows the operation of tourism-relatedactivities including games and amusements without statingany form of gambling activity in its grant of authority toZAMBOECOZONE.

x x x x

In view of the foregoing, we are of the opinion that under itslegislative franchise (RA 7903), the ZAMBOECOZONE isnot authorized to enter into any gaming activity byitself unless expressly authorized by law or other lawsspecifically allowing the same. (Emphasis and underscoringsupplied)

The Court finds that, indeed, R.A. No. 7903 does notauthorize the ZAMBOECOZONE Authority to operateand/or license games of chance/gambling.

Section 7(f) of R.A. No. 7903 authorizes the

ZAMBOECOZONE Authority "[t]o operate on its own, eitherdirectly or through a subsidiary entity, or license to others,tourism-related activities, including games, amusementsand recreational and sports facilities."

It is a well-settled rule in statutory construction that wherethe words of a statute are clear, plain, and free fromambiguity, it must be given its literal meaning and appliedwithout attempted interpretation.4

The plain meaning rule orverba legis, derived from themaxim indexanimi sermo est(speech is the index ofintention), rests on the valid presumption that the wordsemployed by the legislature in a statute correctly express itsintention or will, and preclude the court from construing itdifferently. For the legislature is presumed to know themeaning of the words, to have used them advisedly, and tohave expressed the intent by use of such words as arefound in the statute. Verba legis non est recedendum. Fromthe words of a statute there should be no departure.5

The words "game" and "amusement" have definite andunambiguous meanings in law which are clearly differentfrom "game of chance" or "gambling." In its ordinary sense,a "game" is a sport, pastime, or contest; while an"amusement" is a pleasurable occupation of the senses,diversion, or enjoyment.6 On the other hand, a "game ofchance" is "a game in which chance rather than skilldetermines the outcome," while "gambling" is defined as
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"making a bet" or "a play for value against an uncertainevent in hope of gaining something of value." 7

A comparison of the phraseology of Section 7(f) of R.A. No.7903 with similar provisions in the three cited statutes

creating ECOZONES shows that while the three statutes,particularly R.A. No. 7922 which authorized the CagayanEconomic Zone Authority to directly or indirectly operategambling and casinos within its jurisdiction, categoricallystated that such power was being vested in their respectiveadministrative bodies, R.A. No. 7903 did not.

The spirit and reason of the statute may be passed uponwhere a literal meaning would lead to absurdity,contradiction, injustice, or defeat the clear purpose of the

lawmakers.8

Not any of these instances is present in thecase at bar, however. Using the literal meanings of "games"and "amusement" to exclude "games of chance" and"gambling" does not lead to absurdity, contradiction, orinjustice. Neither does it defeat the intent of the legislators.The lawmakers could have easily employed the words"games of chance" and "gambling" or even "casinos" if theyhad intended to grant the power to operate the same to theZAMBOECOZONE Authority, as what was done in R.A. No.7922 enacted a day after R.A. No. 7903. But they did not.

The Court takes note of the above-mentioned Opinion ofthe Office of the President which, after differentiating thegrant of powers between the Cagayan Special EconomicZone and the ZAMBOECOZONE Authority, states thatwhile the former is authorized to, among other things,operate gambling casinos and internet gaming, as well asenter into licensing agreements, the latter is not. Therelevant portions of said Opinion read:

The difference in the language and grant of powers toCEZA and ZAMBOECOZONE is telling. To the former, thegrant of powers is not only explicit, but amplified, while tothe latter the grant of power is merely what the law (RA7903) states. Not only are the differences in language

telling, it will be noted that both charters of CEZA andZAMBOECOZONE were signed into law only one (1) dayapart from each other, i.e., February 23, 1995 in the case ofZAMBOECOZONE and February 24, 1995 in the case ofCEZA. x x x Accordingly, both laws have to be taken in thelight of what Congress intended them to be, and thedistinction that the lawmakers made when they enacted thetwo laws.

Coming to the issue at hand, the ZAMBOECOZONE

Charter simply allows the operation of tourism-relatedactivities including games and amusements without statingany form of gambling activity in its grant of authority toZAMBOECOZONE. On the other hand, the grant to CEZAincluded such activities as horse-racing, dog-racing andgambling casinos.

x x x x

In view of the foregoing, we are of the opinion that under itslegislative franchise (RA 7903), the ZAMBOECOZONE isnot authorized to enter into any gaming activity by itselfunless expressly authorized by law or other laws specificallyallowing the same. (Emphasis supplied)

Both PAGCOR and the Ecozones being under thesupervision of the Office of the President, the lattersinterpretation of R.A. No. 7903 is persuasive and deservesrespect underthe doctrine of respect for administrative orpractical construction. In applying said doctrine, courts often


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refer to several factors which may be regarded as basesthereof factors leading the courts to give the principlecontrolling weight in particular instances, or as independentrules in themselves. These factors include the respect duethe governmental agencies charged with

administration, their competence, expertness,experience, and informed judgment and the fact thatthey frequently are the drafters of the law theyinterpret; that the agency is the one on which thelegislature must rely to advise it as to the practicalworking out of the statute, and practical application of thestatute presents the agency with unique opportunity andexperiences for discovering deficiencies, inaccuracies, orimprovements in the statute.8

In fine, Section 7(f) did not grant to the ZAMBOECOZONEAuthority the power to operate and/or license games ofchance/gambling.

WHEREFORE, the petition is GRANTED. Publicrespondent Zamboanga Economic Zone Authority isDIRECTED to CEASE and DESIST from exercisingjurisdiction to operate, license, or otherwise authorize andregulate the operation of any games of chance. And privaterespondent Philippine Gaming Jurisdiction, Incorporated isDIRECTED to CEASE and DESIST from operating anygames of chance pursuant to the license granted to it bypublic respondent.

SO ORDERED.

CONCHITA CARPIO MORALESAssociate JusticeActing Chairperson

WE CONCUR:

DANTE O. TINGAAssociate Justice

PRESBITERO J.VELASCO, JR.

Associate Justice

TERESITA J.LEONARDO DE

CASTRO*

Associate Justice

ARTURO D. BRIONAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to thewriter of the opinion of the Courts Division.

CONCHITA CARPIO MORALESAssociate JusticeActing Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and

the Division Chairpersons Attestation, I certify that theconclusions in the above decision had been reached inconsultation before the case was assigned to the writer ofthe opinion of the Courts Division.



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Footnotes

* Additional member in lieu of Justice Leonardo A.Quisumbing who is on official leave.

1 Rollo, pp. 75-85.

2 Id. at 99-109.

3 Annex "A" of Reply, id. at 111-113.

4 Vide National Food Authority (NFA) v. Masada

Security Agency, Inc., G.R. No. 163448, March 8,2005, 453 SCRA 70, 79; Philippine National Bank v.Garcia, Jr., G.R. No. 141246, September 9, 2002,388 SCRA 485, 487, 491.

5 Id.

6 Blacks Law Dictionary, Sixth Edition, WestPublishing Co., St. Paul, Minnesota, U.S.A., 1990,pp. 679 and 84.

7 Id. at 679.

8 Asturias v. Commissioner of Customs, G.R. No. L-19337, September 30, 1969, 29 SCRA 617, 623.
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EN BANC

REVIEW CENTER

ASSOCIATION OF THEPHILIPPINES,

Petitioner,

- versus -

EXECUTIVE SECRETARY

EDUARDO ERMITA and

COMMISSION ON HIGHER

EDUCATION represented by itsChairman ROMULO L. NERI,

Respondents.

CPA REVIEW SCHOOL OF THE

PHILIPPINES, INC. (CPAR),

PROFESSIONAL REVIEW AND

TRAINING CENTER, INC.

(PRTC), ReSA REVIEW SCHOOL,

INC.

(ReSA), CRC-ACE REVIEWSCHOOL, INC. (CRC-ACE),

Petitioners-Intervenors.

PIMSAT COLLEGES,

Respondent-Intervenor.

G.R. No. 180046

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-

SANTIAGO,

CARPIO,

AUSTRIA-

MARTINEZ,

CORONA,

CARPIO

MORALES,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE

CASTRO,

BRION, and

PERALTA,JJ.

Promulgated:

April 2, 2009

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

- - - - - - x

D E C I S I O N

CARPIO,J.:The Case

Before the Court is a petition for prohibition and mandamus

assailing Executive Order No. 566 (EO 566) [1] and Commission

on Higher Education (CHED) Memorandum Order No. 30, series

of 2007 (RIRR).[2]

The Antecedent Facts

On 11 and 12 June 2006, the Professional RegulationCommission (PRC) conducted the Nursing Board Examinations

nationwide. In June 2006, licensure applicants wrote the PRC to

report that handwritten copies of two sets of examinations were

circulated during the examination period among the examinees

reviewing at the R.A. Gapuz Review Center and Inress Review

Center. George Cordero, Inress Review Centers President, was

then the incumbent President of the Philippine Nurses

Association. The examinees were provided with a list of 500

questions and answers in two of the examinations five subjects,

particularly Tests III (Psychiatric Nursing) and V (Medical-

Surgical Nursing). The PRC later admitted the leakage and tracedit to two Board of Nursing members.[3] On 19 June 2006, the PRC

released the results of the Nursing Board Examinations. On 18

August 2006, the Court of Appeals restrained the PRC from

proceeding with the oath-taking of the successful examinees set

on 22 August 2006.

Consequently, President Gloria Macapagal-Arroyo

(President Arroyo) replaced all the members of the PRCs Board
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of Nursing. President Arroyo also ordered the examinees to re-

take the Nursing Board Examinations.

On 8 September 2006, President Arroyo issued EO 566

which authorized the CHED to supervise the establishment and

operation of all review centers and similar entities in thePhilippines.

On 3 November 2006, the CHED, through its then

Chairman Carlito S. Puno (Chairman Puno), approved CHED

Memorandum Order No. 49, series of 2006 (IRR).[4]

In a letter dated 24 November 2006,[5]the Review Center

Association of the Philippines (petitioner), an organization of

independent review centers, asked the CHED to amend, if not

withdraw the IRR arguing, among other things, that givingpermits to operate a review center to Higher Education

Institutions (HEIs) or consortia of HEIs and professional

organizations will effectively abolish independent review centers.

In a letter dated 3 January 2007, [6] Chairman Puno wrote

petitioner, through its President Jose Antonio Fudolig (Fudolig),

that to suspend the implementation of the IRR would be

inconsistent with the mandate of EO 566. Chairman Puno wrote

that the IRR was presented to the stakeholders during a

consultation process prior to its finalization and publication on 13

November 2006. Chairman Puno also wrote that petitionerscomments and suggestions would be considered in the event of

revisions to the IRR.

In view of petitioners continuing request to suspend and re-

evaluate the IRR, Chairman Puno, in a letter dated 9 February

2007,[7] invited petitioners representatives to a dialogue on 14

March 2007. In accordance with what was agreed upon during

the dialogue, petitioner submitted to the CHED its position paper

on the IRR. Petitioner also requested the CHED to confirm in

writing Chairman Punos statements during the dialogue,

particularly on lowering of the registration fee from P400,000

to P20,000 and the requirement for reviewers to have five years

teaching experience instead of five years administrative

experience. Petitioner likewise requested for a categorical answerto their request for the suspension of the IRR. The CHED did not

reply to the letter.

On 7 May 2007, the CHED approved the RIRR. On 22

August 2007, petitioner filed before the CHED a Petition to

Clarify/Amend Revised Implementing Rules and

Regulations[8] praying for a ruling:

1. Amending the RIRR by excluding independent

review centers from the coverage of the CHED;

2. Clarifying the meaning of the requirement for

existing review centers to tie-up or be integrated

with HEIs, consortium or HEIs and PRC-

recognized professional associations with

recognized programs, or in the alternative, to

convert into schools; and

3. Revising the rules to make it conform with

Republic Act No. 7722 (RA 7722)[9] limiting the

CHEDs coverage to public and privateinstitutions of higher education as well as degree-

granting programs in post-secondary educational

institutions.

On 8 October 2007, the CHED issued Resolution No. 718-

2007[10] referring petitioners request to exclude independent

review centers from CHEDs supervision and regulation to the

Office of the President as the matter requires the amendment of
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EO 566. In a letter dated 17 October 2007,[11]then CHED

Chairman Romulo L. Neri (Chairman Neri) wrote petitioner

regarding its petition to be excluded from the coverage of the

CHED in the RIRR. Chairman Neri stated:

While it may be true that regulation ofreview centers is not one of the mandates of

CHED under Republic Act 7722, however, on

September 8, 2006, Her Excellency, President

Gloria Macapagal-Arroyo, issued Executive Order

No. 566 directing the Commission on Higher

Education to regulate the establishment and

operation of review centers and similar entities in

the entire country.

With the issuance of the aforesaidExecutive Order, the CHED now is the agency

that is mandated to regulate the establishment and

operation of all review centers as provided for

under Section 4 of the Executive Order which

provides that No review center or similar

entities shall be established and/or operate

review classes without the favorable expressed

indorsement of the CHED and without the

issuance of the necessary permits or

authorizations to conduct review classes. x x x

To exclude the operation of independent

review centers from the coverage of CHED

would clearly contradict the intention of the

said Executive Order No. 566.

Considering that the requests requires the

amendment of Executive Order No. 566, the

Commission, during its 305th Commission

Meeting, resolved that the said request be directly

referred to the Office of the President for

appropriate action.

As to the request to clarify what is meant

by tie-up/be integrated with an HEI, as requiredunder the Revised Implementing Rules and

Regulations, tie-up/be integrated simply means, to

be in partner with an HEI.[12] (Boldfacing and

underscoring in the original)

On 26 October 2007, petitioner filed a petition for

Prohibition and Mandamus before this Court praying for the

annulment of the RIRR, the declaration of EO 566 as invalid and

unconstitutional, and the prohibition against CHED from

implementing the RIRR.

Dr. Freddie T. Bernal, Director III, Officer-In-Charge,

Office of the Director IV of CHED, sent a letter[13] to the President

of Northcap Review Center, Inc., a member of petitioner, that it

had until 27 November 2007 to comply with the RIRR.

On 15 February 2008,[14] PIMSAT Colleges (respondent-

intervenor) filed a Motion For Leave to Intervene and To Admit

Comment-in-Intervention and a Comment-in-Intervention praying

for the dismissal of the petition. Respondent-intervenor alleges

that the Office of the President and the CHED did not commit anyact of grave abuse of discretion in issuing EO 566 and the

RIRR. Respondent-intervenor alleges that the requirements of the

RIRR are reasonable, doable, and are not designed to deprive

existing review centers of their review business. The Court

granted the Motion for Leave to Intervene and to Admit

Comment-in-Intervention in its 11 March 2008 Resolution.[15]
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On 23 April 2008, a Motion for Leave of Court for

Intervention In Support of the Petition and a Petition In

Intervention were filed by CPA Review School of the Philippines,

Inc. (CPAR), Professional Review and Training Center, Inc.

(PRTC), ReSA Review School, Inc. (ReSA), CRC-ACE Review

School, Inc. (CRC-ACE), all independent CPA reviewcenters operating in Manila (collectively, petitioners-

intervenors). Petitioners-intervenors pray for the declaration of

EO 566 and the RIRR as invalid on the ground that both

constitute an unconstitutional exercise of legislative power. The

Court granted the intervention in its 29 April 2008 Resolution. [16]

On 21 May 2008, the CHED issued CHED Memorandum

Order No. 21, Series of 2008 (CMO 21, s. 2008)[17] extending

the deadline for six months from 27 May 2008 for all existing

independent review centers to tie-up or be integrated with HEIs inaccordance with the RIRR.

In its 25 November 2008 Resolution, this Court resolved to

require the parties to observe the status quo prevailing before the

issuance of EO 566, the RIRR, and CMO 21, s. 2008.

The Assailed Executive Order and the RIRR

Executive Order No. 566 states in full:

EXECUTIVE ORDER NO. 566

DIRECTING THE COMMISSION ON HIGHER

EDUCATION TO REGULATE THE

ESTABLISHMENT AND OPERATION OF

REVIEW CENTERS AND SIMILAR ENTITIES

WHEREAS, the State is mandated to

protect the right of all citizens to quality education

at all levels and shall take appropriate steps to

make education accessible to all, pursuant to

Section 1, Article XIV of the 1987 Constitution;

WHEREAS, the State has the obligation to

ensure and promote quality education through the

proper supervision and regulation of the licensure

examinations given through the various Boards of

Examiners under the Professional Regulation

Commission;

WHEREAS, the lack of regulatory

framework for the establishment and operation of

review centers and similar entities, as shown inrecent events, have adverse consequences and

affect public interest and welfare;

WHEREAS, the overriding necessity to

protect the public against substandard review

centers and unethical practices committed by some

review centers demand that a regulatory

framework for the establishment and operation of

review centers and similar entities be immediately

instituted;

WHEREAS, Republic Act No. 7722,

otherwise known as the Higher Education Act of

1994, created the Commission on Higher

Education, which is best equipped to carry out the

provisions pertaining to the regulation of the

establishment and operation of review centers and

similar entities.
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NOW, THEREFORE, I, GLORIA

MACAPAGAL-ARROYO, the President of the

Republic of the Philippines, by virtue of the

powers vested in me by law, do hereby order:

SECTION 1. Establishment of a System ofRegulation for Review Centers and Similar

Entities. The Commission on Higher Education

(CHED), in consultation with other concerned

government agencies, is hereby directed to

formulate a framework for the regulation of review

centers and similar entities, including but not

limited to the development and institutionalization

of policies, standards, guidelines for the

establishment, operation and accreditation of

review centers and similar entities; maintenance ofa mechanism to monitor the adequacy,

transparency and propriety of their operations; and

reporting mechanisms to review performance and

ethical practice.

SEC. 2. Coordination and Support. The

Professional Regulation Commission (PRC),

Technical Skills Development Authority

(TESDA), Securities and Exchange Commission

(SEC), the various Boards of Examiners under the

PRC, as well as other concerned non-governmentorganizations life professional societies, and

various government agencies, such as the

Department of Justice (DOJ), National Bureau of

Investigation (NBI), Office of the Solicitor

General (OSG), and others that may be tapped

later, shall provide the necessary assistance and

technical support to the CHED in the successful

operationalization of the System of Regulation

envisioned by this Executive Order.

SEC. 3. Permanent Office and Staff. To

ensure the effective implementation of the System

of Regulation, the CHED shall organize apermanent office under its supervision to be

headed by an official with the rank of Director and

to be composed of highly competent individuals

with expertise in educational assessment,

evaluation and testing; policies and standards

development, monitoring, legal and enforcement;

and statistics as well as curriculum and

instructional materials development. The CHED

shall submit the staffing pattern and budgetary

requirements to the Department of Budget andManagement (DBM) for approval.

SEC. 4. Indorsement Requirement. No

review center or similar entities shall be

established and/or operate review classes without

the favorable expressed indorsement of the CHED

and without the issuance of the necessary permits

or authorizations to conduct review classes. After

due consultation with the stakeholders, the

concerned review centers and similar entities shall

be given a reasonable period, at the discretion ofthe CHED, to comply with the policies and

standards, within a period not exceeding three (3)

years, after due publication of this Executive

Order. The CHED shall see to it that the System

of Regulation including the

implementing mechanisms, policies, guidelines

and other necessary procedures and documentation

for the effective implementation of the System, are


28/84

completed within sixty days (60) upon effectivity

of this Executive Order.

SEC. 5. Funding. The initial amount

necessary for the development and implementation

of the System of Regulation shall be sourced fromthe CHED Higher Education Development Fund

(HEDF), subject to the usual government

accounting and auditing practices, or from any

applicable funding source identified by the

DBM. For the succeeding fiscal year, such

amounts as may be necessary for the budgetary

requirement of implementing the System of

Regulation and the provisions of this Executive

Order shall be provided for in the annual General

Appropriations Act in the budget of theCHED. Whenever necessary, the CHED may tap

its Development Funds as supplemental source of

funding for the effective implementation of the

regulatory system. In this connection, the CHED

is hereby authorized to create special accounts in

the HEDF exclusively for the purpose of

implementing the provisions of this Executive

Order.

SEC. 6. Review and Reporting. TheCHED shall provide for the periodic review

performance of review centers and similar entities

and shall make a report to the Office of the

President of the results of such review, evaluation

and monitoring.

SEC. 7. Separability. Any portion or

provision of this Executive Order that may be

declared unconstitutional shall not have the effect

of nullifying other provisions hereof, as long as

such remaining provisions can still subsist and be

given effect in their entirely.

SEC. 8. Repeal. All rules and regulations,other issuances or parts thereof, which are

inconsistent with this Executive Order, are hereby

repealed or modified accordingly.

SEC. 9. Effectivity. This Executive Order

shall take effect immediately upon its publication

in a national newspaper of general circulation.

DONE in the City of Manila, this 8 th day of

September, in the year of Our Lord, TwoThousand and Six.

(Sgd.) Gloria

Macapagal-Arroyo

By the President:

(Sgd.) Eduardo R. Ermita

Executive Secretary

The pertinent provisions of the RIRR affecting independent

review centers are as follows:

Rule VII

IMPLEMENTING GUIDELINES AND

PROCEDURES


29/84

Section 1. Authority to Establish and Operate

Only CHED recognized, accredited and reputable

HEIs may be authorized to establish and operate

review center/course by the CHED upon full

compliance with the conditions and requirements

provided herein and in other pertinent laws, rulesand regulations. In addition, a consortium or

consortia of qualified schools and/or entities may

establish and operate review centers or conduct

review classes upon compliance with the

provisions of these Rules.

Rule XIV

TRANSITORY PROVISIONS

Section 1. Review centers that are existing upon

the approval of Executive Order No. 566 shall be

given a grace period of up to one (1) year, to tie-

up/be integrated with existing HEIs[,] consortium

of HEIs and PRC recognized Professional

Associations with recognized programs under theconditions set forth in this Order and upon

mutually acceptable covenants by the contracting

parties. In the alternative, they may convert as a

school and apply for the course covered by the

review subject to rules and regulations of the

CHED and the SEC with respect to the

establishment of schools. In the meantime, no

permit shall be issued if there is non-compliance

with these conditions or non-compliance with the

requirements set forth in these rules.

Section 2. Only after full compliance with the

requirements shall a Permit be given by the CHED

to review centers contemplated under this Rule.

Section 3. Failure of existing review centers to

fully comply with the above shall bar them from

existing as review centers and they shall be deemed

as operating illegally as such. In addition,

appropriate administrative and legal proceedings

shall be commence[d] against the erring entities

that continue to operate and appropriate sanctions

shall be imposed after due process.

The Issues

The issues raised in this case are the following:

1. Whether EO 566 is an unconstitutional exercise

by the Executive of legislative power as it expands

the CHEDs jurisdiction; and

2. Whether the RIRR is an invalid exercise of the

Executives rule-making power.

The Ruling of this Court

The petition has merit.

Violation of Judicial Hierarchy


30/84

The Office of the Solicitor General (OSG) prays for the

dismissal of the petition. Among other grounds, the OSG alleges

that petitioner violated the rule on judicial hierarchy in filing the

petition directly with this Court.

This Courts original jurisdiction to issue a writ of certiorari,

prohibition, mandamus, quo warranto, habeas corpus, and

injunction is not exclusive but is concurrent with the Regional

Trial Courts and the Court of Appeals in certain cases. [18] The

Court has explained:

This concurrence of jurisdiction is not,

however, to be taken as according to parties

seeking any of the writs an absolute, unrestrained

freedom of choice of the court to whichapplication therefor will be directed. There is

after all a hierarchy of courts. That hierarchy is

determinative of the venue of appeals, and also

serves as a general determinant of the appropriate

forum for petitions for the extraordinary writs. A

becoming regard of that judicial hierarchy most

certainly indicates that petitions for the issuance of

extraordinary writs against first level (inferior)

courts should be filed with the Regional Trial

Court, and those against the latter, with the Court

of Appeals. A direct invocation of the SupremeCourts original jurisdiction to issue these writs

should be allowed only when there are special and

important reasons therefor, clearly and specifically

set out in the petition. This is [an] established

policy. It is a policy necessary to prevent

inordinate demands upon the Courts time and

attention which are better devoted to those matters

within its exclusive jurisdiction, and to prevent

further over-crowding of the Courts docket. [19]

The Court has further explained:

The propensity of litigants and lawyers todisregard the hierarchy of courts in our judicial

system by seeking relief directly from this Court

must be put to a halt for two reasons: (1) it would

be an imposition upon the precious time of this

Court; and (2) it would cause an inevitable and

resultant delay, intended or otherwise, in the

adjudication of cases, which in some instances

had to be remanded or referred to the lower court

as the proper forum under the rules of procedure,

or as better equipped to resolve the issues becausethis Court is not a trier of facts.[20]

The rule, however, is not absolute, as when exceptional and

compelling circumstances justify the exercise of this Court of its

primary jurisdiction. In this case, petitioner alleges that EO 566

expands the coverage of RA 7722 and in doing so, the Executive

Department usurps the legislative powers of Congress. The issue

in this case is not only the validity of the RIRR. Otherwise, the

proper remedy of petitioner and petitioners-intervenors would

have been an ordinary action for the nullification of the RIRRbefore the Regional Trial Court.[21] The alleged violation of the

Constitution by the Executive Department when it issued EO 566

justifies the exercise by the Court of its primary jurisdiction over

the case. The C

Documents

1C-StatCon