Sandoval Poli

POLITICAL LAW REVIEWER 2012 (Sandoval Notes)
Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)

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TABLE OF CONTENTS
THE PHILIPPINE CONSTITUTION ................................................................................................... 5
GENERAL PRINCIPLES .............................................................................................................................................................. 5
What is the Doctrine of Constitutional Supremacy? ................................................................................................................. 5
! Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo] .................................................................................. 5
CLASSIFICATIONS ...................................................................................................................................................................... 5
ESSENTIAL PARTS OF A GOOD WRITTEN CONSTITUTION .................................................................................................. 6
INTERPRETATION ...................................................................................................................................................................... 6
! Civil Liberties Union vs. Executive Secretary, 194 SCRA 317 .................................................................................... 6
! Francisco vs. HR, G.R. No. 160261, November 10, 2003 ........................................................................................... 6
What are self-executing and non-self executing provisions of the Constitution? ..................................................................... 6
! Taada vs. Angara, 272 SCRA 18 [1997] ................................................................................................................... 7
! Oposa vs. Factoran, 224 SCRA 792, July 30, 1993 .................................................................................................... 7
! Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997] ................................................................................................. 7
EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY ................................................................................................... 7
Orthodox vs. Modern View ....................................................................................................................................................... 7
! Ynot vs. IAC ................................................................................................................................................................. 7
What is the doctrine of operative fact? ......................................................................................................................... 7
! League of Cities vs. COMELEC, GR 176951, August 24, 2010 .................................................................................. 7
Partial Unconstitutionality ......................................................................................................................................................... 8
When are acts of persons considered State action covered by the Constitution? ................................................................. 8
! Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo] .................................................................................. 8
PREAMBLE .................................................................................................................................................................................. 8
AMENDMENTS OR REVISIONS (ARTICLE XVII) ........................................................................... 8
Amendment vs. Revision ......................................................................................................................................................... 8
! Lambino vs. COMELEC, GR 174153, October 25, 2006 ............................................................................................ 8
Two-part test to determine whether the change is an amendment or a revision ..................................................................... 9
TWO STAGES IN AMENDMENTS OR REVISIONS: .................................................................................................................. 9
1. PROPOSAL .............................................................................................................................................................................. 9
Modes of proposing Amendments or Revisions: ...................................................................................................................... 9
2. RATIFICATION ......................................................................................................................................................................... 9
What is the Doctrine of Proper Submission? ........................................................................................................................... 9
! Tolentino v. COMELEC, GR L-34150 [1971] ............................................................................................................. 10
R.A. 6735 (INITIATIVE AND REFERENDUM LAW) .................................................................................................................. 10
Peoples Initiative on the Constitution .................................................................................................................................... 10
Is Sec. 2 Article XVII self-executing? .......................................................................................................................... 10
Additional requirement in obtaining signatures in a Peoples Initiative .................................................................. 10
Has Congress already enacted a law to implement Peoples Initiative? ................................................................. 10
Can the people now validly exercise Peoples Initiative to amend the Constitution? ........................................... 10
! Santiago vs. COMELEC [1997] ................................................................................................................................. 10
Initiative vs. Referendum ........................................................................................................................................................ 10
THE STATE ................................................................................................................................... 12
! (CIR vs. Campos Rueda, 42 SCRA 23) ..................................................................................................................... 12
Distinguish a State from a Nation ........................................................................................................................................... 12
State vs. Government ............................................................................................................................................................ 12
ELEMENTS OF A STATE .......................................................................................................................................................... 12
Is the Vatican a State? ........................................................................................................................................................... 12
! The Holy See v. Judge Rosario, Jr. (238 SCRA 524 [1994]) ..................................................................................... 12
1. SOVEREIGNTY ................................................................................................................................................................. 12
Is Sovereignty really absolute? ............................................................................................................................................. 12
! Taada vs. Angara, 272 SCRA 18 (1997) ................................................................................................................. 13
Kinds of Sovereignty .............................................................................................................................................................. 13
Sovereignty vs. Dominion ...................................................................................................................................................... 13
! Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000 ................. 13
Effect of Change of Sovereignty (external) ............................................................................................................................ 13
! Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982 .................................................................................. 13
Effect of Belligerent Occupation (internal) .............................................................................................................................. 13
Principle of Jus Postliminium ................................................................................................................................................. 13
! Peralta vs. Director of Prisons, November 12, 1945 .................................................................................................. 13
Jurisdiction ............................................................................................................................................................................. 13
2. GOVERNMENT ...................................................................................................................................................................... 13
De Jure vs. De Facto Government ......................................................................................................................................... 13
Effect of Revolutionary Government on International Law Obligations .................................................................................. 14
! Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003 ................................................................................. 14
3. PEOPLE ................................................................................................................................................................................. 14
What is the concept of an associated state? .......................................................................................................................... 14
! The Province Of North Cotabato vs. The Government Of The Republic Of The Philippines Peace Panel, G.R. No.
183591, Oct. 14, 2008, En Banc [Carpio-Morales] ......................................................................................................... 14

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POLITICAL LAW 1 2012 (Sandoval Notes)

Is the concept of association recognized under the present Constitution? .......................................................................... 14
4. TERRITORY ........................................................................................................................................................................... 14
ARTICLE I: THE NATIONAL TERRITORY ....................................................................................... 14
TWO PARTS OF THE NATIONAL TERRITORY ....................................................................................................................... 14
Archipelago Doctrine .............................................................................................................................................................. 15
! Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No. 187167, August 6, 2011 .................... 15
Is the Spratlys Group of Islands part of the Philippine Archipelago? ..................................................................................... 15
Is the Spratlys group of Islands part of our National Territory? .............................................................................................. 15
What was the basis of the Philippines claim over the Spratlys? ........................................................................................... 15
MODES OF ACQUIRING TERRITORY ..................................................................................................................................... 16
Doctrine of Effective Occupation ............................................................................................................................................ 16
SOME PRINCIPLES IN NATIONAL TERRITORY ..................................................................................................................... 16
Thalweg Doctrine ................................................................................................................................................................... 16
Middle of the Bridge Doctrine ................................................................................................................................................. 16
Bays and Gulfs ....................................................................................................................................................................... 16
Straits ..................................................................................................................................................................................... 16
Canals .................................................................................................................................................................................... 16
Archipelagic waters ................................................................................................................................................................ 16
Archipelagic State .................................................................................................................................................................. 16
Straight Archipelagic Baseline ............................................................................................................................................... 16
Territorial Sea ......................................................................................................................................................................... 17
Baseline ................................................................................................................................................................................. 17
Contiguous Zone .................................................................................................................................................................... 17
Exclusive Economic Zone ...................................................................................................................................................... 17
Continental shelf .................................................................................................................................................................... 17
High Seas ............................................................................................................................................................................... 17
Freedom of navigation ........................................................................................................................................................... 17
Aerial Domain ......................................................................................................................................................................... 17
ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES ............................................ 17
SEC. 1: DEMOCRATIC AND REPUBLICAN STATE ................................................................................................................. 17
Manifestations of Republicanism ........................................................................................................................................... 17
Government of Laws and Not of Men. ................................................................................................................................. 17
! Villavicencio vs. Lukban, 39 Phil 778 ......................................................................................................................... 18
What is a Republican form of government? ........................................................................................................................... 18
Characteristics of a republican form of government ............................................................................................................... 18
Presidential vs. Parliamentary ................................................................................................................................................ 18
Doctrine of Parens Patriae ..................................................................................................................................................... 18
! Government vs. Monte de Piedad, 35 SCRA 738; Cabaas vs. Pilapil, 58 SCRA 94 ............................................... 18
ARTICLE XI: What are the characteristics of a public office? ................................................................................................ 18
Who are the impeachable officers? ........................................................................................................................................ 18
Grounds for impeachment ........................................................................................................................................... 18
Who may initiate an impeachment? ............................................................................................................................ 18
Who will hear? ............................................................................................................................................................... 18
Can you question the HORs finding of probable cause? ......................................................................................... 18
Tax evation case against the impeached offier will it constitute double jeopardy? ........................................... 18
What is the quantum of proof in impeachment proceedings? ............................................................................... 19
Executive Privilege on Public Disclosure ............................................................................................................................... 19
What is the rule on the exercise of this privilege? .................................................................................................. 19
SEC. 2: RENUNCIATION OF WAR ........................................................................................................................................... 19
Two Important concepts ......................................................................................................................................................... 19
Some generally accepted principles of International Law ...................................................................................................... 20
The doctrine of state immunity from suit ................................................................................................................. 20
! US vs. GUINTO, February 26, 1990 ......................................................................................................................... 20
Par in Parem Non Habit Imperio .................................................................................................................................. 20
Pacta sunt Servanda ..................................................................................................................................................... 20
! Taada vs. Angara, 272 SCRA 18 [1997] ................................................................................................................. 20
The right to self-determination of peoples ................................................................................................................. 20
! Prov. of North Cotabato, supra .................................................................................................................................. 20
The Yokyakarta principles ........................................................................................................................................... 20
! Ang Ladlad LGBT Party vs. COMELEC, G.R. NO. 190582, April 8, 2010 ................................................................ 20
SEC. 3: CIVILIAN SUPREMACY ............................................................................................................................................... 20
! IBP V. Zamora, G.R. NO. 141284, August 15, 2000 ................................................................................................. 20
SEC. 16: RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY .......................................................................................... 21
! Oposa V. Factoran, Jr., 224 SCRA 792 [1993] .......................................................................................................... 21
SECTION 10, ARTICLE XII: THE FILIPINO FIRST POLICY ................................................................................................... 21
! Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997] ............................................................................................... 21
Is the Filipino First Policy expressed in Section 10, Article XII of the Constitution a self-executing provision? ................... 21
What is the Filipino First Policy enshrined in the Constitution? ........................................................................................... 21
What is "NATIONAL PATRIMONY"? ..................................................................................................................................... 21
SECTION 5, ARTICLE XIV: ACADEMIC FREEDOM ................................................................................................................. 22
Define and discuss the academic freedom of institutions of higher learning. ........................................................................ 22
! University Of San Agustin, Inc. vs. CA, 230 SCRA 761, 774-775, March 7, 1994 .................................................... 22

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How should the States power to regulate educational institutions be exercised? ................................................................. 22
! Miriam College Foundation, Inc. vs. CA, 348 SCRA 265 (2000) ............................................................................... 22
What are the essential freedoms subsumed in the term academic freedom? ..................................................................... 22
! Isabelo, Jr. vs. Perpetual Help College Of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993 ........................................ 22
Where do academic institutions derive their freedom to DISCIPLINE the students? ............................................................. 22
May a University validly revoke after graduation, a degree or honor it has already conferred to a student after finding that
such degree or honor was obtained through fraud? .............................................................................................................. 23
! UP Board of Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No. 134625, Aug.
31, 1999, 2
nd
Div. [Mendoza] ........................................................................................................................................... 23
THE DOCTRINE OF STATE IMMUNITY FROM SUIT .............................................................................................................. 23
I. Suits against the STATE itself ............................................................................................................................................. 23
! Department Of Agriculture vs. NLRC, 227 SCRA 693, Nov. 11, 1993 ...................................................................... 23
Waiver of State Immunity: Express or Implied ........................................................................................................... 23
Is Implied waiver of immunity absolute? ................................................................................................................ 23
What is the Restrictive Doctrine of State Immunity from Suit? ................................................................................ 23
! United States of America v. Ruiz (136 SCRA 487) .................................................................................................... 23
Jure Imperii vs Jure Gestionis ..................................................................................................................................... 24
! Holy See vs. Rosario, GR 101949, December 1, 1994 ............................................................................................. 24
Suability vs. Liability ..................................................................................................................................................... 24
! (Philippine Rock Industries, Inc. v. Board of Liquidators, G.R. 84992, December 15, 1989) .................................... 24
In the matter of execution to satisfy judgment against the State ............................................................................. 24
!Traders Royal Bank v. IAC, GR 68514, December 17, 1990 ..................................................................................... 24
! City of Caloocan v. Allarde, GR 107271, September 10, 2003 ................................................................................. 24
Can a property owner sue the government for non-payment of just compensation in an Expropriation? ......... 24
II. Suits against AGENCIES of the Government .................................................................................................................... 24
III. Suits against GOVERNMENT OFFICIALS ....................................................................................................................... 25
When is a suit against a Government officer deemed to be a suit against the State? ........................................... 25
! Amado J. Lansang vs. CA, G.R. NO. 102667, FEB. 23, 2000, [QUISUMBING] ....................................................... 25
State instances when a suit against the State is proper ........................................................................................... 25
! Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.]) ..................................................... 25
The doctrine cannot be used to perpetrate an injustice on a citizen ....................................................................... 26
! EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena] ................................................... 26
ARTICLE IV. CITIZENSHIP ........................................................................................................... 26
What citizenship principle do the Philippines adhere to? ....................................................................................................... 26
! Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima] ................................................................. 26
SEC. 1. THE FOLLOWING ARE THE CITIZENS OF THE PHILIPPINES: ................................................................................ 26
1. Those who are citizens of the Philippines at the time of the adoption of this Constitution ................................................. 26
2. Those whose fathers or mothers are citizens of the Philippines ........................................................................................ 27
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority ................................................................................................................................................................................... 27
Until when should a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father
validly elect Philippine citizenship? ............................................................................................................................ 27
! In Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914 ................................. 27
Will it make a difference if Chings parents were not married? ................................................................................ 27
The 1935 Constitution was the governing law, where it provided that those whose fathers are citizens of the
Philippines, whether they be legitimate or not, are citizens of the Philippines. ..................................................... 27
! Tecson vs. Comelec .................................................................................................................................................. 27
4. Those who are naturalized in accordance with law ............................................................................................................ 27
! So vs. Republic, January 29, 2007 ............................................................................................................................ 27
Under current and existing laws, what are the ways by which an ALIEN may become a citizen of the
Philippines by naturalization? ..................................................................................................................................... 28
Qualifications ................................................................................................................................................................ 28
Disqualifications ........................................................................................................................................................... 28
SEC. 2. NATURAL-BORN CITIZENS ........................................................................................................................................ 28
! Antonio Bengzon III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan] ................................................. 28
2 ways of acquiring citizenship: .............................................................................................................................................. 28
2 kinds of citizens ................................................................................................................................................................... 28
SEC. 3. REACQUISITION OF CITIZENSHIP ............................................................................................................................ 29
(1) Naturalization .................................................................................................................................................................... 29
Requisites for application of res judicata doctrine in cases of citizenship: ........................................................... 29
(2) Repatriation ...................................................................................................................................................................... 29
Who may validly avail of repatriation under R.A. No. 8171? ..................................................................................... 29
! Gerardo Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug] ....................................................................... 29
Before what agency should application for repatriation under R.A 8171 be filed? ................................................ 29
Does repatriation qualify a citizen to run for Congress? .......................................................................................... 29
(3) By direct act of Congress .................................................................................................................................................. 29
SECTION 4. CITIZENS OF THE PHILIPPINES WHO MARRY ALIENS ................................................................................... 29
Citizens under the 1935 Constitution ..................................................................................................................................... 30
! Ye vs. Director of Public Schools ............................................................................................................................... 30
In order that citizenship may be lost by renunciation, such renunciation must be express. ................................................... 30
! Aznar v. COMELEC ................................................................................................................................................... 30
! Mercado v. Manzano and COMELEC ....................................................................................................................... 30
! Co vs. HRET .............................................................................................................................................................. 30
SECTION 5. DUAL ALLEGIANCE ............................................................................................................................................. 30

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R.A 9225 Citizenship Retention and Reacquisition Act of 2003 (Dual Citizenship Law) .................................................... 30
RE-ACQUISITION .......................................................................................................................................................... 30
Will he be allowed to run for an elective (or appointive) office? ............................................................................................. 30
! NEW JURISPRUDENCE: Sobejana-Condon vs. COMELEC, GR 198742, August 10, 2012 ................................... 30
DERIVATIVE CITIZENSHIP ........................................................................................................................................... 30
Distinguish dual citizenship from dual allegiance and state what really is prohibited by the Constitution. ............................. 30
! Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza] .............................................................. 30
Instances when a citizen of the Philippines may possess dual citizenship ............................................................................ 31
STRUCTURE OF GOVERNMENT .................................................................................................. 31
Doctrine of Separation of Powers .......................................................................................................................................... 31
Principle of Checks and Balances .......................................................................................................................................... 31
DELEGATION OF POWERS ..................................................................................................................................................... 31
Potestas delegate non delegani potest ................................................................................................................................ 31
Exceptions: P-E-T-A-L ........................................................................................................................................................... 31
1. Delegation to the people through initiative and referendum (Sec. 1 Art. VI) ....................................................... 31
2. Emergency power to the President Sec. 23 2
nd
par of Art. VI ............................................................................ 31
3. Tariff powers to the president Sec. 28 2
nd
par. Art. 6 .......................................................................................... 31
4. Administrative agencies ........................................................................................................................................... 31
5. Local Government ..................................................................................................................................................... 32
What are the tests of a valid delegation of power? ................................................................................................................ 32
ART. VI. THE LEGISLATIVE DEPARTMENT ................................................................................... 32
ART. VII. THE EXECUTIVE DEPARTMENT ..................................................................................... 44
ART. VIII. THE JUDICIAL DEPARTMENT ...................................................................................... 59
THE CONSTITUTIONAL COMMISSIONS ..................................................................................... 70

NOTE: POLITICAL LAW II (from Lex Leonum, 2006) -------------------------- 74
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!"#$%$&'# #') !
What is political law?
That branch of public law, which deals with the organization and operations of the governmental
organs of the State and defines the relations of the State with the inhabitants of its territory.
SCOPE/DIVISIONS OF POLITICAL LAW
1) Constitutional Lawthe study of the maintenance of the proper balance between authority, as
represented by the three inherent powers of the state, and liberty as guaranteed by the Bill of
Rights.
2) Administrative Law-- That branch of public law which fixes the organization, determines the
competence of administrative authorities who execute the law, and indicates to the individual
remedies for the violation of his right.
3) Law on Municipal Corporations
4) Law of Public Officers
5) Elections Law
Basis:
1) 1987 Constitution
2) 1973 and 1935 Constitutions
3) Organic laws made to apply to the Philippines
a) Philippine Bill of 1902
b) Jones Law of 1916
c) Tydings-McDuffie Law of 1934
4) Statutes, executive orders and decrees, and judicial decisions
5) US Constitution

Constitution Statute
Legislation directly from the people Legislation from the peoples representative;
States general principles; Provides the details of the subject matter of
which it treats;
Intended not merely to meet existing
conditions;
Intended primarily to meet existing conditions
only;
The fundamental law of the State Must conform with the Constitution

1nL nILIINL CCNS1I1U1ICN
GLNLkAL kINCILLS

It is the document, which serves as the fundamental law of the State; that body of rules and
maxims in accordance with which the power of sovereignty are habitually exercised.

That written instrument enacted by direct action of the people by which the fundamental powers
of the government are established, limited and defined, and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.

It is the basic and paramount law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. No act shall be valid, no matter how noble its
intention, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to
the mandate of this law. Right or wrong, the Constitution must be upheld as long as the sovereign people
have not changed it.

What is the Doctrine of Constitutional Supremacy?
Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or
entered into by private persons for private purposes, is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.
! Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]
CLASSIIICA1ICNS
1. Written or unwritten
Written Unwritten
One whose precepts are embodied in one
document or set of documents.

Consists of rules which have not been integrated
into a single, concrete form but are scattered in
various sources.

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Examples:
a. statutes of fundamental character;
b. judicial decisions;
c. commentaries of publicists;
d. customs and traditions;
e. certain common law principles
2. Conventional (Enacted) or Cumulative (Evolved)
Conventional (Enacted) Cumulative (Evolved)
Formally struck off at a definite time and
place following a conscious or deliberate
effort taken by a constituent body or ruler.
The result of a political evolution, not inaugurated
at any specific time but changing by accretion
rather than by any systematic method

3. Rigid or Flexible
Rigid Flexible
Can be amended only by a formal and
usually difficult process.
Can be changed by ordinary legislation.

The Philippine Constitution is written, conventional and rigid. It is embodied in one document
and can be amended only by a formal and usually difficult process.
LSSLN1IAL Ak1S CI A GCCD WkI11LN CCNS1I1U1ICN
a) Constitution of Liberty - sets forth the fundamental civil and political rights of the citizens (e.g.
Bill of Rights) and imposes limitations on the powers of the government as a means of securing the
enjoyment of those rights (e.g. limitations on the arrest of a person, eminent domain)
b) Constitution of Government - outlines the organization of the government, enumerates its
powers, lays down certain rules relative to its administration and defines the electorate. (e.g.
Legislative, Executive and Judicial Departments, Constitutional Commissions)
c) Constitution of Sovereignty - the provisions pointing out the mode or procedure in accordance with
which formal changes (initiative for amendments to the constitution) in the fundamental law may be
brought about. (e.g. Art. XVII-Amendments or Revisions)
Essential Qualities of a Written Constitution
1) Broad;
2) Brief; and
3) Definite.
IN1LkkL1A1ICN
1) Verba Legiswhenever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed.

2) When there is Ambiguityratio legis et anima--A doubtful provision shall be examined in the
light of the history of the times and the conditions and circumstances under which the Constitution
was framed.
! Civil Liberties Union vs. Executive Secretary, 194 SCRA 317

3) Ut magis valeat quam pereatthe Constitution has to be interpreted as a whole.
! Francisco vs. HR, G.R. No. 160261, November 10, 2003
If the plain meaning of the word is not found to be clear, resort to other aids is available
construe the Constitution from what appears upon its face. The proper interpretation, therefore,
depends more on how it was understood by the people adopting it than in the framers
understanding thereof.
In case of doubt, the provision should be considered as self-executing; mandatory rather than
directory; and prospective rather than retroactive.
2 Kinds of Provisions:
What are self-executing and non-self executing provisions of the Constitution?

A provision which lays down a general principle, such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling legislation, or that which supplies [a] sufficient
rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and extent of the right conferred and the liability
imposed are fixed by the Constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is referred to the legislature
for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])
1) Self-executing - Bill of Rights [Art III] - complete in itself, without need for further legislation to make
it enforceable; One which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the
right it grants may be enjoyed or protected.

2) Non-self-executing Provisions - Art II Declaration Of Principles & State Policies.

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! Taada vs. Angara, 272 SCRA 18 [1997]
Gist: Why is Article II non-self-executing?
By its very title, Article II of the Constitution is a declaration of principles and state policies. The
counterpart of this article in the 1935 Constitutionis called the basic political creed of the nation by Dean
Vicente Sinco. These principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power
of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, the principles and state policies enumerated in Article II and some sections of Article
XII are not self-executing provisions, the disregard of which can give rise to a cause of action in the courts.
They do not embody judicially enforceable constitutional rights but guidelines for legislation.
NB: EXCEPT: Sec 16 - this speaks of a RIGHT even if it is not found in the Bill of Rights Because sec 16
is a basic right which belongs to a different category of rights - concerns nothing less than self-
preservation; it is a basic right it need not even be written in a constitution. It is assumed (note: bill of
rights: civil & political) See case below: Oposa v. Factoran, Jr.
! Oposa vs. Factoran, 224 SCRA 792, July 30, 1993
Gist: By way of exception for Article II, Sec. 2 is SELF-EXECUTING
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from
the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.
NB Separate concurring opinion of Jusice Feliciano: As a matter of logic, by finding petitioners' cause of
action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. Xxx
! Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997]
Gist: Are provisions of the Constitution self-executing or non-self executing? Why?
Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. This can be cataclysmic. Xxx
Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking body, which could make them
entirely meaningless by simply refusing to pass the needed implementing statute.
Atty. Sandoval: Otherwise the Constitution will be captive of Congress ex: law on political dynasty
LIILC1S CI DLCLAkA1ICN CI UNCCNS1I1U1ICNALI1

Orthodox vs. Modern View
! Ynot vs. IAC
Orthodox View - An unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is inoperative, as if it had not been passed at all.

Modern View - Courts simply refuse to recognize the law and determine the rights of the parties
as if the statute had no existence. Certain legal effects of the statute prior to its declaration of
unconstitutionality may be recognized. Thus, a public officer who implemented an unconstitutional law
prior to the declaration of unconstitutionality cannot be held liable.
NB: The Modern view recognizes the Doctrine of Operative Fact.
What is the doctrine of operative fact?
! League of Cities vs. COMELEC, GR 176951, August 24, 2010

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence
of a statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. Xxx The doctrine is applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law. Xxx Under the operative fact doctrine, the
unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its

8

judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. In short, the
operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the
unconstitutional law itself.

NB: Atty Sandoval: This also applies to Judicial Decisions.
Partial Unconstitutionality
a) The legislature must be willing to retain the valid portion(s), usually shown by the presence of a
separability clause in the lawINTENT OF THE LEGISLATIVE; and
b) The valid portion can stand independently as lawINDEPENDENCE OF THE PROVISIONS.
When are acts of persons considered State action covered by the Constitution?

In constitutional jurisprudence, the act of persons distinct from the government are considered
state action covered by the Constitution when:
(1) The activity it engages in is a public function
(2) The government is so significantly involved with the private actor as to make the government
responsible for his action; and
(3) The government has approved or authorized the action.
! Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]
kLAM8LL
The Preamble is not a source of power or right for any department of government. It sets down the
origin, scope, and purpose of the Constitution. It bears witness to the fact that the Constitution is the
manifestation of the sovereign will of the Filipino people.
The identification of the Filipino people as the author of the constitution calls attention to an
important principle: that the document is not just the work of representatives of the people but of the
people themselves who put their mark of approval by ratifying it in a plebiscite.
1) It does not confer rights nor impose duties.
Indicates authorship of the Constitution; enumerates the primary aims and aspirations of the framers; and
serves as an aid in the construction of the Constitution.
AMLNDMLN1S Ck kLVISICNS !"#$%&'( *+%%,
! NB: This is the Constitution of Sovereignty

Amendment vs. Revision
! Lambino vs. COMELEC, GR 174153, October 25, 2006

Amendments
Broadly refer to a change that adds, reduces, or deletes without altering the basic principle
involved. (piece-meal or isolated changes or additions that would not drastically affect the
fundamental laws. e.g. Change in the voting requirement)
Generally affects only the specific provision being amended.

Revision
Boadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances.
There is also revision if the change alters the substantial entirety of the constitution, as when
the change affects substantial provisions of the constitution. (ex: A change from
Presidential to Parliamentary, since it would result to combination of legislative and executive.)
A revision generally affects several provisions of the constitution.
ARTICLE XVII
Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress,
upon a vote of three-fourths of all its Members; or (2) A constitutional convention.
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention,
or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later
than ninety days after the approval of such amendment or revision.

9

Two-part test to determine whether the change is an amendment or a revision

QUANTITATIVE - asks whether the proposed change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing
provisions. The court examines only the number of provisions affected and does not consider the degree
of the change. (NB: on how many provisions will be changed)
QUALITATIVE - inquires into the qualitative effects of the proposed change in the constitution. The main
inquiry is whether the change will accomplish such far-reaching changes in the nature of our basic
governmental plan as to amount to a revision.
1wo stages |n Amendments or kev|s|ons:
1. kCCSAL
Modes of proposing Amendments or Revisions:
1) Constitutional Assembly (ConAss) 3/4
2) Consitutional Convention (ConCon) 2/3 or Majority + Plebiscite
3) Peoples Initiative 12% + 3% plebiscite + full text of the proposed amendments attached (may
be exercised for amendments only for the Constitution)

1. Constituent Assembly
(ConAss)
2. Constitutional Convention
(ConCon)
3. Peoples Initiative
By Whom
Congress acting as a
Constituent Assembly
Congress or the electorate
calls or decides to call for a
Constitutional Convention
(NB: ConCon is like the
ConCom which drafted the
1987 Constitution. The
members of the ConCon may
not be members of Congress;
ex: Fr. Bernas used to be a
member of ConCom)
The people
How

Voting ALL members of
congress
(NB: Atty. Sandoval: ALL
= 3/4 HOR + 3/4 Senate)
2 ways:
1. Voting 2/3 of ALL of
Congress to call for a
ConCon
2. Voting - Majority of ALL of
Congress to submit to
electorate the question of
calling a ConCon
+ Plebiscite
Petition thru a
Plebiscite
Voting
Requirements

3/4
1. 2/3
2. Majority + Plebiscite
12% of ALL registered
voters in Phils.
+ 3% of ALL registered
voters for every
Legislative District
+ Full text of the
proposed
amendments attached
in the petition (Lambino
vs. COMELEC, supra;
see below)
Limitation as to
when exercised

May only be exercised
once every 5 years.
Coverage Amendment or Revision Amendment or Revision Amendment ONLY
Political
Questions
The SUBSTANCE of the
proposal made by the
ConAss

Whether ConAss or ConCon should initiate the amendment
or revision
Legal Question
(Reviewable by
the Courts)

1. Manner of making Proposal/
2. Manner of calling the ConCon (This is a case where
Congress as a ConAss calls for a ConCon but does not
provide details for calling such, and Congress, exercising its
ordinary legislative power supplies such details)
! Because the Constitution has provided for its
requirements
The court can declare a
proposition null and
void for:
1) Violation of
the Constitution;
2) Want of capacity
of the LLB to enact
the said measure
(Sec. 18, R.A. 6735)
2. kA1IIICA1ICN
! This is made through a plebiscite called for that purpose.
What is the Doctrine of Proper Submission?
A plebiscite may be held on the same day as a regular election (Gonzales vs. COMELEC, GR L-

10

28196, [1967]), provided the people are sufficiently informed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal
amendments is unconstitutional. All amendments must be submitted for ratification at one plebiscite only.
The people have to be given a proper frame of reference in arriving at their decision.
! Tolentino v. COMELEC, GR L-34150 [1971]
k.A. 673S (In|t|at|ve and keferendum Law)
! Implementing Sec 32 Article VI of the Costitution
Peoples Initiative on the Constitution
Is Sec. 2 Article XVII self-executing?
A: NO. Sec. 32 of Article VI also provides that The Congress shall as early as possible
provide for a system of initiative and referendum xxx. In other words, the mandate for
Congress to enact the so-called initiative and referendum law is found in Sec. 32 Art. VI of the
Constitution and because of this, the reservation (on Congresss legislative power in favor of
the people) is not self-executing.
Additional requirement in obtaining signatures in a Peoples Initiative
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. [NB: in this case, the proponents tried to
initiate an amendment on the terms of office of some elected positions] However, the deliberations of
the framers of our Constitution clearly show that the framers intended to adopt the relevant
American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people must
first see the full text of the proposed amendments before they sign, and that the people
must sign on a petition containing such full text. (Lambino vs. COMELEC, supra)
NB: This requirement also applies in case of RATIFICATION (see Tolentino case below)
Has Congress already enacted a law to implement Peoples Initiative?
A: YES R.A. 6735. As provided in par. 2 thereof, Sec 2, Article XVII is a non self-executing
provision.
Can the people now validly exercise Peoples Initiative to amend the Constitution?
Ans: NO
! Santiago vs. COMELEC [1997]
RA 6735 is inadequate to cover the system of initiative to amend the constitution
because while Sec. 3 mentions initiative on the Constitution and Sec. 5 restates the
constitutional requirements as to the percentage of registered voters needed for a proposal,
the law does not provide for the contents of a petition for initiative on the Constitution;
while there are subtitles for national and local initiatives, there is no subtitle for the initiative on
the Constitution; thus, the law is incomplete, and this inadequacy cannot be cured by
empowering the COMELEC to promulgate implementing rules and regulations.
A revision [needless to say] cannot be done by initiative, which, by express provision
of Section 2 of Article XVII of the Constitution, is limited to amendments.
Initiative vs. Referendum

INITIATIVE initiate REFERENDUM referred to
Definition (Sec. 3)
The power of the people to propose
amendments to the Constitution or
propose or enact legislation
1. Directly
2. Indirectly
The power of the electorate to
approve or reject legislation
through en election called for that
purpose.
(NB: this is optional on the part of
the Legislative Body which may
make enactments even without the
ratification by the people, subject
of course to rejection by peoples
Initiative)
Applicability to the
Constitution:
1. Amendment
2. Revision

YES But no complete procedure yet
NO Sec. 2 Art XVII only explicitly
provided for amendments by the
people.
YES - Same as RATIFICATION
Subject matter and
Requirements
(Sec. 5)
DIRECT Initiative may be:
1. On the Constitution
! 12% + 3% per Leg. District (LD)
! [NB: still inoperative]
2. On Statutes
! 10% + 3% per LD
3. On Local Legislation
! 10% + 3% per LD
! 10% for Barangay ordinances
1) On the Constitution ! known
as ratification under Sec. 4
Art. XVII.
! Majority of all registered
voters
! held not less than 60 days
nor more than 90 days from
approva of such
amendment/revision
2) On Statutes ! 10% + 3% per
LD
3) On Local Legislation

11

INITIATIVE initiate REFERENDUM referred to
! 10% + 3% per LD
According to manner
of exercise
1. INDIRECT Initiative (Sec. 11) by
any duly accredited peoples
organization as defined by law
through proposition sent to HOR or
the Local legislative Body

! PROCEDURE: the same as the
enactment of any legislative measure
before the HOR (but with priority than
other pending bills on the committee)

2. DIRECT Initiative (Sec. 13) through
a petition filed by the people with
COMELEC

! PROCEDURE (NB: This applies to
Initiative on statutes and local
legislation only; no procedure yet for
amendments on the Constitution);
I. PROPOSAL
The registered voters with the
following count shall make a
proposition:
Autonomous region 2000
Provinces/Cities 1000
Municipalities 100
Barangays 50
! Where to file?
The local legislative body (LLB)
(i.e. Reg. Assembly of Board
Members/Sanggunian/Brgy.
Kagawad)
II. INITIATIVE
If no favorable action is made by
the LLB concerned after 30 days
from the presentation of the
proposed enactment; or
For those who are against the
proposition adopted by the LLB
III. SIGNATURE CAMPAIGN within a
limited period under Sec. 13(e).
IV. RATIFICATION - PLEBISCITE if
COMELEC finds signatures sufficient.
! majority vote of all reg. voters
V. EFFECTIVITY 15 days after
certification by the COMELEC that
the required votes have been met
(local) or after its publication in the
OG or NNC (national but if against
an enactment by the Congress and no
majority vote garnered, national law
will remain effective)
Plebiscite

EFFECTIVITY 15 days after
certification by the COMELEC that
the required votes have been met
(local) or after its publication in the
OG or NNC (national)

Prohibitions applicable
to both Initiative &
Referendum
1. Petition submitted to the electorate should not embrace more than 1
subject (Sec. 10a)
2. Any proposition approved through I & R shall NOT be repealed, modified
or amended by the LLB concerned within 6 months.
3. May be amended, modified, repealed within 3 years (1 year for barangay)
from lapse of the 6-month period by a vote of 34 of all members of LLB
(Sec. 16)

12

NB: Sec. 12. Appeal. A decision of the COMELEC on the findings of the sufficiency or insufficiency of the petition for
Initiative or referendum may be appealed to the SC within 30 days from notice thereof.

1nL S1A1L
A STATE is a community of persons, more or less numerous, permanently occupying a definite
portion of territory, independent of external control, and possessing a government to which a great body
of inhabitants render habitual obedience.
! (CIR vs. Campos Rueda, 42 SCRA 23)
Distinguish a State from a Nation
State is a legal or juristic concept while a Nation is an ethnic or racial concept.
State vs. Government
A State possesses a government to which a great body of inhabitants render habitual obedience
while a Government is merely an instrumentality of the State through which the will of the State is
implemented and realized.
L|ements of a State
1) Sovereignty ! the right to exercise the functions of a State to the exclusion of any other State.
2) Government ! the agency or instrumentality through which the will of the State is formulated,
expressed and realized.
3) People ! the inhabitants of the State; the number of which is capable of self-sufficiency and self-
defense; of both sexes for perpetuity. a) Inhabitants; b) Citizens; c) Electors.
4) Territory ! a fixed portion of the surface of the earth inhabited by the people of the State.
Is the Vatican a State?
! The Holy See v. Judge Rosario, Jr. (238 SCRA 524 [1994])
A: YES.
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in
the field of international relations."

The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states. In a
community of national states, the Vatican City represents an entity organized not for political but for
ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as
the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the worldwide interests and activities of the Vatican City are such as to make it in a sense
an "international state". xxx

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy
See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal practice in international relations.
(Citations ommitted)
1. Sovere|gnty
Is Sovereignty really absolute?
While sovereignty has traditionally been deemed absolute and all encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly
Limitations
on the Constitution:
! once every 5 years only
(Sec. 2 Art. XVII Constitution)

on Statutes:
! NO LIMITATION
(i.e. any subject, anytime)

on LOCAL Legislation:
1) Not more than once a year
2) Ony to subject matters within the
power of the LLB to enact;
3) Initiative shall be cancelled if the
LLB decides to adopt in toto the
said proposition (but initiative may
be made against said proposition)
(Sec. 15)
Statutes involving emergency
measures, the enactment of which
are specifically vested in Congress
by the Constitution cannot be the
subject of Referendum until 90
days after its effectivity.
(NB: after 90 days ! allowed i.e. the
people can approve/reject the
same;)

(Sec. 10b)

13

or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, the
Constitution adopts the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By
the doctrine of incorporation, the country is bound by generally accepted principles of international law,
which are considered to be automatically part of our own laws.
! Taada vs. Angara, 272 SCRA 18 (1997)
The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions
enter into the picture:
(1) limitations imposed by the very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations.
Kinds of Sovereignty
a) Legalthe power to issue final commands;
b) Politicalthe sum total of all the influences which lie behind the law;
c) Internalthe supreme power over everything within its territory;
d) Externalalso known as independencefreedom from external control.
Sovereignty vs. Dominion
Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is
often referred to as the power of imperium, which is defined as the government authority possessed by
the State (it includes passing laws governing a territory, maintaining peace and order over it, and
defending it against foreign invasion).

On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property
such as lands and natural resources.
! Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000
Effect of Change of Sovereignty (external)
! Political laws of the former sovereign are abrogated unless they are expressly reenacted by the
affirmative act of the new sovereign. Municipal laws remain in force.
! Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982
Effect of Belligerent Occupation (internal)
! There is no change in sovereignty. However, political laws, except those of treason, are suspended
[NB: not abrogated as in change in sovereignty by an external force]; municipal laws remain in force
unless changed by the belligerent occupant.
NB: Conditions of Belligerency (PIL): C-O-W-S
1) An organized Civil government that has control and direction over the armed struggle launched
by the rebels;
2) Occupation of a substantial portion of the national territory;
3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the
outcome;
4) Willingness on the part of the rebels to observe the rules and customs of war.
Principle of Jus Postliminium
! At the end of the occupation, when the occupant is ousted from the territory, the political laws, which
have been suspended, shall automatically become effective again.
! Peralta vs. Director of Prisons, November 12, 1945
Jurisdiction
! The manifestation of sovereignty
a) Territorial - power of the State over persons and things within its territory subject to its control
and protection.
b) Personal - power of the State over its nationals, which may be exercised by the state even if
the individual is outside the territory of the State. (e.g. Art. 15 of the Civil Code)
c) Extraterritorial (Exterritoriality) - power of the State over persons, things or acts beyond its
territorial limits by reason of their effects to its territory. (e.g. Embassies)
2. Government
De Jure vs. De Facto Government
! classification of Government on the basis of legitimacy.
De Jure has a rightful title but no power or control, either because the same has been withdrawn
from it or because it has not yet actually entered into the exercise thereof while a De Facto Actually
exercises the power or control but without legal title.
The kinds of de facto governments are:
a) De Facto Proper. Government that gets possession and control of, or usurps, by force or by the
voice of the majority, the rightful legal government and maintains itself against the will of the
latter;
b) Government of Paramount Forces. Established and maintained by the military forces who
invade and occupy a territory of the enemy in the course of war;
c) Independent Government. Established by the inhabitants of the country who rise in insurrection

14

against the parent State.
Effect of Revolutionary Government on International Law Obligations
! It is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same
way it repudiated the Constitution. As the de jure government, the revolutionary government could not
escape responsibility for the States good faith compliance with its treaty obligations under
international law. During the interregnum when no constitution or Bill of Rights existed, directives and
orders issued by government officers did not exceed the authority granted them by the revolutionary
government. The directives or orders should not have also violated the Covenant or the Declaration.
! Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003

3. eop|e

What is the concept of an associated state?
! The Province Of North Cotabato vs. The Government Of The Republic Of The Philippines Peace Panel,
G.R. No. 183591, Oct. 14, 2008, En Banc [Carpio-Morales]

NB: June 2012 Midterm exam essay

An association is formed when two states of unequal power voluntarily establish durable links. In
the basic model, one state, the associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations represent a middle ground
between integration and independence. Examples of states which maintain an associated state
relationship with the United States are the newly-formed states of Micronesia and the Marshall Islands in
the Pacific, among others.
In US constitutional and international practice, free association is understood as an international
association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the
associated nations national constitution, and each party may terminate the association consistent with
the right of independence. It has been said that, with the admission of the US-associated states to the UN
in 1990, the UN recognized that the American model of free association is actually based on an
underlying status of independence.
In international practice, the associated state arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of states that
have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.
Is the concept of association recognized under the present Constitution?

No. The 1987 Constitution provides that no province, city, or municipality, not even the ARMM, is
recognized under our laws as having an associative relationship with the national government. Indeed,
the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any part of Philippine territory for
independence.
It is for the above reason that the SC declared unconstitutional the proposed Memorandum of
Agreement on Ancestral Domain (MOA-AD) about to be signed between the Government of the Republic
of the Philippines and the Moro Islamic Liberation Front (MILF) because had the signing pushed through,
in effect, we would have allowed the creation of the Bangsamoro Juridical Entity (BJE) in Mindanao as an
associated state (which is merely a transitional phase to it attaining full independence later.) In the words
of the SC in the above case, [T]he BJE (Bangsamoro Juridical Entity) is a far more powerful entity than
the autonomous region recognized in the Constitution. (supra)
4. 1err|tory

Ak1ICLL I: 1he Nat|ona| 1err|tory

1wo arts of the Nat|ona| 1err|tory
1) The Philippine archipelago with all the islands and waters embraced therein; and
2) All other territories over which the Philippines has sovereignty or jurisdiction.
ARTICLE I
NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless o their breadth and dimensions, form part of the internal waters of the Philippines.

15

Archipelago Doctrine
! Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No. 187167, August 6, 2011
This merely emphasizes the unity of lands and waters. It is a body of waters interconnected with
other natural features. Under the United Nation Convention on the Law of Sea (UNCLOS), it consists of
drawing imaginary baseline connecting the outermost islands of the archipelago in which all
internal waters and islands are considered as one integrated whole. An archipelago is defined as a
group of islands, interconnecting waters and other natural features which are so closely interrelated that
such islands, waters and natural features form an intrinsic geographical, economical and political entity,
or which historically been regarded as such.
Correlate this doctrine to the right of innocent of passage, right of arrival under stress and
UNCLOS requiring the designation of archipelagic seaways so that foreign vessels may pas through an
archipelago.
xxx The waters around, between and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
This second sentence of Article I is not the Archipelago Doctrine. This is only our
restatement/reaffirmation of our adherence to the Archipelago Doctrine simply because we are an
archipelago consisting of 7,107 islands. It is essential for our national survival that we adhere to the
archipelago principle.
Is the Spratlys Group of Islands part of the Philippine Archipelago?
A: NO!
Spratlys Group of Islands [a.k.a Kalayaan Island Group or KIG] is not part of the Philippine
Archipelago because it is too far away from the three main islands of the Philippines. It is found,
geographically, almost in the middle of the South China Sea. Historically, when we talk about the
Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United
States by virtue of theTreaty of Paris in 1898, and that did not include the Spratlys Group of Islands yet.
Under the treaty, the islands that were ceded by Spain were identifiedthe main islandsLuzon,
Visayas and Mindanao. Clearly, it did not include the Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime in the 1950s by a Filipino, Tomas
Cloma. The latter waived his rights over the islands in favor of the Philippine Government. In effect, the
government stepped into the shoes of the discoverer. What then President Marcos did the moment
Tomas Cloma waived his rights over the Spratlys Group of Islands, is to have the islands immediately
occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a
regular municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan,
and then he had the elections immediately held in the islands so from that time on until now, we continue
to hold elections there. The Philippine exercises not only jurisdiction but also sovereignty over the
Spratlys Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away
from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat.The Philippine
claim to the islands is justified by reason of history, indispensable need, and effective occupation
and control. Thus, in accordance with international law, the Spratlys Group of islands is subject to
the sovereignty of the Philippines.
Is the Spratlys group of Islands part of our National Territory?
A: YES.
The Spratlys Group of islands falls under the second phrase of Article I of the Philippine
Constitution and all other territories over which the Philippines has sovereignty or jurisdiction. It is part of
our national territory because the Philippines exercise sovereignty (through the election of public officials)
over Spratlys Group of Islands.
What was the basis of the Philippines claim over the Spratlys?
A: Through the discovery of Tomas Cloma and by an effective occupation. (Prof. Magallona,
supra) PD 1596, June 11, 1978 constituting the Spratlys Group of Islands as a regular municipality
claiming it the Municipality of Kalayaan, placing it under the Province of Palawan.
(1) RA 9522's Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG
and the Scarborough Shoal - not Inconsistent with the Philippines' Claim of Sovereignty Over these
Areas.
Further, petitioners' argument that the KIG now lies outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines' continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty
and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines
shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47
(2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three
per cent (3%) of the total number of baselines, which can reach up to 125 nautical miles.

16

Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for
several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the archipelago."
(2) Statutory Claim Over Sabah under RA 5446 - Retained
Petitioners' argument for the invalidity of RA 9522 for its failure to textualize the Philippines' claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the
door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this
Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion
and sovereignty. (Emphasis supplied)
Modes of Acqu|r|ng 1err|tory

1. Discovery and Occupation
What can be validly acquired thru discovery and occupation?
! Lands which are terra nullius or a land belonging to no one.
Doctrine of Effective Occupation
! Discovery alone is not enough. Mere discovery gives only an inchoate right to the discoverer.
For title to finally vest, discovery must be followed by effective occupation in a reasonable time
and attestation of the same. [NB: this is what Pres. Marcos did to claim KIG]

2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and US ceding
Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter;

3. Prescription. Which is a concept under the Civil Code. Territory may also be acquired through
continuous and uninterrupted possession over a long period of time. However, in international
law, there is no rule of thumb as to the length of time for acquisition of territory through
prescription. In this connection, consider the Grotius Doctrine of immemorial prescription,
which speaks of uninterrupted possession going beyond memory.

4. Conquest or Subjugation (conquistadores) This is no longer recognized inasmuch as the UN
Charter prohibits resort to threat or use of force against the territorial integrity or political
independence of any state; and

5. Accretion. Another concept in the Civil Code. It is the increase in the land area of the State,
either through natural means, or artificially, through human labor.
Some r|nc|p|es |n Nat|ona| 1err|tory
Thalweg Doctrine
! For boundary rivers, in the absence of an agreement between the riparian states, the boundary line is
laid on the middle of the main navigable channel.
Middle of the Bridge Doctrine
! Where there is a bridge over a boundary river, the boundary line is the middle or center of the bridge.
Bays and Gulfs
! A Bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as
to contain land-locked waters and constitutes more than a curvature of the coast. Also referred to as
juridical bay. The area must be as large as, or larger than, a semi-circle whose diameter is a line drawn
across the mouth of such indentation, or if the mouth is less than 24 miles wide. e.g. Hudson Bay in
Canada, one whose waters are considered internal because of the existence of a historic title.
Straits
! Narrow passageways connecting 2 bodies of water. If the distance between the 2 opposite coast is not
more than 6 miles, they are considered internal waters. In international law, when a strait within a
country has a width of more than six (6) miles, the center lane in excess of the three (3) miles on both
sides is considered international waters.
Canals
! The most famous is the Suez Canal, which is neutralized, and the Panama Canal, which is open to
everyone in times of war or peace.
Archipelagic waters
! Are the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the
coast.
Archipelagic State
! A state made up wholly of one or two archipelagos. It may include other islands.
Straight Archipelagic Baseline
! To determine the archipelagic waters, the state shall draw straight baselines connecting the outermost

17

points of the outermost islands and drying reefs, provided that the ratio of the area of the water to the
area of the land, including atolls, is between 1:1 and 9:1. The length of such baselines shall not exceed
100 nautical miles, except up to 3% of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum 125 miles. The baselines drawn should not depart, to any
appreciable extent, from the general configuration of the archipelago. All the waters within the baselines
shall then be considered internal waters. The breadth of the 12-mile territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall then be measured from the archipelagic
baselines.
Vessels may be allowed innocent passage within the archipelagic waters, but this right may be
suspended, after publication, in the interest of international security. The coastal state may also designate
archipelagic sea lanes for continuous, unobstructed transit of vessels.
Territorial Sea
! The belt of the sea located between the coast and the internal waters of the coastal state on the other
hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in
the case of archipelagic states, from the baselines.
Baseline
! Is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic
zone is measured in order to determine the maritime boundary of the coastal state.
Types of baselines: a) Normal Baseline Method; b) Straight Baseline method (Philippines)
Contiguous Zone
! Extends up to 12 nautical miles from the territorial sea; this shall not exceed 24 nautical miles from
the archipelagic baselines.
! The coastal state may exercise limited jurisdiction over the contiguous zone:
1. To prevent infringement of customs, fiscal immigration or sanitary laws and regulations within its
territory or territorial sea; and
2. To punish infringement of the above laws and regulations committed within its territory.
Exclusive Economic Zone
! Shall not extend beyond 200 nautical miles from the archipelagic baselines.
Continental shelf
! It is the seabed and subsoil of the submarine areas extending beyond the Philippine territorial sea
throughout the natural prolongation of the land territory. It extends up to the outer edge of the continental
margin; or a distance of 200 nautical miles from the archipelagic baselines, whichever is the farthest.
! The continental shelf does not form part of the Philippine territory. The Philippines has the sovereign
rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.
High Seas
! Treated as res communes, thus, not territory of any particular State. These are the waters which do
not constitute the internal waters, archipelagic waters, territorial sea and exclusive economic zones of a
state. They are beyond the jurisdiction and sovereign rights of States.
Freedom of navigation
! Refers to the right to sail ship on the high sea, subject to international law and the laws of the flag of
the state.
Aerial Domain
! This refers to the air space above the land and waters of the State (See Discussions under
International Law)
Ak1ICLL II: Dec|arat|on Cf r|nc|p|es And State o||c|es
Sec. 1: Democrat|c and kepub||can State

[NB: Relate this with Article XI]
Manifestations of Republicanism
G-M-L-A-B-S
1) Ours is a government of law and not of men
Government of Laws and Not of Men.
! Sovereignty of the people also includes the concept that government officials have only
the authority given them by law and defined by law, and such authority continues only
with the consent of the people.
ARTICLE II
Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.

18

! Villavicencio vs. Lukban, 39 Phil 778
2) Rule of the majority. (Plurality in elections)
3) Accountability of public officials (Article XI)
4) Bill of rights (Article III)
5) Legislature cannot pass irrepealable laws
6) Separation of powers
What is a Republican form of government?
It is a government of the people, by the people, and for the people, a representative government
wherein the powers and duties of government are exercised and discharged for the common good and
welfare. Thus, the supreme power resides on the body of people.
Characteristics of a republican form of government
R-S-T
1) The people do not govern themselves directly but through their representatives;
2) It is founded upon popular suffrage;
3) There is the tripartite system of the government, the mutual interdependence of the three
departments of the government.
Presidential vs. Parliamentary
1) In Presidential, there is separation of legislative and executive powers. The first is lodged in the
President and the second is vested in Congress while in Parliamentary there is fusion of both
executive and legislative powers in a Parliament, although the actual exercise of the executive
powers is vested in a Prime Minister who is chosen by, and accountable to, the Parliament.
2) A Presidential form of government embodies interdependence by separation and coordination
while a Parliamentary one embodies interdependence by integration.
Doctrine of Parens Patriae
The government as guardian of the rights of the people may initiate legal actions for and in behalf
of particular individuals.
! Government vs. Monte de Piedad, 35 SCRA 738; Cabaas vs. Pilapil, 58 SCRA 94
ARTICLE XI: What are the characteristics of a public office?
1. A public office if is a public trust (Sec. 1, Art XI)
2. It cant be inherited not a monarchy (therefore political dynasties must be prohibited)
3. It cant be the subject of a contract it is outside the commerce of men
4. It is not a property but a privilege it is not protected by the due process clause
Who are the impeachable officers?
A: Article XI, Sec. 2:
1. President
2. Vice President
3. Members of the Supreme Court
4. Members of the Constitutional Commissions
5. Ombudsman Office of the Special Prosecutor appointed by the President without need for
Confirmation (including his Deputies 1 overall and 1 each for LuzViMin = 4); enjoys fiscal
autonomy on its approved annual appropriations, which shall be automatically and regularly
released.
! NB: The Sandiganbayan is not included (The provision of the Sandigabayan Law stating that
they can only be removed impeachment is NO LONGER VALID)
Grounds for impeachment
1. Treason
2. Bribery
3. Graft and Corruption
4. Other high crimes
5. Betrayal of public trust (Section 2, Art. XI)
Who may initiate an impeachment?
Sec. 3, Art. XI: The House of Representatives shall have the exclusive power to initiate all cases
of impeachment (any HOR member/any citizen upon a resolution of indorsement by any member referred
to HOR Committee ! HOR Committee majority decision submits resolution + Articles of Impeachment
(AOI) to HOR ! 1/3 vote of HOR decides to submit verified complaint to Senate for trial.
Who will hear?
Sec. 3(6), Art. XI: The Senate shall have the sole power to try and decide all cases of impeachment. When sitting
for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial,
the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.
Can you question the HORs finding of probable cause?
A: NO! Sec 3(4), In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
Tax evation case against the impeached offier will it constitute double jeopardy?
Sec. 3(7), Art. XI: Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

19

Atty. Sandoval: the purpose of impeachment is to protect the people from unscrupulous officials.
What is the quantum of proof in impeachment proceedings?
Atty. Sandoval: Not proof beyond reasonable doubt. It is not a criminal proceeding. It is sui generis.

Sec. 19, Art. VII: Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after
conviction by final judgment.

June 2012 Midterm Exam:

Q: May the former Chief Justice Corona be prosecuted criminally for tax evasion after his
conviction in the impeachment trial? Will this not constitute double jeopardy?

NB: YES, CJ may well be held liable for tax evasion, and the same will not constitute double jeopardy.

It is a settled rule that impeachment proceedings are considered sui generis, in that the same
cannot be regarded as criminal, administrative, or civil in nature. Conviction in impeachment cases is only
limited to the removal of the officer from position and/or his disqualification to hold the Government office,
for the grounds of culpable violation of the Constitution, graft and corruption, treason, rebellion, and
disloyalty to the republic. Such conviction is without prejudice to any further action against the same
officer to enforce criminal liability or for any other violation of law. Conviction in the impeachment trial of
former CJ Corona therefore, is not a bar to any tax evasion case against him, as the same may not
constitute double jeopardy, Otherwise, unscrupulous officials may simply do away with the consequences
of their crimes by simply invoking double jeopardy after their removal from office.
Executive Privilege on Public Disclosure
! A limitation on the right to Information
! Senate vs. Ermita, G.R. NO. 169777, April 20, 2006
What is the Executive Privilege on Public Disclosure?
In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is
a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic
and other national security matters." The same case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.
What is the rule on the exercise of this privilege?
Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of
disclosure. (supra)
Atty. Sandoval: In a democratic and republican State disclosure of information is the general rule; An
executive privilege is the exception.
NB: Privilege may not be invoked by the mere fact of being an Executive officer. Considerations:
1. Type of information
2. Ground invoked to justify disclosure
3. Context on which it was made
Sec. 2: kenunc|at|on of War

Two Important concepts
1. Renunciation of war Aggressive war only; Not defensive war because the State is duty-bound to
defend its citizens.

Who may declare war?
A: NO ONE! Not even Congress. Sec. 23, Art. VI gives Congress the power to declare the
EXISTENCE of war not war itself. This is DEFENSVE war. This means that we are already being
attacked.
2. Adopts the generally accepted principles of International Law

NB: 2 DOCTRINES / SCHOOLS OF THOUGHT in International Law principles:
Doctrine of Transformation requires a positive act from the states legislative body before
an International Law principle may be binding upon the State and its inhabitants.
Doctrine of Incorporation does not require a legislative act; This is the school of thought
adhered to by the RP.
ARTICLE II
Section 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

20

Some generally accepted principles of International Law
The doctrine of state immunity from suit
! US vs. GUINTO, February 26, 1990
The rule that a State may not be sued without its consent is one of the generally accepted principles of
international law that were have adopted as part of the law of our land. Xxx All states are sovereign equals
and cannot assert jurisdiction over one another.
Par in Parem Non Habit Imperio
! Doctrine of sovereign equality of all states
Pacta sunt Servanda
! International agreements must be performed in good faith
! Taada vs. Angara, 272 SCRA 18 [1997]
One of the oldest and most fundamental rules in international law is pacta sunt servanda --
international agreements must be performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.
The right to self-determination of peoples
! Prov. of North Cotabato, supra

NB: June 2012 Midterm Exams

Human Rights may either be individual or collective human rights. An example of the latter is the right
to self-determination of peoples. (Magallona, Fundamentals of Public International Law, 2005 Ed.).
This right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has
now been elevated into the status of a generally accepted principle of international law.
However, in international law, the right to self-determination of peoples should not be understood
as extending to a unilateral right of secession. A distinction should be made between the right of internal
and external self-determination. The right to self-determination of a people is normally fulfilled through
internal self-determination a peoples pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external self- determination (which
takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases
and, even then, under carefully defined circumstances. The right to external self- determination can arise
only in exceptional cases, namely, where a people is under colonial rule, is subject to foreign domination
or exploitation outside of a colonial context, and is blocked from the meaningful exercise of its right to
internal self-determination.
Atty. Sandoval: To whom does it belong?
ANS: It belongs to Indigenous Cultural Communities i.e. the MINORITIES
The Yokyakarta principles
! Ang Ladlad LGBT Party vs. COMELEC, G.R. NO. 190582, April 8, 2010
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. xxx Using even the most liberal of lenses, these Yogyakarta Principles [the
Application of International Human Rights Law In Relation to Sexual Orientation and Gender
Identity], consisting of a declaration formulated by various international law professors, are at best de
lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of
contemporary international law is characterized by the soft law nomenclature, i.e., international law is
full of principles that promote international cooperation, harmony, and respect for human rights, most of
which amount to no more than well-meaning desires, without the support of either State practice or
opinio juris.
Sec. 3: C|v|||an Supremacy

! IBP V. Zamora, G.R. NO. 141284, August 15, 2000

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian
character of the police force.
FACTS: The President issued Letter of Instruction (LOI) ordering the deployment of members of the
Philippine Marines in the metropolis to conduct joint visibility patrols with members of the Philippine
National Police in various shopping malls. Will this not violate the civilian supremacy clause under
Section 3, Article II of the Constitution? Will this not amount to an "insidious incursion" of the military
in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution?
HELD: The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The
calling of the marines in this case constitutes permissible use of military assets for civilian law enforcement.
xxx. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently
provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the
Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State
and the integrity of the national territory.

21

ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the
Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the
LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their
responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it
cannot be properly argued that military authority is supreme over civilian authority.
It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in
the implementation and execution of certain traditionally civil functions.
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we
have here is mutual support and cooperation between the military and civilian authorities, not derogation
of civilian supremacy.
Sec. 16: k|ght to a 8a|anced and nea|thfu| eco|ogy

! Oposa V. Factoran, Jr., 224 SCRA 792 [1993]

Is the right to a balanced and healthful ecology any less important than any of the civil and political rights
enumerated in the Bill of Rights? Explain.
A: NO! It is not less important.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation, the advancement
of which may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-
founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself x x x the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to inherit
nothing but parched earth incapable of sustaining life.
Sect|on 10, Art|c|e kII: 1he "IILIINC IIkS1" o||cy

! Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997]
Is the Filipino First Policy expressed in Section 10, Article XII of the Constitution a self-
executing provision?

A: YES. It is a mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution
mandates that [i]n the grant of rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos, it means just that qualified Filipinos must be
preferred.
What is the Filipino First Policy enshrined in the Constitution?
A: That in the grant of rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos.
What is "NATIONAL PATRIMONY"?
! Refers not only to national resources but also the cultural heritage of the Philippines
! Manila Prince Hotel established as CULTURAL heritage; It was witness to all triumphs of Phils.

NB: PATRIMONY simply means HERITAGE
Section 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature
Section 10, ARTICLE XII. The Congress shall, upon recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at
least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.

22

Sect|on S, Ak1ICLL kIV: Academ|c Ireedom

Define and discuss the academic freedom of institutions of higher learning.
! University Of San Agustin, Inc. vs. CA, 230 SCRA 761, 774-775, March 7, 1994

Academic freedom of educational institutions has been defined as the right of the school or
college to decide for itself, its aims and objectives, and how best to attain them - free from outside
coercion or interference save possibly when the overriding public welfare calls for some restraint. It has
a wide sphere of autonomy certainly extending to the choice of students. Said constitutional provision is not
to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and
nullify its intent.
While it is true that an institution of learning has a contractual obligation to afford its students a
fair opportunity to complete the course they seek to pursue, since a contract creates reciprocal rights and
obligations, the obligation of the school to educate a student would imply a corresponding obligation
on the part of the student to study and obey the rules and regulations of the school. When a student
commits a serious breach of discipline or failed to maintain the required academic standard, he forfeits his
contractual right. In this connection, this Court recognizes the expertise of educational institutions in the
various fields of learning. Thus, they are afforded ample discretion to formulate reasonable rules and
regulations in the admission of students, including setting of academic standards. Within the parameters
thereof, they are competent to determine who are entitled to admission and re-admission.
How should the States power to regulate educational institutions be exercised?
! Miriam College Foundation, Inc. vs. CA, 348 SCRA 265 (2000)

Section 4[1], Article XIV of the Constitution recognizes the States power to regulate educational institutions:
The State recognizes the complementary roles of public and private institutions in the educational
system and shall exercise reasonable supervision and regulation of all educational institutions.
As may be gleaned from the above provision, such power to regulate is subject to the requirement of
reasonableness. Moreover, the Constitution allows merely the regulation and supervision of educational
institutions, not the deprivation of their rights.
What are the essential freedoms subsumed in the term academic freedom?

! Isabelo, Jr. vs. Perpetual Help College Of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993
In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited with
approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in the term
academic freedom encompassing not only the freedom to determine x x x on academic grounds (1) who
may teach, (2) what may be taught (and) (3) how it shall be taught, but likewise (4) who may be
admitted to study. We have thus sanctioned its invocation by a school in rejecting students who are
academically delinquent, or a laywoman seeking admission to a seminary, or students violating School Rules
on Discipline.
Where do academic institutions derive their freedom to DISCIPLINE the students?

The essential freedoms subsumed in the term academic freedom encompass the freedom to
determine for itself on academic grounds:
(1) Who may teach
(2) What may be taught
(3) How it shall be taught, and
(4) Who may be admitted to study
The right of the school to discipline its students is at once apparent in the third freedom, i.e., how
it shall be taught. A school certainly cannot function in an atmosphere of anarchy.
Incidentally, the school not only has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.
In Angeles v. Sison, we also said that discipline was a means for the school to carry out its
responsibility to help its students grow and develop into mature, responsible, effective and worthy
Section 5, ARTICLE XIV
1. The State shall take into account regional and sectoral needs and conditions and shall encourage local
planning in the development of educational policies and programs.
2. Academic freedom shall be enjoyed in all institutions of higher learning.
3. Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and
equitable admission and academic requirements.
4. The State shall enhance the right of teachers to professional advancement. Non-teaching academic
and non-academic personnel shall enjoy the protection of the State.
5. The State shall assign the highest budgetary priority to education and ensure that teaching will attract
and retain its rightful share of the best available talents through adequate remuneration and
other means of job satisfaction and fulfillment.

23

citizens of the community.
Finally, nowhere in the above formulation is the right to discipline more evident than in who may be
admitted to study. If a school has the freedom to determine whom to admit, logic dictates that it also
has the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions
such as suspension and the withholding of graduation privileges. (Miriam College Foundation, supra)
May a University validly revoke after graduation, a degree or honor it has already conferred to a
student after finding that such degree or honor was obtained through fraud?
! UP Board of Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No.
134625, Aug. 31, 1999, 2
nd
Div. [Mendoza]
In Garcia v. Faculty Admission Committee, Loyola School of Theology (68 SCRA 277 [1975]), the SC
pointed out that academic freedom is that granted to institutions of higher learning which is thus given a
wide sphere of authority certainly extending to the choice of students. If such institution of higher
learning can decide who can and who cannot study in it, it certainly can also determine on whom it can
confer the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained through fraud, a
university has the right to revoke or withdraw the honor or distinction it has thus conferred. This
freedom of a university does not terminate upon the graduation of a student, for it is precisely the
graduation of such a student that is in question.
1he Doctr|ne Cf State Immun|ty Irom Su|t
I. Suits against the STATE itself
! Department Of Agriculture vs. NLRC, 227 SCRA 693, Nov. 11, 1993

The basic postulate enshrined in the Constitution that [t]he State may not be sued without its
consent, reflects nothing less than a recognition of the sovereign character of the State and an express
affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the
very essence of sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from
suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that
there can be no legal right as against the authority that makes the law on which the right depends.
True, the doctrine, not too infrequently, is derisively called the royal prerogative of dishonesty
because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its
non-suability. We have had occasion to explain in its defense, however, that a continued adherence to
the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such fundamental principle is to be
abandoned and the availability of judicial remedy is not to be accordingly restricted.
Waiver of State Immunity: Express or Implied

The rule, in any case, is not really absolute for it does not say that the state may not be sued
under any circumstances. On the contrary x x x the doctrine only conveys, the state may not be sued
without its consent; Its clear import then is that the State may at times be sued. The State's consent may
be given either expressly or impliedly.
Express consent may be made through a general law (i.e., Commonwealth Act No. 327, as
amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims
against the government must first be filed with the Commission on Audit which must act upon it
within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the
Supreme Court on certiorari and, in effect, sue the State thereby) or a special law. In this
jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083,
where the Philippine government consents and submits to be sued upon any money claim
involving liability arising from contract, express or implied, which could serve as a basis of civil
action between the private parties.

Implied consent, on the other hand, is conceded when the State itself commences litigation,
thus opening itself to a counterclaim or when it enters into a contract. In this situation, the
government is deemed to have descended to the level of the other contracting party and to have
divested itself of its sovereign immunity. (DA vs. NLRC, supra)
Is Implied waiver of immunity absolute?

A: NO. Not all contracts entered into by the government operate as a waiver of its non-suability;
distinction must still be made between one which is executed in the exercise of its sovereign function
[jure imperii] and another which is done in its proprietary [jure gestionis] capacity.

What is the Restrictive Doctrine of State Immunity from Suit?
! United States of America v. Ruiz (136 SCRA 487)

According to the newer or restrictive theory, the immunity of the sovereign is recognized only
with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis.

24

Jure Imperii vs Jure Gestionis
! Holy See vs. Rosario, GR 101949, December 1, 1994

The mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

The Supreme Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v. Rodrigo,
182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles
City (United States of America v. Guinto, 182 SCRA 644 [1990]). (Holy See vs. Rosario, supra)
Suability vs. Liability
! (Philippine Rock Industries, Inc. v. Board of Liquidators, G.R. 84992, December 15, 1989)

When the State gives its consent to be sued, all it does is to give the other party an opportunity
to show that the State is liable. Accordingly, the phrase that waiver of immunity by the State does not
mean a concession of its liability means that by consenting to be sued, the State does not
necessarily admit that it is liable. In such a case the State is merely giving the plaintiff a chance to
prove that the State is liable but the State retains the right to raise all lawful defenses.
Waiver of immunity from jurisdiction with regard to civil and administrative proceedings shall not
be held as an implied waiver of the immunity with respect to the execution of judgment, for which a
separate waiver is necessary.
SUABILITY LIABILITY
Depends on the consent of the State to be
sued (before trial).
Depends on the applicable law and the
established facts (during trial, after judgment).
The circumstances that a State is suable does
not necessarily mean that the State is liable.
The State can never be held liable if the
state is not suable.

In the matter of execution to satisfy judgment against the State
!Traders Royal Bank v. IAC, GR 68514, December 17, 1990

The universal rule that where a State gives its consent to be sued by private parties either by general
or special law [express consent], it may limit claimants action only up to the completion of proceedings
anterior to the stage of execution, and that the power of the Courts ends when the judgment is rendered,
since government funds and properties may not be seized under writs of execution or garnishment to
satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public
funds must be covered by the corresponding appropriations as required by law. The functions and public
services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects.
NB: Exception to the above rule?
! City of Caloocan v. Allarde, GR 107271, September 10, 2003
The rule on the immunity of public funds from seizure or garnishment does not apply where
the funds sought to be levied under execution are already allocated by law specifically for the
satisfaction of the money judgment against the government. In such a case, the monetary judgment
may be legally enforced by judicial processes.
Q. After trial, judgment was rendered against the government, may the government funds in the PNB be
garnished or may the property of the government be levied?
A. The waiver does not extend to the execution of judgment, for another waiver is required. Otherwise the
government will be paralyzed in the performance of its functions.

REMEDY: make necessary representation to the Congress to enact appropriation measures to satisfy the
judgment.
If the government still refuses to enact the appropriate measure, Mandamus will lie, for there is
already a final judgment and the State should be the first the one to respect the its courts ruling.
(Municipality of Makati vs. CA)
Generally the duty to appropriate is discretionary, however if there is already a final judgment, it
now becomes a ministerial duty.
Can a property owner sue the government for non-payment of just compensation in an Expropriation?
A: YES. Otherwise, the right guaranteed in Section 9, Article III of the 1987 Constitution that private
property shall not be taken for public use without just compensation will be rendered nugatory. (Ministerio
vs. Court of First Instance, L 31635, August 31, 1971)
II. Suits against AGENCIES of the Government

NB: To determine liability: Establish whether or not the State, as principal which may ULTIMATELY be
held liable, has given its consent.

25

GOVERNMENT AGENCIES SUABILITY
a. Incorporated Agencies
Test of suability is stated in their
CHARTERS.
b. Unincorporated Agencies
Suable if the nature of their acts is
PROPRIETARY.
c. Act of State: Jure Gestionis
By right of economic or business relation
! may be sued
d. Act of State: Jure Imperii
By right of sovereign power, in the
exercise of sovereign functions
! cannot be sued.

III. Suits against GOVERNMENT OFFICIALS

NB: liability is determined through their acts if the same is without or in excess of jurisdiction, any injury
caused by him is his own personal liability and cannot be imputed to the State.
When is a suit against a Government officer deemed to be a suit against the State?
! Amado J. Lansang vs. CA, G.R. NO. 102667, FEB. 23, 2000, [QUISUMBING]

The doctrine of state immunity from suit applies to complaints filed against public officials for acts
done in the performance of their duties. The rule is that the suit must be regarded as one against the
State where the satisfaction of the judgment against the public official concerned will require the State
itself to perform a positive act, such as appropriation of the amount necessary to pay the damages
awarded to the plaintiff.
The [immunity] does not apply where the public official is charged in his official capacity for acts
that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal
capacity, from liability arising from acts committed in bad faith.
Neither does it apply where the public official is clearly being sued not in his official capacity
but in his personal capacity, although the acts complained of may have been committed while he
occupied a public position.
State instances when a suit against the State is proper
! Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.])

Some instances when a suit against the State is proper are:
1) When the Republic is sued by name; (NB: ex: Republic vs. CA)

2) When the suit is against an unincorporated government agency (those merely attached to
the National Government and not created by its own charter e.g. DA, DENR, DECS)

3) When the suit is on its face against a government officer but the case is such that ultimate
liability will belong not to the officer but to the government. (NB: ex: Oposa vs. Factoran)

! Republic vs. Sandoval, supra
FACTS:
The case is an offshoot of the Mendiola Massacre. After investigation, the Citizens' Mendiola
Commission (a body specifically tasked to investigate the facts surrounding the incident) recommended
that the individual police and military officers involved be prosecuted criminally and for the government
to indemnify the victims and/or their heirs. A claim on this respect was made, and the same was endorsed
by the Executive Secretary to the DBM for appropriate acion. As the Government failed to heed such
demand, the claimants brought an action for damages against the Republic, prompting the latter to file a
petition for certiorari with the SC.
Public respondents now contend that the government has waived its immunity from suit based on the
acts and pronouncements of the President (Cory Aquino), as well as the recommendation of the
Commission to indemnify the victims and/or their heirs.
ISSUES:
1. Was there a consented waiver of immunity by the State under the circumstances?
2. If none, can liability still attach to the state nonetheless, on the context of Implied liability by the acts
of its officers, which were done as mere agents thereof?
HELD:
1. There was no consented waiver on the part of the State.
Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the
deceased and the victims of the incident by the government does not in any way mean that liability
automatically attaches to the State. The same shall only serve as the cause of action in the event that any
party decides to litigate his/her claim. Secondly, whatever acts or utterances that then President Aquino may
have done or said, the same are not tantamount to the State having waived its immunity from suit. Thirdly,
the case does not qualify as a suit against the State.
2. The State is not accountable for the acts of the liable officers.

26

While it is true that nothing is better settled than the general rule that a sovereign state and its political
subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both
the military officers to release them from any liability, and by the heirs and victims to demand
indemnification from the government. The principle of state immunity from suit does not apply, as in
this case, when the relief demanded by the suit requires no affirmative official action on the part of the
State nor the affirmative discharge of any obligation which belongs to the State in its political
capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of
a title of the state and as its agents and servants. This Court has made it quite clear that even a high
position in the government does not confer a license to persecute or recklessly injure another.
The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the
incident. Instead, the liability should fall on the named defendants in the lower court. In line with the
ruling of this Court in Shauf v. Court of Appeals (191 SCRA 713 [1990]), herein public officials, having
been found to have acted beyond the scope of their authority, may be held liable for damages.
The doctrine cannot be used to perpetrate an injustice on a citizen
! EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena]

To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitioners-
contractors right to be duly compensated for actual work performed and services rendered, where both the
government and the public have, for years, received and accepted benefits from said housing project and
reaped the fruits of petitioners-contractors honest toil and labor.
Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty
and conveniently hide under the States cloak of invincibility against suit, considering that this principle
yields to certain settled exceptions. True enough, the rule, in any case, is not absolute for it does not say that
the state may not be sued under any circumstances.
To be sure, this Court as the staunch guardian of the citizens rights and welfare cannot sanction an
injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and
equity sternly demand that the States cloak of invincibility against suit be shred in this particular instance,
and that petitioners-contractors be duly compensated on the basis of quantum meruit for construction
done on the public works housing project.
Art|c|e IV. CI1I2LNSnI

What citizenship principle do the Philippines adhere to?
! Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima]

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child
follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to
the doctrine of jus soli, which determines nationality or citizenship on the basis of place of birth.

NB:
1. Determine the governing Constitution
2. Know the effectivity

Sec. 1. 1he fo||ow|ng are the c|t|zens of the h|||pp|nes:
1. Those who are citizens of the Philippines at the time of the adoption of this Constitution
! February 2, 1987
Section 1. The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the
age of majority; and
4. Those who are naturalized in the accordance with law.
Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens.
Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.
Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they
are deemed, under the law to have renounced it.
Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

27

2. Those whose fathers or mothers are citizens of the Philippines
The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a
child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as
opposed to the doctrine of jus soli, which determines nationality or citizenship on the basis of place
of birth.
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority
! Exception to Sec 2. Upon election of Philippine citizenship, he/she is deemed natural born
even if something has to be done to perfect his citizenship.
! Age of majority should be construed as 21 years old - the age of majority contemplated when the
present Constitution was adopted. (In about 100 yrs i.e. 2073 this provision will be functus officio)
Until when should a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father
validly elect Philippine citizenship?

! In Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914

Held: Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born
of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching
the age of majority, the child elected Philippine citizenship. C.A. No. 625, which was enacted
pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the procedure that should be
followed in order to make a valid election of Philippine citizenship. However, the 1935 Constitution
and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship
should be made. The 1935 Charter only provides that the election should be made upon reaching
the age of majority. The age of majority then commenced upon reaching twenty-one (21) years. In
the opinions of the Secretary of Justice on cases involving the validity of election of Philippine
citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to
the effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine
citizenship was, in turn, based on the pronouncements of the Department of State of the United
States Government to the effect that the election should be made within a reasonable time after
attaining the age of majority. The phrase reasonable time has been interpreted to mean that the
election should be made within three (3) years from reaching the age of majority.

The span of fourteen (14) years that lapsed from the time that person reached the age of
majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing upon reaching the age of majority.

Philippine citizenship can never be treated like a commodity that can be claimed when needed
and suppressed when convenient. One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and
promptitude.
Will it make a difference if Chings parents were not married?

A: YES, because if so, he does not need to elect Philippine Citizenship anymore, since he
automatically acquires the citizenship of his mother.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it
did so for the benefit of the child. It was to ensure a Filipino nationality for the illegitimate child of
an alien father in line with the assumption that the mother had custody, would exercise parental
authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice
or discriminate against him. (Tecson, supra)
The 1935 Constitution was the governing law, where it provided that those whose fathers are citizens of the
Philippines, whether they be legitimate or not, are citizens of the Philippines.

! Tecson vs. Comelec
Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the
presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in
the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his
place of residence upon his death in 1954, in the absence of any other evidence, could have well
been his place of residence before death, such that Lorenzo Pou would have benefited from the en
masse Filipinization that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou),
if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all
persons whose fathers are Filipino citizens regardless of whether such children are legitimate or
illegitimate.
4. Those who are naturalized in accordance with law

NB: Naturalization may refer to 2 concepts depending on the person subject thereof:
1. Former Filipino citizens where the mode is in effect a re-acqusiition under Sec. 2.
2. Aliens

! So vs. Republic, January 29, 2007
Here, SC said that naturalization signifies the act of formally adopting a foreigner into the
political body of a nationby clothing him/her with the privileges of a citizen.

28

Naturalized citizens under this section refer to Aliens who have become Filipino citizens
through naturalization, generally under CA No. 473, otherwise known as the Revised Naturalization
Law, which repealed the former Naturalization Law (Act No. 2927), and by RA No. 530.

To be naturalized, an applicant has to prove that he possesses all the qualifications and
none of the disqualification provided by law to become a Filipino citizen.

The decision granting Philippine citizenship becomes executory only after two (2) years from
its promulgation when the court is satisfied that during the intervening period, the applicant has (1)
not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been
convicted of any offense or violation of Government promulgated rules; or (4) committed any act
prejudicial to the interest of the nation or contrary to any Government announced policies.

June 2012 Midterms
Under current and existing laws, what are the ways by which an ALIEN may become a citizen of the Philippines by
naturalization?

1. Administrative Naturalization (RA 9139) - which is only available to native-born aliens who
have lived in the Philippines their whole life that they simply needed to be naturalized in order
to perfect their citizenship. Congress enacted this law to make the process of acquiring Phil.
Citizenship less tedious, less technical, and more encouraging (administrative rather than
judicial). It likewise addresses the concerns of degree-holders who, by reason of their lack of
citizenship cannot practice their profession.

2. Judicial Naturalization (CA 473, as amended) where the petitioner has to file a petition for
Naturalization with the RTC. He can only do so 2 years after he has first made a formal intent
with the Solicitor General that he wants to be a Filipino citizen. Publication and hearings will
also be made, and the decision will only gain finality after another 2 years.

3. Legislative Naturalization in the form of a law bestowing Philippine citizenship to an alien.

Qualifications
Section 2, Act 473 provides the following qualifications:

1) He must be not less than 21 years of age on the day of the hearing of the petition;
2) He must have resided in the Philippines for a continuous period of not less than ten years;
3) He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must
have conducted himself in a proper and irreproachable manner during the entire period of his residence in the
Philippines in his relation with the constituted government as well as with the community in which he is living;
4) He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must
have some known lucrative trade, profession, or lawful occupation;
5) He must be able to speak and write English or Spanish and any of the principal languages; and
6) He must have enrolled his minor children of school age, in any of the public schools or private schools recognized
by the Bureau of Private Schools of the Philippines where Philippine history, government and civic are taught or
prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of
him prior to the hearing of his petition for naturalization as Philippine citizen.
Disqualifications
Section 4, Act 473, provides the following disqualifications:

1) He must not be opposed to organized government or affiliated with any association or group of persons who
uphold and teach doctrines opposing all organized governments;
2) He must not be defending or teaching the necessity or propriety of violence, personal assault, or assassination for
the success and predominance of their ideas;
3) He must not be a polygamist or believer in the practice of polygamy;
4) He must not have been convicted of any crime involving moral turpitude;
5) He must not be suffering from mental alienation or incurable contagious diseases;
6) He must have, during the period of his residence in the Philippines (or not less than six months before filing his
application), mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace
the customs, traditions and ideals of the Filipinos;
7) He must not be a citizen or subject of a nation with whom the Philippines is at war, during the period of such war;
8) He must not be a citizen or subject of a foreign country whose laws do not grant Filipinos the right to become
naturalized citizens or subjects thereof.

Sec. 2. Natura|-born c|t|zens
! Antonio Bengzon III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]
2 ways of acquiring citizenship:
(1) By birth
(2) By naturalization
2 kinds of citizens
1. Natural Born - citizens of the Philippines from birth without having to perform any act to acquire
or perfect his Philippine citizenship.
! Except, those under Art 1, 3, who needs to elect Philippine citizenship.

29

2. Naturalized - those who have become Filipino citizens through naturalization, generally under CA
No. 473, otherwise known as the Revised Naturalization Law, which repealed the former
Naturalization Law (Act No. 2927), and by RA No. 530. (Sec 1, no 4)
Sec. 3. keacqu|s|t|on of c|t|zensh|p

Filipino citizens who have lost their citizenship may reacquire the same in the manner provided by
law. CA No. 63 enumerates the three modes by which Philippine citizenship may be reacquired by a
former citizen:
1. Naturalization Judicial process (CA 63)
2. Repatriation mode of re-acquisition that is simpler than Naturalization; merely requires
taking an oath and registration with the Civil Registry; governed by several statutes.
3. Direct act of Congress
(1) Naturalization

To be naturalized, an applicant has to prove that he possesses all the qualifications and none of the
disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship
becomes executory only after two years from its promulgation when the court is satisfied that during the
intervening period, the applicant has
(1) Not left the Philippines;
(2) Has dedicated himself to a lawful calling or profession;
(3) Has not been convicted of any offense or violation of government promulgated rules; or
(4) Committed any act prejudicial to the interest of the nation or contrary to any government announced policies
(Section 1, R.A. 530). (Bengzon, supra)
Requisites for application of res judicata doctrine in cases of citizenship:
1. A persons citizenship be raised as a material issue in a controversy where said person is a party;
2. The Solicitor General or his authorized representative took active part in the resolution thereof;
3. The finding on citizenship is affirmed by [the] Court. (Burca vs. Republic, cited in Valles, supra)

(2) Repatriation
! May be had under various statutes by those who lost their citizenship due to:
1) Desertion of the armed forces
2) Service in the armed forces of the allied forces in World War II (Section 1, RA No. 965 [1953]);
3) Service in the Armed Forces of the United States at any other time (Sec. 1, RA No. 2630
[1960]);
4) Marriage of a Filipino woman to an alien (Sec. 1, RA No. 8171 - must be applied to Special
Committee on Naturalization. [1995]);
5) Political and economic necessity
6) Naturalization in a Foreign country (NEW) R.A 9225 Citizenship Retention and
Reacquisition Act of 2003 (Dual Citizenship Law)

As distinguished from the lengthy process of naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local
Civil Registry of the place where the person concerned resides or last resided.
Who may validly avail of repatriation under R.A. No. 8171?
! Gerardo Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug]
R.A. No. 8171, which has lapsed into law on October 23, 1995, is an act providing for the repatriation:
a. of Filipino women who have lost their Philippine citizenship by marriage to aliens and
b. of natural-born Filipinos who have lost their Philippine citizenship on account of political or
economic necessity.
Before what agency should application for repatriation under R.A 8171 be filed?

Under Section 1 of P.D. No. 725, dated June 5, 1975, amending C.A. No. 63, an application
for repatriation could be filed with the Special Committee on Naturalization chaired by the Solicitor
General with the Undersecretary of Foreign Affairs and the Director of the National Intelligence
Coordinating Agency as the other members. Although the agency was deactivated by virtue of
President Corazon C. Aquinos Memorandum of March 27, 1987, it was not, however, abrogated.
The Committee was reactivated on June 8, 1995. Hence, the application should be filed with said
Agency, not with the Regional Trial Court. (Angat, supra)
Does repatriation qualify a citizen to run for Congress?

A: YES. Repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On
the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino. (Bengzon, supra)
(3) By direct act of Congress
Sect|on 4. C|t|zens of the h|||pp|nes who marry a||ens
! applicable to Filipino men or women.
! Under this provision, which is a carry-over from the 1973 Constitution, Filipino women who marry
aliens retain their Philippine citizenship unless by their act or omission they have been deemed under the
law to have renounces it. In the 1935 Constitution, there is no such provision.

30

Citizens under the 1935 Constitution
3. Those who are citizens of the Philippine Islands (PI) at the time of the adoption of this Constitution (1935).
4. Those born in the PI of foreign parents who, before the adoption of this Contitution, had been elected to public office in
the PI.
5. Thise whose fathers are citizens of the Philippines.
6. Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.
! Here, the Filipina who is legally married to an alien, and their child will follow the citizenship
of the alien husband unless the child will opt to elect Philippine citizenship within a reasonable
time upon reaching the age of majority.
7. Those who are naturalized in accordance with law.

! Ye vs. Director of Public Schools
FACTS: This is an old case. She was Filipina who was born under the 1935 Constitution. She was
married to a Chinese (and became one) so she was removed as a public school teacher.

HELD: SC said, when you married your Chinese lover, you ae deemed to have followed his citizenship.
Remember that a public office is reserved only for those who are citizens of the Philippines and that is a
continuing requirement.

What if she maintained a common law relationship with him? Will she lose her Philippine
citizenship?

A: NO. So what you have here is an absurd situation where an unmarried Filipina who maintained a
comon-law relationship with a foreigner husband was in effect placed in a betterf situation that the
married one in a sense that the latter will lose her citizenship by virtue of such marriage.

Effect ! children will be illegitimate, so they will follow the citizenship of their mother. Therefore, they
do not have to elect Philippine citizenship upon reaching the age of majority. This is another absurdity
because illegitimate children are also placed in a better position than legitimate children.
In order that citizenship may be lost by renunciation, such renunciation must be express.

! Aznar v. COMELEC
The mere fact that one is an American did not mean that he is no longer a Filipino, and that an application
for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship.

! Mercado v. Manzano and COMELEC
The fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration
and Deportation, and was holding an American passport on April 22, 1997, only a year before he filed a
certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before
the termination of his American citizenship.

! Co vs. HRET
Congressman Ong was born before January 17, 1973 of Filipino mother and Chinese father, who
later became naturalized Filipino, thus petitioner by Derivative Citizenship followed his father.
Sect|on S. Dua| a||eg|ance
R.A 9225 Citizenship Retention and Reacquisition Act of 2003 (Dual Citizenship Law)

2 important concepts:
RE-ACQUISITION
! A former natural-born who have already become naturalized in another country are given the
opportunity to re-acquire their Philippine citizenship by taking an oath of allegiance before a person
authorized to administer oaths.
! While remaining to be a naturalized citizen of the foreign country, Philippine citizenship will be re-
acquired. This, in effect will make such person possess dual citizenship.
Will he be allowed to run for an elective (or appointive) office?
A: YES. Sec. 5 par 6 of this law states that those seeking elective pubic office in the Philippines shall, at
the time of filing of his COC (or prior to the assumption of an appointive office), make a personal and
sworn renunciation of any and all foreign citizenship. The idea of this renunciation will terminate the status
of a person having dual citizenship.
! NEW JURISPRUDENCE: Sobejana-Condon vs. COMELEC, GR 198742, August 10, 2012

DERIVATIVE CITIZENSHIP
! Sec. 4 of RA 9225: The unmarried child, whether legitimate, illegitimate or adopted, below eighteen
(18) years of age, of those who re-acquire Philippine citizenship upon the effectivity of this Act shall be
deemed citizens of the Philippines.

June 2012 Midterms
Distinguish dual citizenship from dual allegiance and state what really is prohibited by the
Constitution.
! Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza]

31

Dual citizenship arises when, as a result of the concurrent application of the different laws of two or
more states, a person is simultaneously considered a national by the said states. For instance, such a
situation may arise when a person whose parents are citizens of a state that adheres to the principle of
jus sanguinis is born in a state that follows the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individuals volition.

In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission
was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160,
Section 40(d) (Local Government Code) must be understood as referring to dual allegiance.
Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with
dual allegiance, who must be subject to strict process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy, they
elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states.
Instances when a citizen of the Philippines may possess dual citizenship
1. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus
soli;
2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers
country such children are citizens of that country;
3. Those who marry aliens if by the laws of the latters country the former are considered citizens,
unless by their act or omission they are deemed to have renounced Philippine citizenship.

S1kUC1UkL CI GCVLkNMLN1

1. Executive - power to implement the law (power of the sword) Sec 1, Article VI
2. Legislative - power to enact, alter, amend or repeal the law. (Power of the purse) Sec 1, Art. VII
3. Judicial - power to interpret the law. (Power of judicial review) Sec 1, Article VIII

Doctrine of Separation of Powers
! Purpose is to secure action, forestall over-action, to prevent despotism and to obtain efficiency.
Principle of Checks and Balances
! Objective is to avoid the concentration of powers into one branch only. It is a system of counteraction
by means of which one department is allowed to resist enforcement upon its prerogatives or to rectify the
mistakes or excesses committed by any of its co-equal departments.
De|egat|on of owers
Potestas delegate non delegani potest
! a power that has been delegated may no longer be delegated (General rule)
Exceptions: P-E-T-A-L
1. Delegation to the people through initiative and referendum (Sec. 1 Art. VI)
2. Emergency power to the President Sec. 23 2
nd
par of Art. VI
! Delegation must be in the form of a law, but the same may be revoked by mere resolution (which does
not require approval by the President)
Requisites:
1. There must be war or other national emergency
2. Must be for a limited period
3. Subject to such restrictions as Congress may prescribe
4. Pursuant to a declared national policy (i.e. delegation must be in a form of law)
3. Tariff powers to the president Sec. 28 2
nd
par. Art. 6
! Thrugh the Tariff and Customs Code
4. Administrative agencies
! Also known as Rule-making power or Power of subordinate legislation Quasi-Legislative power

Who promulgated the rules and regulaton of the Labor Code?
A: The Secretary of Labor

What is the authority of the Sec. of Labor in doing so?
A: last part of the LC which states that the DOLE Secretary is authorized to promulgate rules and
regulation to implement the provisions.

In what capacity was the Secretary acting in promulgating the rules?
A: Quasi-legislative

32

5. Local Government
! Do not have INHERENT POWERS because LGUs are mere creations of Congress unlike the State
itself. The powers they may exercise are only those delegated to them, or inherent in the delegated
power.
! The power to TAX is granted to LGUs by the Constitution itself, but subject to guidelines as
Congress may prescribe, consistent with Local autonomy.
! POLICE POWER and EMINENT DOMAIN by Congress:
The Local Government Code
o Police Power Sec. 16: 2nd part of the General Welfare Clause (NB: You will not find
the word Police Power anywhere in the LGC
o Eminent Domain Sec. 19; Must be made through an ORDINANCE not a mere
resolution.
Their respective Charters
What are the tests of a valid delegation of power?
! To prevent undue delegation

In every case of permissible delegation, there must be a showing that the delegation itself is valid.
It is valid only if the law is:
(a) Completeness Test complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate; and
(b) Sufficient Standard Test fixes a standard, the limits of which are sufficiently determinate and
determinable to which the delegate must conform in the performance of his functions. A
sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. (Santiago v. COMELEC, 270 SCRA 106, March 19, 1997)

------- NOTE: THIS PART IS UNEDITED --------
Ak1. VI. 1he Leg|s|at|ve Department

1. Discuss the nature of the Party-List system. Is it, without any qualification, open to all?

Held: 1. The party-list system is a social justice tool designed not only to give more law to the
great masses of our people who have less in life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of laws designed to benefit them. It
intends to make the marginalized and the underrepresented not merely passive recipients of the States
benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all
individuals and groups, including those which now dominate district elections, to have the same
opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the
social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayani OFW
Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

2. Crucial to the resolution of this case is the fundamental social justice principle that those who
have less in life should have more in law. The party-list system is one such tool intended to benefit those
who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a
message to the destitute and the prejudiced, and even to those in the underground, that change is
possible. It is an invitation for them to come out of their limbo and seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions x x x that the party-list system is,
without any qualification, open to all. Such position does not only weaken the electoral chances of the
marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list
system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it
would further weaken them and aggravate their marginalization. (Ang Bagong Bayani OFW Labor
Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

2. Are political parties even the major ones prohibited from participating in the party-list elections?

Held: Under the Constitution and RA 7941, private respondents cannot be disqualified from the
party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the
Constitution, provides that members of the House of Representatives may be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.

Furthermore, under Sections 7 and 8, Article IX [C] of the Constitution, political parties may be
registered under the party-list system. X x x

During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed
out that the participants in the party-list system may be a regional party, a sectoral party, a national
party, UNIDO, Magsasaka, or a regional party in Mindanao. x x x.

X x x

33

For its part, Section 2 of RA 7941 also provides for a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x. Section 3 expressly states that
a party is either a political party or a sectoral party or a coalition of parties. More to the point, the
law defines political party as an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and which, as the most immediate means
of securing their adoption, regularly nominates and supports certain of its leaders and members as
candidates for public office.

Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in
the party-list system. X x x

Indubitably, therefore, political parties even the major ones may participate in the party-list
elections.

That political parties may participate in the party-list elections does not mean, however, that any
political party or any organization or group for that matter may do so. The requisite character of
these parties or organizations must be consistent with the purpose of the party-list system, as laid down
in the Constitution and RA 7941. X x x (Ang Bagong Bayani OFW Labor Party v. COMELEC, G.R.
No. 147589, June 26, 2001, En Banc [Panganiban])

3. Is the enumeration of marginalized and underrepresented sectors to be represented under the party-
list system in RA 7941 exclusive? Will it be correct to assert that the party-list system is not exclusive
to the marginalized and underrepresented sectors, but that even the super-rich and overrepresented
can validly participate in party-list elections?

Held: While the enumeration of marginalized and underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. X x x

[W]e stress that the party-list system seeks to enable certain Filipino citizens specifically those
belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the
House of Representatives. The assertion x x x that the party-list system is not exclusive to the
marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-
rich and overrepresented can participate desecrates the spirit of the party-list system.

Indeed, the law crafted to address the peculiar disadvantage of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly
disparate; hence, the x x x position to treat them similarly defies reason and common sense. X x x

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are
neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders
political power more awesome than their numerical limitation. Traditionally, political power does not
necessarily emanate from the size of ones constituency; indeed, it is likely to arise more directly from the
number and amount of ones bank accounts.

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority
who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted
to give them not only genuine hope, but genuine power; to give them opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct vote in Congress
and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the
masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the
underground movement to come out and participate, as indeed many of them came out and
participated during the last elections. The State cannot now disappoint and frustrate them by disabling
the desecrating this social justice vehicle.

Because the marginalized and underrepresented had not been able to win in the congressional
district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats
in the House of Representatives were set aside for the party-list system. In arguing that even those
sectors who normally controlled 80 percent of the seats in the House could participate in the party-list
elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference
between the congressional district elections and the party-list elections.

As earlier noted, the purpose of the party-list provision was to open up the system, in order to
enhance the chance of sectoral groups and organizations to gain representation in the House of
Representatives through the simplest scheme possible. Logic shows that the system has been opened to
those who have never gotten a foothold within it those who cannot otherwise win in regular elections
and who therefore need the simplest scheme possible to do so. Conversely, it would be illogical to
open the system to those who have long been within it those privileged sectors that have long
dominated the congressional district elections.

X x x

34

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under
the party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice
of the intended beneficiaries. (Ang Bagong Bayani OFW Labor Party v. COMELEC, G.R. No.
147589, June 26, 2001, En Banc [Panganiban])

4. Section 5(2), Article VI of the Constitution provides that [t]he party-list representatives shall
constitute twenty per centum of the total number of representatives including those under the party-
list. Does the Constitution require all such allocated seats to be filled up all the time and under all
circumstances?

Held: The Constitution simply states that [t]he party-list representatives shall constitute twenty
per centum of the total number of representatives including those under the party-list.

X x x

We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the
equally simple message that Congress was vested with the broad power to define and prescribe the
mechanics of the party-list system of representation. The Constitution explicitly sets down only the
percentage of the total membership in the House of Representatives reserved for party-list
representatives.

In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier,
Congress declared therein a policy to promote proportional representation in the election of party-list
representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors
to contribute legislation that would benefit them. It however deemed it necessary to require parties,
organizations and coalitions participating in the system to obtain at least two percent of the total votes
cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this
percentage could have additional seats in proportion to their total number of votes. Furthermore, no
winning party, organization or coalition can have more than three seats in the House of Representatives.
X x x

Considering the foregoing statutory requirements, it will be shown x x x that Section 5(2), Article
VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress.
(Veterans Federation Party v. COMELEC, G.R. No. 136781, Oct. 6, 2000, En Banc
[Panganiban])

5. What are the inviolable parameters to determine the winners in a Philippine-style party-list election?

Held: To determine the winners in a Philippine-style party-list election, the Constitution and
Republic Act No. 7941 mandate at least four inviolable parameters. These are:

First, the twenty percent allocation - the combined number of all party-list congressmen shall
not exceed twenty percent of the total membership of the House of Representatives, including those
elected under the party list.

Second, the two percent threshold - only those garnering a minimum of two percent of the
total valid votes cast for the party-list system are "qualified" to have a seat in the House of
Representatives.

Third, the three seat limit - each qualified party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats.

Fourth, proportional representation - the additional seats which a qualified party is entitled to
shall be computed "in proportion to their total number of votes." (Veterans Federation Party v.
COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc [Panganiban])

6. To determine the total votes cast for the party-list system, should the votes tallied for the
disqualified candidates be deducted?

Held: The instant Motions for proclamation contend that the disqualification of many party-list
organizations has reduced the total number of votes cast for the party-list elections. Because of this
reduction, the two-percent benchmark required by law has now been allegedly attained by movants.
Hence, they now pray for their proclamation as winners in the last party-list elections.

Recall that under Section 11(b) of RA 7941 (the Party-List Act), only those parties garnering a
minimum of two percent of the total votes cast for the party-list system are entitled to have a seat in the
House of Representatives. The critical question now is this: To determine the total votes cast for the
party-list system, should the votes tallied for the disqualified candidates be deducted? Otherwise stated,
does the clause total votes cast for the party-list system include only those ballots cast for qualified
party-list candidates?

To answer this question, there is a need to review related jurisprudence on the matter, especially
Labo v. Comelec and Grego v. Comelec, which were mentioned in our February 18, 2003 Resolution.

35

Labo and Grego Not Applicable

In Labo, the Court declared that the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed elected to the office. In other words, the votes cast
for an ineligible or disqualified candidate cannot be considered stray.

However, this rule would be different if the electorate, fully aware in fact and in law of a
candidates disqualification so as to bring such awareness within the realm of notoriety, would
nonetheless cast their votes in favor of the ineligible. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away
their votes, in which case, the eligible candidate obtaining the next higher number of votes may be
deemed elected. In short, the votes cast for a notoriously disqualified candidate may be considered
stray and excluded from the canvass.

The foregoing pronouncement was reiterated in Grego, which held that the exception mentioned
in Labo v. Comelec is predicated on the concurrence of two assumptions, namely: 1) the one who
obtained the highest number of votes is disqualified; and 2) the electorate is fully aware in fact and in
law of a candidates disqualification so as to bring such awareness within the realm of notoriety but
would nonetheless cast their votes in favor of the ineligible candidate.

Note, however, that the foregoing pronouncements (1) referred to regular elections for local
offices and (2) involved the interpretation of Section 6 of RA 6646. They were not meant to cover party-
list elections, which are specifically governed by RA 7941. Section 10 of this latter law clearly provides
that the votes cast for a party, a sectoral organization or a coalition not entitled to be voted for shall not
be counted:

X x x
The language of the law is clear; hence, there is room, not for interpretation, but merely for
application. Likewise, no recourse to extrinsic aids is warranted when the language of the law is plain
and unambiguous.

Another reason for not applying Labo and Grego is that these cases involve single elective posts,
while the present controversy pertains to the acquisition of a number of congressional seats depending
on the total election results such that even those garnering second, third, fourth or lesser places could
be proclaimed winners depending on their compliance with other requirements.

RA 7941 is a special statute governing the election of party-list representatives and is the
controlling law in matters pertaining thereto. Since Labo and Section 6 of RA 6646 came into being prior
to the enactment of RA 7941, the latter is a qualification of the former ruling and law. On the other
hand, Grego and other related cases that came after the enactment of RA 7941 should be construed as
inapplicable to the latter.

Subtracting the votes garnered by these disqualified party-list groups from the total votes cast
under the party-list system will reduce the base figure to 6,523,185. This means that the two-percent
threshold can be more easily attained by the qualified marginalized and under-represented groups.
Hence, disregarding the votes of disqualified party-list participants will increase and broaden the number
of representatives from these sectors. Doing so will further concretize and give flesh to the policy
declaration in RA 7941 x x x. (Ang Bagong Bayani OFW Labor Party v. COMELEC, G.R. No.
147589, June 25, 2003, En Banc [Panganiban])

7. State the guidelines for screening Party-List Participants.

Held: In this light, the Court finds it appropriate to lay down the following guidelines, culled
from the law and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show through its
constitution, articles of incorporation, bylaws, history, platform of government and track record that it
represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it must demonstrate that in a
conflict of interest, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution
to participate in the party-list system, they must comply with the declared statutory policy of enabling
Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House
of Representatives. In other words, while they are not disqualified merely on the ground that they are
political parties, they must show, however, that they represent the interests of the marginalized and
underrepresented. X x x

Third, in view of the objections directed against the registration of Ang Buhay Hayaang
Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that
the religious sector may not be represented in the party-list system. x x x

36

Furthermore, the Constitution provides that religious denominations and sects shall not be
registered. (Sec. 2 [5], Article IX [C]) The prohibition was explained by a member of the Constitutional
Commission in this wise: [T]he prohibition is on any religious organization registering as a political
party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited
here; it is the registration of a religious sect as a political party.

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:

1) It is a religious sect or denomination, organization or association organized for religious
purposes;
2) It advocates violence or unlawful means to seek its goal;
3) It is a foreign party or organization;
4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
5) It violates or fails to comply with laws, rules or regulations relating to elections;
6) It declares untruthful statements in its petition;
7) It has ceased to exist for at least one (1) year; or
8) It fails to participate in the last two (2) preceding elections or 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 had registered.

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure
to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that
the party-list system seeks to enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties x x x to become members of the House of Representatives. A party or
organization, therefore, that does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity
funded or assisted by, the government. By the very nature of the party-list system, the party or
organization must be a group of citizens, organized by citizens and operated by citizens. It must be
independent of the government. The participation of the government or its officials in the affairs of a
party-list candidate is not only illegal and unfair to other parties, but also deleterious to the objective of
the law: to enable citizens belonging to marginalized and underrepresented sectors and organization to
be elected to the House of Representatives.

Sixth, the party must not only comply with the requirements of the law; its nominees must
likewise do so. x x x

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the
nominees must be Filipino citizens who belong to marginalized and underrepresented sectors,
organizations and parties. Surely, the interests of the youth cannot be fully represented by a retiree;
neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to
betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, x x x while lacking a well-defined political constituency, the nominee must likewise be
able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation
as a whole. (Ang Bagong Bayani OFW Labor Party v. COMELEC, G.R. No. 147589, June 26,
2001, En Banc [Panganiban])

8. Discuss the history of the constitutional provision granting immunity from arrest or detention of
Members of Congress, and how should it be construed?

Held: The immunity from arrest or detention of Senators and members of the House of
Representatives x x x arises from a provision of the Constitution. The history of the provision shows that
the privilege has always been granted in a restrictive sense. The provision granting an exemption as a
special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended
by intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department:

Sec. 15. The Senators and Members of the House of Representatives shall in all cases
except treason, felony, and breach of the peace, be privileged from arrest during their
attendance at the sessions of Congress, and in going to and returning from the same; x x x.

Because of the broad coverage of felony and breach of the peace, the exemption applied only to
civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal
Code could not claim parliamentary immunity from arrest. He was subject to the same general laws
governing all persons still to be tried or whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

37

Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses
punishable by not more than six years imprisonment, be privileged from arrest during his
attendance at its sessions and in going to and returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from
arrest. The restrictive interpretation of immunity and the intent to confine it within carefully defined
parameters is illustrated by the concluding portion of the provision, to wit:

X x x but the Batasang Pambansa shall surrender the member involved to the custody of
the law within twenty four hours after its adjournment for a recess or for its next session,
otherwise such privilege shall cease upon its failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to
surrender the subject Congressman to the custody of the law. The requirement that he should be
attending sessions or committee meetings has also been removed. For relatively minor offenses, it is
enough that Congress is in session. (People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc
[Ynares-Santiago])

9. Accused-appellant Congressman Romeo G. Jalosjos filed a motion before the Court asking that he be
allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions
and committee meetings despite his having been convicted in the first instance of a non-bailable
offense. He contended that his reelection being an expression of popular will cannot be rendered
inutile by any ruling, giving priority to any right or interest not even the police power of the State.
Resolve.

Held: The accused-appellant argues that a member of Congress function to attend sessions is
underscored by Section 16(2), Article VI of the Constitution which states that

(2) A majority of each House shall constitute a quorum to do business, but a smaller
number may adjourn from day to day and may compel the attendance of absent Members in
such manner, and under such penalties, as such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from the
operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent
members to attend sessions if the reason for the absence is a legitimate one. The confinement of a
Congressman charged with a crime punishable by imprisonment of more than six years is not merely
authorized by law, it has constitutional foundations.

Accused-appellants reliance on the ruling in Aguinaldo v. Santos (212 SCRA 768, at 773 [1992]),
which states, inter alia, that

The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their officers.
When the people have elected a man to office, it must be assumed that they did this with the
knowledge of his life and character, and that they disregarded or forgave his fault or misconduct,
if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to
practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen x x x that the Aguinaldo case involves
the administrative removal of a public officer for acts done prior to his present term of office. It does not
apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that
preventive suspension is not removal, confinement pending appeal is not removal. He remains a
Congressman unless expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public self-
defense. Society must protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the administration of justice.
As stated in United States v. Gustilo (19 Phil. 208, 212), it is the injury to the public which State action in
criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional
Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his
absconding.

The accused-appellant states that the plea of the electorate which voted him into office cannot
be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform
congressional duties outside his regular place of confinement.

It will be recalled that when a warrant for accused-appellants arrest was issued, he fled and
evaded capture despite a call from his colleagues in the House of Representatives for him to attend the
sessions ands to surrender voluntarily to the authorities. Ironically, it is now the same body whose call
he initially spurned which accused-appellant is invoking to justify his present motion. This can not be
countenanced because x x x aside from its being contrary to well-defined Constitutional restraint, it would
be a mockery of the aims of the States penal system.

38

Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted
several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons x x x.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in
Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises x x x.

There is no showing that the above privileges are peculiar to him or to a member of Congress.
Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to
attend congressional sessions and committee meetings for five (5) days or more in a week will virtually
make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not
only elevates accused-appellants status to that of a special class, it also would be a mockery of the
purposes of the correction system. X x x

The accused-appellant avers that his constituents in the First District of Zamboanga del Norte
want their voices to be heard and that since he is treated as bona fide member of the House of
Representatives, the latter urges a co-equal branch of government to respect his mandate. He also
claims that the concept of temporary detention does not necessarily curtail his duty to discharge his
mandate and that he has always complied with the conditions/restrictions when he is allowed to leave
jail.

We remain unpersuaded.

X x x

When the voters of his district elected the accused-appellant to Congress, they did so with full
awareness of the limitations on his freedom of action. They did so with the knowledge that he could
achieve only such legislative results which he could accomplish within the confines of prison. To give a
more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal
illness, they do so knowing that at any time, he may no longer serve his full term in office. (People v.
Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago])

10. May the Supreme Court properly inquire into the motives of the lawmakers in conducting legislative
investigations? Can it enjoin the Congress or any of its regular and special committees from making
inquiries in aid of legislation?

Held: The allocation of constitutional boundaries is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case (Neptali A. Gonzales, et al. v. Hon. Catalino
Macaraig, Jr., et al., G.R. No. 87636, 19 November 1990, 191 SCRA 452, 463), [t]he political question
doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the applicability
of the principle in appropriate cases. (Section 1, Article VIII of the 1987 Constitution)

The Court is thus of the considered view that it has jurisdiction over the present controversy for
the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to
conduct inquires into private affairs in purported aid of legislation. (Bengzon, Jr. v. Senate Blue Ribbon
Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

11. Is the power of both houses of Congress to conduct inquiries in aid of legislation absolute or
unlimited?

Held: The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation (In Arnault v. Nazareno, 87 Phil. 29, this Court held that although
there was no express provision in the 1935 Constitution giving such power to both houses of Congress, it
was so incidental to the legislative function as to be implied.). Thus, Section 21, Article VI provides x x x.

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore,
absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must be in aid of legislation in accordance with its duly
published rules of procedure and that the rights of persons appearing in or affected by such inquiries
shall be respected. It follows then that the rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not to be compelled to testify against ones self.

The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the
implementation or re-examination of any law or in connection with any proposed legislation or the
formulation of future legislation. They may also extend to any and all matters vested by the Constitution
in Congress and/or in the Senate alone.

As held in Jean L. Arnault v. Leon Nazareno, et al, (No. L-3820, July 18, 1950, 87 Phil. 29), the
inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to
the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member.

39

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees
any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid
of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to
the speech or resolution under which such an inquiry is proposed to be made. (Bengzon, Jr. v. Senate
Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

12. On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech
on a matter of personal privilege before the Senate on the alleged take-over of SOLOIL
Incorporated, the flagship on the First Manila Management of Companies (FMMC) by Ricardo Lopa
and called upon the Senate to look into the possible violation of the law in the case, particularly with
regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.

On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee
on Accountability of Public Officers (Blue Ribbon Committee). Thereafter, the Senate Blue Ribbon
Committee started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by
the Committee to appear before it and testify on what they know regarding the sale of the thirty-
six (36) corporations belonging to Benjamin Kokoy Romualdez.

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his
testimony may unduly prejudice the defendants in Civil Case No. 0035 before the Sandiganbayan.
Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify invoking his constitutional right to due
process, and averring that the publicity generated by respondent Committees inquiry could adversely
affect his rights as well as those of the other petitioners who are his co-defendants in Civil Case No.
0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the
petitioners to file their memorandum on the constitutional issues raised, after which, it issued a
resolution dated 5 June 1989 rejecting the petitioners plea to be excused from testifying, and the
Committee voted to pursue and continue its investigation of the matter. X x x

Claiming that the Senate Blue Ribbon Committee is poised to subpoena and require their
attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and
legislative rights, and that there is no appeal nor any other plain, speedy and adequate remedy in the
ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for
temporary restraining order and/or injunctive relief.

Held: A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a
statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo Baby
Lopa of having taken over the FMMC Group of Companies. X x x

Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he
merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known
as The Anti-Graft and Corrupt Practices Act. In other words, the purpose of the inquiry to be
conducted by respondent Blue Ribbon Committee was to find out whether or not the relatives of
President Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the alleged sale
of the 36 or 39 corporations belonging to Benjamin Kokoy Romualdez to the Lopa Group. There
appears to be, therefore, no intended legislation involved.

X x x

It appears, therefore, that the contemplated inquiry by respondent Committee is not really in aid
of legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim of
the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had
violated Section 5 of RA No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more
within the province of the courts rather than of the legislature. Besides, the Court may take judicial
notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins v. United States,
it was held:

x x x. The power of Congress to conduct inquiries in aid of legislation is inherent in the
legislative process. That power is broad. It encompasses inquiries concerning the administration
of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in
our social, economic, or political system for the purpose of enabling Congress to remedy them.
It comprehends probes into departments of the Federal Government to expose corruption,
inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no
general authority to expose the private affairs of individuals without justification in terms of the
functions of Congress. This was freely conceded by the Solicitor General in his arguments in this
case. Nor is the Congress a law enforcement or trial agency. These are functions of the
executive and judicial departments of government. No inquiry is an end in itself; it must be
related to and in furtherance of a legislative task of Congress. Investigations conducted solely
for the personal aggrandizement of the investigators or to punish those investigated are
indefensible. (italics supplied)

It cannot be overlooked that when respondent Committee decided to conduct its investigation of
the petitioners, the complaint in Civil Case No. 0035 had already been filed with the Sandiganbayan. A

40

perusal of that complaint shows that one of its principal causes of action against herein petitioners, as
defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin Kokoy
Romualdez. Since the issues in said complaint had long been joined by the filing of petitioners respective
answers thereto, the issue sought to be investigated by the respondent Committee is one over which
jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by that
court. To allow the respondent Committee to conduct its own investigation of an issue already before the
Sandiganbayan would not only pose the possibility of conflicting judgments between a legislative
committee and a judicial tribunal, but if the Committees judgment were to be reached before that of the
Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the
Sandiganbayan can not be discounted.

In fine, for the respondent Committee to probe and inquire into the same justiciable controversy
already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial
jurisdiction that had much earlier set in. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203
SCRA 767, Nov. 20, 1991, En Banc [Padilla])

13. Petitioners contention is that Republic Act No. 7716 (The Expanded-VAT Law) did not originate
exclusively in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution,
because it is in fact the result of the consolidation of two distinct bills, H. No. 11197 and S. No.
1630. In this connection, petitioners point out that although Art. VI, Sec. 24 was adopted from the
American Federal Constitution, it is notable in two respects: the verb shall originate is qualified in
the Philippine Constitution by the word exclusively and the phrase as on other bills in the
American version is omitted. This means, according to them, that to be considered as having
originated in the House, Republic Act No. 7716 must retain the essence of H. No. 11197.

Held: This argument will not bear analysis. To begin with, it is not the law - but the revenue bill
- which is required by the Constitution to originate exclusively in the House of Representatives. It is
important to emphasize this, because a bill originating in the House may undergo such extensive changes
in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the
conference committee will be discussed later. At this point, what is important to note is that, as a result
of the Senate action, a distinct bill may be produced. To insist that a revenue statute - and not only the
bill which initiated the legislative process culminating in the enactment of the law - must substantially be
the same as the House bill would be to deny the Senate's power not only to concur with amendments
but also to propose amendments. It would be to violate the coequality of legislative power of the two
houses of Congress and in fact make the House superior to the Senate.

The contention that the constitutional design is to limit the Senate's power in respect of revenue
bills in order to compensate for the grant to the Senate of the treaty-ratifying power and thereby equalize
its powers and those of the House overlooks the fact that the powers being compared are different. We
are dealing here with the legislative power which under the Constitution is vested not only in any
particular chamber but in the Congress of the Philippines, consisting of a Senate and a House of
Representatives. The exercise of the treaty-ratifying power is not the exercise of legislative power. It is
the exercise of a check on the executive power. There is, therefore, no justification for comparing the
legislative powers of the House and of the Senate on the basis of the possession of a similar non-
legislative power by the Senate. The possession of a similar power by the U.S. Senate has never been
thought of as giving it more legislative powers than the House of Representatives.

X x x Given, then, the power of the Senate to propose amendments, the Senate can propose its
own version even with respect to bills which are required by the Constitution to originate in the House.

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of
another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to take (H. No.
11197) into consideration in enacting S. No. 1630. There is really no difference between the Senate
preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting
clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other
hand, separately presenting a bill of its own on the same subject matter. In either case the result are
two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax
bills, bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and problems. On the
other hand, the senators, who are elected at large, are expected to approach the same problems from
the national perspective. Both views are thereby made to bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its
receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt
of the House bill. The Court cannot, therefore, understand the alarm expressed over the fact that on
March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129 had been filed in the
Senate. After all it does not appear that the Senate ever considered it. It was only after the Senate had
received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with
the referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the
Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority
in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT
law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129

41

was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills. (Tolentino v.
Secretary of Finance, 235 SCRA 630, 661-663, Aug. 25, 1994, En Banc [Mendoza])

14. Discuss the objectives of Section 26(1), Article VI of the 1987 Constitution, that "[e]very bill passed
by the Congress shall embrace only one subject which shall be expressed in the title thereof."

Held: The objectives of Section 26(1), Article VI of the 1987 Constitution are:

1) To prevent hodge-podge or log-rolling legislation;
2) To prevent surprise or fraud upon the legislature by means of provisions in bills of which the
titles gave no information, and which might therefore be overlooked and carelessly and
unintentionally adopted; and
3) To fairly apprise the people, through such publication of legislative proceedings as is usually
made, of the subjects of legislation that are being considered, in order that they may have
opportunity of being heard thereon by petition or otherwise if they shall so desire.

Section 26(1) of Article VI of the 1987 Constitution is sufficiently complied with where x x x the title is
comprehensive enough to embrace the general objective it seeks to achieve, and if all the parts of the
statute are related and germane to the subject matter embodied in the title or so long as the same are
not inconsistent with or foreign to the general subject and title. (Agripino A. De Guzman, Jr., et al. v.
COMELEC, G.R. No. 129118, July 19, 2000, en Banc [Purisima])

15. Section 44 of R.A. No. 8189 (The Voter's Registration Act of 1996) which provides for automatic
transfer to a new station of any Election Officer who has already served for more than four years in a
particular city or municipality was assailed for being violative of Section 26(1) of Article VI of the
Constitution allegedly because it has an isolated and different subject from that of RA 8189 and that
the same is not expressed in the title of the law. Should the challenge be sustained?

Held: Section 44 of RA 8189 is not isolated considering that it is related and germane to the
subject matter stated in the title of the law. The title of RA 8189 is "The Voter's Registration Act of 1996"
with a subject matter enunciated in the explanatory note as "AN ACT PROVIDING FOR A GENERAL
REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING THE
PROCEDURES THEREOF AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR." Section 44,
which provides for the reassignment of election officers, is relevant to the subject matter of registration
as it seeks to ensure the integrity of the registration process by providing guideline for the COMELEC to
follow in the reassignment of election officers. It is not an alien provision but one which is related to the
conduct and procedure of continuing registration of voters. In this regard, it bears stressing that the
Constitution does not require Congress to employ in the title of an enactment, language of such precision
as to mirror, fully index or catalogue, all the contents and the minute details therein. (Agripino A. De
Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

16. Do courts have the power to inquire into allegations that, in enacting a law, a House of Congress
failed to comply with its own rules?

Held: The cases, both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its
own rules, in the absence of showing that there was a violation of a constitutional provision or the right
of private individuals. In Osmena v. Pendatun, it was held: At any rate, courts have declared that the
rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of
the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with
their observance, the courts have no concern. They may be waived or disregarded by the legislative
body. Consequently, mere failure to conform to parliamentary usage will not invalidate that action
(taken by a deliberative body) when the requisite number of members have agreed to a particular
measure.

It must be realized that each of the three departments of our government has its separate
sphere which the others may not invade without upsetting the delicate balance on which our
constitutional order rests. Due regard for the working of our system of government, more than mere
comity, compels reluctance on the part of the courts to enter upon an inquiry into an alleged violation of
the rules of the House. Courts must accordingly decline the invitation to exercise their power. (Arroyo
v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza])

17. What is the Bicameral Conference Committee? Discuss the nature of its function and its jurisdiction.

Held: While it is true that a conference committee is the mechanism for compromising
differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its
broader function is described thus:

A conference committee may deal generally with the subject matter or it may be limited to
resolving the precise differences between the two houses. Even where the conference committee is not
by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject
matter can be inserted into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate. These excursions occur even where the rules impose
strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of

42

conference committee. (Philippine Judges Association v. Prado, 227 SCRA 703, Nov. 11, 1993,
En Banc [Cruz])

18. Discuss the Enrolled Bill Doctrine.

Held: Under the enrolled bill doctrine, the signing of H. Bill No. 7189 by the Speaker of the
House and the President of the Senate and the certification by the secretaries of both Houses of
Congress that it was passed on November 21, 1996 are conclusive of its due enactment. x x x To be
sure, there is no claim either here or in the decision in the EVAT cases (Tolentino v. Secretary of Finance)
that the enrolled bill embodies a conclusive presumption. In one case (Astorga v. Villegas) we went
behind an enrolled bill and consulted the Journal to determine whether certain provisions of a statute
had been approved by the Senate.

But, where as here there is no evidence to the contrary, this Court will respect the certification of
the presiding officers of both Houses that a bill has been duly passed. Under this rule, this Court has
refused to determine claims that the three-fourths vote needed to pass a proposed amendment to the
Constitution had not been obtained, because a duly authenticated bill or resolution imports absolute
verity and is binding on the courts. x x x

This Court has refused to even look into allegations that the enrolled bill sent to the President
contained provisions which had been surreptitiously inserted in the conference committee x x x.
(Tolentino v. Secretary of Finance)

It has refused to look into charges that an amendment was made upon the last reading of a bill
in violation of Art. VI, Sec. 26(2) of the Constitution that upon the last reading of a bill, no amendment
shall be allowed. (Philippine Judges Assn v. Prado)

In other cases, this Court has denied claims that the tenor of a bill was otherwise than as
certified by the presiding officers of both Houses of Congress.

The enrolled bill doctrine, as a rule of evidence, is well-established. It is cited with approval by
text writers here and abroad. The enrolled bill rule rests on the following considerations:

X x x As the President has no authority to approve a bill not passed by Congress, an
enrolled Act in the custody of the Secretary of State, and having the official attestations of the
Speaker of the House of Representatives, of the President of the Senate, and of the President of
the United States, carries, on its face, a solemn assurance by the legislative and executive
departments of the government, charged, respectively, with the duty of enacting and executing
the laws, that it was passed by Congress. The respect due to coequal and independent
departments requires the judicial department to act upon that assurance, and to accept, as
having passed Congress, all bills authenticated in the manner stated; leaving the court to
determine, when the question properly arises, whether the Act, so authenticated, is in conformity
with the Constitution. (Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 36 L. Ed. 294, 303
[1891])

To overrule the doctrine now, x x x is to repudiate the massive teaching of our cases and
overthrow an established rule of evidence. (Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997
[Mendoza])

19. When should the Legislative Journal be regarded as conclusive upon the courts, and why?

Held: The Journal is regarded as conclusive with respect to matters that are required by the
Constitution to be recorded therein. With respect to other matters, in the absence of evidence to the
contrary, the Journals have also been accorded conclusive effects. Thus, in United States v. Pons, this
Court spoke of the imperatives of public policy for regarding the Journals as public memorials of the
most permanent character, thus: They should be public, because all are required to conform to them;
they should be permanent, that rights acquired today upon the faith of what has been declared to be law
shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory
of individuals. (Arroyo v. De Venecia, 277 SCRA 268, 298-299, Aug. 14, 1997 [Mendoza])

20. What matters are required to be entered on the Journal?
Held:
1) The yeas and nays on the third and final reading of a bill (Art. VI, Sec. 26[2]);
2) The yeas and nays on any question, at the request of one-fifth of the members present (Id.,
Sec. 16[4]);
3) The yeas and nays upon repassing a bill over the Presidents veto (Id., Sec. 27[1]); and
4) The Presidents objection to a bill he had vetoed (Id.).
(Arroyo v. De Venecia, 277 SCRA 268, 298, Aug. 14, 1997 [Mendoza])

21. What are the limitations on the veto power of the President?

43

Held: The act of the Executive in vetoing the particular provisions is an exercise of a
constitutionally vested power. But even as the Constitution grants the power, it also provides limitations
to its exercise. The veto power is not absolute.

X x x
The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all.
He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or
she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to
appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of
government and it can not veto the entire bill even if it may contain objectionable features. The
President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is
for this reason that the Constitution has wisely provided the item veto power to avoid inexpedient riders
being attached to an indispensable appropriation or revenue measure.

The Constitution provides that only a particular item or items may be vetoed. The power to
disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item
and to approve the remaining portion of the same item. (Bengzon v. Drilon, 208 SCRA 133, 143-
145, April 15, 1992, En Banc [Gutierrez])

22. Distinguish an item from a provision in relation to the veto power of the President.

Held: The terms item and provision in budgetary legislation and practice are concededly
different. An item in a bill refers to the particulars, the details, the distinct and severable parts x x x of
the bill. It is an indivisible sum of money dedicated to a stated purpose. The United States Supreme
Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312)
declared that an item of an appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens to be put into an
appropriation bill. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc
[Gutierrez])

23. May the President veto a law? May she veto a decision of the SC which has long become final and
executory?

Held: We need no lengthy justifications or citations of authorities to declare that no President
may veto the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither
may the President set aside or reverse a final and executory judgment of this Court through the exercise
of the veto power. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc
[Gutierrez])

24. A disqualification case was filed against a candidate for Congressman before the election with the
COMELEC. The latter failed to resolve that disqualification case before the election and that
candidate won, although he was not yet proclaimed because of that pending disqualification case. Is
the COMELEC now ousted of jurisdiction to resolve the pending disqualification case and, therefore,
should dismiss the case, considering that jurisdiction is now vested with the House of Representatives
Electoral Tribunal (HRET)?

Held: 1. [P]etitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost
its jurisdiction over the question of petitioners qualifications to run for member of the House of
Representatives. He claims that jurisdiction over the petition for disqualification is exclusively lodged with
the House of Representatives Electoral Tribunal (HRET). Given the yet-unresolved question of
jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in
directing the suspension of his proclamation as the winning candidate in the Second Congressional
District of Makati City. We disagree.

Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House
of Representatives and a member of the same. Obtaining the highest number of votes in an election
does not automatically vest the position in the winning candidate. Section 17 of Article VI of the 1987
Constitution reads:

The Senate and the House of Representatives shall have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns and qualifications of their
respective Members.

Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all
contests relative to the election, returns and qualifications of candidates for either the Senate or the
House only when the latter become members of either the Senate or the House of Representatives. A
candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a
member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the
proclamation of a winning candidate in an election is ministerial, B.P. Blg. 881 in conjunction with Sec. 6
of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus,
petitioners contention that after the conduct of the election and (petitioner) has been established the
winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of
authority to pass upon the question of qualification finds no basis in law, because even after the
elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to

44

hear and decide questions relating to qualifications of candidates. (Aquino v. COMELEC, 248 SCRA
400, 417-419, Sept. 18, 1995, En Banc [Kapunan, J.])

2. As to the House of Representatives Electoral Tribunals supposed assumption of jurisdiction
over the issue of petitioners qualifications after the May 8, 1995 elections, suffice it to say that HRETs
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives (Art. VI, Sec. 17, 1987 Constitution). Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.
(Romualdez-Marcos v. COMELEC, 248 SCRA 300, 340-341, Sept. 18, 1995, En Banc
[Kapunan, J.])

25. Will the rule be the same if that candidate wins and was proclaimed winner and already assumed
office as Congressman?

Held: While the COMELEC is vested with the power to declare valid or invalid a certificate of
candidacy, its refusal to exercise that power following the proclamation and assumption of the position by
Farinas is a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral
Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the
HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and
qualifications of members of the House of Representatives. Thus, once a winning candidate has been
proclaimed, taken his oath, and assumed office as a member of the House of Representatives,
COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and
the HRETs own jurisdiction begins. Thus, the COMELECs decision to discontinue exercising jurisdiction
over the case is justifiable, in deference to the HRETs own jurisdiction and functions. (Guerrero v.
COMELEC, 336 SCRA 458, July 26, 2000, En Banc [Quisumbing])

26. Petitioner further argues that the HRET assumes jurisdiction only if there is a valid proclamation of
the winning candidate. He contends that if a candidate fails to satisfy the statutory requirements to
qualify him as a candidate, his subsequent proclamation is void ab initio. Where the proclamation is
null and void, there is no proclamation at all and the mere assumption of office by the proclaimed
candidate does not deprive the COMELEC at all of its power to declare such nullity, according to
petitioner.

Held: But x x x in an electoral contest where the validity of the proclamation of a winning
candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is
best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the peoples
mandate. (Guerrero v. COMELEC, 336 SCRA 458, July 26, 2000, En Banc [Quisumbing])

27. Is there an appeal from a decision of the Senate or House of Representatives Electoral Tribunal?
What then is the remedy, if any?

Held: The Constitution mandates that the House of Representatives Electoral Tribunal and the
Senate Electoral Tribunal shall each, respectively, be the sole judge of all contests relating to the election,
returns and qualifications of their respective members.

The Court has stressed that x x x so long as the Constitution grants the HRET the power to be
the sole judge of all contests relating to the election, returns and qualifications of members of the House
of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule,
not be reviewed by this Court. The power granted to the Electoral Tribunal x x x excludes the exercise of
any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the
same.

The Court did recognize, of course, its power of judicial review in exceptional cases. In Robles v.
HRET, the Court has explained that while the judgments of the Tribunal are beyond judicial interference,
the Court may do so, however, but only in the exercise of this Courts so-called extraordinary jurisdiction
x x x upon a determination that the Tribunals decision or resolution was rendered without or in excess of
its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero v. Bocar (66 Phil. 429), upon a
clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of
due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting
such grave abuse of discretion that there has to be a remedy for such abuse.

The Court does not x x x venture into the perilous area of correcting perceived errors of
independent branches of the Government; it comes in only when it has to vindicate a denial of due
process or correct an abuse of discretion so grave or glaring that no less than the Constitution itself calls
for remedial action. (Libanan v. HRET, 283 SCRA 520, Dec. 22, 1997 [Vitug])

Ak1. VII. 1he Lxecut|ve Department

45

28. Did former President Estrada resign as President or should be considered resigned as of January 20,
2001 when President Gloria Macapagal Arroyo took her oath as the 14
th
President of the Republic?

Held: Resignation x x x is a factual question and its elements are beyond quibble: there must be
an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a
resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It
can be express. It can be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated Malacanang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts
and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

X x x

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by
his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2)
he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order
to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of
inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he
expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead on the same service of our country. Petitioners
reference is to a future challenge after occupying the office of the president which he has given up; and
(5) he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The press release was petitioners valedictory, his final act
of farewell. His presidency is now in the past tense. (Estrada v. Desierto, G.R. Nos. 146710-15,
March 2, 2001, En Banc [Puno])

29. Discuss our legal history on executive immunity.

Held: The doctrine of executive immunity in this jurisdiction emerged as a case law. In the
1910 case of Forbes, etc. v. Chuoco Tiaco and Crossfield, the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:

The principle of nonliability x x x does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either, that a person injured by the
executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On
the contrary, it means, simply, that the Governor-General, like the judges of the courts and the
members of the Legislature, may not be personally mulcted in civil damages for the consequences of an
act executed in the performance of his official duties. The judiciary has full power to, and will, when the
matter is properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been deprived
his liberty or his property by such act. This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can not do is mulct the Governor-General
personally in damages which result from the performance of his official duty, any more than it can a
member of the Philippine Commission or the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched the liability of
judges and drew an analogy between such liability and that of the Governor-General, that the latter is
liable when he acts in a case so plainly outside of his power and authority that he can not be said to
have exercised discretion in determining whether or not he had the right to act. What is held here is
that he will be protected from personal liability for damages not only when he acts within his authority,
but also when he is without authority, provided he actually used discretion and judgment, that is, the
judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to
protection in determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two
such men could not honestly differ over its determination. In such case, he acts, not as Governor-
General but as a private individual, and, as such, must answer for the consequences of his act.

46

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz: x x x. Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest
officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way,
in a distrust as to the integrity of government itself.

Our 1935 Constitution took effect but it did not contain any specific provision on executive
immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos
and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific orders
during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.

In his second Vicente G. Sinco Professorial Chair Lecture entitled, Presidential Immunity And All The
Kings Men: The Law Of Privilege As A Defense To Actions For Damages, (62 Phil. L.J. 113 [1987])
petitioners learned counsel, former Dean of the UP College of Law, Atty. Pacifico Agabin, brightened the
modifications effected by this constitutional amendment on the existing law on executive privilege. To
quote his disquisition:

In the Philippines though, we sought to do the American one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only from civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would
cover even acts of the President outside the scope of official duties. And third, we broadened its
coverage so as to include not only the President but also other persons, be they government officials or
private individuals, who acted upon orders of the President. It can be said that at that point most of us
were suffering from AIDS (or absolute immunity defense syndrome).

The Opposition in the then Batasang Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism the king can do no wrong. The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact
the executive immunity provision of the 1973 Constitution. x x x (Estrada v. Desierto, G.R. Nos.
146710-15, March 2, 2001, en Banc [Puno])

30. Can former President Estrada still be prosecuted criminally considering that he was not convicted in
the impeachment proceedings against him?

Held: We reject his argument that he cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the Impeachment Court
is Functus Officio. Since the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The plea if
granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend
itself for it will place him in a better situation than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates
in the Constitutional Commission make it clear that when impeachment proceedings have become moot
due to the resignation of the President, the proper criminal and civil cases may already be filed against
him x x x.

This is in accord with our ruling in In Re: Saturnino Bermudez that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure but
not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner
has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition
sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment
proceedings. (Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, En Banc [Puno])

31. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section
4, Article VII of the Constitution?

Held: Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for
president, vice-president, senators and party-list representatives.

X x x
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to
order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation

47

of winning candidates for president and vice-president, is unconstitutional because it violates the
following provisions of paragraph 4, Section 4 of Article VII of the Constitution x x x which gives to
Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-
president.

X x x
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far
too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency
and the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VIII of the
Constitution only insofar as said Section totally disregarded the authority given to Congress by the
Constitution to proclaim the winning candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of the law x x x clashes with paragraph 4, Section
4, Article VII of the Constitution which provides that the returns of every election for President and Vice-
President shall be certified by the board of canvassers to Congress.

Congress should not have allowed the COMELEC to usurp a power that constitutionally belongs to
it or x x x to encroach on the power of Congress to canvass the votes for president and vice-president
and the power to proclaim the winners for the said positions. The provisions of the Constitution as the
fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and
hence, the canvassing of the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress. (Makalintal v. COMELEC,
G.R. No. 157013, July 10, 2003, En Banc [Austria-Martinez])

32. Discuss the jurisdiction of the Supreme Court to hear and decide cases involving the election, returns
and qualifications of the President and Vice-President.

Held: Petitioners Tecson, et al. x x x and Velez x x x invoke the provisions of Article VII, Section
4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took
cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they
directly instituted before it. X x x

X x x

Ordinary usage would characterize a contest in reference to a post-election scenario.
Election contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the Rules of the Presidential Electoral
Tribunal, promulgated by the Supreme Court en banc on 18 April 1992, would support this premise x x
x.

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the
election, returns and qualifications of the President or Vice-President of the Philippines, and not of
candidates for President or Vice-President. A quo warranto proceeding is generally defined as being an
action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. In
such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a
registered candidate who would have received either the second or third highest number of votes could
file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph
7, of the 1987 Constitution, would not include cases directly brought before it questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G.R. No. 161434 x x x and G.R. No. 161634 x x x would have to be dismissed for
want of jurisdiction. (Maria Jeanette Tecson, et al. v. COMELEC, G.R. No. 161434, March 3,
2004, En Banc [Vitug])

33. State the reason why not all appointments made by the President under the 1987 Constitution will
require confirmation by the Commission on Appointments.

Held: The aforecited provision (Section 16, Article VII) of the Constitution has been the subject
of several cases on the issue of the restrictive function of the Commission on Appointments with respect
to the appointing power of the President. This Court touched upon the historical antecedent of the said
provision in the case of Sarmiento III v. Mison in which it was ratiocinated upon that Section 16 of Article
VII of the 1987 Constitution requiring confirmation by the Commission on Appointments of certain
appointments issued by the President contemplates a system of checks and balances between the
executive and legislative branches of government. Experience showed that when almost all presidential
appointments required the consent of the Commission on Appointments, as was the case under the 1935
Constitution, the commission became a venue of horse trading and similar malpractices. On the other
hand, placing absolute power to make appointments in the President with hardly any check by the
legislature, as what happened under the 1973 Constitution, leads to abuse of such power. Thus was
perceived the need to establish a middle ground between the 1935 and 1973 Constitutions. The
framers of the 1987 Constitution deemed it imperative to subject certain high positions in the

48

government to the power of confirmation of the Commission on Appointments and to allow other
positions within the exclusive appointing power of the President. (Manalo v. Sistoza, 312 SCRA 239,
Aug. 11, 1999, En Banc [Purisima])

34. Who are the officers to be appointed by the President under Section 16, Article VII of the 1987
Constitution whose appointments shall require confirmation by the Commission on Appointments, and
those whose appointments shall no longer require such confirmation?

Held: Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v.
Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission,
and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers
of the government to be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided
for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone.

It is well-settled that only presidential appointees belonging to the first group require the
confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11,
1999, En Banc [Purisima])

35. Under Republic Act 6975 (the DILG Act of 1990), the Director General, Deputy Director General, and
other top officials of the Philippine National Police (PNP) shall be appointed by the President and their
appointments shall require confirmation by the Commission on Appointments. Respondent Sistoza
was appointed Director General of the PNP but he refused to submit his appointment papers to the
Commission on Appointments for confirmation contending that his appointment shall no longer
require confirmation despite the express provision of the law requiring such confirmation. Should his
contention be upheld?

Held: It is well-settled that only presidential appointees belonging to the first group
(enumerated under the first sentence of Section 16, Article VII of the 1987 Constitution) require the
confirmation by the Commission on Appointments. The appointments of respondent officers who are not
within the first category, need not be confirmed by the Commission on Appointments. As held in the
case of Tarrosa v. Singson, Congress cannot by law expand the power of confirmation of the Commission
on Appointments and require confirmation of appointments of other government officials not mentioned
in the first sentence of Section 16 of Article VII of the 1987 Constitution.

Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the
Commission on Appointments to confirm the appointments of public officials whose appointments are not
required by the Constitution to be confirmed. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999,
En Banc [Purisima])

36. Will it be correct to argue that since the Philippine National Police is akin to the Armed Forces of the
Philippines, therefore, the appointments of police officers whose rank is equal to that of colonel or
naval captain will require confirmation by the Commission on Appointments?

Held: This contention is x x x untenable. The Philippine National Police is separate and distinct
from the Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under
Section 4 of Article XVI of the 1987 Constitution,

The Armed Forces of the Philippines shall be composed of a citizen armed force
which shall undergo military training and service, as may be provided by law. It shall keep a
regular force necessary for the security of the State.

On the other hand, Section 6 of the same Article of the Constitution ordains that:

The State shall establish and maintain one police force, which shall be national in
scope and civilian in character to be administered and controlled by a national police
commission. The authority of local executives over the police units in their jurisdiction shall
be provided by law.

To so distinguish the police force from the armed forces, Congress enacted Republic Act 6975 x x
x.

Thereunder, the police force is different from and independent of the armed forces and the ranks
in the military are not similar to those in the Philippine National Police. Thus, directors and chief
superintendents of the PNP x x x do not fall under the first category of presidential appointees requiring

49

confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11,
1999, En Banc [Purisima])

37. Discuss the nature of an ad-interim appointment. Is it temporary and, therefore, can be withdrawn
or revoked by the President at her pleasure?

Held: An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee has qualified into
office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim appointment permanent in character
by making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides
as follows:

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying
that it can no longer be withdrawn or revoked by the President. The fear that the President can
withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers v. Ozaeta, decided on October 25, 1948, we held that:

x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article
VII of the Constitution, which provides that the President shall have the power to make appointments
during the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly
for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an acting appointment which is merely temporary, good until another permanent
appointment is issued.

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus
an ad interim appointment takes effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the office. In Pacete v. Secretary of the
Commission on Appointments, this Court elaborated on the nature of an ad interim appointment as
follows:

A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it is in recess.
In the former, the President nominates, and only upon the consent of the Commission on Appointments
may the person thus named assume office. It is not so with reference to ad interim appointments. It
takes effect at once. The individual chosen may thus qualify and perform his function without loss of
time. His title to such office is complete. In the language of the Constitution, the appointment is
effective until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.

Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the
meantime or for the time being. Hence, petitioner argues that an ad interim appointment is
undoubtedly temporary in character. This argument is not new and was answered by this Court in
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, where we explained that:

x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ad interim appointments
which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal
translation of the word ad interim which creates such belief. The term is defined by Black to mean in
the meantime or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or temporary incapacity of its regular incumbent
(Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not
descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in
which said appointments were made, that is, done by the President of the Pamantasan in the meantime,
while the Board of Regents, which is originally vested by the University Charter with the power of
appointment, is unable to act. X x x.

50

Thus, the term ad interim appointment, as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that Congress is in
recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The
term, although not found in the text of the Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim
appointment in the more recent case of Marohombsar v. Court of Appeals, where the Court stated:

We have already mentioned that an ad interim appointment is not descriptive of the nature of
the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office
No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent appointment but their terms are only until the Board disapproves them.

An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional protection that
[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by
law. (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete
and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated to the appointee before the moment he
qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an
appointee has qualified, he acquires a legal right to the office which is protected not only by statute but
also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the
requirements of due process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc
[Carpio])

38. How is an ad interim appointment terminated?

Held: An ad interim appointment can be terminated for two causes specified in the Constitution.
The first cause is the disapproval of his ad interim appointment by the Commission on Appointments.
The second cause is the adjournment of Congress without the Commission on Appointments acting on his
appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the
heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that
places the Sword of Damocles over the heads of the ad interim appointees. (Matibag v. Benipayo, 380
SCRA 49, April 2, 2002, En Banc [Carpio])

39. How is an ad interim appointment distinguished from an appointment or designation in an acting or
temporary capacity?

Held: While an ad interim appointment is permanent and irrevocable except as provided by law,
an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc
[Carpio])

40. Benipayo, Tuason and Borra were appointed Chairman and Commissioners, respectively, of the
Commission on Elections, by the President when Congress was not in session. Did their appointment
violate the Sec. 1(2), Art. IX-C of the Constitution that substantially provides that No member of the
Commission (on Elections) shall be appointed in an acting or temporary capacity?

Held: In the instant case, the President did in fact appoint permanent Commissioners to fill the
vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo,
Borra and Tuason were extended permanent appointments during the recess of Congress. They were
not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in
Brillantes v. Yorac and Solicitor General Felix Bautista in Nacionalista Party v. Bautista. The ad interim
appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes
the President, during the recess of Congress, to make appointments that take effect immediately.

While the Constitution mandates that the COMELEC shall be independent, this provision should
be harmonized with the Presidents power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad interim

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appointees before the appointees can assume office will negate the Presidents power to make ad interim
appointments. This is contrary to the rule on statutory construction to give meaning and effect to every
provision of the law. It will also run counter to the clear intent of the framers of the Constitution.

X x x
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at
the mercy of both the appointing and confirming powers. This situation, however, in only for a short
period from the time of issuance of the ad interim appointment until the Commission on Appointments
gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the
evil of disruptions in vital government services. This is also part of the check-and-balance under the
separation of powers, as a trade-off against the evil of granting the President absolute and sole power to
appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power
of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a
constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of
its members hold confirmed appointments, and no one President will appoint all the COMELEC members.
x x x The special constitutional safeguards that insure the independence of the COMELEC remain in place
(See Sections, 3, 4, 5 and 6, Article IX-A of the Constitution).

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra
and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or
acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

41. Discuss the reason why the framers of the 1987 Constitution thought it wise to reinstate the 1935
Constitution provision on ad interim appointments of the President.

Held: The original draft of Section 16, Article VII of the Constitution on the nomination of
officers subject to confirmation by the Commission on Appointments did not provide for ad interim
appointments. The original intention of the framers of the Constitution was to do away with ad interim
appointments because the plan was for Congress to remain in session throughout the year except for a
brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential
government services, the framers of the Constitution thought it wise to reinstate the provisions of the
1935 Constitution on ad interim appointments. X x x

X x x
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that otherwise would
result from prolonged vacancies in government offices, including the three constitutional commissions. In
his concurring opinion in Guevarra v. Inocentes, decided under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before
the session of Congress, the evil sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments.
(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

42. The ad interim appointments of Benipayo, Borra and Tuason as Chairman and Commissioners,
respectively, of the COMELEC were by-passed by the Commission on Appointments. However, they
were subsequently reappointed by the President to the same positions. Did their subsequent
reappointment violate the prohibition against reappointment under Section 1(2), Article IX-C of the
1987 Constitution?

Held: There is no dispute that an ad interim appointee disapproved by the Commission on
Appointments can no longer be extended a new appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its checking power on the appointing authority of the
President. The disapproval is a decision on the merits, being a refusal by the Commission on
Appointments to give its consent after deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision, the disapproval is final and binding on
the appointee as well as on the appointing power. In this instance, the President can no longer renew
the appointment not because of the constitutional prohibition on appointment, but because of a final
decision by the Commission on Appointments to withhold its consent to the appointment.

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An ad interim appointment that is by-passed because of lack of time or failure of the Commission
on Appointments to organize is another matter. A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on Appointments at the close of the session of Congress.
There is no final decision by the Commission on Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such decision, the President is free to renew the ad
interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the
Commission on Appointments x x x. Hence, under the Rules of the Commission on Appointments, a by-
passed appointment can be considered again if the President renews the appointment.

It is well-settled in this jurisdiction that the President can renew the ad interim appointments of
by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in
Guevarra v. Inocentes why by-passed ad interim appointees could be extended new appointments, thus:

In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive objection of the Commission. It
ceases, also, upon the next adjournment of the Congress, simply because the President may then issue
new appointments not because of implied disapproval of the Commission deduced from its intention
during the session of Congress, for, under the Constitution, the Commission may affect adversely the
interim appointments only by action, never by omission. If the adjournment of Congress were an implied
disapproval of ad interim appointments made prior thereto, then the President could no longer appoint
those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus
clearly indicating that the reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that
upon said adjournment of the Congress, the President is free to make ad interim appointments or
reappointments.

Guevarra was decided under the 1935 Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim appointments was lifted verbatim. The jurisprudence
under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable
to the present Constitution. The established practice under the present Constitution is that the President
can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not
provide for a Commission on Appointments but vested sole appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither
to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interim appointment because the disapproval is final under Section 16, Article VII
of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment cannot be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the fixed term of seven years.

X x x
The framers of the Constitution made it quite clear that any person who has served any term of
office as COMELEC member whether for a full term of seven years, a truncated term of five or three
years, or even an unexpired term for any length of time can no longer be reappointed to the COMELEC.
X x x

X x x
In Visarra v. Miraflor, Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista v. De Vera
that a [r]eappointment is not prohibited when a Commissioner has held, office only for, say, three or six
years, provided his term will not exceed nine years in all. This was the interpretation despite the
express provision in the 1935 Constitution that a COMELEC member shall hold office for a term of nine
years and may not be reappointed.

To foreclose this interpretation, the phrase without reappointment appears twice in Section 1
(2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years pursuant to the first set of appointees under
the Constitution. In either case, it does not matter if the person previously appointed completes his term
of office for the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office. The period from the time the ad interim appointment
is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would

53

mean that the President by his unilateral action could start and complete the running of a term of office
in the COMELEC without the consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.

The phrase without reappointment applies only to one who has been appointed by the
President and confirmed by the Commission on Appointments, whether or not such person completes his
term of office. There must be a confirmation by the Commission on Appointments of the previous
appointment before the prohibition on reappointment can apply. To hold otherwise will lead to
absurdities and negate the Presidents power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of
time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no
longer be renewed, the President will certainly hesitate to make ad interim appointments because most of
her appointees will effectively be disapproved by mere inaction of the Commission on Appointments.
This will nullify the constitutional power of the President to make ad interim appointments, a power
intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition
that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The
framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a
second appointment for those who have been previously appointed and confirmed even if they served for
less than seven years. The second is to insure that the members of the three constitutional commissions
do not serve beyond the fixed term of seven years. x x x.

X x x
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any
kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an appointees total term of office
exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific
reappointment of any kind and exceeding ones term in office beyond the maximum period of seven
years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened
even further the screws on those who might wish to extend their terms of office. Thus, the word
designated was inserted to plug any loophole that might be exploited by violators of the Constitution x
x x.

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments because there were no previous appointments
that were confirmed by the Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewal of appointments will also not
breach the seven-year term limit because all the appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008. Any delay in their
confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger
whatsoever that the renewal of the ad interim appointments of these three respondents will result in any
of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal
of the ad interim appointment of these three respondents, for so long as their terms of office expire on
February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

43. What are the four situations where Section 1(2), Article IX-C of the 1987 Constitution which provides
that [t]he Chairman and the Commissioners (of the COMELEC) shall be appointed x x x for a term of
seven years without reappointment will apply?

Held: Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without reappointment. There are
four situations where this provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will
then be actually serving more than seven years. The second situation is where the appointee, after
confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such
person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven years. The third
situation is where the appointee is confirmed to serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether
as a member or chair, to a vacancy arising from retirement because a reappointment will result in the
appointee also serving more than seven years.

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The fourth situation is where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than
seven years, a reappointment of such person to serve an unexpired term is also prohibited because his
situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution whose terms of office
are less than seven years, but are barred from ever being reappointed under any situation. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

44. To what types of appointments is Section 15, Article VII of the 1987 Constitution (prohibiting the
President from making appointments two months before the next presidential elections and up to the
end of his term) directed against?

Held: Section 15, Article VII is directed against two types of appointments: (1) those made for
buying votes and (2) those made for partisan considerations. The first refers to those appointments
made within two months preceding the Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code; while the second consists of the so-called midnight
appointments. The SC in In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, (298
SCRA 408, Nov. 9, 1998, En Banc [Narvasa C.J.]) clarified this when it held:
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only midnight appointments those made obviously for
partisan reasons as shown by their number and the time of their making but also appointments
presumed made for the purpose of influencing the outcome of the Presidential election.

45. Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection but lost. Before she
vacated her office, though, she extended permanent appointments to fourteen new
employees of the municipal government. The incoming mayor, upon assuming office,
recalled said appointments contending that these were midnight appointments and,
therefore, prohibited under Sec. 15, Art. VII of the 1987 Constitution. Should the act of
the new mayor of recalling said appointments on the aforestated ground be sustained?

Held: The records reveal that when the petitioner brought the matter of recalling the
appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify
his action was that these were midnight appointments that are forbidden under Article VII, Section 15
of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to
presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from
making appointments during the last days of his or her tenure. (De Rama v. Court of Appeals, 353
SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

46. Distinguish the Presidents power of general supervision over local governments from his control
power.

Held: On many occasions in the past, this Court has had the opportunity to distinguish the
power of supervision from the power of control. In Taule v. Santos, we held that the Chief Executive
wielded no more authority than that of checking whether a local government or the officers thereof
perform their duties as provided by statutory enactments. He cannot interfere with local governments
provided that the same or its officers act within the scope of their authority. Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior body; it does not include any
restraining authority over such body. Officers in control lay down the rules in the doing of an act. If they
are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he
may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely
see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the
discretion to modify or replace them. If the rules are not observed, he may order the work done or re-
done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.
(Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3
rd
Div. [Gonzaga-Reyes])

47. Is the prior recommendation of the Secretary of Justice a mandatory requirement before the
President may validly appoint a provincial prosecutor?

Held: This question would x x x pivot on the proper understanding of the provision of the
Revised Administrative Code of 1987 (Book IV, Title III, Chapter II, Section 9) to the effect that

All provincial and city prosecutors and their assistants shall be appointed by the
President upon the recommendation of the Secretary.

Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior
recommendation of the Secretary of Justice endorsing the intended appointment x x x.

When the Constitution or the law clothes the President with the power to appoint a subordinate
officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom
to appoint. It should be here pertinent to state that the President is the head of government whose
authority includes the power of control over all executive departments, bureaus and offices. Control
means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a
subordinate officer has done in the performance of his duties, as well as to substitute the judgment of
the latter, as and when the former deems it to be appropriate. Expressed in another way, the President

55

has the power to assume directly the functions of an executive department, bureau and office. It can
accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials
under him or altogether ignore their recommendations.

It is the considered view of the Court x x x that the phrase upon recommendation of the
Secretary, found in Section 9, Chapter II, Title III, Book IV, of the Revised Administrative Code, should
be interpreted x x x to be a mere advise, exhortation or indorsement, which is essentially persuasive in
character and not binding or obligatory upon the party to whom it is made. The recommendation is here
nothing really more than advisory in nature. The President, being the head of the Executive Department,
could very well disregard or do away with the action of the departments, bureaus or offices even in the
exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond the scope
of his authority. (Bermudez v. Executive Secretary Ruben Torres, G.R. No. 131429, Aug. 4,
1999, 3
rd
Div. [Vitug])

48. Distinguish the Presidents power to call out the armed forces as their Commander-in-Chief in order
to prevent or suppress lawless violence, invasion or rebellion, from his power to proclaim martial and
suspend the privilege of the writ of habeas corpus. Explain why the former is not subject to judicial
review while the latter two are.

Held: There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of such
power. Section 18, Article VII of the Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus, or place the Philippines or any part thereof under martial law.

The full discretionary power of the President to determine the factual basis for the exercise of
the calling out power is also implied and further reinforced in the rest of Section 18, Article VII x x x.

Under the foregoing provisions, Congress may revoke such proclamations (of martial law) or
suspension (of the privilege of the writ of habeas corpus) and the Court may review the sufficiency of the
factual basis thereof. However, there is no such equivalent provision dealing with the revocation or
review of the President's action to call out the armed forces. The distinction places the calling out power
in a different category from the power to declare martial law and the power to suspend the privilege of
the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together
the three powers and provided for their revocation and review without any qualification. Expressio unios
est exclusio alterius. X x x That the intent of the Constitution is exactly what its letter says, i.e., that the
power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional
Commission x x x.

The reason for the difference in the treatment of the aforementioned powers highlights the intent
to grant the President the widest leeway and broadest discretion in using the power to call out because it
is considered as the lesser and more benign power compared to the power to suspend the privilege of
the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur:
(1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions
are not required in the case of the power to call out the armed forces. The only criterion is that
whenever it becomes necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion. The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors which are
not always accessible to the courts. Besides the absence of textual standards that the court may use to
judge necessity, information necessary to arrive at such judgment might also prove unmanageable for
the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts.
In many instances, the evidence upon which the President might decide that there is a need to call out
the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the

56

present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to
do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the President's exercise of judgment
deserves to be accorded respect from this Court. (Integrated Bar of the Philippines v. Hon.
Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

49. By issuing a TRO on the date convicted rapist Leo Echegaray is to be executed by lethal injection, the
Supreme Court was criticized on the ground, among others, that it encroached on the power of the
President to grant reprieve under Section 19, Article VII, 1987 Constitution. Justify the SC's act.

Held: Section 19, Article VII of the 1987 Constitution is simply the source of power of the
President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction
by final judgment. This provision, however, cannot be interpreted as denying the power of courts to
control the enforcement of their decisions after the finality. In truth, an accused who has been convicted
by final judgment still possesses collateral rights and these rights can be claimed in the appropriate
courts. For instance, a death convict who becomes insane after his final conviction cannot be executed
while in a state of insanity (See Article 79 of the Revised Penal Code). The suspension of such a death
sentence is undisputably an exercise of judicial power. It is not usurpation of the presidential power of
reprieve though its effect is the same the temporary suspension of the execution of the death convict.
In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing
the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation
of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to
amend laws be considered as a violation of the Presidents power to commute final sentences of
conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death
convict do not exclude each other for the simple reason that there is no higher right than the right to life.
(Echegaray v. Secretary of Justice, 301 SCRA 96, Jan. 19, 1999, En Banc [Puno])

50. Discuss the nature of a conditional pardon. Is its grant or revocation by the President subject to
judicial review?

Held: A conditional pardon is in the nature of a contract between the sovereign power or the
Chief Executive and the convicted criminal to the effect that the former will release the latter subject to
the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to
serve the unexpired portion of the sentence or an additional one. By the pardonees consent to the
terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the
Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms
and conditions of the pardon. Under Section 64(i) of the Revised Administrative Code, the Chief
Executive is authorized to order the arrest and re-incarceration of any such person who, in his judgment,
shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence. It
is now a well-entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond
judicial scrutiny. The determination of the violation of the conditional pardon rests exclusively in the
sound judgment of the Chief Executive, and the pardonee, having consented to place his liberty on
conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the
courts, however erroneous the findings may be upon which his recommitment was ordered.

X x x
Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive author of
the conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his
own judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants
the same. Courts have no authority to interfere with the grant by the President of a pardon to a
convicted criminal. It has been our fortified ruling that a final judicial pronouncement as to the guilt of a
pardonee is not a requirement for the President to determine whether or not there has been a breach of
the terms of a conditional pardon. There is likewise nil a basis for the courts to effectuate the
reinstatement of a conditional pardon revoked by the President in the exercise of powers undisputably
solely and absolutely in his office. (In Re: Wilfredo Sumulong Torres, 251 SCRA 709, Dec. 29,
1995 [Hermosisima])

51. Who has the power to ratify a treaty?

Held: In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

52. Which provision of the Constitution applies with regard to the exercise by the Senate of its
constitutional power to concur with the Visiting Forces Agreement (VFA)?

Held: The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII x x x reads:

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No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.

Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treaties or international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision
lays down the general rule on treaties or international agreements and applies to any form of treaty with
a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic
in nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve
the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue
of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting State.

It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally,
in both instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article
VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline
that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited
sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and
for the sole purpose of determining the number of votes required to obtain the valid concurrence of the
Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails
over a general one. Lex specialis derogat generali. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000,
342 SCRA 449, 481-492, En Banc [Buena])

53. Should the contention that since the VFA merely involved the temporary visits of United
States personnel engaged in joint military exercises and not a basing agreement,
therefore, Sec. 25, Art. XVIII of the Constitution is inapplicable to the VFA, be upheld?

Held: It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between transient and permanent.
Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should
not distinguish - Ubi lex non distinguit nec nos distinguire debemos. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])

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54. Will it be correct to argue that since no foreign military bases, but merely troops and facilities, are
involved in the VFA, therefore, Section 25, Article XVIII of the Constitution is not controlling?

Held: In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the
VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers foreign
military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops
and facilities without any foreign bases being established. The clause does not refer to foreign military
bases, troops, or facilities collectively but treats them as separate and independent subjects. The use of
comma and disjunctive word "or" clearly signifies disassociation and independence of one thing from the
others included in the enumeration, such that, the provision contemplates three different situations - a
military treaty the subject of which could be either (a) foreign bases (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter x x x is consistent with this interpretation
x x x.

Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear weapons,
guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])

55. Are the Balikatan exercises covered by the Visiting Forces Agreement?

Held: The holding of Balikatan 02-1 must be studied in the framework of the treaty
antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT,
for brevity). The MDT has been described as the core of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological
capabilities of our armed forces through joint training with its American counterparts; the Balikatan is
the largest such training exercise directly supporting the MDTs objectives. It is this treaty to which the
VFA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created
a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court
upheld the validity of the VFA (BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA
provides the regulatory mechanism by which United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with activities approved by the Philippine Government. It
contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft,
as well as the duration of the agreement and its termination. It is the VFA which gives continued
relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of
optimal cooperation between American and Philippine military forces in the event of an attack by a
common foe.

The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting
Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had
therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning
of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings
subject only to the approval of the Philippine government. The sole encumbrance placed on its definition
is couched in the negative, in that United States personnel must abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political activity. All other activities, in other
words, are fair game.

We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state x x x.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination
of the text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what
may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as
well as other elements may be taken into account alongside the aforesaid context. X x x

The Terms of Reference rightly fall within the context of the VFA.

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After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of
the word activities arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nations marine resources, sea search-and-destroy
operations to assist vessels in distress, disaster relief operations, civic action projects such as the building
of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training
exercise, falls under the umbrella of sanctioned or allowable activities in the context of the agreement.
Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition,
are indeed authorized. (Arthur D. Lim and Paulino R. Ersando v. Honorable Executive Secretary,
G.R. No. 151445, April 11, 2002, En Banc [De Leon])

56. What is the power of impoundment of the President? What are its principal sources?

Held: Impoundment refers to the refusal of the President, for whatever reason, to spend funds
made available by Congress. It is the failure to spend or obligate budget authority of any type.

Proponents of impoundment have invoked at least three principal sources of the authority of the
President. Foremost is the authority to impound given to him either expressly or impliedly by Congress.
Second is the executive power drawn from the Presidents role as Commander-in-Chief. Third is the
Faithful Execution Clause.

The proponents insist that a faithful execution of the laws requires that the President desist from
implementing the law if doing so would prejudice public interest. An example given is when through
efficient and prudent management of a project, substantial savings are made. In such a case, it is sheer
folly to expect the President to spend the entire amount budgeted in the law. (PHILCONSA v.
Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason])

Ak1. VIII. 1he Iud|c|a| Department

57. What are the requisites before the Court can exercise the power of judicial review?

Held: 1. The time-tested standards for the exercise of judicial review are: (1) the existence of
an appropriate case; (2) an interest personal and substantial by the party raising the constitutional
question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity
that the constitutional question be passed upon in order to decide the case (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R.
No. 135385, Dec. 6, 2000, En Banc)

2. When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an actual
and appropriate case; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case. (Integrated Bar of the Philippines v. Hon.

58. What are the requisites for the proper exercise of the power of judicial review? Illustrative case.

Held: Respondents assert that the petition fails to satisfy all the four requisites before this Court
may exercise its power of judicial review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court, respondents urge this Court to refrain from
reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra
and Tuason unless all the four requisites are present. X x x

Respondents argue that the second, third and fourth requisites are absent in this case.
Respondents maintain that petitioner does not have a personal and substantial interest in the case
because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo,
Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to
be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does
petitioner claim to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad interim
appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the
fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22,

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2001. Moreover, the petition was filed after the third time that these three respondents were issued ad
interim appointments.

Respondents insist that the real issue in this case is the legality of petitioners reassignment from
the EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not
the lis mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law
Department, where she was placed on detail. Respondents claim that the reassignment was pursuant to
x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief
Executive Officer. Evidently, respondents anchor the legality of petitioners reassignment on Benipayos
authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the
lawful Chairman of the COMELEC. Even if petitioner is only an Acting director of the EID, her
reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by
the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a
personal and material stake in the resolution of the constitutionality of Benipayos assumption of office.
Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her
with the requisite locus standi to raise the constitutional issue in this petition.

Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001,
when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the
date of filing of the petition that determines whether the constitutional issue was raised at the earliest
opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, if it is not raised in the pleadings, it cannot be
considered on appeal. Petitioner questioned the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.
There is no doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos
ad interim appointment and assumption of office. Unless the constitutionality of Benipayos ad interim
appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID
to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional
issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The
legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001
national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In
keeping with this Courts duty to determine whether other agencies of government have remained within
the limits of the Constitution and have not abused the discretion given them, this Court may even brush
aside technicalities of procedure and resolve any constitutional issue raised. Here the petitioner has
complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En
Banc [Carpio])

59. What is an actual case or controversy?

Held: An actual case or controversy means an existing case or controversy which is both ripe
for resolution and susceptible of judicial determination, and that which is not conjectural or anticipatory,
or that which seeks to resolve hypothetical or feigned constitutional problems. A petition raising a
constitutional question does not present an actual controversy, unless it alleges a legal right or power.
Moreover, it must show that a conflict of rights exists, for inherent in the term controversy is the
presence of opposing views or contentions. Otherwise, the Court will be forced to resolve issues which
remain unfocused because they lack such concreteness provided when a question emerges precisely
framed from a clash of adversary arguments exploring every aspect of a multi-faceted situation
embracing conflicting and demanding interests. The controversy must also be justiciable; that is, it must
be susceptible of judicial determination. (Integrated Bar of the Philippines v. Hon. Ronaldo B.
Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

61

60. Petitioners Isagani Cruz and Cesar Europa brought a suit for prohibition and mandamus as citizens
and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371, otherwise
known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and
Regulations. A preliminary issue resolved by the SC was whether the petition presents an actual
controversy.

Held: Courts can only decide actual controversies, not hypothetical questions or cases. The
threshold issue, therefore, is whether an appropriate case exists for the exercise of judicial review in
the present case.

X x x

In the case at bar, there exists a live controversy involving a clash of legal rights. A law has
been enacted, and the Implementing Rules and Regulations approved. Money has been appropriated
and the government agencies concerned have been directed to implement the statute. It cannot be
successfully maintained that we should await the adverse consequences of the law in order to consider
the controversy actual and ripe for judicial resolution. It is precisely the contention of the petitioners that
the law, on its face, constitutes an unconstitutional abdication of State ownership over lands of the public
domain and other natural resources. Moreover, when the State machinery is set into motion to
implement an alleged unconstitutional statute, this Court possesses sufficient authority to resolve and
prevent imminent injury and violation of the constitutional process. (Separate Opinion, Kapunan, J.,
in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385,
Dec. 6, 2000, En Banc)

61. When is an action considered moot? May the court still resolve the case once it has become moot
and academic?

Held: 1. It is alleged by respondent that, with respect to the PCCR [Preparatory Commission on
Constitutional Reform], this case has become moot and academic. We agree.

An action is considered moot when it no longer presents a justiciable controversy because the
issues involved have become academic or dead. Under E.O. No. 43, the PCCR was instructed to
complete its task on or before June 30, 1999. However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the time frame for the completion of the
commissions work x x x. The PCCR submitted its recommendations to the President on December 20,
1999 and was dissolved by the President on the same day. It had likewise spent the funds allocated to it.
Thus, the PCCR has ceased to exist, having lost its raison d tre. Subsequent events have overtaken the
petition and the Court has nothing left to resolve.

The staleness of the issue before us is made more manifest by the impossibility of granting the
relief prayed for by petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as
such. Clearly, prohibition is an inappropriate remedy since the body sought to be enjoined no longer
exists. It is well-established that prohibition is a preventive remedy and does not lie to restrain an act
that is already fait accompli. At this point, any ruling regarding the PCCR would simply be in the nature
of an advisory opinion, which is definitely beyond the permissible scope of judicial power. (Gonzales v.
Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc [Gonzaga-Reyes])

2. The petition which was filed by private respondents before the trial court sought the issuance
of a writ of mandamus, to command petitioners to admit them for enrolment. Taking into account the
admission of private respondents that they have finished their Nursing course at the Lanting College of
Nursing even before the promulgation of the questioned decision, this case has clearly been overtaken by
events and should therefore be dismissed. However, the case of Eastern Broadcasting Corporation
(DYRE) v. Dans is the authority for the view that even if a case were moot and academic, a statement of
the governing principle is appropriate in the resolution of dismissal for the guidance not only of the
parties but of others similarly situated. We shall adhere to this view and proceed to dwell on the merits
of this petition. (University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 770, March
7, 1994 [Nocon])

62. Should the Court still resolve the case despite that the issue has already become moot and
academic? Exception.

Held: Neither do we agree that merely because a plebiscite had already been held in the case of
the proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot
and academic. The issue raised by the Municipality of Cainta in its petition before the COMELEC against
the holding of the plebiscite for the creation of Barangay Napico are still pending determination before
the Antipolo Regional Trial Court.

In Tan v. Commission on Elections, we struck down the moot and academic argument as follows

Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot
and academic. Continuation of the existence of this newly proclaimed province which petitioners
strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that,

62

if indeed, illegality attaches to its creation, the commission of that error should not provide the
very excuse for perpetration of such wrong. For this Court to yield to the respondents urging
that, as there has been fait accompli, then this Court should passively accept and accede to the
prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as
respondents so propose is a proposition fraught with mischief. Respondents submission will
create a dangerous precedent. Should this Court decline now to perform its duty of interpreting
and indicating what the law is and should be, this might tempt again those who strut about in the
corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the
boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will
abstain from entertaining future challenges to their acts if they manage to bring about a fait
accompli.
(City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])

63. On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and
attempting to break into Malacanang, issued Proclamation No. 38 declaring that there was a state of
rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed
Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National
Capital Region. Warrantless arrests of several alleged leaders and promoters of the rebellion were
thereafter effected. Hence, several petitions were filed before the SC assailing the declaration of
State of Rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof.

Held: All the foregoing petitions assail the declaration of state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis
both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of
the declaration of a state of rebellion in Metro Manila. Accordingly, the instant petitions have been
rendered moot and academic. As to petitioners claim that the proclamation of a state of rebellion is
being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has
issued a particular order to arrest specific persons in connection with the rebellion. He states that what
is extant are general instructions to law enforcement officers and military agencies to implement
Proclamation No. 38. x x x. With this declaration, petitioners apprehensions as to warrantless arrests
should be laid to rest. (Lacson v. Perez, 357 SCRA 756, May 10, 2001, En Banc [Melo])

64. In connection with the May 11, 1998 elections, the COMELEC issued a resolution prohibiting the
conduct of exit polls on the ground, among others, that it might cause disorder and confusion
considering the randomness of selecting interviewees, which further makes the exit polls unreliable.
The constitutionality of this resolution was challenged by ABS-CBN Broadcasting Corporation as
violative of freedom of expression. The Solicitor General contends that the petition has been
rendered moot and academic because the May 11, 1998 election has already been held and done
with and, therefore, there is no longer any actual controversy to be resolved. Resolve.

Held: While the assailed Resolution referred specifically to the May 11, 1998 election, its
implications on the peoples fundamental freedom of expression transcend the past election. The holding
of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is
tied up with elections. To set aside the resolution of the issue now will only postpone a task that could
well crop up again in future elections.

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has
the symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees. Since the fundamental freedoms of speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom. (ABS-CBN Broadcasting Corporation v.
COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban])

65. What is the meaning of "legal standing" or locus standi?

Held: 1. Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The term interest means a material interest, an interest in
issue affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest. The gist of the question of standing is whether a party alleges such personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions.
(Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,
2000)

2. In addition to the existence of an actual case or controversy, a person who assails the validity
of a statute must have a personal and substantial interest in the case, such that, he has sustained, or will
sustain, a direct injury as a result of its enforcement. Evidently, the rights asserted by petitioners as
citizens and taxpayers are held in common by all the citizens, the violation of which may result only in a
generalized grievance. Yet, in a sense, all citizen's and taxpayer's suits are efforts to air generalized
grievances about the conduct of government and the allocation of power. (Separate Opinion,

63

Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R.
No. 135385, Dec. 6, 2000, En Banc)

66. Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the Integrated Bar of the Philippines (IBP) filed a petition before
the SC questioning the validity of the order of the President commanding the deployment and
utilization of the Philippine Marines to assist the Philippine National Police (PNP) in law enforcement
by joining the latter in visibility patrols around the metropolis. The Solicitor General questioned the
legal standing of the IBP to file the petition? Resolve.

Held: In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no
other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule
of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case.
This is too general an interest which is shared by other groups and the whole citizenry. Based on the
standards above-stated, the IBP has failed to present a specific and substantial interest in the resolution
of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice is alien to, and
cannot be affected by the deployment of the Marines. x x x Moreover, the IBP x x x has not shown any
specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed,
none of its members x x x has sustained any form of injury as a result of the operation of the joint
visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties
have been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions and may cause
more harm than good in the long run. Not only is the presumed injury not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the deployment of the Marines.
(Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,
2000, En Banc [Kapunan])

67. Considering the lack of requisite standing of the IBP to file the petition questioning the validity of the
order of the President to deploy and utilize the Philippine Marines to assist the PNP in law
enforcement, may the Court still properly take cognizance of the case?

Held: Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved. In not a few cases, the Court has adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the people.
Thus, when the issues raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the
legal controversy raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now,
rather than later. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000)

68. Discuss the nature of a taxpayers suit. When may it be allowed?

Held: 1. Petitioner and respondents agree that to constitute a taxpayer's suit, two requisites
must be met, namely, that public funds are disbursed by a political subdivision or instrumentality and in
doing so, a law is violated or some irregularity is committed, and that the petitioner is directly affected by
the alleged ultra vires act. The same pronouncement was made in Kilosbayan, Inc. v. Guingona, Jr.,
where the Court also reiterated its liberal stance in entertaining so-called taxpayer's suits, especially when
important issues are involved. A closer examination of the facts of this case would readily demonstrate
that petitioner's standing should not even be made an issue here, since standing is a concept in
constitutional law and here no constitutional question is actually involved.

In the case at bar, disbursement of public funds was only made in 1975 when the Province
bought the lands from Ortigas at P110.00 per square meter in line with the objectives of P.D. 674.
Petitioner never referred to such purchase as an illegal disbursement of public funds but focused on the
alleged fraudulent reconveyance of said property to Ortigas because the price paid was lower than the
prevailing market value of neighboring lots. The first requirement, therefore, which would make this
petition a taxpayer's suit is absent. The only remaining justification for petitioner to be allowed to pursue
this action is whether it is, or would be, directly affected by the act complained of. As we stated in
Kilosbayan, Inc. v. Morato,

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers or voters who actually sue in the public
interest. Hence the question in standing is whether such parties have 'alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens

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the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.' (Citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633 [1962])

Undeniably, as a taxpayer, petitioner would somehow be adversely affected by an illegal use of public
money. When, however, no such unlawful spending has been shown x x x, petitioner, even as a
taxpayer, cannot question the transaction validly executed by and between the Province and Ortigas for
the simple reason that it is not privy to said contract. In other words, petitioner has absolutely no cause
of action, and consequently no locus standi, in the instant case. (The Anti-Graft League of the
Philippines, Inc. v. San Juan, 260 SCRA 250, 253-255, Aug. 1, 1996, En Banc [Romero])

2. A taxpayer is deemed to have the standing to raise a constitutional issue when it is
established that public funds have been disbursed in alleged contravention of the law or the Constitution.
Thus, a taxpayers action is properly brought only when there is an exercise by Congress of its taxing or
spending power. This was our ruling in a recent case wherein petitioners Telecommunications and
Broadcast Attorneys of the Philippines (TELEBAP) and GMA Network, Inc. questioned the validity of
Section 92 of B.P. Blg. 881 (otherwise known as the Omnibus Election Code) requiring radio and
television stations to give free air time to the Commission on Elections during the campaign period
(Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, 289
SCRA 337 [1998]). The Court held that petitioner TELEBAP did not have any interest as a taxpayer since
the assailed law did not involve the taxing or spending power of Congress.

Many other rulings have premised the grant or denial of standing to taxpayers upon whether or
not the case involved a disbursement of public funds by the legislature. In Sanidad v. Commission on
Elections, the petitioners therein were allowed to bring a taxpayers suit to question several presidential
decrees promulgated by then President Marcos in his legislative capacity calling for a national
referendum, with the Court explaining that

X x x [i]t is now an ancient rule that the valid source of a statute Presidential Decrees
are of such nature may be contested by one who will sustain a direct injury as a result of its
enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds
may be enjoined, upon the theory that the expenditure of public funds by an officer of the State
for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.
The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the
effective implementation of its purposes. Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating said funds x x x.

In still another case, the Court held that petitioners the Philippine Constitution Association, Inc., a non-
profit civic organization had standing as taxpayers to question the constitutionality of Republic Act No.
3836 insofar as it provides for retirement gratuity and commutation of vacation and sick leaves to
Senators and Representatives and to the elective officials of both houses of Congress (Philippine
Constitution Association, Inc. v. Gimenez). And in Pascual v. Secretary of Public Works, the Court
allowed petitioner to maintain a taxpayers suit assailing the constitutional soundness of Republic Act No.
920 appropriating P85,000 for the construction, repair and improvement of feeder roads within private
property. All these cases involved the disbursement of public funds by means of a law.

Meanwhile, in Bugnay Construction and Development Corporation v. Laron, the Court declared
that the trial court was wrong in allowing respondent Ravanzo to bring an action for injunction in his
capacity as a taxpayer in order to question the legality of the contract of lease covering the public market
entered into between the City of Dagupan and petitioner. The Court declared that Ravanzo did not
possess the requisite standing to bring such taxpayers suit since [o]n its face, and there is no evidence
to the contrary, the lease contract entered into between petitioner and the City shows that no public
funds have been or will be used in the construction of the market building.

Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its
taxing or spending power. The PCCR was created by the President by virtue of E.O. No. 43, as amended
by E.O. No. 70. Under Section 7 of E.O. No. 43, the amount of P3 million is appropriated for its
operational expenses to be sourced from the funds of the Office of the President. x x x The
appropriations for the PCCR were authorized by the President, not by Congress. In fact, there was no
appropriation at all. In a strict sense, appropriation has been defied as nothing more than the
legislative authorization prescribed by the Constitution that money may be paid out of the Treasury,
while appropriation made by law refers to the act of the legislature setting apart or assigning to a
particular use a certain sum to be used in the payment of debt or dues from the State to its creditors.
The funds used for the PCCR were taken from funds intended for the Office of the President, in the
exercise of the Chief Executives power to transfer funds pursuant to Section 25 (5) of Article VI of the
Constitution.

In the final analysis, it must be stressed that the Court retains the power to decide whether or
not it will entertain a taxpayers suit. In the case at bar, there being no exercise by Congress of its taxing
or spending power, petitioner cannot be allowed to question the creation of the PCCR in his capacity as a
taxpayer, but rather, he must establish that he has a personal and substantial interest in the case and
that he has sustained or will sustain direct injury as a result of its enforcement. In other words,
petitioner must show that he is a real party in interest that he will stand to be benefited or injured by
the judgment or that he will be entitled to the avails of the suit. Nowhere in his pleadings does petitioner

65

presume to make such a representation. (Gonzales v. Narvasa, 337 SCRA 733, Aug. 14, 2000, En
Banc [Gonzaga-Reyes])

69. What is the meaning of justiciable controversy as requisite for the proper exercise of the power of
judicial review? Illustrative case.

Held: From a reading of the records it appears to us that the petition was prematurely filed.
Under the undisputed facts there is as yet no justiciable controversy for the court to resolve and the
petition should have been dismissed by the appellate court on this ground.

We gather from the allegations of the petition and that of the petitioners memorandum that the
alleged application for certificate of ancestral land claim (CALC) filed by the heirs of Carantes under the
assailed DENR special orders has not been granted nor the CALC applied for, issued. The DENR is still
processing the application of the heirs of Carantes for a certificate of ancestral land claim, which the
DENR may or may not grant. It is evident that the adverse legal interests involved in this case are the
competing claims of the petitioners and that of the heirs of Carantes to possess a common portion of a
piece of land. As the undisputed facts stand there is no justiciable controversy between the petitioners
and the respondents as there is no actual or imminent violation of the petitioners asserted right to
possess the land by reason of the implementation of the questioned administrative issuance.

A justiciable controversy has been defined as, a definite and concrete dispute touching on the
legal relations of parties having adverse legal interests which may be resolved by a court of law through
the application of a law. Courts have no judicial power to review cases involving political questions and
as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and in
cases that has become moot. Subject to certain well-defined exceptions courts will not touch an issue
involving the validity of a law unless there has been a governmental act accomplished or performed that
has a direct adverse effect on the legal right of the person contesting its validity. In the case of PACU v.
Secretary of Education the petition contesting the validity of a regulation issued by the Secretary of
Education requiring private schools to secure a permit to operate was dismissed on the ground that all
the petitioners have permits and are actually operating under the same. The petitioners questioned the
regulation because of the possibility that the permit might be denied them in the future. This Court held
that there was no justiciable controversy because the petitioners suffered no wrong by the
implementation of the questioned regulation and therefore, they are not entitled to relief. A mere
apprehension that the Secretary of Education will withdraw the permit does not amount to justiciable
controversy. The questioned regulation in the PACU case may be questioned by a private school whose
permit to operate has been revoked or one whose application therefore has been denied.

This Court cannot rule on the basis of petitioners speculation that the DENR will approve the
application of the heirs of Carantes. There must be an actual governmental act which directly causes or
will imminently cause injury to the alleged legal right of the petitioner to possess the land before the
jurisdiction of this Court may be invoked. There is no showing that the petitioners were being evicted
from the land by the heirs of Carantes under orders from the DENR. The petitioners allegation that
certain documents from the DENR were shown to them by the heirs of Carantes to justify eviction is
vague, and it would appear that the petitioners did not verify if indeed the respondent DENR or its
officers authorized the attempted eviction. Suffice it to say that by the petitioners own admission that
the respondents are still processing and have not approved the application of the heirs of Carantes, the
petitioners alleged right to possess the land is not violated nor is in imminent danger of being violated, as
the DENR may or may not approve Carantes application. Until such time, the petitioners are simply
speculating that they might be evicted from the premises at some future time. Borrowing from the
pronouncements of this Court in the PACU case, They (the petitioners) have suffered no wrong under
the terms of the law and, naturally need no relief in the form they now seek to obtain. If indeed the
heirs of Carantes are trying to enter the land and disturbing the petitioners possession thereof even
without prior approval by the DENR of the claim of the heirs of Carantes, the case is simply one of
forcible entry. (Cutaran v. DENR, 350 SCRA 697, Jan. 31, 2001, 3
rd

70. What is a justiciable controversy? What are political questions?

Held: As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review. It pertains to issues which are inherently susceptible of being decided on
grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over
actual constitutional cases brought before it even in instances that are ripe for resolution. One class of
cases wherein the Court hesitates to rule on are political questions. The reason is that political
questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a function of the separation of powers,
the courts will not normally interfere with the workings of another co-equal branch unless the case shows
a clear need for the courts to step in to uphold the law and the Constitution.

As Tanada v. Angara puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government. Thus,
if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be a political question. In

66

the classic formulation of Justice Brennan in Baker v. Carr, [p]rominent on the surface of any case held
to involve a political question is found a textually demonstrable constitutional commitment of the issue to
a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on the one question.

The 1987 Constitution expands the concept of judicial review by providing that [T]he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Article VIII, Sec. 1 of the 1987 Constitution) Under this definition,
the Court cannot agree x x x that the issue involved is a political question beyond the jurisdiction of this
Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have been met or the limitations respected, is
justiciable - the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to
delimit constitutional boundaries has been given to this Court. When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. Under this definition, a court is without power to
directly decide matters over which full discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of discretion. A showing that plenary
power is granted either department of government may not be an obstacle to judicial inquiry, for the
improvident exercise or abuse thereof may give rise to justiciable controversy. (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

71. Is the legitimacy of the assumption to the Presidency of President Gloria Macapagal Arroyo a political
question and, therefore, not subject to judicial review? Distinguish EDSA People Power I from EDSA
People Power II.

Held: Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al. and related cases to support their thesis that since the
cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited
cases, we held that the government of former President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the
Aquino government was installed through a direct exercise of the power of the Filipino people in
defiance of the provisions of the 1973 Constitution, as amended. It is familiar learning that the
legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny
for that government automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and
defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear.
EDSA I involves the exercise of the people power of revolution which overthrows the whole government.
EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that resulted from it cannot be the subject of
judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions. X x x

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably Section
1 of Article II, and Section 8 of Article VII, and the allocation of governmental powers under Section 11 of
Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They
also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the
1803 case of Marbury v. Madison, the doctrine has been laid down that it is emphatically the province
and duty of the judicial department to say what the law is x x x. Thus, respondents invocation of the
doctrine of political question is but a foray in the dark. (Joseph E. Estrada v. Aniano Desierto, G.R.
Nos. 146710-15, March 2, 2001, En Banc [Puno])

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72. Is the Presidents power to call out the armed forces as their Commander-in-Chief in order to prevent
or suppress lawless violence, invasion or rebellion subject to judicial review, or is it a political
question? Clarify.

Held: When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot
be called upon to overrule the President's wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence to support the assertion that
there exists no justification for calling out the armed forces. There is, likewise, no evidence to support
the proposition that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Court's duty of purposeful hesitation before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with
the President's judgment. To doubt is to sustain. (Integrated Bar of the Philippines v. Hon.

73. Do lower courts have jurisdiction to consider the constitutionality of a law? If so, how should they
act in the exercise of this jurisdiction?

Held: We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general definition of the judicial
power to determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in
which the subject of the litigation is incapable of pecuniary estimation, even as the accused in a criminal
action has the right to question in his defense the constitutionality of a law he is charged with violating
and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover,
Article VIII, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final
judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost
circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the
stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually
the handiwork of the legislative or the executive departments, or both, it will be prudent for such courts,
if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of
its validity, which is better determined after a thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its discussion. (Drilon v. Lim, 235 SCRA 135,
139-140, Aug. 4, 1994, En Banc [Cruz])

74. What cases are to be heard by the Supreme Court en banc?

Held: Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by the
Resolution of November 18, 1993:

X x x [t]he following are considered en banc cases:

1) Cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, executive order, or presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;
2) Criminal cases in which the appealed decision imposes the death penalty;
3) Cases raising novel questions of law;
4) Cases affecting ambassadors, other public ministers and consuls;
5) Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission
on Elections, and Commission on Audit;
6) Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the
judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of
more than one (1) year or a fine exceeding P10,000.00 or both;
7) Cases where a doctrine or principle laid down by the court en banc or in division may be
modified or reversed;
8) Cases assigned to a division which in the opinion of at least three (3) members thereof merit
the attention of the court en banc and are acceptable to a majority of the actual membership
of the court en banc; and
9) All other cases as the court en banc by a majority of its actual membership may deem of
sufficient importance to merit its attention.
(Firestone Ceramics, Inc. v. Court of Appeals, 334 SCRA 465, 471-472, June 28, 2000, En
Banc [Purisima])

75. What is fiscal autonomy? The fiscal autonomy clause?

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Held: As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and
collect fees, fix rates of compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and disburse such sums as may be provided
by law or prescribed by them in the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. The Judiciary, the Constitutional
Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge
of their constitutional duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based. (Bengzon v. Drilon, 208 SCRA 133, April 15,
1992, En Banc [Gutierrez])

76. May the Ombudsman validly entertain criminal charges against a judge of the regional trial court in
connection with his handling of cases before the court.

Held: Petitioner criticizes the jurisprudence (Maceda v. Vasquez, 221 SCRA 464 [1993] and
Dolalas v. Office of the Ombudsman-Mindanao, 265 SCRA 818 [1996]) cited by the Office of the
Ombudsman as erroneous and not applicable to his complaint. He insists that since his complaint
involved a criminal charge against a judge, it was within the authority of the Ombudsman not the
Supreme Court to resolve whether a crime was committed and the judge prosecuted therefor.

The petition cannot succeed.

X x x

We agree with the Solicitor General that the Ombudsman committed no grave abuse of discretion
warranting the writs prayed for. The issues have been settled in the case of In Re: Joaquin Borromeo.
There, we laid down the rule that before a civil or criminal action against a judge for a violation of Arts.
204 and 205 (knowingly rendering an unjust judgment or order) can be entertained, there must first be
a final and authoritative judicial declaration that the decision or order in question is indeed unjust.
The pronouncement may result from either:

(a) an action of certiorari or prohibition in a higher court impugning the validity of the
judgment; or
(b) an administrative proceeding in the Supreme Court against the judge precisely for
promulgating an unjust judgment or order.

Likewise, the determination of whether a judge has maliciously delayed the disposition of the
case is also an exclusive judicial function (In Re: Borromeo, supra, at 461).

To repeat, no other entity or official of the government, not the prosecution or
investigation service of any other branch, not any functionary thereof, has competence to review
a judicial order or decision whether final and executory or not and pronounce it erroneous so
as to lay the basis for a criminal or administrative complaint for rendering an unjust judgment or
order. That prerogative belongs to the courts alone.

This having been said, we find that the Ombudsman acted in accordance with law and
jurisprudence when he referred the cases against Judge Pelayo to the Supreme Court for appropriate
action. (De Vera v. Pelayo, 335 SCRA 281, July 6, 2000, 1
st
Div. [Pardo])

77. What is a Memorandum Decision?

Held: A Memorandum Decision is a specie of succinctly written decisions by appellate courts in
accordance with the provisions of Section 40, B.P. Blg. 129 on the grounds of expediency, practicality,
convenience and docket status of our courts. (Francisco v. Permskul, 173 SCRA 324, 333 [1989])

78. Discuss the validity of Memorandum Decisions.

Held: 1. The constitutional mandate that no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based does not preclude the
validity of memorandum decisions which adopt by reference the findings of fact and conclusions of law
contained in the decisions of inferior tribunals. X x x

Hence, even in this jurisdiction, incorporation by reference is allowed if only to avoid the
cumbersome reproduction of the decision of the lower courts, or portions thereof, in the decisions of the
higher court. This is particularly true when the decision sought to be incorporated is a lengthy and
thorough discussion of the facts and conclusions arrived at x x x. (Oil and Natural Gas Commission
v. Court of Appeals, 293 SCRA 26, July 23, 1998 [Martinez])

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2. We have sustained decisions of lower courts as having substantially or sufficiently complied
with the constitutional injunction notwithstanding the laconic and terse manner in which they were
written and even if there [was left] much to be desired in terms of [their] clarity, coherence and
comprehensibility provided that they eventually set out the facts and the law on which they were based,
as when they stated the legal qualifications of the offense constituted by the facts proved, the modifying
circumstances, the participation of the accused, the penalty imposed and the civil liability; or discussed
the facts comprising the elements of the offense that was charged in the information, and accordingly
rendered a verdict and imposed the corresponding penalty; or quoted the facts narrated in the
prosecutions memorandum but made their own findings and assessment of evidence, before finally
agreeing with the prosecutions evaluation of the case.

We have also sanctioned the use of memorandum decisions x x x. We have also declared that
memorandum decisions comply with the constitutional mandate.

In Francisco v. Permskul, however, we laid the conditions for the validity of memorandum
decisions, thus:

The memorandum decision, to be valid, cannot incorporate the findings of fact and the
conclusions of law of the lower court only by remote reference, which is to say that the
challenged decision is not easily and immediately available to the person reading the
memorandum decision. For the incorporation by reference to be allowed, it must provide for
direct access to the facts and the law being adopted, which must be contained in a statement
attached to the said decision. In other words, the memorandum decision authorized under
Section 40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of law of
the lower court in an annex attached to and made an indispensable part of the decision.

It is expected that this requirement will allay the suspicion that no study was made of the
decision of the lower court and that its decision was merely affirmed without a prior examination
of the facts and the law on which it is based. The proximity at least of the annexed statement
should suggest that such examination has been undertaken. It is, of course, also understood
that the decision being adopted should, to begin with, comply with Article VIII, Section 14 as no
amount of incorporation or adoption will rectify its violation.

The Court finds necessary to emphasize that the memorandum decision should be
sparingly used lest it become an additive excuse for judicial sloth. It is an additional condition for
the validity of this kind of decision may be resorted to only in cases where the facts are in the
main accepted by both parties and easily determinable by the judge and there are no doctrinal
complications involved that will require an extended discussion of the laws involved. The
memorandum decision may be employed in simple litigations only, such as ordinary collection
cases, where the appeal is obviously groundless and deserves no more than the time needed to
dismiss it.

X x x

Henceforth, all memorandum decisions shall comply with the requirements herein set
forth as to the form prescribed and the occasions when they may be rendered. Any deviation will
summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the
flawed judgment as a lawless disobedience.

Tested against these standards, we find that the RTC decision at bar miserably failed to meet
them and, therefore, fell short of the constitutional injunction. The RTC decision is brief indeed, but it is
starkly hallow, otiosely written, vacuous in its content and trite in its form. It achieved nothing and
attempted at nothing, not even at a simple summation of facts which could easily be done. Its
inadequacy speaks for itself.

We cannot even consider or affirm said RTC decision as a memorandum decision because it failed
to comply with the measures of validity laid down in Francisco v. Permskul. It merely affirmed in toto the
MeTC decision without saying more. A decision or resolution, especially one resolving an appeal, should
directly meet the issues for resolution; otherwise, the appeal would be pointless

We therefore reiterate our admonition in Nicos Industrial Corporation v. Court of Appeals, in that
while we conceded that brevity in the writing of decisions is an admirable trait, it should not and cannot
be substituted for substance; and again in Francisco v. Permskul, where we cautioned that expediency
alone, no matter how compelling, cannot excuse non-compliance with the constitutional requirements.

This is not to discourage the lower courts to write abbreviated and concise decisions, but never
at the expense of scholarly analysis, and more significantly, of justice and fair play, lest the fears
expressed by Justice Feria as the ponente in Romero v. Court of Appeals come true, i.e., if an appellate
court failed to provide the appeal the attention it rightfully deserved, said court deprived the appellant of
due process since he was accorded a fair opportunity to be heard by a fair and responsible magistrate.
This situation becomes more ominous in criminal cases, as in this case, where not only property rights
are at stake but also the liberty if not the life of a human being.

Faithful adherence to the requirements of Section 14, Article VIII of the Constitution is
indisputably a paramount component of due process and fair play. It is likewise demanded by the due

70

process clause of the Constitution. The parties to a litigation should be informed of how it was decided,
with an explanation of the factual and legal reasons that led to the conclusions of the court. The court
cannot simply say that judgment is rendered in favor of X and against Y and just leave it at that without
any justification whatsoever for its action. The losing party is entitled to know why he lost, so he may
appeal to the higher court, if permitted, should he believe that the decision should be reversed. A
decision that does not clearly and distinctly state the facts and the law on which it is based leaves the
parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable
to pinpoint the possible errors of the court for review by a higher tribunal. More than that, the
requirement is an assurance to the parties that, in reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing
him from deciding ipse dixit. Vouchsafed neither the sword nor the purse by the Constitution but
nonetheless vested with the sovereign prerogative of passing judgment on the life, liberty or property of
his fellowmen, the judge must ultimately depend on the power of reason for sustained public confidence
in the justness of his decision.

Thus the Court has struck down as void, decisions of lower courts and even of the Court of
Appeals whose careless disregard of the constitutional behest exposed their sometimes cavalier attitude
not only to their magisterial responsibilities but likewise to their avowed fealty to the Constitution.

Thus, we nullified or deemed to have failed to comply with Section 14, Article VIII of the
Constitution, a decision, resolution or order which: contained no analysis of the evidence of the parties
nor reference to any legal basis in reaching its conclusions; contained nothing more than a summary of
the testimonies of the witnesses of both parties; convicted the accused of libel but failed to cite any legal
authority or principle to support conclusions that the letter in question was libelous; consisted merely of
one (1) paragraph with mostly sweeping generalizations and failed to support its conclusion of parricide;
consisted of five (5) pages, three (3) pages of which were quotations from the labor arbiters decision
including the dispositive portion and barely a page (two [2] short paragraphs of two [2] sentences each)
of its own discussion or reasonings; was merely based on the findings of another court sans transcript of
stenographic notes, or failed to explain the factual and legal bases for the award of moral damages.

In the same vein do we strike down as a nullity the RTC decision in question. (Yao v. Court of
Appeals, 344 SCRA 202, Oct. 24, 2000, 1
st
Div. [Davide])

79. What are the distinctive features and purpose of a memorandum decision?

Held: In Francisco v. Permskul (173 SCRA 324, 333 [1989], the Court described [t]he
distinctive features of a memorandum decision are, first, it is rendered by an appellate court, second, it
incorporates by reference the findings of fact or the conclusions of law contained in the decision, order,
or ruling under review. Most likely, the purpose is to affirm the decision, although it is not impossible
that the approval of the findings of facts by the lower court may lead to a different conclusion of law by
the higher court. At any rate, the reason for allowing the incorporation by reference is evidently to avoid
the cumbersome reproduction of the decision of the lower court, or portions thereof, in the decision of
the higher court. The idea is to avoid having to repeat in the body of the latter decision the findings or
conclusions of the lower court since they are being approved or adopted anyway. (Yao v. Court of
Appeals, 344 SCRA 202, Oct. 24, 2000, 1
st
Div. [Davide])

80. Does the period for decision making under Section 15, Article VIII, 1987 Constitution, apply to the
Sandiganbayan? Explain.

Held: The above provision does not apply to the Sandiganbayan. The provision refers to
regular courts of lower collegiate level that in the present hierarchy applies only to the Court of Appeals.

The Sandiganbayan is a special court of the same level as the Court of Appeals and possessing all
the inherent powers of a court of justice, with functions of a trial court.

Thus, the Sandiganbayan is not a regular court but a special one. (Re: Problem of Delays in
Cases Before the Sandiganbayan, A.M. No. 00-8-05-SC, Nov. 28, 2001, En Banc [Pardo])

1he Const|tut|ona| Comm|ss|ons

81. Why does the Constitution prohibit the President from appointing in an acting or temporary capacity
the Chairman and Commissioners of the Constitutional Commissions? Explain.

Held: [A] temporary or acting appointee does not enjoy security of tenure, no matter how
briefly.

This is the kind of appointment that the Constitution prohibits the President from making to the
three independent constitutional commissions, including the COMELEC. Thus, in Brillantes v. Yorac, this
Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:

71

A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its validity,
the designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whatever reason she sees fit.
It is doubtful if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.

The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guarantee is not
available to the respondent as Acting Chairman of the Commission on Elections by designation of
the President of the Philippines.

Earlier, in Nacionalista Party v. Bautista, a case decided under the 1935 Constitution, which did
not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the
COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then: It would be more
in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent
Commissioner than to designate one to act temporarily. (Matibag v. Benipayo, 380 SCRA 49, April
2, 2002, En Banc [Carpio])

82. Is the constitutional power of the COA to examine and audit government banks and agencies
exclusive? Does it preclude a concurrent audit by a private external auditor?

Held: The resolution of the primordial issue of whether or not the COA has the sole and
exclusive power to examine and audit government banks involves an interpretation of Section 2, Article
IX-D of the 1987 Constitution. This Section provides as follows:

Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to
examine, audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned and held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations with original charters, x x x.

(2) The Commission shall have the exclusive authority, subject to the limitations in this
Article, to define the scope of its audit and examination, establish the techniques and methods
required therefore, and promulgate accounting and auditing rules and regulations, including
those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures, or uses of government funds and properties. (Emphasis supplied)

The COA vigorously asserts that under the first paragraph of Section 2, the COA enjoys the sole
and exclusive power to examine and audit all government agencies, including the DBP. The COA
contends this is similar to its sole and exclusive authority, under the same paragraph of the same section,
to define the scope of its audit, promulgate auditing rules and regulations, including rules on the
disallowance of unnecessary expenditures of government agencies. The bare language of Section 2,
however, shows that the COAs power under the first paragraph is not declared exclusive, while its
authority under the second paragraph is expressly declared exclusive. There is a significant reason for
this marked difference in language.

During the deliberations of the Constitutional Commission, Commissioner Serafin Guingona
proposed the addition of the word exclusive in the first paragraph of Section 2, thereby granting the
COA the sole and exclusive power to examine and audit all government agencies. However, the
Constitutional Commission rejected the addition of the word exclusive in the first paragraph of Section 2
and Guingona was forced to withdraw his proposal. X x x

X x x

In sharp contrast, the Constitutional Commission placed the word exclusive to qualify the
authority of the COA under the second paragraph of the same Section 2. This word exclusive did not
appear in the counterpart provisions of Section 2 in the 1935 and 1973 Constitutions. There is no dispute
that the COAs authority under the second paragraph of Section 2 is exclusive as the language of the
Constitution admits of no other meaning. Thus, the COA has the exclusive authority to decide on
disallowances of unnecessary government expenditures. Other government agencies and their officials,
as well as private auditors engaged by them, cannot in any way intrude into this exclusive function of the
COA.

72

The qualifying word exclusive in the second paragraph of Section 2 cannot be applied to the
first paragraph which is another sub-section of Section 2. A qualifying word is intended to refer only to
the phrase to which it is immediately associated, and not to a phrase distantly located in another
paragraph or sub-section. Thus, the first paragraph of Section 2 must be read the way it appears,
without the word exclusive, signifying that non-COA auditors can also examine and audit government
agencies. Besides, the framers of the Constitution intentionally omitted the word exclusive in the first
paragraph of Section 2 precisely to allow concurrent audit by private external auditors.

The clear and unmistakable conclusion from a reading of the entire Section 2 is that the COAs
power to examine and audit is non-exclusive. On the other hand, the COAs authority to define the scope
of its audit, promulgate auditing rules and regulations, and disallow unnecessary expenditures is
exclusive.

X x x

Manifestly, the express language of the Constitution, and the clear intent of its framers, point to
only one indubitable conclusion the COA does not have the exclusive power to examine and audit
government agencies. The framers of the Constitution were fully aware of the need to allow independent
private audit of certain government agencies in addition to the COA audit, as when there is a private
investment in a government-controlled corporation, or when a government corporation is privatized or
publicly listed, or as in the case at bar when the government borrows money from abroad.

In these instances the government enters the marketplace and competes with the rest of the
world in attracting investments or loans. To succeed, the government must abide with the reasonable
business practices of the marketplace. Otherwise no investor or creditor will do business with the
government, frustrating government efforts to attract investments or secure loans that may be critical to
stimulate moribund industries or resuscitate a badly shattered national economy as in the case at bar. By
design the Constitution is flexible enough to meet these exigencies. Any attempt to nullify this flexibility
in the instances mentioned, or in similar instances, will be ultra vires, in the absence of a statute limiting
or removing such flexibility.

The deliberations of the Constitutional Commission reveal eloquently the intent of Section 2,
Article IX-D of the Constitution. As this Court has ruled repeatedly, the intent of the law is the controlling
factor in the interpretation of the law. If a law needs interpretation, the most dominant influence is the
intent of the law. The intent of the law is that which is expressed in the words of the law, which should
be discovered within its four corners aided, if necessary, by its legislative history. In the case of Section
2, Article IX-D of the Constitution, the intent of the framers of the Constitution is evident from the bare
language of Section 2 itself. The deliberations of the Constitutional Commission confirm expressly and
even elucidate further this intent beyond any doubt whatsoever.

There is another constitutional barrier to the COAs insistence of exclusive power to examine and
audit all government agencies. The COAs claim clashes directly with the Central Banks constitutional
power of supervision over banks under Section 20, Article XII of the Constitution. X x x

Historically, the Central Bank has been conducting periodic and special examination and audit of
banks to determine the soundness of their operations and the safety of the deposits of the public.
Undeniably, the Central Banks power of supervision includes the power to examine and audit banks, as
the banking laws have always recognized this power of the Central Bank. Hence, the COAs power to
examine and audit government banks must be reconciled with the Central Banks power to supervise the
same banks. The inevitable conclusion is that the COA and the Central Bank have concurrent jurisdiction,
under the Constitution, to examine and audit government banks.

However, despite the Central Banks concurrent jurisdiction over government banks, the COAs
audit still prevails over that of the Central Bank since the COA is the constitutionally mandated auditor of
government banks. And in matters falling under the second paragraph of Section 2, Article IX-D of the
Constitution, the COAs jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allow or
disallow expenditures of government banks since this function belongs exclusively to the COA.
(Development Bank of the Philippines v. Commission on Audit, 373 SCRA 356, January 16,
2002, En Banc [Carpio])

83. Between the COAs findings and conclusions and that of private auditors, which should prevail?

Held: Moreover, as the constitutionally-mandated auditor of all government agencies, the COAs
findings and conclusions necessarily prevail over those of private auditors, at least insofar as government
agencies and officials are concerned. The superiority or preponderance of the COA audit over private
audit can be gleaned from the records of the Constitutional Commission x x x. The findings and

73

conclusions of the private auditor may guide private investors or creditors who require such private audit.
Government agencies and officials, however, remain bound by the findings and conclusions of the COA,
whether the matter falls under the first or second paragraph of Section 2, unless of course such findings
and conclusions are modified or reversed by the courts.

84. May the power of the COA to examine and audit government agencies be validly taken away from it?

Held: The power of the COA to examine and audit government agencies, while non-exclusive,
cannot be taken away from the COA. Section 3, Article IX-C of the Constitution mandates that:

Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary
in any guise whatsoever, or any investment of public funds, from the jurisdiction of the
Commission on Audit.

The mere fact that private auditors may audit government agencies does not divest the COA of its power
to examine and audit the same government agencies. (Development Bank of the Philippines v.
Commission on Audit, 373 SCRA 356, January 16, 2002, En Banc [Carpio])

QUESTIONS AND ANSWERS IN POLITICAL LAW AND PUBLIC INTERNATIONAL LAW
Prof. Edwin Rey Sandoval

61

However, despite the Central Banks concurrent jurisdiction over government banks, the COAs audit
still prevails over that of the Central Bank since the COA is the constitutionally mandated auditor of government
banks. And in matters falling under the second paragraph of Section 2, Article IX-D of the Constitution, the
COAs jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allow or disallow expenditures of
government banks since this function belongs exclusively to the COA. (Development Bank of the Philippines
v. Commission on Audit, 373 SCRA 356, January 16, 2002, En Banc [Carpio])

112. Between the COAs findings and conclusions and that of private auditors, which should prevail?

Held: Moreover, as the constitutionally-mandated auditor of all government agencies, the COAs
findings and conclusions necessarily prevail over those of private auditors, at least insofar as government
agencies and officials are concerned. The superiority or preponderance of the COA audit over private audit can
be gleaned from the records of the Constitutional Commission x x x. The findings and conclusions of the private
auditor may guide private investors or creditors who require such private audit. Government agencies and
officials, however, remain bound by the findings and conclusions of the COA, whether the matter falls under the
first or second paragraph of Section 2, unless of course such findings and conclusions are modified or reversed
by the courts.

113. May the power of the COA to examine and audit government agencies be validly taken away from it?

Held: The power of the COA to examine and audit government agencies, while non-exclusive, cannot
be taken away from the COA. Section 3, Article IX-C of the Constitution mandates that:

Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any
guise whatsoever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

The mere fact that private auditors may audit government agencies does not divest the COA of its power to
examine and audit the same government agencies. (Development Bank of the Philippines v. Commission
on Audit, 373 SCRA 356, January 16, 2002, En Banc [Carpio])

B. CONSTITUTIONAL LAW

114. What is the effect of declaration of unconstitutionality of a law? Illustrative case.

Held: Respondents are seeking a reconsideration of the Courts 25 January 2000 decision, wherein we
declared Section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally mandated
right to security of tenure. As a consequence of our ruling, we held that petitioners removal as commissioners
of the National Police Commission (NAPOLCOM) and the appointment of new Commissioners in their stead
were nullities and ordered the reinstatement of petitioners and the payment of full backwages to be computed
from the date they were removed from office.

X x x

An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no protection.
Therefore, the unavoidable consequence of the Courts declaration that Section 8 of RA 8551 violates the
fundamental law is that all acts done pursuant to such provision shall be null and void, including the removal of
petitioners and Adiong from their positions in the NAPOLCOM and the appointment of new commissioners in
their stead. When a regular government employee is illegally dismissed, his position does not become vacant
and the new appointment made in order to replace him is null and void ab initio. Rudimentary is the precept that
there can be no valid appointment to a non-vacant position. Accordingly, Adiongs appointment on 11 March
1998 for a term of two years, pursuant to Section 8 of RA 8551, is null and void. X x x. Therefore, based on our
foregoing disquisition, there should no longer be any doubt as to the proper execution of our 25 January 2000
decision all the Commissioners appointed under RA 8551 should be removed from office, in order to give way
to the reinstatement of petitioners and respondent Adiong. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15,
2001, En Banc [Gonzaga-Reyes])

THE INHERENT POWERS OF THE STATE

Police Power

115. Define Police Power and clarify its scope.

Held: 1. Police power is an inherent attribute of sovereignty. It has been defined as the power vested
by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is
plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety,
public morals, and the general welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be
exercised by any group or body of individuals not possessing legislative power. The National Legislature,
however, may delegate this power to the President and administrative boards as well as the lawmaking bodies

62
of municipal corporations or local government units. Once delegated, the agents can exercise only such
legislative powers as are conferred on them by the national lawmaking body. (Metropolitan Manila
Development Authority v. Bel-Air Village Association, Inc., 328 SCRA 836, 843-844, March 27, 2000, 1
st

Div. [Puno])

2. Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote
the health, morals, peace, education, good order or safety and general welfare of the people (Binay v. Domingo,
201 SCRA 508). The State, through the legislature, has delegated the exercise of police power to local
government units, as agencies of the State, in order to effectively accomplish and carry out the declared objects
of their creation (Tatel v. Muncipality of Virac, 207 SCRA 157). This delegation of police power is embodies in
the general welfare clause of the Local Government Code x x x.

The scope of police power has been held to be so comprehensive as to encompass almost all matters
affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is
essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a
regulatory and not revenue-raising purpose, is within the ambit of this power (Procter and Gamble Phils. v. The
Muncicipality of Jagna, 94 SCRA 894). (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA
314, 325-326, March 31, 2000, En Banc [Purisima])

116. How should laws that grant the right to exercise a part of the police power of the State be construed?

Held: Lest the idea gets lost in the shoals of our subconsciousness, let us not forget that PAGCOR is
engaged in business affected with public interest. The phrase affected with public interest means that an
industry is subject to control for the public good; it has been considered as the equivalent of subject to the
exercise of the police power. Perforce, a legislative franchise to operate jai-alai is imbued with public interest
and involves an exercise of police power. The familiar rule is that laws which grant the right to exercise a part of
the police power of the state are to be construed strictly and any doubt must be resolved against the grant. The
legislature is regarded as the guardian of society, and therefore is not presumed to disable itself or abandon the
discharge of its duty. Thus, courts do not assume that the legislature intended to part away with its power to
regulate public morals. The presumption is influenced by constitutional considerations. Constitutions are widely
understood to withhold from legislatures any authority to bargain away their police power for the power to
protect the public interest is beyond abnegation.

It is stressed that the case at bar does not involve a franchise to operate a public utility (such as water,
transportation, communication or electricity) the operation of which undoubtedly redounds to the benefit of the
general public. What is claimed is an alleged legislative grant of a gambling franchise a franchise to operate
jai-alai. A statute which legalizes a gambling activity or business should be strictly construed and every
reasonable doubt must be resolved to limit the powers and rights claimed under its authority. (Del Mar v.
PAGCOR, 346 SCRA 485, Nov. 29, 2000, En Banc [Puno])

117. Discuss why rates to be charged by public utilities like MERALCO are subject to State regulation.

Held: The regulation of rates to be charged by public utilities is founded upon the police power of the
State and statutes prescribing rules for the control and regulations of public utilities are a valid exercise thereof.
When private property is used for a public purpose and is affected with public interest, it ceases to be juris
privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to
regulation may be withdrawn by the owner by discontinuing use; but as long as the use of the property is
continued, the same is subject to public regulation.

In regulating rates charged by public utilities, the State protects the public against arbitrary and
excessive rates while maintaining the efficiency and quality of services rendered. However, the power to
regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility
of a reasonable return on investment. Thus, the rates prescribed by the State must be one that yields a fair
return on the public utility upon the value of the property performing the service and one that is
reasonable to the public for the service rendered. The fixing of just and reasonable rates involves a
balancing of the investor and the consumer interests. (Republic of the Philippines v. Manila Electric
Company, G.R. No. 141314, Nov. 15, 2002, 3
rd
Div. [Puno])

118. Discuss the nature of the authority of local government units to issue or grant licenses or permits.

Held: [T]he issuance of business licenses and permits by a municipality or city is essentially regulatory
in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits,
is essentially in the exercise of the police power of the State within the contemplation of the general welfare
clause of the Local Government Code. (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA
314, 335, March 31, 2000, En Banc [Purisima])

119. Does Article 263(g) of the Labor Code (vesting upon the Secretary of Labor the discretion to determine
what industries are indispensable to the national interest and thereafter, assume jurisdiction over disputes in
said industries) violate the workers constitutional right to strike?

Held: Said article does not interfere with the workers right to strike but merely regulates it, when in the
exercise of such right, national interests will be affected. The rights granted by the Constitution are not
absolute. They are still subject to control and limitation to ensure that they are not exercised arbitrarily. The
interests of both the employers and the employees are intended to be protected and not one of them is given
undue preference.

63

The Labor Code vests upon the Secretary of Labor the discretion to determine what industries are
indispensable to national interest. Thus, upon the determination of the Secretary of Labor that such industry is
indispensable to the national interest, it will assume jurisdiction over the labor dispute of said industry. The
assumption of jurisdiction is in the nature of police power measure. This is done for the promotion of the
common good considering that a prolonged strike or lockout can be inimical to the national economy. The
Secretary of Labor acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not
intended to impede the workers right to strike but to obtain a speedy settlement of the dispute. (Philtread
Workers Union [PTWU] v. Confesor, 269 SCRA 393, March 12, 1997)

120. May solicitation for religious purposes be subject to proper regulation by the State in the exercise of
police power?

Held: Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order
that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent
solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State
is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace,
comfort, or convenience.

It does not follow, therefore, from the constitutional guarantees of the free exercise of religion that
everything which may be so called can be tolerated. It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely
because it also incidentally has a detrimental effect on the adherents of one or more religion. Thus, the general
regulation, in the public interest, of solicitation, which does not involve any religious test and does not
unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though
the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on
the free exercise of religion or interpose an inadmissible obstacle to its exercise.

Even with numerous regulative laws in existence, it is surprising how many operations are carried on by
persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in
cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and
practices are to people who manipulate them. The State has authority under the exercise of its police power to
determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy
causes or for fraudulent purposes. That solicitation of contributions under the guise of charitable and
benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of
contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the
power to determine within reasonable limits the worthy from the unworthy. The objectionable practices of
unscrupulous persons are prejudicial to worthy and proper charities which naturally suffer when the confidence
of the public in campaigns for the raising of money for charity is lessened or destroyed. Some regulation of
public solicitation is, therefore, in the public interest.

To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the
exercise of police power. (Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado])

121. Does a corporation or individual not himself licensed, have a right to hire and employ licensed
optometrists? Will the employment of a qualified optometrist by a corporation go against public policy?

Held: From the foregoing, it is thus evident that Congress has not adopted a unanimous position on the
matter of prohibition of indirect practice of optometry by corporations, specifically on the hiring and employment
of licensed optometrists by optical corporations. It is clear that Congress left the resolution of such issue for
judicial determination, and it is therefore proper for this Court to resolve the issue.

Even in the United States, jurisprudence varies and there is a conflict of opinions among the federal
courts as to the right of a corporation or individual not himself licensed, to hire and employ licensed optometrists
(128 ALR 586).

Courts have distinguished between optometry as a learned profession in the category of law and
medicine, and optometry as a mechanical art. And, insofar as the courts regartd optometry as merely a
mechanical art, they have tended to find nothing objectionable in the making and selling of eyeglasses,
spectacles and lenses by corporations so long as the patient is actually examined and prescribed for by
qualified practitioners (House of $8.50 Eyeglasses, Inc. v. State Board of Optometry, 288 Ala 349, 261 So 2d
27; State ex. Rel. Board of Optometry v. Sears Roebuck and Co., 102 Ariz 175, 427 Pd 126).

The primary purpose of the statute regulating the practice of optometry is to insure that optometrical
services are to be rendered by competent and licensed persons in order to protect the health and physical
welfare of the people from the dangers engendered by unlicensed practice. Such purpose may be fully
accomplished although the person rendering the service is employed by a corporation (Silver v. Lansburgh and
Brother, 72 App DC 77, 11 F2d 518, 128 ALR 582; 61 Am Jur 2d 289).

Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against
public policy (Georgia State Examiners v. Friedmans Jewelers, 183 Ga 669, 189 SE 238). Unless prohibited by
statutes, a corporation has all the contractual rights that an individual has (State ex rel. McKittrick v. Gate City
Optical Co., 339 Mo 427, 97 SW 2d 89) and it does not become the practice of medicine or optometry because
of the presence of a physician or optometrist (Dickson v. Flynn, 246 App Div 341, 286 NYS 225). The
manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do not

64
constitute the practice of optometry (State ex rel. Brother v. Beck Jewelry Enterprises, Inc. 220 Ind. 276, 41 NE
2d 622, 141 ALR 876 [61 Am Jur 187]; Kindy Opticians, Inc. v. State Board of Examiners in Optometry, 1939,
291 Mich 152, 289 NW 112, 113; New Jersey State Bd. Of Optometrists v. S.S. Kresge Co., 113 NJL 287, 174
A 353).

X x x

To accomplish the objective of the regulation, a state may provide by statute that corporations cannot
sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in
charge of, and in personal attendance at the place where such articles are sold (Roschen v. Ward, 279 US 337,
73 L Ed 722, 49 S Ct 336). In such a case, the patients primary and essential safeguard lies in the
optometrists control of the treatment by means of prescription and preliminary and final examination (Small
and Maine Board of Registration and Examination in Optometry, 293 A 2d 786).

In analogy, it is noteworthy that private hospitals are maintained by corporations incorporated for the
purpose of furnishing medical and surgical treatment. In the course of providing such treatments, these
corporations employ physicians, surgeons and medical practitioners, in the same way that in the course of
manufacturing and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to
examine, prescribe and dispense ophthalmic lenses. No one has ever charged that these corporations are
engaged in the practice of medicine. There is indeed no valid basis for treating corporations engaged in the
business of running optical shops differently. (Acebedo Optical Company, Inc. v. Court of Appeals, 329
SCRA 314, 331-333, March 31, 2000, En Banc [Purisima])

122. What powers of the State are involved in the implementation of the Comprehensive Agrarian Reform
Law (CARL)? Discuss.

Held: The implementation of the CARL is an exercise of the States police power and the power of
eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise
of police power for the regulation of private property in accordance with the Constitution. But where, to carry out
such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is
also a taking under the power of eminent domain. The taking contemplated is not a mere limitation of the use of
the land. What is required is the surrender of the title to and physical possession of the said excess and all
beneficial rights accruing to the owner in favor of the farmer beneficiary. The Bill of Rights provides that [n]o
person shall be deprived of life, liberty or property without due process of law. The CARL was not intended to
take away property without due process of law. The exercise of the power of eminent domain requires that due
process be observed in the taking of private property. (Roxas & Co., Inc. v. Court of Appeals, 321 SCRA 106,
Dec. 17, 1999, En Banc [Puno])

The Power of Eminent Domain

123. What is Eminent Domain?

Held: 1. Eminent domain is the right or power of a sovereign state to appropriate private property to
particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power grounded in
the primary duty of government to serve the common need and advance the general welfare. Thus, the right of
eminent domain appertains to every independent government without the necessity for constitutional
recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property
for the public use do not by implication grant the power to the government, but limit a power which would
otherwise be without limit. Thus, our own Constitution provides that [p]rivate property shall not be taken for
public use without just compensation. Furthermore, the due process and equal protection clauses act as
additional safeguards against the arbitrary exercise of this governmental power.

Since the exercise of the power of eminent domain affects an individuals right to private property, a
constitutionally-protected right necessary for the preservation and enhancement of personal dignity and
intimately connected with the rights to life and liberty, the need for its circumspect operation cannot be
overemphasized. In City of Manila v. Chinese Community of Manila we said:

The exercise of the right of eminent domain, whether directly by the State, or by its authorized
agents, is necessarily in derogation of private rights, and the rule in that case is that the authority must
be strictly construed. No species of property is held by individuals with greater tenacity, and none is
guarded by the Constitution and the laws more sedulously, than the right to the freehold of inhabitants.
When the legislature interferes with that right, and, for greater public purposes, appropriates the land of
ah individual without his consent, the plain meaning of the law should not be enlarged by doubt[ful]
interpretation. (Bensley v. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576])

The statutory power of taking property from the owner without his consent is one of the most delicate
exercise of governmental authority. It is to be watched with jealous scrutiny. Important as the power may be to
the government, the inviolable sanctity which all free constitutions attach to the right of property of the citizens,
constrains the strict observance of the substantial provisions of the law which are prescribed as modes of the
exercise of the power, and to protect it from abuse x x x.

The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that such
power may be validly delegated to local government units, other public entities and public utilities, although the
scope of this delegated legislative power is necessarily narrower than that of the delegating authority and may

65
only be exercised in strict compliance with the terms of the delegating law. (Heirs of Alberto Suguitan v. City
of Mandaluyong, 328 SCRA 137, 144-146, March 14, 2000, 3
rd

2. Eminent domain is a fundamental State power that is inseparable from sovereignty. It is
governments right to appropriate, in the nature of a compulsory sale to the State, private property for public use
or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly
delegated to local governments, other public entities and public utilities. For the taking of private property by the
government to be valid, the taking must be for public purpose and there must be just compensation. (Moday v.
Court of Appeals, 268 SCRA 586, February 20, 1997)

124. Discuss the nature of the right of eminent domain and the limitations thereof.

Held: The right of eminent domain is usually understood to be an ultimate right of the sovereign power
to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the
independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as
being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In
the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power
itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case
so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation
vesting upon the sovereign the right to resume the possession of the property whenever the public interest so
requires it.

The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings.
Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not
required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect
merely serves notice that it is taking title and possession of the property, and the defendant asserts title or
interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking.

Obviously, however, the power is not without its limits: first, the taking must be for public use, and
second, that just compensation must be given to the private owner of the property. These twin proscriptions
have their origin in the recognition of the necessity for achieving balance between the State interests, on the one
hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the
latter. In determining public use, two approaches are utilized the first is public employment or the actual use
by the public, and the second is public advantage or benefit. It is also useful to view the matter as being subject
to constant growth, which is to say that as society advances, its demands upon the individual so increases, and
each demand is a new use to which the resources of the individual may be devoted. (Republic of the
Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

125. State some limitations on the exercise of the power of Eminent Domain.

Held: The limitations on the power of eminent domain are that the use must be public, compensation
must be made and due process of law must be observed. The Supreme Court, taking cognizance of such
issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of
the taking, has ruled that the necessity of exercising eminent domain must be genuine and of a public character.
Government may not capriciously choose what private property should be taken. (Moday v. Court of Appeals,
268 SCRA 586, February 20, 1997)

126. Discuss the expanded notion of public use in eminent domain proceedings.

Held: The City of Manila, acting through its legislative branch, has the express power to acquire private
lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants thereof, and
to laborers and low-salaried employees of the city.

That only a few could actually benefit from the expropriation of the property does not diminish its public
character. It is simply not possible to provide all at once land and shelter for all who need them.

Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of
land and landed estates. It is therefore of no moment that the land sought to be expropriated in this case is less
than half a hectare only.

Through the years, the public use requirement in eminent domain has evolved into a flexible concept,
influenced by changing conditions. Public use now includes the broader notion of indirect public benefit or
advantage, including in particular, urban land reform and housing. (Filstream International Incorporated v.
CA, 284 SCRA 716, Jan. 23, 1998 [Francisco])

127. What is the meaning of public use in eminent domain proceedings? Illustrative case.

Held: This Court holds that respondent (Philippine Export Processing Zone) has the legal authority to
expropriate the subject Lot 1406-B and that the same was for a valid public purpose. In Sumulong v. Guerrero,
this Court has ruled that,

The public use requirement for a valid exercise of the power of eminent domain is a flexible
and evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial
trend has been summarized as follows:


66
This Court has ruled that the taking to be valid must be for public use. There was a
time when it was felt that a literal meaning should be attached to such a requirement. Whatever
project is undertaken must be for the public to enjoy, as in the case of streets or parks.
Otherwise, expropriation is not allowable. It is not anymore. As long as the purpose of the
taking is public, then the power of eminent domain comes into play . . . It is accurate to state
then that at present whatever may be beneficially employed for the general welfare satisfies the
requirement of public use. (Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 [1983] at 234-
235 quoting E. Fernando, the Constitution of the Philippines 523-4 [2
nd
Ed. 1977])

The term public use has acquired a more comprehensive coverage. To the literal import of the
term signifying strict use or employment by the public has been added the broader notion of indirect
public benefit or advantage.

In Manosca v. Court of Appeals, this Court has also held that what ultimately emerged is a concept of
public use which is just as broad as public welfare.

Respondent PEZA expropriated the subject parcel of land pursuant to Proclamation No. 1980 x x x
issued by former President Ferdinand Marcos. Meanwhile, the power of eminent domain of respondent is
contained in its original charter, Presidential Decree No. 66 x x x.

Accordingly, subject Lot 1406-B was expropriated for the construction . . . of terminal facilities,
structures and approaches thereto. The authority is broad enough to give the respondent substantial leeway in
deciding for what public use the expropriated property would be utilized. Pursuant to this broad authority,
respondent leased a portion of the lot to commercial banks while the rest was made a transportation terminal.
Said public purposes were even reaffirmed by Republic Act No. 7916, a law amending respondent PEZAs
original charter x x x.

In Manila Railroad Co. v. Mitchel, this Court has ruled that in the exercise of eminent domain, only as
much land can be taken as is necessary for the legitimate purpose of the condemnation. The term necessary,
in this connection, does not mean absolutely indispensable but requires only a reasonable necessity of the
taking for the stated purpose, growth and future needs of the enterprise. The respondent cannot attain a self-
sustaining and viable ECOZONE if inevitable needs in the expansion in the surrounding areas are hampered by
the mere refusal of the private landowners to part with their properties. The purpose of creating an ECOZONE
and other facilities is better served if respondent directly owns the areas subject of the expansion program.

X x x The expropriation of Lot 1406-B for the purpose of being leased to banks and for the construction
of a terminal has the purpose of making banking and transportation facilities easily accessible to the persons
working at the industries located in PEZA. The expropriation of adjacent areas therefore comes as a matter of
necessity to bring life to the purpose of the law. In such a manner, PEZAs goal of being a major force in the
economic development of the country would be realized. Furthermore, this Court has already ruled that:

X x x [T]he Legislature may directly determine the necessity for appropriating private property
for a particular improvement for public use, and it may select the exact location of the improvement. In
such a case, it is well-settled that the utility of the proposed improvement, the existence of the public
necessity for its construction, the expediency of constructing it, the suitableness of the location selected,
are all questions exclusively for the legislature to determine, and the courts have no power to interfere
or to substitute their own views for those of the representatives of the people.

In the absence of some constitutional or statutory provisions to the contrary, the necessity and
expediency of exercising the right of eminent domain are questions essentially political and not judicial
in their character. (City of Manila v. Chinese Community of Manila, 40 Phil. 349 [1919])

Inasmuch as both Presidential Decree No. 66 and Republic Act No. 7916, bestow respondent with authority to
develop terminal facilities and banking centers, this Court will not question the respondents lease of certain
portions of the expropriated lot to banks, as well as the construction of terminal facilities.

Petitioner contends that respondent is bound by the representations of its Chief Civil Engineer when the
latter testified before the trial court that the lot was to be devoted for the construction of government offices.
Anent this issue, suffice it to say that PEZA can vary the purpose for which a condemned lot will be devoted to,
provided that the same is for public use. Petitioner cannot impose or dictate on the respondent what facilities to
establish for as long as the same are for public purpose. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240,
Jan. 16, 2001, 2
nd
Div. [De Leon])

128. Discuss the meaning of just compensation in eminent domain proceedings. Does it include the
payment of interest and, if so, how is it to be computed?

Held: 1. The constitutional limitation of just compensation is considered to be the sum equivalent to
the market value of the property, broadly described to be the price fixed by the seller in open market in the usual
and ordinary course of legal action and competition or the fair value of the property as between one who
receives, and one who desires to sell it, fixed at the time of the actual taking by the government. Thus, if
property is taken for public use before compensation is deposited with the court having jurisdiction over the
case, the final compensation must include interests on its just value to be computed from the time the property
is taken to the time when compensation is actually paid or deposited with the court. In fine, between the taking
of the property and the actual payment, legal interests accrue in order to place the owner in a position as good
as (but not better than) the position he was in before the taking occurred. (Republic of the Philippines v. The
Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

67

2. We have ruled that the concept of just compensation embraces not only the correct determination of
the amount to be paid to the owners of the land, but also the payment of the land within a reasonable time from
its taking. Without prompt payment, compensation cannot be considered just inasmuch as the property owner
is made to suffer the consequences of being immediately deprived of his land while being made to wait for a
decade or more before actually receiving the amount necessary to cope with his loss. Payment of just
compensation should follow as a matter of right immediately after the order of expropriation is issued. Any delay
in payment must be counted from said order. However, the delay to constitute a violation of due process must
be unreasonable and inexcusable; it must be deliberately done by a party in order to defeat the ends of justice.
(Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2
nd
Div. [De Leon])

129. The constitutionality of Sec. 92 of B.P. Blg. 881 (requiring radio and television station owners and
operators to give to the Comelec radio and television time free of charge) was challenged on the ground,
among others, that it violated the due process clause and the eminent domain provision of the Constitution
by taking airtime from radio and television broadcasting stations without payment of just compensation.
Petitioners claim that the primary source of revenue of radio and television stations is the sale of airtime to
advertisers and that to require these stations to provide free airtime is to authorize a taking which is not a
de minimis temporary limitation or restraint upon the use of private property. Will you sustain the
challenge?

Held: All broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are
frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress
in accordance with the constitutional provision that any such franchise or right granted x x x shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires. (Art. XII, Sec. 11)

Indeed, provisions for Comelec Time have been made by amendment of the franchises of radio and
television broadcast stations and such provisions have not been thought of as taking property without just
compensation. Art. XII, Sec. 11 of the Constitution authorizes the amendment of franchises for the common
good. What better measure can be conceived for the common good than one for free airtime for the benefit not
only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the
issues in an election? [I]t is the right of the viewers and listeners, not the right of the broadcasters, which is
paramount.

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free
airtime. Even in the United States, there are responsible scholars who believe that government controls on
broadcast media can constitutionally be instituted to ensure diversity of views and attention to public affairs to
further the system of free expression. For this purpose, broadcast stations may be required to give free airtime
to candidates in an election.

In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are merely given
the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of public service.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the State spends considerable public funds in licensing and supervising such stations. It
would be strange if it cannot even require the licensees to render public service by giving free airtime.

The claim that petitioner would be losing P52,380,000.00 in unrealized revenue from advertising is
based on the assumption that airtime is finished product which, it is said, become the property of the company,
like oil produced from refining or similar natural resources after undergoing a process for their production. As
held in Red Lion Broadcasting Co. v. F.C.C., which upheld the right of a party personally attacked to reply,
licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of
using them. Consequently, a license permits broadcasting, but the licensee has no constitutional right to be
the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is
nothing in the First Amendment which prevents the government from requiring a licensee to share his frequency
with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by necessity, be barred from the
airwaves. As radio and television broadcast stations do not own the airwaves, no private property is taken by
the requirement that they provide airtime to the Comelec. (TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April
21, 1998 [Mendoza])

130. May eminent domain be barred by "res judicata" or "law of the case"?

Held: The principle of res judicata, which finds application in generally all cases and proceedings,
cannot bar the right of the State or its agents to expropriate private property. The very nature of eminent
domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and
unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police
power, can reach every form of property which the State might need for public use. All separate interests of
individuals in property are held of the government under this tacit agreement or implied reservation.
Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property,
remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the
right to resume the possession of the property whenever the public interest requires it. Thus, the State or its
authorized agent cannot be forever barred from exercising said right by reason alone of previous non-
compliance with any legal requirement.

68

While the principle of res judicata does not denigrate the right of the State to exercise eminent domain,
it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an
expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it
cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by
law, and subsequently exercising its power of eminent domain over the same property. (Municipality of
Paranaque v. V.M. Realty Corporation, 292 SCRA 678, July 20, 1998 [Panganiban])

131. Discuss how expropriation may be initiated, and the two stages in expropriation.

Held: Expropriation may be initiated by court action or by legislation. In both instances, just
compensation is determined by the courts.

The expropriation of lands consists of two stages. As explained in Municipality of Binan v. Garcia,
reiterated in National Power Corp. v. Jocson:

The first is concerned with the determination of the authority of the plaintiff to exercise the
power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit.
It ends with an order, if not dismissal of the action, "of condemnation declaring that the plaintiff has a
lawful right to take the property sought to be condemned, for the public use or purpose declared in the
complaint, upon the payment of just compensation to be determined as of the date of the filing of the
complaint" x x x.

The second phase of the eminent domain action is concerned with the determination by the
court of the just compensation for the property sought to be taken. This is done by the court with the
assistance of not more than three (3) commissioners x x x.

It is only upon the completion of these two stages that expropriation is said to have been completed.
(Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2
nd
Div. [Mendoza])

132. May the owner of the property expropriated still dispose of that property before the payment of just
compensation? When does title over the property expropriated pass to the expropriator?

Held: 1. [I]t is only upon payment of just compensation that title over the property passes to the
government. Therefore, until the action for expropriation has been completed and terminated, ownership over
the property being expropriated remains with the registered owner. Consequently, the latter can exercise all
rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State
ultimately to acquire it through expropriation. (Republic v. Salem Investment Corporation, et. al., G.R. No.
137569, June 23, 2000, 2
nd
Div. [Mendoza])

2. The De la Ramas make much of the fact that ownership of the land was transferred to the
government because the equitable and the beneficial title was already acquired by it in 1983, leaving them with
only the naked title. However, as this Court held in Association of Small Landowners in the Phil., Inc. v.
Secretary of Agrarian Reform:

The recognized rule, indeed, is that title to the property expropriated shall pass from the owner
to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled
principle is consistent both here and in other democratic jurisdictions. X x x
(Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2
nd
Div. [Mendoza])

133. Do the two (2) stages in expropriation apply only to judicial, and not to legislative, expropriation?

Held: We see no point in distinguishing between judicial and legislative expropriation as far as the two
stages mentioned above are concerned. Both involve these stages and in both the process is not completed
until payment of just compensation is made. (Republic v. Salem Investment Corporation, et. al., G.R. No.
137569, June 23, 2000, 2
nd
Div. [Mendoza])

134. Is prior unsuccessful negotiation a condition precedent for the exercise of eminent domain?

Held: Citing Iron and Steel Authority v. Court of Appeals, petitioner insists that before eminent domain
may be exercised by the state, there must be a showing of prior unsuccessful negotiation with the owner of the
property to be expropriated.

This contention is not correct. As pointed out by the Solicitor General the current effective law on
delegated authority to exercise the power of eminent domain is found in Section 12, Book III of the Revised
Administrative Code, which provides:

SEC. 12. Power of Eminent Domain The President shall determine when it is necessary or
advantageous to exercise the power of eminent domain in behalf of the National Government, and
direct the Solicitor General, whenever he deems the action advisable, to institute expropriation
proceedings in the proper court.

The foregoing provision does not require prior unsuccessful negotiation as a condition precedent for the
exercise of eminent domain. In Iron and Steel Authority v. Court of Appeals, the President chose to prescribe
this condition as an additional requirement instead. In the instant case, however, no such voluntary restriction

69
was imposed. (SMI Development Corporation v. Republic, 323 SCRA 862, Jan. 28, 2000, 3
rd
Div.
[Panganiban])

135. When may the property owner be entitled to the return of the expropriated property in eminent domain
cases?

Held: 1. In insisting on the return of the expropriated property, respondents would exhort on the
pronouncement in Provincial Government of Sorsogon v. Vda. De Villaroya where the unpaid landowners were
allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the
case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but
merely delegated and of limited application. The grant of the power of eminent domain to local governments
under Republic Act No. 7160 cannot be understood as being the pervasive and all-encompassing power vested
in the legislative branch of government. For local governments to be able to wield the power, it must, by
enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent
domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as
the real authority would want it to be.

Thus, in Valdehueza v. Republic where the private landowners had remained unpaid ten years after the
termination of the expropriation proceedings, this Court ruled

The points in dispute are whether such payment can still be made and, if so, in what amount.
Said lots have been the subject of expropriation proceedings. By final and executory judgment in said
proceedings, they were condemned for public use, as part of an airport, and ordered sold to the
government. x x x It follows that both by virtue of the judgment, long final, in the expropriation suit, as
well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of
their expropriated lots which are still devoted to the public use for which they were expropriated but
only to demand the fair market value of the same.

Said relief may be granted under plaintiffs prayer for: such other remedies, which may be
deemed just and equitable under the premises.

The Court proceeded to reiterate its pronouncement in Alfonso v. Pasay City where the recovery of possession
of property taken for public use prayed for by the unpaid landowner was denied even while no requisite
expropriation proceedings were first instituted. The landowner was merely given the relief of recovering
compensation for his property computed at its market value at the time it was taken and appropriated by the
State.

The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only
for the payment of just compensation to herein respondents but likewise adjudges the property condemned in
favor of petitioner over which parties, as well as their privies, are bound. Petitioner has occupied, utilized and,
for all intents and purposes, exercised dominion over the property pursuant to the judgment. The exercise of
such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction
of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In
arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of
the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission
might perhaps apply. An in rem proceeding, condemnation acts upon the property. After condemnation, the
paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a
disputed title, condemnation proceedings provide a judicial process for securing better title against all the world
than may be obtained by voluntary conveyance. (Republic of the Philippines v. The Hon. Court of Appeals,
G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

2. Though the respondent has committed a misdeed to petitioner, we cannot, however, grant the
petitioners prayer for the return of the expropriated Lot No. 1406-B. The Order of expropriation dated July 11,
1991, has long become final and executory. Petitioner cited Provincial Government of Sorsogon v. Rosa E.
Vda. De Villaroya to support its contention that it is entitled to a return of the lot where this Court ruled that
under ordinary circumstances, immediate return to the owners of the unpaid property is the obvious remedy.
However, the said statement was not the ruling in that case. As in other cases where there was no prompt
payment by the government, this Court declared in Sorsogon that the Provincial Government of Sorsogon is
expected to immediately pay as directed. Should any further delay be encountered, the trial court is directed to
seize any patrimonial property or cash savings of the province in the amount necessary to implement this
decision. However, this Court also stressed and declared in that case that in cases where land is taken for
public use, public interest, however, must be considered. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240,
Jan. 16, 2001, 2
nd
Div. [De Leon])

The Power of Taxation

136. Can taxes be subject to off-setting or compensation?

Held: Taxes cannot be subject to compensation for the simple reason that the government and the
taxpayer are not creditors and debtors of each other. There is a material distinction between a tax and debt.
Debts are due to the Government in its corporate capacity, while taxes are due to the Government in its
sovereign capacity. It must be noted that a distinguishing feature of a tax is that it is compulsory rather than a
matter of bargain. Hence, a tax does not depend upon the consent of the taxpayer. If any taxpayer can defer
the payment of taxes by raising the defense that it still has a pending claim for refund or credit, this would
adversely affect the government revenue system. A taxpayer cannot refuse to pay his taxes when they fall due

70
simply because he has a claim against the government or that the collection of a tax is contingent on the result
of the lawsuit it filed against the government. (Philex Mining Corporation v. Commissioner of Internal
Revenue, 294 SCRA 687, Aug. 28, 1998 [Romero])

137. Under Article VI, Section 28, paragraph 3 of the 1987 Constitution, "[C]haritable institutions, churches
and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings,
and improvements, actually, directly and exclusively used for religious, charitable or educational purposes
shall be exempt from taxation." YMCA claims that the income earned by its building leased to private
entities and that of its parking space is likewise covered by said exemption. Resolve.

Held: The debates, interpellations and expressions of opinion of the framers of the Constitution reveal
their intent that which, in turn, may have guided the people in ratifying the Charter. Such intent must be
effectuated.

Accordingly, Justice Hilario G. Davide, Jr., a former constitutional commissioner, who is now a member
of this Court, stressed during the Concom debates that "x x x what is exempted is not the institution itself x x x;
those exempted from real estate taxes are lands, buildings and improvements actually, directly and exclusively
used for religious, charitable or educational purposes. Father Joaquin G. Bernas, an eminent authority on the
Constitution and also a member of the Concom, adhered to the same view that the exemption created by said
provision pertained only to property taxes.

In his treatise on taxation, Mr. Justice Jose C. Vitug concurs, stating that "[t]he tax exemption covers
property taxes only." (Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

138. Under Article XIV, Section 4, paragraph 3 of the 1987 Constitution, "[A]ll revenues and assets of non-
stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes
shall be exempt from taxes and duties." YMCA alleged that it "is a non-profit educational institution whose
revenues and assets are used actually, directly and exclusively for educational purposes so it is exempt
from taxes on its properties and income."

Held: We reiterate that private respondent is exempt from the payment of property tax, but not income
tax on the rentals from its property. The bare allegation alone that it is a non-stock, non-profit educational
institution is insufficient to justify its exemption from the payment of income tax.

[L]aws allowing tax exemption are construed strictissimi juris. Hence, for the YMCA to be granted the
exemption it claims under the abovecited provision, it must prove with substantial evidence that (1) it falls under
the classification non-stock, non-profit educational institution; and (2) the income it seeks to be exempted from
taxation is used actually, directly, and exclusively for educational purposes. However, the Court notes that not a
scintilla of evidence was submitted by private respondent to prove that it met the said requisites.
(Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

139. Is the YMCA an educational institution within the purview of Article XIV, Section 4, par. 3 of the
Constitution?

Held: We rule that it is not. The term educational institution or institution of learning has acquired a
well-known technical meaning, of which the members of the Constitutional Commission are deemed cognizant.
Under the Education Act of 1982, such term refers to schools. The school system is synonymous with formal
education, which refers to the hierarchically structured and chronologically graded learnings organized and
provided by the formal school system and for which certification is required in order for the learner to progress
through the grades or move to the higher levels. The Court has examined the Amended Articles of
Incorporation and By-Laws of the YMCA, but found nothing in them that even hints that it is a school or an
educational institution.

Furthermore, under the Education Act of 1982, even non-formal education is understood to be school-
based and private auspices such as foundations and civic-spirited organizations are ruled out. It is settled that
the term educational institution, when used in laws granting tax exemptions, refers to a x x x school seminary,
college or educational establishment x x x. (84 CJS 566) Therefore, the private respondent cannot be deemed
one of the educational institutions covered by the constitutional provision under consideration. (Commissioner
of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

140. May the PCGG validly commit to exempt from all forms of taxes the properties to be retained by the
Marcos heirs in a Compromise Agreement between the former and the latter?

Held: The power to tax and to grant exemptions is vested in the Congress and, to a certain extent, in
the local legislative bodies. Section 28(4), Article VI of the Constitution, specifically provides: No law granting
any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress.
The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to
compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their
properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any
special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate
the constitutional rule that taxation shall be uniform and equitable. (Chavez v. PCGG, 299 SCRA 744, Dec. 9,
1998 [Panganiban])


71
141. Discuss the purpose of tax treaties?

Held: The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has
entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile
the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation
in two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination
of international juridical double taxation x x x. (Commissioner of Internal Revenue v. S.C. Johnson and Son,
Inc., 309 SCRA 87, 101-102, June 25, 1999, 3
rd

142. What is international juridical double taxation?

Held: It is defined as the imposition of comparable taxes in two or more states on the same taxpayer in
respect of the same subject matter and for identical periods. (Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 102, June 25, 1999)

143. What is the rationale for doing away with international juridical double taxation? What are the methods
resorted to by tax treaties to eliminate double taxation?

Held: The apparent rationale for doing away with double taxation is to encourage the free flow of goods
and services and the movement of capital, technology and persons between countries, conditions deemed vital
in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and
reasonable international investment climate and the protection against double taxation is crucial in creating such
a climate.

Double taxation usually takes place when a person is resident of a contracting state and derives income
from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In
order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights
to tax of the state of source or situs and of the state of residence with regard to certain classes of income or
capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other
items of income or capital, both states are given the right to tax, although the amount of tax that may be
imposed by the state of source is limited.

The second method for the elimination of double taxation applies whenever the state of source is given
a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon
the state of residence to allow relief in order to avoid double taxation. There are two methods of relief - the
exemption method and the credit method. In the exemption method, the income or capital which is taxable in
the state of source or situs is exempted in the state of residence, although in some instances it may be taken
into account in determining the rate of tax applicable to the taxpayer's remaining income or capital. On the other
hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in
the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic
difference between the two methods is that in the exemption method, the focus is on the income or capital itself,
whereas the credit method focuses upon the tax. (Commissioner of Internal Revenue v. S.C. Johnson and
Son, Inc., 309 SCRA 87, 102-103, June 25, 1999)

144. What is the rationale for reducing the tax rate in negotiating tax treaties?

Held: In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines
will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by
the other country. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 103,
June 25, 1999)

THE BILL OF RIGHTS

The Due Process Clause

145. Discuss the Due Process Clause. Distinguish substantive due process from procedural due process.

Held: Section 1 of the Bill of Rights lays down what is known as the due process clause of the
Constitution.

In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a
deprivation and that such deprivation is done without proper observance of due process. When one speaks of
due process of law, however, a distinction must be made between matters of procedure and matters of
substance. In essence, procedural due process refers to the method or manner by which the law is enforced,
while substantive due process requires that the law itself, not merely the procedures by which the law would be
enforced, is fair, reasonable, and just. (Corona v. United Harbor Pilots Association of the Phils., 283
SCRA 31, Dec. 12, 1997 [Romero])

146. Respondents United Harbor Pilots Association of the Philippines argue that due process was not
observed in the adoption of PPA-AO No. 04-92 which provides that: (a)ll existing regular appointments
which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31
December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall,
henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by
the Philippine Ports Authority after conduct of a rigid evaluation of performance, allegedly because no

72
hearing was conducted whereby relevant government agencies and the harbor pilots themselves could
ventilate their views. They also contended that the sole and exclusive right to the exercise of harbor
pilotage by pilots has become vested and can only be withdrawn or shortened by observing the
constitutional mandate of due process of law.

Held: They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court
has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon.
Exevea, where it declared that (a)s long as a party was given the opportunity to defend his interests in due
course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very
essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an
opportunity to seek reconsideration of the action or ruling complained of.

In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times before the matter
was finally elevated to this Tribunal. Their arguments on this score, however, failed to persuade. X x x

Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the
administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due
process, are essential only when an administrative body exercises its quasi-judicial function. In the performance
of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not
comply with the requirements of notice and hearing.

Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor
pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be
withdrawn or shortened by observing the constitutional mandate of due process of law. Their argument has
thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the
condition set by the organic law.

Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is
the granting of license especially to practice a profession. It is also the system of granting licenses (as for
professional practice) in accordance with established standards. A license is a right or permission granted by
some competent authority to carry on a business or do an act which, without such license, would be illegal.

Before harbor pilots can earn a license to practice their profession, they literally have to pass through
the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and
practice. X x x

Their license is granted in the form of an appointment which allows them to engage in pilotage until they
retire at the age of 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, [a]ll existing regular
appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to
31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall,
henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the
Authority after conduct of a rigid evaluation of performance.

It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their
profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that
after passing five examinations and undergoing years of on-the-job training, they would have a license which
they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under
the new issuance, they have to contend with an annual cancellation of their license which can be temporary or
permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are
suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their
license is now dependent on a rigid evaluation of performance which is conducted only after the license has
already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which
primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation
of property without due process of law. (Corona v. United Harbor Pilots Association of the Phils., 283
SCRA 31, December 12, 1997 [Romero])

147. Does the due process clause encompass the right to be assisted by counsel during an administrative
inquiry?

Held: The right to counsel, which cannot be waived unless the waiver is in writing and in the presence
of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right
and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative
inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent
and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the
proceedings below. The investigation conducted by the committee x x x was for the sole purpose of determining
if he could be held administratively liable under the law for the complaints filed against him. x x x As such, the
hearing conducted by the investigating committee was not part of a criminal prosecution. X x x

While investigations conducted by an administrative body may at times be akin to a criminal proceeding,
the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no
duty rests on such a body to furnish the person being investigated with counsel. In an administrative proceeding
x x x a respondent x x x has the option of engaging the services of counsel or not. x x x Thus, the right to
counsel is not imperative in administrative investigations because such inquiries are conducted merely to
determine whether there are facts that merit disciplinary measures against erring public officers and employees,
with the purpose of maintaining the dignity of government service.

73

The right to counsel is not indispensable to due process unless required by the Constitution or the law.
Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997 [Romero])

148. Discuss the Void for Vagueness Doctrine, and why is it repugnant to the Constitution. Distinguish a
perfectly vague act from legislation couched in imprecise language.

Held: 1. Due process requires that the terms of a penal statute must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to its penalties. A criminal statute
that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the
statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for
vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him
on trial for an offense, the nature of which he is given no fair warning.

We reiterated these principles in People v. Nazario:

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government
muscle.

We added, however, that:

X x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either a
saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck
down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and
there conduct themselves in a manner annoying to persons passing by. Clearly, the ordinance
imposed no standard at all because one may never know in advance what annoys some people but
does not annoy others.

Coates highlights what has been referred to as a perfectly vague act whose obscurity is
evident on its face. It is to be distinguished, however, from legislation coached in imprecise language
but which nonetheless specifies a standard though defectively phrased in which case, it may be
saved by proper construction. X x x (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1
st
Div.
[Kapunan])

2. The doctrine has been formulated in various ways, but is commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie
of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects it violated due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the
doctrine does not apply as against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be saved by proper construction, while no challenge may
be mounted as against the second whenever directed against such activities. With more reason, the doctrine
cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding
and practice. It must be stressed, however, that the vagueness doctrine merely requires a reasonable degree
of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems
to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the
statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in
its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other statutes. (Joseph Ejercito Estrada v.
Sandiganbayan [Third Division], G.R. No. 148560, Nov. 19, 2001, En Banc [Bellosillo])

149. Does Article 13 (b) of the Labor Code defining recruitment and placement violate the due process
clause?

Held: In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People v.
Panis, where this Court x x x criticized the definition of recruitment and placement x x x.

Appellant further argues that the acts that constitute recruitment and placement suffer from
overbreadth since by merely referring a person for employment, a person may be convicted of illegal
recruitment.

These contentions cannot be sustained.

74

Appellants reliance on People v. Panis is misplaced. The issue in Panis was whether, under the
proviso of Article 13(b), the crime of illegal recruitment could be committed only whenever two or more persons
are in any manner promised or offered any employment for a fee. The Court held in the negative x x x.

X x x The Court, in Panis, merely bemoaned the lack of records that would help shed light on the
meaning of the proviso. The absence of such records notwithstanding, the Court was able to arrive at a
reasonable interpretation of the proviso by applying principles in criminal law and drawing from the language
and intent of the law itself. Section 13(b), therefore, is not a perfectly vague act whose obscurity is evident on
its face. If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper
construction. It is not void for vagueness.

X x x

That Section 13(b) encompasses what appellant apparently considers as customary and harmless acts
such as labor or employment referral (referring an applicant, for employment to a prospective employer) does
not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth.

A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms
affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded
statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague
to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and
the constitutionally impermissible applications of the statute.

In Blo Umpar Adiong v. Commission on Elections, for instance, we struck down as void for overbreadth
provisions prohibiting the posting of election propaganda in any place including private vehicles other than in
the common poster areas sanctioned by the COMELEC. We held that the challenged provisions not only
deprived the owner of the vehicle the use of his property but also deprived the citizen of his right to free speech
and information. The prohibition in Adiong, therefore, was so broad that it covered even constitutionally
guaranteed rights and, hence, void for overbreadth. In the present case, however, appellant did not even
specify what constitutionally protected freedoms are embraced by the definition of recruitment and placement
that would render the same constitutionally overbroad. (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001,
1
st
Div. [Kapunan])

150. Is the Plunder Law unconstitutional for being vague?

Held: As it is written, the Plunder Law contains ascertainable standards and well-defined parameters
which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity. X x x

As long as the law affords some comprehensible guide or rule that would inform those who are subject
to it what conduct would render them liable to its penalties, its validity would be sustained. It must sufficiently
guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly,
the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth
of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder
Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed x x x.

We discern nothing in the foregoing that is vague or ambiguous as there is obviously none that will
confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide adequate contrast between the innocent and the
prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
combination and series in the key phrase a combination or series of overt or criminal acts found in Sec. 1,
par. (d), and Sec. 2, and the word pattern in Sec. 4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due
process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void
merely because general terms are used therein, or because of the employment of terms without defining them;
much less do we have to define every word we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word in an enactment. Congress is not restricted in
the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered
from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a
technical or special legal meaning to those words. The intention of the lawmakers who are, ordinarily,

75
untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed.
Thus, Websters New Collegiate Dictionary contains the following commonly accepted definition of the words
combination and series.

Combination the result or product of combining; the act or process of combining. To combine
is to bring into such close relationship as to obscure individual characters.

Series a number of things or events of the same class coming one after another in spatial and
temporal succession.

That Congress intended the words combination and series to be understood in their popular
meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or
the Plunder Law x x x.

X x x

Thus when the Plunder Law speaks of combination, it is referring to at least two (2) acts falling under
different categories or enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par.
(d), subpar. (3).

On the other hand, to constitute a series there must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids
on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for combination and series, it would have taken greater pains in specifically
providing for it in the law.

As for pattern, we agree with the observations of the Sandiganbayan that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2

x x x under Sec. 1 (d) of the law, a pattern consists of at least a combination or series of
overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to
Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal
which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And
thirdly, there must either be an overall unlawful scheme or conspiracy to achieve said common
goal. As commonly understood, the term overall unlawful scheme indicates a general plan of action or
method which the principal accused and public officer and others conniving with him follow to achieve
the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes
or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to
attain a common goal.

X x x

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances, petitioners reliance on the void-for-vagueness doctrine is
manifestly misplaced.

X x x

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity

The void-for-vagueness doctrine states that a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process of law. (Connally v. General Constr.
Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926] cited in Ermita-Malate Hotel and Motel Operators Assn. v.
City Mayor, 20 SCRA 849, 867 [1967]) The overbreadth doctrine, on the other hand, decrees that a
governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338
[1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960])

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate
or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity. (Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 [1972] [internal
quotation marks omitted]) The possible harm to society in permitting some unprotected speed to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem
effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the

76
State may well be prevented from enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrine then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, we have not recognized an overbreadth doctrine outside the
limited context of the First Amendment. In Broadwick v. Oklahoma (413 U.S. 601, 612-613, 37 L Ed.
2d 830, 840-841 [1973]), the Court ruled that claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only spoken words and, again, that
overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct. For this reason, it has been held that a facial
challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would be valid. (United States v.
Salerno, supra.) As for the vagueness doctrine, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
(Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362,
369 [1982])

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing on their faces statutes in free speech cases or, as they are called in American
law, First Amendment cases. They cannot be made to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is that one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be unconstitutional. (United
States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 [1960]. The paradigmatic case is Yazoo &
Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 l. Ed. 193 [1912]) As has been pointed
out, vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found to be vague as a matter of due process typically are
invalidated [only] as applied to a particular defendant. (G. Gunther & K. Sullivan, Constitutional Law
1299 [2001]) Consequently, there is no basis for petitioners claim that this Court review the Anti-
Plunder Law on its face and in its entirety.

Indeed, on its face invalidation of statutes results in striking them down entirely on the ground
that they might be applied to parties not before the Court whose activities are constitutionally protected
(Id. at 1328). It constitutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in sterile abstract contexts
(Constitution, Art. VIII, Sections 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158
[1936]). But, as the U.S. Supreme Court pointed out in Younger v. Harris (401 U.S. 37, 52-53, 27 L. Ed.
2d 669, 680 [1971]; others omitted.)

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x
ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

For these reasons, on its face invalidation of statutes has been described as manifestly strong
medicine, to be employed sparingly and only as a last resort, (Broadwick v. Oklahoma, 413 U.S. at
613, 37 L.Ed.2d at 841; National Endowment for the Arts v. Finley, 524 U.S. 569, 580 [1998]) and is
generally disfavored (FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 [1990]; Cruz v.
Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 [Mendoza, J.,
Separate Opinion]). In determining the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light of the conduct with which the
defendant is charged (United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561,
565-6 [1963])

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at
the want of scientific precision in the law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be
aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage. (Joseph Ejercito Estrada v. Sandiganbayan [Third Division], G.R. No. 148560,
Nov. 19, 2001, En Banc [Bellosillo])

151. Does an extraditee have the right to notice and hearing during the evaluation stage of an extradition
proceeding?

Held: Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will

77
allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the
petitioner Secretary of Justice. X x x

In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all throughout the length and breadth of the extradition
proceedings. Procedural due process requires a determination of what process is due, when it is due, and the
degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural
protections are at all due and when they are due, which in turn depends on the extent to which an individual will
be "condemned to suffer grievous loss." We have explained why an extraditee has no right to notice and
hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements
the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once
the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is
merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is
momentarily withheld during the evaluation stage of the extradition process to accommodate the more
compelling interest of the State to prevent escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition. No less compelling at that stage of the
extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance
which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and
to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on
private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not
deprive him of fundamental fairness should he decide to resist the request for his extradition to the United
States. There is no denial of due process as long as fundamental fairness is assured a party. (Secretary of
Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

152. Will Mark Jimenezs detention prior to the conclusion of the extradition proceedings not amount to a
violation of his right to due process?

Held: Contrary to his contention, his detention prior to the conclusion of the extradition proceedings
does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of
due process is the opportunity to be heard but, at the same time, point out that the doctrine does not always call
for a prior opportunity to be heard. Where the circumstances such as those present in an extradition case
call for it, a subsequent opportunity to be heard is enough. In the present case, respondent will be given full
opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there
is no violation of his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of
his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1)
the DOJs filing in court the Petition with its supporting documents after a determination that the extradition
request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima
facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his
arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-
initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting
state before those proceedings could be completed, it was hindered from continuing with the due processes
prescribed under its laws. His invocation of due process now had thus become hollow. He already had that
opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve
the Petition for Extradition? His supposed immediate deprivation of liberty without due process that he had
previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in
cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist
in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and
palpable government interest.

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to
increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment,
persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any
provision in the Constitution, the law or the treaty expressly guaranteeing the right to bail in extradition
proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards
deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.

The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article
14 (It states: If the person sought consents in writing to surrender to the Requesting State, the Requested State
may surrender the person as expeditiously as possible without further proceedings.) of the Treaty, since this
practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention
here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the
emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy
disposition. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571,
Sept. 24, 2002, En Banc [Panganiban])


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The Equal Protection Clause

153. Explain and discuss the equal protection of the law clause.

Held: 1. The equal protection of the law is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate
clause in Article III, Sec. 1, of the Constitution to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.

According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in
other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate
against others.

The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a
law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate
the liberty of adults. What the clause requires is equality among equals as determined according to a valid
classification. By classification is meant the grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars. (Philippine Judges Association v. Prado,
227 SCRA 703, 711-712, Nov. 11, 1993, En Banc [Cruz])

2. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real difference among men,
the equal protection clause does not demand absolute equality. It merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to the privileges conferred and liabilities enforced.
Thus, the equal protection clause does not absolutely forbid classifications x x x. If the classification is based on
real and substantial differences; is germane to the purpose of the law; applies to all members of the same class;
and applies to current as well as future conditions, the classification may not be impugned as violating the
Constitution's equal protection guarantee. A distinction based on real and reasonable considerations related to
a proper legislative purpose x x x is neither unreasonable, capricious nor unfounded. (Himagan v. People, 237
SCRA 538, Oct. 7, 1994, En Banc [Kapunan])

154. Congress enacted R.A. No. 8189 which provides, in Section 44 thereof, that "No Election Officer shall
hold office in a particular city or municipality for more than four (4) years. Any election officer who, either at
the time of the approval of this Act or subsequent thereto, has served for at least four (4) years in a
particular city or municipality shall automatically be reassigned by the Commission to a new station outside
the original congressional district." Petitioners, who are City and Municipal Election Officers, theorize that
Section 44 of RA 8189 is violative of the "equal protection clause" of the 1987 Constitution because it
singles out the City and Municipal Election Officers of the COMELEC as prohibited from holding office in the
same city or municipality for more than four (4) years. They maintain that there is no substantial distinction
between them and other COMELEC officials, and therefore, there is no valid classification to justify the
objective of the provision of law under attack. Resolve.

Held: The Court is not persuaded by petitioners' arguments. The "equal protection clause" of the 1987
Constitution permits a valid classification under the following conditions:

1) The classification must rest on substantial distinction;
2) The classification must be germane to the purpose of the law;
3) The classification must not be limited to existing conditions only; and
4) The classification must apply equally to all members of the same class.

After a careful study, the ineluctable conclusion is that the classification under Section 44 of RA 8189
satisfies the aforestated requirements.

The singling out of election officers in order to "ensure the impartiality of election officials by preventing
them from developing familiarity with the people of their place of assignment" does not violate the equal
protection clause of the Constitution.

In Lutz v. Araneta, it was held that "the legislature is not required by the Constitution to adhere to a
policy of 'all or none'". This is so for underinclusiveness is not an argument against a valid classification. It may
be true that all other officers of COMELEC referred to by petitioners are exposed to the same evils sought to be
addressed by the statute. However, in this case, it can be discerned that the legislature thought the noble
purpose of the law would be sufficiently served by breaking an important link in the chain of corruption than by
breaking up each and every link thereof. Verily, under Section 3(n) of RA 8189, election officers are the highest
officials or authorized representatives of the COMELEC in a city or municipality. It is safe to say that without the
complicity of such officials, large-scale anomalies in the registration of voters can hardly be carried out.
(Agripino A. De Guzman, Jr., et al. v. COMELEC (G.R. No. 129118, July 19, 2000, en Banc [Purisima])

155. Are there substantial distinctions between print media and broadcast media to justify the requirement for
the latter to give free airtime to be used by the Comelec to inform the public of qualifications and program of
government of candidates and political parties during the campaign period? Discuss.

79

Held: There are important differences in the characteristics of the two media which justify their
differential treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum,
the government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no
similar justification for government allocation and regulation of the print media.

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that the government spends public funds for the allocation and regulation of the
broadcast industry, which it does not do in the case of print media. To require radio and television broadcast
industry to provide free airtime for the Comelec Time is a fair exchange for what the industry gets.

From another point of view, the SC has also held that because of the unique and pervasive influence of
the broadcast media, [n]ecessarily x x x the freedom of television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspaper and print media. (TELEBAP, Inc. v. COMELEC, 289 SCRA
337, April 21, 1998 [Mendoza])

156. Does the death penalty law (R.A. No. 7659) violate the equal protection clause considering that, in
effect, it punishes only people who are poor, uneducated, and jobless?

Held: R.A. No. 7659 specifically provides that [T]he death penalty shall be imposed if the crime of rape
is committed x x x when the victim is a religious or a child below seven (7) years old. Apparently, the death
penalty law makes no distinction. It applies to all persons and to all classes of persons rich or poor, educated
or uneducated, religious or non-religious. No particular person or classes of persons are identified by the law
against whom the death penalty shall be exclusively imposed. The law punishes with death a person who shall
commit rape against a child below seven years of age. Thus, the perpetration of rape against a 5-year old girl
does not absolve or exempt an accused from the imposition of the death penalty by the fact that he is poor,
uneducated, jobless, and lacks catechetical instruction. To hold otherwise will not eliminate but promote
inequalities.

In Cecilleville Realty and Service Corporation v. CA, the SC clarified that compassion for the poor is an
imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege.
(People v. Jimmy Mijano y Tamora, G.R. No. 129112, July 23, 1999, En Banc [Per Curiam])

157. The International School Alliance of Educators (ISAE) questioned the point-of-hire classification
employed by International School, Inc. to justify distinction in salary rates between foreign-hires and local-
hires, i.e., salary rates of foreign-hires are higher by 25% than their local counterparts, as discriminatory
and, therefore, violates the equal protection clause. The International School contended that this is
necessary in order to entice foreign-hires to leave their domicile and work here. Resolve.

Held: That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. X x x

International law, which springs from general principles of law, likewise proscribes discrimination x x x.
The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention
against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation - all embody the general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its
national laws.

[I]t would be an affront to both the spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment x x x.

Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for
example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male
employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate
in regards to wages in order to encourage or discourage membership in any labor organization. X x x

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of
Equal pay for equal work. Persons who work with substantially equal qualifications, skill, effort and
responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School
(International School, Inc.), its "international character" notwithstanding.

The School contends that petitioner has not adduced evidence that local-hires perform work equal to
that of foreign-hires. The Court finds this argument a little cavalier. If an employer accords employees the
same position and rank, the presumption is that these employees perform equal work. This presumption is
borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that
employee to explain why he receives less or why the others receive more. That would be adding insult to injury.
The employer has discriminated against that employee; it is for the employer to explain why the employee is
treated unfairly.

The employer in this case failed to discharge this burden. There is no evidence here that foreign-hires
perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and
responsibilities, which they perform under similar working conditions.


80
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the
distinction in salary rates without violating the principle of equal work for equal pay.

X x x

While we recognize the need of the School to attract foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they
ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-
hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor
and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which
are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel
allowances.

The Constitution enjoins the State to protect the rights of workers and promote their welfare, to afford
labor full protection. The State, therefore, has the right and duty to regulate the relations between labor and
capital. These relations are not merely contractual but are so impressed with public interest that labor contracts,
collective bargaining agreements included, must yield to the common good. Should such contracts contain
stipulations that are contrary to public policy, courts will not hesitate to strike down these stipulations.

In this case, we find the point-of-hire classification employed by respondent School to justify the
distinction in the salary rates of foreign-hires and local-hires to be an invalid classification. There is no
reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the
School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve
the sympathy of this Court. (International School Alliance of Educators (ISAE) v. Hon. Leonardo A.
Quisumbing, G.R. No. 128845, June 1, 2000, 1
st
Div. [Kapunan])

158. Accused-appellant Romeo G. Jalosjos filed a motion before the Court asking that he be allowed to fully
discharge the duties of a Congressman, including attendance at legislative sessions and committee
meetings despite his having been convicted in the first instance of a non-bailable offense. Does being an
elective official result in a substantial distinction that allows different treatment? Is being a Congressman a
substantial differentiation which removes the accused-appellant as a prisoner from the same class as all
persons validly confined under law?

Held: In the ultimate analysis, the issue before us boils down to a question of constitutional equal
protection.

X x x

The performance of legitimate and even essential duties by public officers has never been an excuse to
free a person validly in prison. The duties imposed by the mandate of the people are multifarious. The
accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-
appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of
one or a few of its members. Depending on the exigency of Government that has to be addressed, the
President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a
function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under
the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction.
An elective governor has to serve provincial constituents. A police officer must maintain peace and order.
Never had the call of a particular duty lifted a prisoner into a different classification from those others who are
validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are
made in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify
exercise of government authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable classification in
criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him
from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class.

X x x

It can be seen from the foregoing that incarceration, by its nature, changes an individuals status in
society. Prison officials have the difficult and often thankless job of preserving the security in a potentially
explosive setting, as well as of attempting to provide rehabilitation that prepare inmates for re-entry into the
social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.

Premises considered, we are constrained to rule against the accused-appellants claim that re-election
to public office gives priority to any other right or interest, including the police power of the State. (People v.
Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago])

159. Appellant, who was charged with Illegal Recruitment in the RTC of Zamboanga City, invokes the equal
protection clause in her defense. She points out that although the evidence purportedly shows that Jasmine

81
Alejandro handed out application forms and even received Lourdes Modestos payment, appellant was the
only one criminally charged. Alejandro, on the other hand, remained scot-free. From this, appellant
concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a
Cebuana while Alejandro is a Zamboanguena, and the alleged crime took place in Zamboanga City.

Held: The argument has no merit.

The prosecution of one guilty while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is
not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute
fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of
equal protection, unless there is shown to be present in it an element of intentional or purposeful discrimination.
This may appear on the face of the action taken with respect to a particular class or person, or it may only be
shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action
itself. But a discriminatory purpose is not presumed, there must be a showing of clear and intentional
discrimination. Appellant has failed to show that, in charging appellant in court, that there was a clear and
intentional discrimination on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecutions sound assessment whether the
evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is
that the prosecuting officers regularly performed their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome
this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime,
while a Zamboanguena, the guilty party in appellants eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection of the laws.

There is also common sense practicality in sustaining appellants prosecution.

While all persons accused of crime are to be treated on a basis of equality before the law, it
does not follow that they are to be protected in the commission of crime. It would be unconscionable,
for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The
remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty
at the expense of society x x x. Protection of the law will be extended to all persons equally in the
pursuit of their lawful occupations, but no person has the right to demand protection of the law in the
commission of a crime (People v. Montgomery, 117 P.2d 437 [1941]).

Likewise,

[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be
converted into a defense for others charged with crime, the result would be that the trial of the district
attorney for nonfeasance would become an issue in the trial of many persons charged with heinous
crimes and the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794
[1958]).
(People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1
st
Div. [Kapunan])

The Right against Unreasonable Searches and Seizures

160. Discuss the constitutional requirement that a judge, in issuing a warrant of arrest, must determine
probable cause personally. Distinguish determination of probable cause by the prosecutor and
determination of probable cause by the judge.

Held: It must be stressed that the 1987 Constitution requires the judge to determine probable cause
personally, a requirement which does not appear in the corresponding provisions of our previous constitutions.
This emphasis evinces the intent of the framers to place a greater degree of responsibility upon trial judges than
that imposed under previous Constitutions.

In Soliven v. Makasiar, this Court pronounced:

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine
the complainant and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if in the basis
thereof he finds no probable cause, he may disregard the fiscals report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.

Ho v. People (Ibid.) summarizes existing jurisprudence on the matter as follows:

Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as
held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that
which is to be made by the judge. Whether there is reasonable ground to believe that the accused is
guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The

82
judge, on the other hand, determines whether a warrant of arrest should be issued against the accused,
i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the
ends of justice. Thus, even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and
understandably, the contents of the prosecutors report will support his own conclusion that there is
reason to charge the accused for an offense and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting evidence, other than the prosecutors bare report,
upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to
issue an arrest order. This responsibility of determining personally and independently the existence or
nonexistence of probable cause is lodged in him by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process
by forwarding to the latter not only the information and his bare resolution finding probable cause, but
also so much of the records and the evidence on hand as to enable the His Honor to make his personal
and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts
by obliging them to examine the complete records of every case all the time simply for the purpose of
ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient
supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of
witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or,
at the very least, upon which to verify the findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in
the performance of his official duties and functions, which in turn gives his report the presumption of
accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden
duty if he relies merely on the certification or the report of the investigating officer. (Citations omitted)

In the case at bench, respondent admits that he issued the questioned warrant as there was no reason
for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary
investigation was conducted and that probable cause was found to exist as against those charged in the
information filed. The statement is an admission that respondent relied solely and completely on the
certification made by the fiscal that probable cause exists as against those charged in the information and
issued the challenged warrant of arrest on the sole basis of the prosecutors findings and recommendations. He
adopted the judgment of the prosecutor regarding the existence of probable cause as his own. (Abdula v.
Guiani, 326 SCRA 1, Feb. 18, 2000, 3
rd

161. In an application for search warrant, the application was accompanied by a sketch of the compound at
516 San Jose de la Montana St., Mabolo, Cebu City, indicating the 2-storey residential house of private
respondent with a large X enclosed in a square. Within the same compound are residences of other
people, workshops, offices, factories and warehouse. The search warrant issued, however, merely
indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. Did
this satisfy the constitutional requirement under Section 2, Article III that the place to be searched must be
particularly described?

Held: This Court has held that the applicant should particularly describe the place to be searched and
the person or things to be seized, wherever and whenever it is feasible. In the present case, it must be noted
that the application for a search warrant was accompanied by a sketch of the compound at 516 San Jose de la
Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent with
a large "X" enclosed in a square. Within the same compound are residences of other people, workshops,
offices, factories and warehouse. With this sketch as the guide, it could have been very easy to describe the
residential house of private respondent with sufficient particularity so as to segregate it from the other buildings
or structures inside the same compound. But the search warrant merely indicated the address of the compound
which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is
too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of the
description of the residence of private respondent sought to be searched has characterized the questioned
search warrant as a general warrant, which is violative of the constitutional requirement. (People v. Estrada,
296 SCRA 383, 400, [Martinez])

162. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers own
personal knowledge of the premises, or the evidence they adduce in support of their application for the
warrant?

Held: Such a change is proscribed by the Constitution which requires inter alia the search warrant to
particularly describe the place to be searched as well as the persons or things to be seized. It would concede to
police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It
would open wide the door to abuse of the search process, and grant to officers executing a search warrant that
discretion which the Constitution has precisely removed from them. The particularization of the description of
the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left
to the discretion of the police officers conducting the search.


83
It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant
on the claim that the place actually searched although not that specified in the warrant is exactly what they
had in view when they applied for the warrant and had demarcated in their supporting evidence. What is
material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in
their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v.
Court of Appeals, 291 SCRA 400, June 26, 1998 [Narvasa])

163. Is a respondent in an Extradition Proceeding entitled to notice and hearing before the issuance of a
warrant of arrest?

Held: Both parties cite Section 6 of PD 1069 in support of their arguments. X x x

Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance
of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to
qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the
issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and
arguments from them, and giving them time to prepare and present such facts and arguments. Arrest
subsequent to a hearing can no longer be considered immediate. The law could not have intended the word
as a mere superfluity but, on the whole, as a means of impairing a sense of urgency and swiftness in the
determination of whether a warrant of arrest should be issued.

By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at
such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and
actual situation, immediately upon the filing of the petition. From the knowledge and the material then available
to it, the court is expected merely to get a good first impression a prima facie finding sufficient to make a
speedy initial determination as regards the arrest and detention of the accused.

X x x

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after
having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez.

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of
the accused to answer after receiving the summons. In connection with the matter of immediate arrest,
however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that
stage been intended, the law could have easily so provided. It also bears emphasizing at this point that
extradition proceedings are summary (See Sec. 9, PD 1069) in nature. Hence, the silence of the Law and the
Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every
little step in the entire proceedings.

X x x

Verily x x x sending to persons sought to be extradited a notice of the request for their arrest and setting
it for hearing at some future date would give them ample opportunity to prepare and execute an escape.
Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have
been defeated by the escape of the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution x x x does not require a notice or a hearing before the
issuance of a warrant of arrest. X x x

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination under oath or affirmation of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.

In Ho v. People and in all the cases cited therein, never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant
of arrest. All we required was that the judge must have sufficient supporting documents upon which to make
his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause.

In Webb v. De Leon, the Court categorically stated that a judge was not supposed to conduct a hearing
before issuing a warrant of arrest x x x.

At most, in cases of clear insufficiency of evidence on record, judges merely further examine
complainants and their witnesses. In the present case, validating the act of respondent judge and instituting the
practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for
the entire system. If the accused were allowed to be heard and necessarily to present evidence during the
prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire

84
plethora of defenses at this stage if he so desires in his effort to negate a prima facie finding? Such a
procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings
and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of
extraditions. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571,
Sept. 24, 2002, En Banc [Panganiban])

164. What is search incidental to a lawful arrest? Discuss.

Held: While a contemporaneous search of a person arrested may be effected to discover dangerous
weapons or proofs or implements used in the commission of the crime and which search may extend to the area
within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid
arrest must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether
an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that
there be first a lawful arrest before a search can be made the process cannot be reversed. (Malacat v.
Court of Appeals, 283 SCRA 159, 175 [1997])
(People v. Chua Ho San, 308 SCRA 432, June 17, 1999, En Banc [Davide, Jr., C.J.])

165. What is the plain view doctrine? What are its requisites? Discuss.

Held: 1. Objects falling in plain view of an officer who has a right to be in the position to have that view
are subject to seizure even without a search warrant and may be introduced in evidence. The plain view
doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence
has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer
must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.
In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the
accused. The object must be open to eye and hand and its discovery inadvertent.

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises
when the object is inside a closed container. Where the object seized was inside a closed package, the object
itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims
its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the prohibited article, then the article is
deemed in plain view. It must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband or otherwise subject to seizure. (People v. Doria, 301 SCRA 668, Jan. 22,
1999, En Banc [Puno, J.])

2. For the doctrine to apply, the following elements must be present:

a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in
the pursuit of their official duties;
b) the evidence was inadvertently discovered by the police who have the right to be where they are;
and
c) the evidence must be immediately apparent; and
d) plain view justified mere seizure of evidence without further search.

In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before
appellant was arrested without a warrant. Hence, there was no valid warrantless arrest which preceded the
search of appellants premises. Note further that the police team was dispatched to appellants kaingin precisely
to search for and uproot the prohibited flora. The seizure of evidence in plain view applies only where the
police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating
object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2
Tipay that upon arriving at the area, they first had to look around the area before they could spot the illegal
plants. Patently, the seized marijuana plants were not immediately apparent and further search was needed.
In sum, the marijuana plants in question were not in plain view or open to eye and hand. The plain view
doctrine, thus, cannot be made to apply.

Nor can we sustain the trial courts conclusion that just because the marijuana plants were found in an
unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable searches
by agents of the State. The right against unreasonable searches and seizures is the immunity of ones person,
which includes his residence, his papers, and other possessions. The guarantee refers to the right of personal
security of the individual. X x x, what is sought to be protected against the States unlawful intrusion are
persons, not places. To conclude otherwise would not only mean swimming against the stream, it would also
lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must
be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the
person in the street as to the individual in the sanctuary of his bedroom. (People v. Abe Valdez, G.R. No.
129296, Sept. 25, 2000, En Banc [Quisumbing])

3. Considering its factual milieu, this case falls squarely under the plain view doctrine.


85
When Spencer wrenched himself free from the grasp of PO2 Gaviola, he instinctively ran towards the
house of appellant. The members of the buy-bust team were justified in running after him and entering the
house without a search warrant for they were hot in the heels of a fleeing criminal. Once inside the house, the
police officers cornered Spencer and recovered the buy-bust money from him. They also caught appellant in
flagrante delicto repacking the marijuana bricks which were in full view on top of a table. x x x.

Hence, appellants subsequent arrest was likewise lawful, coming as it is within the purview of Section
5(a) of Rule 113 of the 1985 Rules on Criminal Procedure x x x.

Section 5(a) is commonly referred to as the rule on in flagrante delicto arrests. Here two elements must
concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view
of the arresting officer. Thus, when appellant was seen repacking the marijuana, the police officers were not
only authorized but also duty-bound to arrest him even without a warrant. (People v. Elamparo, 329 SCRA
404, 414-415, March 31, 2000, 2
nd
Div. [Quisumbing])

166. What is a stop-and-frisk search?

Held: 1. In the landmark case of Terry v. Ohio, a stop-and-frisk was defined as the vernacular
designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for
weapon(s):

x x x (W)here a police officer observes an unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons with whom he
is dealing may be armed and presently dangerous, where in the course of investigating this behavior he
identified himself as a policeman and make reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the
protection of himself or others in the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced
in evidence against the person from whom they were taken. (Herrera, A Handbook on Arrest, Search
and Seizure and Custodial Investigation, 1995 ed., p. 185; and Terry v. Ohio, supra, p. 911)

In allowing such a search, the United States Supreme Court held that the interest of effective crime
prevention and detection allows a police officer to approach a person, in appropriate circumstances and
manner, for purposes of investigating possible criminal behavior even though there is insufficient probable
cause to make an actual arrest.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that
what justified the limited search was the more immediate interest of the police officer in taking steps to assure
himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and
fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.
(Manalili v. CA, 280 SCRA 400, Oct. 9, 1997 [Panganiban])

2. We now proceed to the justification for and allowable scope of a stop-and-frisk as a limited
protective search of outer clothing for weapons, as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous, where in the course of investigating
this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in
the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is
entitled for the protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment (Terry, at 911. In fact, the Court
noted that the sole justification for a stop-and-frisk was the protection of the police officer and others
nearby; while the scope of the search conducted in the case was limited to patting down the outer
clothing of petitioner and his companions, the police officer did not place his hands in their pockets nor
under the outer surface of their garments until he had felt weapons, and then he merely reached for and
removed the guns. This did not constitute a general exploratory search, Id.)

Other notable points of Terry are that while probable cause is not required to conduct a stop-and-frisk,
it nevertheless holds that mere suspicion or a hunch will not validate a stop-and-frisk. A genuine reason must
exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold interest: (1) the
general interest of effective crime prevention and detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of
safety and self-preservation which permit the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the
police officer. (Malacat v. Court of Appeals, 283 SCRA 159, Dec. 12, 1997 [Davide])

167. Are searches at checkpoints valid? Discuss.

86

Held: This Court has ruled that not all checkpoints are illegal. Those which are warranted by the
exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly,
routine checkpoints do intrude, to a certain extent, on motorists right to free passage without interruption, but it
cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles
occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these
routine checks, when conducted in a fixed area, are even less intrusive. (People v. Usana, 323 SCRA 754,
Jan. 28, 2000, 1
st
Div. [Davide, CJ])

168. Illustrative case of valid search at checkpoint conducted to implement the gun ban law during election.
Is it still necessary that checkpoints be pre-announced?

Held: Accused-appellants assail the manner by which the checkpoint in question was conducted. They
contend that the checkpoint manned by elements of the Makati Police should have been announced. They also
complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the
election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code
(Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday
of the month. The incident, which happened on 5 April 1995, was well within the election period.

X x x

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The
COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of
pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a
gun during said period would know that they only need a car to be able to easily perpetrate their malicious
designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused
against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed
suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the
cars doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what
the situation demands.

We see no need for checkpoints to be announced x x x. Not only would it be impractical, it would also
forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred
from their fixed location and the regularized manner in which they are operated. (People v. Usana, 323 SCRA
754, Jan. 28, 2000, 1
st
Div. [Davide, CJ])

169. Do the ordinary rights against unreasonable searches and seizures apply to searches conducted at the
airport pursuant to routine airport security procedures?

Held: Persons may lose the protection of the search and seizure clause by exposure of their persons
or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation
society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism has come increased security at the nations airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as
well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence
of suspicious objects, physical searches are conducted to determine what the objects are. There is little
question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests
involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified
through airport public address systems, signs, and notices in their airline tickets that they are subject to search
and, if any prohibited materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional protections against warrantless
searches and seizures do not apply to routine airport procedures. (People v. Leila Johnson, G.R. No. 138881,
Dec. 18, 2000, 2
nd
Div. [Mendoza])

170. May the constitutional protection against unreasonable searches and seizures be extended to acts
committed by private individuals?

Held: As held in People v. Marti, the constitutional protection against unreasonable searches and
seizures refers to the immunity of one's person from interference by government and it cannot be extended to
acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People v.
Mendoza, 301 SCRA 66, Jan. 18, 1999, 1
st
Div. [Melo])

171. Should the seized drugs (which are pharmaceutically correct but not properly documented) subject of an
illegal search (because the applicant failed to allege in the application for search warrant that the subject
drugs for which she was applying for search warrant were either fake, misbranded, adulterated, or
unregistered,) be returned to the owner?


87
Ans.: No. Instead, they should be promptly disposed of in the manner provided by law in order to
insure that the same do not fall into the wrong hands who might use the drugs underground. As clarified in
People v. Judge Estrella T. Estrada (G.R No. 124461, June 26, 2000, Spcl. 2
nd
Div. [Ynares-Santiago]):

With the State's obligation to protect and promote the right to health of the people and instill
health consciousness among them (Article II, Section 15, 1987 Constitution), in order to develop a
healthy and alert citizenry (Article XIV, Section 19[1]), it became mandatory for the government to
supervise and control the proliferation of drugs in the market. The constitutional mandate that "the State
shall adopt an integrated and comprehensive approach to health development which shall endeavor to
make essential goods, health and other social services available to all people at affordable cost" (Article
XIII, Section 11) cannot be neglected. This is why "the State shall establish and maintain an effective
food and drug regulatory system." (Article XIII, Section 12) The BFAD is the government agency vested
by law to make a mandatory and authoritative determination of the true therapeutic effect of drugs
because it involves technical skill which is within its special competence. The health of the citizenry
should never be compromised. To the layman, medicine is a cure that may lead to better health.

If the seized 52 boxes of drugs are pharmaceutically correct but not properly documented, they
should be promptly disposed of in the manner provided by law in order to ensure that the same do not
fall into the wrong hands who might use the drugs underground. X x x. The policy of the law
enunciated in R.A. No. 8203 is to protect the consumers as well as the licensed businessmen.
Foremost among these consumers is the government itself which procures medicines and distributes
them to the local communities through direct assistance to the local health centers or through outreach
and charity programs. Only with the proper government sanctions can medicines and drugs circulate
the market. We cannot afford to take any risk, for the life and health of the citizenry are as precious as
the existence of the State.

172. Do Regional Trial Courts have competence to pass upon the validity or regularity of seizure and
forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these
proceedings?

Held: In Jao v. Court of Appeals, this Court, reiterating its rulings x x x said:

There is no question that Regional Trial Courts are devoid of any competence to pass upon the
validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to
enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and
forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the
seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming
cognizance over such matters even through petitions of certiorari, prohibition or mandamus.

It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic
Act No. 1125, as amended, otherwise known as An Act Creating the Court of Tax Appeals, specify the
proper fora and procedure for the ventilation of any legal objections or issues raised concerning these
proceedings. Thus, actions of the Collector of Customs are appealable to the Commissioner of
Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax
Appeals and from there to the Court of Appeals.

The rule that Regional Trial Courts have no review powers over such proceedings is anchored
upon the policy of placing no unnecessary hindrance on the governments drive, not only to prevent
smuggling and other frauds upon Customs, but more importantly, to render effective and efficient the
collection of import and export duties due the State, which enables the government to carry out the
functions it has been instituted to perform.

Even if the seizure by the Collector of Customs were illegal, x x x we have said that such act
does not deprive the Bureau of Customs of jurisdiction thereon.
(Bureau of Customs v. Ogario, 329 SCRA 289, 296-298, March 30, 2000, 2
nd
Div. [Mendoza])

173. Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes.
Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal.

Held: In the cases at bar, the police saw the gun tucked in appellants waist when he stood up. The
gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show
any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a
crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one
of the recognized exceptions under the Rules.

As a consequence of appellants valid warrantless arrest, he may be lawfully searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as
provided in Rule 126, Section 12. This is a valid search incidental to a lawful arrest. The subsequent discovery
in his car of drug paraphernalia and the crystalline substance, which, was later identified as shabu, though in a
distant place from where the illegal possession of firearm was committed, cannot be said to have been made
during an illegal search. As such, the seized items do not fall within the exclusionary clause x x x. Hence, not
being fruits of the poisonous tree x x x the objects found at the scene of the crime, such as the firearm, the
shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that
drugs discovered as a result of a consented search is admissible in evidence. (Citations omitted.) (People v.
Go, 354 SCRA 338, Mar. 14, 2001, 1
st
Div. [Ynares-Santiago])


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174. Discuss the nature of an in flagrante delicto warrantless arrest. Illustrative case.

Held: In the case at bar, the court a quo anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid
because accused-appellants were caught in flagrante delicto in possession of prohibited drugs. This brings us
to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the
recognized exceptions to the warrant requirement.

In People v. Chua Ho San, the Court held that in cases of in flagrante delicto arrests, a peace officer or
a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense. The arresting office, therefore, must
have personal knowledge of such fact or, as a recent case law adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,
probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are
reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest.

As applied to in flagrante delicto arrests, it is settled that reliable information alone, absent any overt
act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not
sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v.
Aminnudin, it was held that the accused-appellant was not, at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension.

Likewise, in People v. Mengote, the Court did not consider eyes x x x darting from side to side x x x
[while] holding x x x [ones] abdomen, in a crowded street at 11:30 in the morning, as overt acts and
circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, [b]y no
stretch of the imagination could it have been inferred from these acts that an offense had just been committed,
or was actually being committed, or was at least being attempted in [the arresting officers] presence. So also,
in People v. Encinada, the Court ruled that no probable cause is gleanable from the act of riding a motorela
while holding two plastic baby chairs.

Then, too, in Malacat v. Court of Appeals, the trial court concluded that petitioner was attempting to
commit a crime as he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes
moving very fast and looking at every person that come (sic) nearer (sic) to them. In declaring the
warrantless arrest therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto ! arrest preceding the search in light
of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the
part of petitioner, indicating that a crime had just been committed, was being committed or was going to
be committed.

It went on to state that

Second, there was nothing in petitioners behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were moving very fast an observation which
leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already
6:60 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner
and were not creating any commotion or trouble x x x.

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed
with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was
discovered inside the front waistline of petitioner, and from all indications as to the distance between
Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not
have been visible to Yu.

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting
to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest.
In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to
commit or have committed a crime. It matters not that accused-appellant Molina responded Boss, if possible
we will settle this to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced
the suspicion of the arresting officers that accused-appellants were committing a crime, is an equivocal
statement which standing alone will not constitute probable cause to effect an in flagrante delicto arrest. Note
that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-
appellants to the arresting officers), accused-appellants could not be subject of any suspicion, reasonable or
otherwise.


89
While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-
appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mulas name and address after the
arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy
to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer
while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a
closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when SPO1
Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted
that he had never seen him before the arrest.

This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the
arrest x x x.

The aforesaid testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1 Pamplona could not
have learned the name of accused-appellants from SPO1 Paguidopon because Paguidopon himself, who
allegedly conducted the surveillance, was not even aware of accused-appellants name and address prior to the
arrest.

Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting
officers themselves, could not have been certain of accused-appellants identity, and were, from all indications,
merely fishing for evidence at the time of the arrest.

Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even
before the arrest because of the latters illegal gambling activities, thus, lending at least a semblance of validity
on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless
arrest and the consequent search were illegal, holding that [t]he prosecutions evidence did not show any
suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact
demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances. (People v.
Encinada, supra.)

Moreover, it could not be said that accused-appellants waived their right against unreasonable searches
and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee.

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed
by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana
seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is
thus, left with no choice but to find in favor of accused-appellants. (People v. Molina, 352 SCRA 174, Feb. 19,
2001, En Banc [Ynares-Santiago])

The Right to Privacy of Communications and Correspondence

175. What is the Anti-Wire Tapping Act (R.A. 4200)?

Ans.: R.A. 4200 is a special law prohibiting and penalizing wire-tapping. Section 1 thereof provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in
the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any
other such record, or copies thereof, of any communication or spoken word secured either before or
after the effective date of this Act in the manner prohibited by this law; or to replay the same for any
other person or persons; or to communicate the contents thereof, either verbally or in writing, or to
furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use
of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered by this prohibition.

Section 4 thereof also provides:

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof, or any information therein contained obtained or
secured by any person in violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

176. Private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for
annulment of marriage with damages against his wife, herein petitioner, Teresita Salcedo-Ortanez, on
grounds of lack of marriage license and/or psychological incapacity of the petitioner. Among the exhibits
offered by private respondent were three (3) cassette tapes of alleged telephone conversations between
petitioner and unidentified persons. The trial court issued the assailed order admitting all of the evidence
offered by private respondent, including tape recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and obtained when private respondent allowed his

90
friends from the military to wire tap his home telephone. Did the trial court act properly when it admitted in
evidence said tape recordings?

Held: Republic Act No. 4200 entitled An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and For Other Purposes expressly makes such tape recordings
inadmissible in evidence. x x x.

Clearly, respondent trial court and Court of Appeals failed to consider the afore-quoted provisions of the
law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the
telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory
under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said
Act. (Salcedo-Ortanez v. Court of Appeals, 235 SCRA 111, Aug. 4, 1994 [Padilla])

177. Two local media men in Lucena City went to the police station to report alleged indecent show in one
night establishment in the City. At the station, there was a heated argument between police officer Navarro
and Lingan, one of the two media men, which led to fisticuffs. Lingan fell and his head hit the pavement
which caused his death. During the trial, Jalbuena, the other media man, testified. Presented in evidence
to confirm his testimony was a voice recording he had made of the heated discussion at the police station
between accused police officer Navarro and the deceased, Lingan, which was taken without the knowledge
of the two. Is the voice recording admissible in evidence in view of R.A. 4200, which prohibits wire-tapping?

Held: [J]albuenas testimony is confirmed by the voice recording he had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the
affirmative. x x x.

[T]he law prohibits the overhearing, intercepting, or recording of private communications (Ramirez v.
Court of Appeals, 248 SCRA 590 [1995]). Since the exchange between petitioner Navarro and Lingan was not
private, its tape recording is not prohibited. (Felipe Navarro v. Court of Appeals, G.R. No. 121087, Aug. 26,
1999, 2
nd
Div. [Mendoza])

The Right to Privacy

178. Is there a constitutional right to privacy?

Held: The essence of privacy is the right to be let alone. In the 1965 case of Griswold v. Connecticut
(381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments x x x. In the 1968
case of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that there is a constitutional
right to privacy x x x.

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in
several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional
Foundations of Privacy, p. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill of Rights x x x. Other
facets of the right to privacy are protected in various provisions of the Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17.
(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

179. What are the zones of privacy recognized and protected in our laws?

Held: The Civil Code provides that [e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person, and recognizes the
privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy
is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits (R.A.
1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged communication likewise
recognize the privacy of certain information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v.
Torres, G.R. No. 127685, July 23, 1998 [Puno])

180. Discuss why Administrative Order No. 308 (issued by the President prescribing for a National ID system
for all citizens to facilitate business transactions with government agencies engaged in the delivery of basic
services and social security provisions) should be declared unconstitutional.

Held: We prescind from the premise that the right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to
provide our citizens and foreigners with the facility to conveniently transact business with basic service and
social security providers and other government instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not

91
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our
peoples right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN)
as a common reference number to establish a linkage among concerned agencies through the use of
Biometrics Technology and computer application designs.

It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what
particular biometrics technology shall be used to identify people who will seek its coverage. Considering the
banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of
our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether
encoding of data is limited to biological information alone for identification purposes. x x x. Clearly, the
indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for
a purpose other than the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed x x x.
The more frequent the use of the PRN, the better the chance of building a huge and formidable information base
through the electronic linkage of the files. The data may be gathered for gainful and useful government
purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to
misuse, a temptation that may be too great for some of our authorities to resist.

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified purposes. The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the individuals liberty of abode and travel by
enabling authorities to track down his movement; it may also enable unscrupulous persons to access
confidential information and circumvent the right against self-incrimination; it may pave the way for fishing
expeditions by government authorities and evade the right against unreasonable searches and seizures. The
possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.

The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is one of the most graphic threats of the computer revolution.
The computer is capable of producing a comprehensive dossier on individuals out of information given at
different times and for varied purposes. x x x. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with other data on the subject.
Once extracted, the information is putty in the hands of any person. The end of privacy begins.

[T]he Court will not be true to its role as the ultimate guardian of the peoples liberty if it would not
immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume
them.

[A]nd we now hold that when the integrity of a fundamental right is at stake, this Court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to
invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the
government does not act irrationally. They must satisfactorily show the presence of compelling state interest
and that the law, rule, or regulation is narrowly drawn to preclude abuses. This approach is demanded by the
1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In
case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected
by the Constitution.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats
emanate from various sources governments, journalists, employers, social scientists, etc. In the case at bar,
the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people
to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of
basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the
danger that A.O. No. 308 gives the government the power to compile a devastating dossier against
unsuspecting citizens. x x x [W]e close with the statement that the right to privacy was not engraved in our
Constitution for flattery. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

181. Should in camera inspection of bank accounts be allowed? If in the affirmative, under what
circumstances should it be allowed?

Held: The issue is whether petitioner may be cited for indirect contempt for her failure to produce the
documents requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera
inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (R.A.
No. 1405).

An examination of the secrecy of bank deposits law (R.A. No. 1405) would reveal the following
exceptions:

1) Where the depositor consents in writing;
2) Impeachment cases;

92
3) By court order in bribery or dereliction of duty cases against public officials;
4) Deposit is subject of litigation;
5) Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in the case of PNB v. Gancayco (122
Phil. 503, 508 [1965]).

The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union
Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the
Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the
Joint Venture Agreement between the Public Estates Authority and AMARI.

We rule that before an in camera inspection may be allowed, there must be a pending case before a
court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the
subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the
account holder must be notified to be present during the inspection, and such inspection may cover only the
account identified in the pending case.

In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on Secrecy of
Bank Deposits, as amended, declares bank deposits to be absolutely confidential except:

1) In an examination made in the course of a special or general examination of a bank that is
specifically authorized by the Monetary Board after being satisfied that there is reasonable ground
to believe that a bank fraud or serious irregularity has been or is being committed and that it is
necessary to look into the deposit to establish such fraud or irregularity,
2) In an examination made by an independent auditor hired by the bank to conduct its regular audit
provided that the examination is for audit purposes only and the results thereof shall be for the
exclusive use of the bank,
3) Upon written permission of the depositor,
4) In cases of impeachment,
5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or
6) In cases where the money deposited or invested is the subject matter of the litigation.

In the case at bar, there is yet no pending litigation before any court of competent authority. What is
existing is an investigation by the Office of the Ombudsman. In short, what the Office of the Ombudsman would
wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the
Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank
account for inspection. (Lourdes T. Marquez v. Hon. Aniano A. Desierto, G.R. No. 135882, June 27, 2001,
En Banc [Pardo])

Freedom of Expression

182. Distinguish content-based restrictions on free speech from content-neutral restrictions, and give
example of each.

Held: Content-based restrictions are imposed because of the content of the speech and are, therefore,
subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v. Comelec,
prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a
plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These
restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.

Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale
or donation of print space and air time to political candidates during the campaign period, are not concerned
with the content of the speech. These regulations need only a substantial governmental interest to support
them. A deferential standard of review will suffice to test their validity. The clear-and-present danger rule is
inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which
are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present
danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular
hammer is all that is needed.

The test for this difference in the level of justification for the restriction of speech is that content-based
restrictions distort public debate, have improper motivation, and are usually imposed because of fear of how
people will react to a particular speech. No such reasons underlie content-neutral regulations, like regulation of
time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985.
(Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])

183. What is the most influential test for distinguishing content-based from content-neutral regulations?

Held: The United States Supreme Court x x x held in United States v. O Brien:

[A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power of the
government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental
interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged
First Amendment freedoms (of speech, expression and press) is no greater than is essential to the
furtherance of that intesrst (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added])


93
This is so far the most influential test for distinguishing content-based from content-neutral regulations
and is said to have become canonical in the review of such laws. (G. Gunther & K. Sullivan, Constitutional Law
1217 [13
th
ed. 1997]). It is noteworthy that the O Brien test has been applied by this Court in at least two cases
(Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.).

Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover,
even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if
the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in
question. (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc [Mendoza])

184. Does the conduct of exit poll by ABS CBN present a clear and present danger of destroying the
credibility and integrity of the electoral process as it has the tendency to sow confusion considering the
randomness of selecting interviewees, which further makes the exit poll highly unreliable, to justify the
promulgation of a Comelec resolution prohibiting the same?

Held: Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as much as possible be
representative or reflective of the general sentiment or view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the
opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake are the credibility and the integrity of the elections, which
are exercises that are separate and independent from the exit polls. The holding and the reporting of the results
of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the
outcome of one can only be indicative of the other.

The COMELECs concern with the possible noncommunicative effect of exit polls disorder and
confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.
There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers.
Neither has any evidence been presented proving that the presence of exit poll reporters near an election
precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the voters answers to
the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates,
researchers, social scientists and the electorate in general would be deprived of studies on the impact of current
events and of election-day and other factors on voters choices.

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type of information obtained through exit polling. On the
other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or
minimizing disorder and confusion that may be brought about by exit surveys.

With foregoing premises, it is concluded that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate.
Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital
tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing,
fraud and other electoral ills. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28,

185. Section 5.4 of R.A. No. 9006 (Fair Election Act) which provides: Surveys affecting national candidates
shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not
be published seven (7) days before an election. The Social Weather Stations, Inc. (SWS), a private non-
stock, non-profit social research institution conducting surveys in various fields; and Kamahalan Publishing
Corporation, publisher of the Manila Standard, a newspaper of general circulation, which features
newsworthy items of information including election surveys, challenged the constitutionality of aforesaid
provision as it constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint. Should the challenge be sustained?

Held: For reason hereunder given, we hold that Section 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, Section 5.4 lays a prior restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen
(15) days immediately preceding a national election and seven (7) days before a local election. Because of the
preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a
weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity x x x. The Government thus carries a heavy
burden of showing justification for the enforcement of such restraint. There is thus a reversal of the normal
presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, Sec. 4 of the Constitution, which gives the Comelec
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like Sec. 5.4. For as we have pointed out in
sustaining the ban on media political advertisements, the grant of power to the Comelec under Art. IX-C, Sec. 4

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is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable
rates of charges for the use of such media facilities for public information campaigns and forums among
candidates.

X x x

Nor can the ban on election surveys be justified on the ground that there are other countries x x x which
similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is
noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot
be argued that this is because the United States is a mature democracy. Neither are there laws imposing an
embargo on survey results, even for a limited period, in other countries. x x x.

What test should then be employed to determine the constitutional validity of Section 5.4? The United
States Supreme Court x x x held in United States v. O Brien:

[A] government regulation is sufficiently justified (1) if it is within the constitutional power of the
government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental
interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged
First Amendment freedoms (of speech, expression and press) is no greater than is essential to the
furtherance of that interest (391 U.S. 367, 20 L. Ed. 2d 692, 680 [1968] [bracketed numbers added]).

This is so far the most influential test for distinguishing content-based from content-neutral regulations
and is said to have become canonical in the review of such laws. It is noteworthy that the O Brien test has
been applied by this Court in at least two cases (Adiong v. Comelec; Osmena v. Comelec).

Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover,
even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if
the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in
question.

Our inquiry should accordingly focus on these two considerations as applied to Sec. 5.4.

First. Sec. 5.4 fails to meet criterion (3) of the O Brien test because the causal connection of
expression to the asserted governmental interest makes such interest not unrelated to the suppression of free
expression. By prohibiting the publication of election survey results because of the possibility that such
publication might undermine the integrity of the election, Sec. 5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, Sec. 5.4
shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results.
The constitutional guarantee of freedom of expression means that the government has no power to restrict
expression because of its message, its ideas, its subject matter, or its contents. The inhibition of speech
should be upheld only if the expression falls within one of the few unprotected categories dealt with in
Chaplinsky v. New Hampshire, thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint which Sec. 5.4 lays on protected speech. In Near v.
Minnesota, it was held:

[T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been
recognized only in exceptional cases x x x. No one would question but that a government might prevent
actual obstruction to its recruiting service or the publication of the sailing dates of transports or the
number and location of troops. On similar grounds, the primary requirements of decency may be
enforced against obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government x x x.

Thus, x x x the prohibition imposed by Sec. 5.4 cannot be justified on the ground that it is only for a
limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of
expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is
not made less so because it is only for a period of fifteen (15) days immediately before a national election and
seven (7) days immediately before a local election.

This sufficiently distinguishes Sec. 5.4 from R.A. No. 6646, Sec. 11(b), which this Court found to be
valid in National Press Club v. Comelec, and Osmena v. Comelec. For the ban imposed by R.A. No. 6646, Sec.
11(b) is not only authorized by a specific constitutional provision (Art. IX-C, Sec. 4), but it also provided an
alternative so that, as this Court pointed out in Osmena, there was actually no ban but only a substitution of
media advertisements by the Comelec space, and Comelec hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of
speech and the resulting restriction of free expression is only incidental, Sec. 5.4 nonetheless fails to meet

95
criterion (4) of the O Brien test, namely, that the restriction be not greater than is necessary to further the
governmental interest. As already stated, Sec. 5.4. aims at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election
cheating called dagdag-bawas. Praiseworthy as these aims of the regulation might be, they cannot be
attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by
punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of
such evils. Thus, under the Administrative Code of 1987 (Bk. V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is
given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading
or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in Sec. 5.4. Pursuant to this power
of the Comelec, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their
own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a
free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon
effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters.
Some voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be
legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has
been held that [mere] legislative preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to justify such as diminishes the
exercise of rights so vital to the maintenance of democratic institutions.

To summarize then, we hold that Sec. 5.4. is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even though such
suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom of expression. (Social Weather Stations, Inc., v.
COMELEC, G.R. No. 147571, May 5, 2001, En Banc [Mendoza])

186. The question for determination in this case is the liability for libel of a citizen who denounces a barangay
official for misconduct in office. The Regional Trial Court of Manila x x x found petitioner guilty x x x on the
ground that petitioner failed to prove the truth of the charges and that he was motivated by vengeance in
uttering the defamatory statement.

Held: The decision appealed from should be reversed.

In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see
to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition
of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that the statement was made with actual malice that is,
with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the
ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of
its own decisions. This is the rule of actual malice. In this case, the prosecution failed to prove not only that
the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or
with reckless disregard of whether they were false or not.

A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or
good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the
Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression.
Such a rule would deter citizens from performing their duties as members of a self-governing community.
Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As
Justice Brandies has said, public discussion is a political duty and the greatest menace to freedom is an inert
people. (Whitney v. California) (Vasquez v. Court of Appeals, 314 SCRA 460, Sept. 15, 1999, En Banc
[Mendoza])

187. Discuss the "doctrine of fair comment" as a valid defense in an action for libel or slander.

Held: Fair commentaries on matters of public interest are privileged and constitute a valid defense in
an action for libel or slander. The doctrine of fair comment means that while in general every discreditable
imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is
directed against a public person in his public capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition. If the comment is an expression of opinion, based on established facts,
then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the
facts. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div. [Bellosillo])

188. What is the raison detre for the New York Times v. Sullivan (376 US 254) holding that honest
criticisms on the conduct of public officials and public figures are insulated from libel judgments?


96
Held: The guarantees of freedom of speech and press prohibit a public official or public figure from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of
whether it was false or not.

The raison detre for the New York Times doctrine was that to require critics of official conduct to
guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since
would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were
in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.
(Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div. [Bellosillo])

189. Columnist Art Borjal of The Philippine Star wrote in his column that petitioner (private respondent), the
Executive Director and Spokesman of the FNCLT (First National Conference on Land Transportation), a
joint project of the government and the private sector to raise funds to improve the state of land
transportation in the country, engaged in shady and anomalous deals. He was sued for damages arising
from libel by petitioner (private respondent) and subsequently found liable by the trial court and made to pay
damages. On appeal, the SC reversed applying the doctrine of fair comment.

Held: [W]e deem private respondent a public figure within the purview of the New York Times ruling. X
x x

The FNCLT (First National Conference on Land Transportation) was an undertaking infused with public
interest. It was promoted as a joint project of the government and the private sector, and organized by top
government officials and prominent businessmen. For this reason, it attracted media mileage and drew public
attention not only to the conference itself but to the personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed the status of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the
FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject
of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he
was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved or because in some sense the individual did not
voluntarily choose to become involved. The publics primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect and significance of the conduct, not the participants prior
anonymity or notoriety. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div. [Bellosillo])

190. Who is a public figure, and therefore subject to public comment?

Held: At any rate, we have also defined public figure in Ayers Production Pty., Ltd. v. Capulong as

X x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs and his character, has
become a public personage. He is, in other words, a celebrity. Obviously, to be included in this
category are those who have achieved some degree of reputation by appearing before the public, as in
the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the
lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused
upon him as a person. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div. [Bellosillo])

191. What are the types of privileged communications?

Held: A privileged communication may be either absolutely privileged or qualifiedly privileged.
Absolutely privileged communications are those which are not actionable even if the author acted in bad faith.
An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from
liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly
privileged communications containing defamatory imputations are not actionable unless found to have been
made without good intention or justifiable motive. To this genre belong private communications and fair and
true report without any comments or remarks. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div.
[Bellosillo])

192. Is the enumeration of qualifiedly privileged communications under Article 354 of the Revised Penal
Code exclusive?

Held: Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art. 354 of
The Revised Penal Code for x x x they are neither private communications nor fair and true report without any
comments or remarks. However, this does not necessarily mean that they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999,
2
nd
Div. [Bellosillo])

193. Discuss the origin of the rule on privileged communication. Did it originate in the nations penal laws, or
in the Bill of Rights guaranteeing freedom of speech and of the press?


97
Held: The rule on privileged communications had its genesis not in the nations penal code but in the
Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United
States v. Canete (38 Phil. 253, 265 [1918]), this Court ruled that publications which are privileged for reasons of
public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot
be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libel.
(Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2
nd
Div. [Bellosillo])

194. The Office of the Mayor of Las Pinas refused to issue permit to petitioners to hold rally a rally in front of
the Justice Hall of Las Pinas on the ground that it was prohibited under Supreme Court En Banc Resolution
dated July 7,1998 in A.M. No. 98-7-02-SC, entitled, "Re: Guidelines on the Conduct of Demonstrations,
Pickets, Rallies and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts."
Petitioners thus initiated the instant proceedings. They submit that the Supreme Court gravely abused its
discretion and/or acted without or in excess of jurisdiction in promulgating those guidelines.

Held: We shall first dwell on the critical argument made by petitioners that the rules constitute an
abridgment of the people's aggregate rights of free speech, free expression, peaceful assembly and petitioning
government for redress of grievances citing Sec. 4, Article III of the 1987 Constitution that no law shall be
passed abridging them.

It is true that the safeguarding of the people's freedom of expression to the end that individuals may
speak as they think on matters vital to them and that falsehoods may be exposed through the processes of
education and discussion, is essential to free government. But freedom of speech and expression despite its
indispensability has its limitations. It has never been understood as the absolute right to speak whenever,
however, and wherever one pleases, for the manner, place, and time of public discussion can be constitutionally
controlled. [T]he better policy is not liberty untamed but liberty regulated by law where every freedom is
exercised in accordance with law and with due regard for the rights of others.

Conventional wisdom tells us that the realities of life in a complex society preclude an absolutist
interpretation of freedom of expression where it does not involve pure speech but speech plus physical actions
like picketing. There are other significant societal values that must be accommodated and when they clash,
they must all be weighed with the promotion of the general welfare of the people as the ultimate objective. In
balancing these values, this Court has accorded freedom of expression a preferred position in light of its more
comparative importance. Hence, our rulings now musty in years hold that only the narrowest time, place and
manner regulations that are specifically tailored to serve an important governmental interest may justify the
application of the balancing of interests test in derogation of the people's right of free speech and expression.
Where said regulations do not aim particularly at the evils within the allowable areas of state control but, on the
contrary, sweep within their ambit other activities as to operate as an overhanging threat to free discussion, or
where upon their face they are so vague, indefinite, or inexact as to permit punishment of the fair use of the right
of free speech, such regulations are void.

Prescinding from this premise, the Court reiterates that judicial independence and the fair and orderly
administration of justice constitute paramount governmental interests that can justify the regulation of the
public's right of free speech and peaceful assembly in the vicinity of courthouses. In the case of In Re: Emil P.
Jurado, the Court pronounced in no uncertain terms that:

x x x freedom of expression needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interests. One of these fundamental public interests is the
maintenance of the integrity and orderly functioning of the administration of justice. There is no
antinomy between free expression and the integrity of the system of administering justice. For the
protection and maintenance of freedom of expression itself can be secured only within the context of a
functioning and orderly system of dispensing justice, within the context, in other words, of viable
independent institutions for delivery of justice which are accepted by the general community. x x x (In
Re: Emil P. Jurado, 243 SCRA 299, 323-324 [1995])

It is sadly observed that judicial independence and the orderly administration of justice have been
threatened not only by contemptuous acts inside, but also by irascible demonstrations outside, the courthouses.
They wittingly or unwittingly, spoil the ideal of sober, non-partisan proceedings before a cold and neutral judge.
Even in the United States, a prohibition against picketing and demonstrating in or near courthouses, has been
ruled as valid and constitutional notwithstanding its limiting effect on the exercise by the public of their liberties.
X x x

The administration of justice must not only be fair but must also appear to be fair and it is the duty of this
Court to eliminate everything that will diminish if not destroy this judicial desideratum. To be sure, there will be
grievances against our justice system for there can be no perfect system of justice but these grievances must be
ventilated through appropriate petitions, motions or other pleadings. Such a mode is in keeping with the respect
due to the courts as vessels of justice and is necessary if judges are to dispose their business in a fair fashion.
It is the traditional conviction of every civilized society that courts must be insulated from every extraneous
influence in their decisions. The facts of a case should be determined upon evidence produced in court, and
should be uninfluenced by bias, prejudice or sympathies. (In Re: Petition to Annul En Banc Resolution A.M.
98-7-02-SC - Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government
[ULAT], G.R. No. 134621, Sept. 29, 1998)

195. Did the Supreme Court commit an act of judicial legislation in promulgating En Banc Resolution A.M.
98-7-02-SC, entitled, Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other Similar
Gatherings in the Vicinity of the Supreme Court and All Other Courts?


98
Held: Petitioners also claim that this Court committed an act of judicial legislation in promulgating the
assailed resolution. They charge that this Court amended provisions of Batas Pambansa (B.P.) Blg. 880,
otherwise known as the Public Assembly Act, by converting the sidewalks and streets within a radius of two
hundred (200) meters from every courthouse from a public forum place into a no rally zone. Thus, they accuse
this Court of x x x violating the principle of separation of powers.

We reject these low watts arguments. Public places historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public fora. In
other words, it is not any law that can imbue such places with the public nature inherent in them. But even in
such public fora, it is settled jurisprudence that the government may restrict speech plus activities and enforce
reasonable time, place, and manner regulations as long as the restrictions are content-neutral, are narrowly
tailored to serve a significant governmental interest, and leave open ample alternative channels of
communication.

Contrary therefore to petitioners impression, B.P. Blg. 880 did not establish streets and sidewalks,
among other places, as public fora. A close look at the law will reveal that it in fact prescribes reasonable time,
place, and manner regulations. Thus, it requires a written permit for the holding of public assemblies in public
places subject, even, to the right of the mayor to modify the place and time of the public assembly, to impose a
rerouting of the parade or street march, to limit the volume of loud speakers or sound system and to prescribe
other appropriate restrictions on the conduct of the public assembly.

The existence of B.P. Blg. 880, however, does not preclude this Court from promulgating rules
regulating conduct of demonstrations in the vicinity of courts to assure our people of an impartial and orderly
administration of justice as mandated by the Constitution. To insulate the judiciary from mob pressure, friendly
or otherwise, and isolate it from public hysteria, this Court merely moved away the situs of mass actions within a
200-meter radius from every courthouse. In fine, B.P. Blg. 880 imposes general restrictions to the time, place
and manner of conducting concerted actions. On the other hand, the resolution of this Court regulating
demonstrations adds specific restrictions as they involve judicial independence and the orderly administration of
justice. There is thus no discrepancy between the two sets of regulatory measures. Simply put, B.P. Blg. 880
and the assailed resolution complement each other. We so hold following the rule in legal hermeneutics that an
apparent conflict between a court rule and a statutory provision should be harmonized and both should be given
effect if possible. (In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte and
Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29,
1998)

196. Should live media coverage of court proceedings be allowed?

Held: The propriety of granting or denying permission to the media to broadcast, record, or photograph
court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of the public
to information and the right to public trial, on the one hand, and on the other hand, the due process rights of the
defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit
the fair and impartial administration of justice. Collaterally, it also raises issues on the nature of the media,
particularly television and its role in society, and of the impact of new technologies on law.

X x x

Courts do not discriminate against radio and television media by forbidding the broadcasting or
televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news
reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press
into the courtroom.

In Estes v. Texas, the United States Supreme Court held that television coverage of judicial
proceedings involves an inherent denial of due process rights of a criminal defendant. Voting 5-4, the Court
through Mr. Justice Clark, identified four (4) areas of potential prejudice which might arise from the impact of the
cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated:

Experience likewise has established the prejudicial effect of telecasting on witnesses.
Witnesses might be frightened, play to the camera, or become nervous. They are subject to
extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only
increases the trial judge's responsibility to avoid actual prejudice to the defendant; it may as well affect
his own performance. Judges are human beings also and are subject to the same psychological
reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to
excessive public exposure and distracts him from the effective presentation of his defense.

The television camera is a powerful weapon which intentionally or inadvertently can destroy an
accused and his case in the eyes of the public.

Representatives of the press have no special standing to apply for a writ of mandate to compel a court
to permit them to attend a trial, since within the courtroom a reporter's constitutional rights are no greater than
those of any other member of the public. Massive intrusion of representatives of the news media into the trial
itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the
requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a
criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters
or leaves the courtroom.


99
Considering the prejudice it poses to the defendant's right to due process as well as to the fair and
orderly administration of justice, and considering further that the freedom of the press and the right of the people
to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and
television coverage of court proceedings shall not be allowed. Video footages of court hearings for news
purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their
counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be
permitted during the trial proper. (Supreme Court En Banc Resolution Re: Live TV and Radio Coverage of
the Hearing of President Corazon C. Aquino's Libel Case, dated Oct. 22, 1991)

197. Should the Court allow live media coverage of the anticipated trial of the plunder and other criminal
cases filed against former President Joseph E. Estrada before the Sandiganbayan in order to assure the
public of full transparency in the proceedings of an unprecedented case in our history as requested by the
Kapisanan ng mga Brodkaster ng Pilipinas?

Held: The propriety of granting or denying the instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial.

When these rights race against one another, jurisprudence tells us that the right of the accused must be
preferred to win.

With the possibility of losing not only the precious liberty but also the very life of an accused, it
behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and
dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by
unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid
of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and
decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions.

Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial
that is not lifted above its individual settings nor made an object of publics attention and where the conclusions
reached are induced not by any outside force or influence but only by evidence and argument given in open
court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate,
with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that
television can work profound changes in the behavior of the people it focuses on. Even while it may be difficult
to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of
public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The
conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision
of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence
to yield to it. It might be farcical to build around them an impregnable armor against the influence of the most
powerful media of public opinion.

To say that actual prejudice should first be present would leave to near nirvana the subtle threats to
justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can
create. The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to
gradually erode our basal conception of a trial such as we know it now.

An accused has a right to a public trial but it is a right that belongs to him, more than anyone else,
where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with
and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago.
A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those
who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In
the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to
observe the proceedings, not too small as to render the openness negligible and not too large as to distract the
trial participants from their proper functions, who shall then be totally free to report what they have observed
during the proceedings.

The courts recognize the constitutionally embodied freedom of the press and the right to public
information. It also approves of medias exalted power to provide the most accurate and comprehensive means
of conveying the proceedings to the public and in acquainting the public with the judicial process in action;
nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to
due process which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark
thusly pronounced, while a maximum freedom must be allowed the press in carrying out the important function
of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of
absolute fairness in the judicial process.

X x x

The Integrated Bar of the Philippines x x x expressed its own concern on the live television and radio
coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the
rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is
not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and
live television and radio coverage of the trial could allow the hooting throng to arrogate unto themselves the
task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and

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live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the
desire for publicity of a few grandstanding lawyers.

X x x

Unlike other government offices, courts do not express the popular will of the people in any sense
which, instead, are tasked to only adjudicate controversies on the basis of what alone is submitted before them.
A trial is not a free trade of ideas. Nor is a competing market of thoughts the known test of truth in a courtroom.
(Re: Request Radio-TV coverage of the Trial in the Sandiganbayan of the Plunder Cases against the
former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, En Banc [Vitug])

Freedom of Religion

198. Discuss the two aspects of freedom of religion.

Held: 1. The right to religious profession and worship has a two-fold aspect, viz., freedom to believe
and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of
thought. The second is subject to regulation where the belief is translated into external acts that affect the
public welfare. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno])

2. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to such religious organization or form of worship as the
individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the
chosen form of religion. Thus, the Constitution embraces two concepts, that is, freedom to believe and freedom
to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to
regulation for the protection of society. The freedom to act must have appropriate definitions to preserve the
enforcement of that protection. In every case, the power to regulate must be so exercised, in attaining a
permissible end, as not to unduly infringe on the protected freedom.

Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the
State may protect its citizens from injury. X x x

It does not follow, therefore, from the constitutional guarantees of the free exercise of religion that
everything which may be so called can be tolerated. It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely
because it also incidentally has a detrimental effect on the adherents of one or more religion. (Centeno v.
Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado])

199. Discuss why the Gerona ruling (justifying the expulsion from public schools of children of Jehovahs
Witnesses who refuse to salute the flag and sing the national anthem during flag ceremony as prescribed by
the Flag Salute Law) should be abandoned.

Held: Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding
the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its
incorporation in the Administrative Code of 1987, the present Court believes that the time has come to
reexamine it. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the
patriotic pledge, during a flag ceremony on pain of being dismissed from ones job or of being expelled from
school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights
which guarantees their rights to free speech (The flag salute, singing the national anthem and reciting the
patriotic pledge are all forms of utterances.) and the free exercise of religious profession and worship.

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest
protection among human rights, for it involves the relationship of man to his Creator.

X x x

Petitioners stress x x x that while they do not take part in the compulsory flag ceremony, they do not
engage in external acts or behavior that would offend their countrymen who believe in expressing their love of
country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony
to show their respect for the rights of those who choose to participate in the solemn proceedings. Since they do
not engage in disruptive behavior, there is no warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate
public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety,
the expulsion of the petitioners from the schools is not justified.

The situation that the Court directly predicted in Gerona that:


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[T]he flag ceremony will become a thing of the past or perhaps conducted with very few
participants, and the time will come when we would have citizens untaught and uninculcated in and not
imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism
a pathetic, even tragic situation, and all because a small portion of the school population imposed its
will, demanded and was granted an exemption.

has not come to pass. We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a
small portion of the school population will shake up our part of the globe and suddenly produce a nation
untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and
admiration for national heroes. After all, what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the democratic way of life and form of
government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a
vocation or profession and be taught the virtues of patriotism, respect for human rights, appreciation for
national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring
about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love
of country or respect for duly constituted authorities.

X x x

Moreover, the expulsion of members of Jehovahs Witnesses from the schools where they are enrolled
will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the
duty of the State to protect and promote the right of all citizens to quality education x x x and to make such
education accessible to all (Sec. 1, Art. XIV).

In Victoriano v. Elizalde Rope Workers Union, we upheld the exemption of members of the Iglesia Ni
Cristo, from the coverage of a closed shop agreement between their employer and a union because it would
violate the teaching of their church not to join any labor group x x x.

X x x

We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the
observance of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may
seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to
disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non v. Dames II, while the
highest regard must be afforded their right to the free exercise of their religion, this should not be taken to mean
that school authorities are powerless to discipline them if they should commit breaches of the peace by actions
that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during
the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the
patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose a grave and present
danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that
the State has a right (and duty) to prevent. (Ebralinag v. The Division Superintendent of Schools of Cebu,
219 SCRA 256, 269-273, March 1, 1993, En Banc [Grino-Aquino])

200. A pre-taped TV program of the Iglesia Ni Cristo (INC) was submitted to the MTRCB for review. The
latter classified it as rated X because it was shown to be attacking another religion. The INC protested by
claiming that its religious freedom is per se beyond review by the MTRCB. Should this contention be
upheld?

Held: The Iglesia Ni Cristo's postulate that its religious freedom is per se beyond review by the MTRCB
should be rejected. Its public broadcast on TV of its religious programs brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes and ears of children. The exercise of religious
freedom can be regulated by the State when it will bring about the clear and present danger of a substantive evil
which the State is duty-bound to prevent, i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of
concern in our society today. For sure, we shall continue to subject any act pinching the space for the free
exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man.
For when religion divides and its exercise destroys, the State should not stand still. (Iglesia Ni Cristo v. CA,
259 SCRA 529, July 26, 1996 [Puno])

201. Did the MTRCB act correctly when it rated X the Iglesia Ni Cristo's pre-taped TV program simply
because it was found to be attacking another religion?

Held: The MTRCB may disagree with the criticisms of other religions by the Iglesia Ni Cristo but that
gives it no excuse to interdict such criticisms, however unclean they may be. Under our constitutional scheme,
it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious
dogma and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis--vis
religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance.
In fine, the MTRCB cannot squelch the speech of the INC simply because it attacks another religion. In a State
where there ought to be no difference between the appearance and the reality of freedom of religion, the
remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it
is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the

102
marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech,
the heat of colliding ideas, that can fan the embers of truth. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26,
1996 [Puno])

202. Is solicitation for the construction of a church covered by P.D. No. 1564 and, therefore, punishable if
done without the necessary permit for solicitation from the DSWD?

Held: First. Solicitation of contributions for the construction of a church is not solicitation for charitable
or public welfare purpose but for a religious purpose, and a religious purpose is not necessarily a charitable or
public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for
needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of
subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such
solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong
to the same religion as the solicitor. Such solicitation does not engage the philanthropic as much as the
religious fervor of the person who is solicited for contribution.

Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of
fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually
conducted among those belonging to the same religion, the need for public protection against fraudulent
solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for
charity or civic projects as to justify state regulation.

Third. To require a government permit before solicitation for religious purpose may be allowed is to lay
a prior restraint on the free exercise of religion. Such restraint, if allowed, may well justify requiring a permit
before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila,
we precisely held that an ordinance requiring payment of a license fee before one may engage in business
could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a
constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior
permit for public assemblies and other uses of public parks and streets (B.P. Blg. 880, Sec. 3[a]). To read the
Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a
manner that it violates the Free Exercise of Religion Clause of the Constitution x x x. (Concurring Opinion,
Mendoza, V.V., J., in Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994)

203. What is a purely ecclesiastical affair to which the State can not meddle?

Held: An ecclesiastical affair is one that concerns doctrine, creed, or form of worship of the church, or
the adoption and enforcement within a religious association of needful laws and regulations for the government
of the membership, and the power of excluding from such associations those deemed not worthy of
membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and
its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To
be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings
for excommunication, ordinations of religious ministers, administration of sacraments and other activities with
attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1
st
Div.
[Kapunan])

204. Petitioner is a religious minister of the Seventh Day Adventist (SDA). He was dismissed because of
alleged misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and
habitual neglect of duties and commission of an offense against the person of his employers duly
authorized representative. He filed an illegal termination case against the SDA before the labor arbiter. The
SDA filed a motion to dismiss invoking the doctrine of separation of Church and State. Should the motion
be granted?

Held: Where what is involved is the relationship of the church as an employer and the minister as an
employee and has no relation whatsoever with the practice of faith, worship or doctrines of the church, i.e., the
minister was not excommunicated or expelled from the membership of the congregation but was terminated
from employment, it is a purely secular affair. Consequently, the suit may not be dismissed invoking the
doctrine of separation of church and the state. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug.
16, 1999, 1
st
Div. [Kapunan])

The Right of the People to Information on Matters of Public Concern

205. Discuss the scope of the right to information on matters of public concern.

Held: In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be matters
of public concern, access to which may be limited by law. Similarly, the state policy of full public disclosure
extends only to transactions involving public interest and may also be subject to reasonable conditions
prescribed by law. As to the meanings of the terms public interest and public concern, the Court, in Legaspi
v. Civil Service Commission, elucidated:

In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. Public concern like public interest is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary

103
citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.

Considered a public concern in the above-mentioned case was the legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who are
eligibles. So was the need to give the general public adequate notification of various laws that regulate and
affect the actions and conduct of citizens, as held in Tanada. Likewise did the public nature of the loanable
funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang
Pambansa) qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-
Sarmiento v. Morato, the Court also held that official acts of public officers done in pursuit of their official
functions are public in character; hence, the records pertaining to such official acts and decisions are within the
ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to provide information on
their policies and procedures in clear and understandable language, [and] ensure openness of information,
public consultations and hearing whenever appropriate x x x, except when otherwise provided by law or when
required by the public interest. In particular, the law mandates free public access, at reasonable hours, to the
annual performance reports of offices and agencies of government and government-owned or controlled
corporations; and the statements of assets, liabilities and financial disclosures of all public officials and
employees.

In general, writings coming into the hands of public officers in connection with their official functions
must be accessible to the public, consistent with the policy of transparency of governmental affairs. This
principle is aimed at affording the people an opportunity to determine whether those to whom they have
entrusted the affairs of the government are honestly, faithfully and competently performing their functions as
public servants. Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and ideas
must be well-informed so that the public would gain a better perspective of vital issues confronting them and,
thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and
effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-
informed public that a government remains responsive to the changes desired by the people. (Chavez v.
PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban])

206. What are some of the recognized restrictions to the right of the people to information on matters of
public concern?

Held: In Chavez v. PCGG (299 SCRA 744, Dec. 9, 1998 [Panganiban]), the SC enumerated the
recognized restrictions to the right of the people to information on matters of public concern, as follows:

1) National security matters and intelligence information. This jurisdiction recognizes the common law
holding that there is a governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters. Likewise, information on inter-
government exchanges prior to the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest;
2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on
June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank
Deposits Act [R.A. No. 1405, as amended]);
3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of
criminals, which courts may not inquire into prior to such arrest, detention and prosecution;
4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20,
1989) further prohibits public officials and employees from using or divulging confidential or
classified information officially known to them by reason of their office and not made available to the
public. (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic
correspondence, closed door Cabinet meetings and executive sessions of either house of
Congress, as well as the internal deliberations of the Supreme Court.

207. Is the recovery of the alleged ill-gotten wealth of the Marcoses a matter of public concern subject to this
right?

Held: With such pronouncements of our government x x x there is no doubt that the recovery of the
Marcoses alleged ill-gotten wealth is a matter of public concern and imbued with public interest. We may also
add that ill-gotten wealth refers to assets and properties purportedly acquired, directly or indirectly, by former
President Marcos, his immediate family, relatives and close associates through or as a result of their improper
or illegal use of government funds or properties; or their having taken undue advantage of their public office; or
their use of powers, influences or relationships, resulting in their unjust enrichment and causing grave damage
and prejudice to the Filipino people and the Republic of the Philippines. Clearly, the assets and properties
referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong
to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared
overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national
economic recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses purported ill-gotten
wealth. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])


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Freedom of Association

208. Does the right of civil servants to organize include their right to strike? Clarify.

Held: Specifically, the right of civil servants to organize themselves was positively recognized in
Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja. But, as in the exercise of the rights of free
expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes
of the association, the overriding considerations of national security and the preservation of democratic
institutions.

As regards the right to strike, the Constitution itself qualifies its exercise with the proviso in accordance
with law. This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny
certain sectors such right. Executive Order No. 180 which provides guidelines for the exercise of the right of
government workers to organize, for instance, implicitly endorsed an earlier CSC circular which enjoins under
pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations,
mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of
public service (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service
law and rules governing concerted activities and strikes in the government service shall be observed.

It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to
strike. Alliance of Concerned Government Workers v. Minister of Labor and Employment rationalized the
proscription thus:

The general rule in the past and up to the present is that the terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof are
governed by law. x x x. Since the terms and conditions of government employment are fixed by law,
government workers cannot use the same weapons employed by the workers in the private sector to
secure concessions from their employers. The principle behind labor unionism in private industry is that
industrial peace cannot be secured through compulsion by law. Relations between private employers
and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of
wage laws and other labor and welfare legislation, the terms and conditions of employment in the
unionized private sector are settled through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given delegated power, the
administrative heads of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not through collective
bargaining agreements.

After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social
Security System Employees Association (SSSEA) v. Court of Appeals and explained:

Government employees may, therefore, through their unions or associations, either petition the
Congress for the betterment of the terms and conditions of employment which are within the ambit of
legislation or negotiate with the appropriate government agencies for the improvement of those which
are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public
Sector Labor-Management Council for appropriate action. But employees in the civil service may not
resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to
pressure the Government to accede to their demands. As now provided under Sec. 4, Rule III of the
Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-
Organization, which took effect after the instant dispute arose, [t]he terms and conditions of
employment in the government, including any political subdivision or instrumentality thereof and
government-owned and controlled corporations with original charters are governed by law and
employees therein shall not strike for the purpose of securing changes [thereto].
(Jacinto v. Court of Appeals, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban])

209. Petitioners public school teachers walked out of their classes and engaged in mass actions during
certain dates in September 1990 protesting the alleged unlawful withholding of their salaries and other
economic benefits. They also raised national issues, such as the removal of US bases and the repudiation
of foreign debts, in their mass actions. They refused to return to work despite orders to do so and
subsequently were found guilty of conduct prejudicial to the best interests of the service for having absented
themselves without proper authority, from their schools during regular school days, and penalized. They
denied that they engaged in strike but claimed that they merely exercised a constitutionally guaranteed
right the right to peaceably assemble and petition the government for redress of grievances - and,
therefore, should not have been penalized. Should their contention be upheld?

Held: Petitioners, who are public schoolteachers and thus government employees, do not seek to
establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates
in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition
the government for a redress of grievances. They claim that their gathering was not a strike, therefore, their
participation therein did not constitute any offense. MPSTA v. Laguio and ACT v. Carino, in which this Court
declared that these mass actions were to all intents and purposes a strike; they constituted a concerted and
unauthorized stoppage of, or absence from, work which it was the teachers duty to perform, undertaken for
essentially economic reasons, should not principally resolve the present case, as the underlying facts are
allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work done by the concerted action of
employees as a result of an industrial or labor dispute. A labor dispute includes any controversy or matter

105
concerning terms and conditions of employment; or the association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the
disputants stand in the proximate relation of employers and employees. With these premises, we now evaluate
the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-
holding of classes in several public schools during the corresponding period. Petitioners do not dispute that the
grievances for which they sought redress concerned the alleged failure of public authorities - essentially, their
employers - to fully and justly implement certain laws and measures intended to benefit them materially x x x.
And probably to clothe their action with permissible character, they also raised national issues such as the
removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of Appeals, however, this
Court said that the fact that the conventional term strike was not used by the participants to describe their
common course of action was insignificant, since the substance of the situation, and not its appearance, was
deemed controlling.

Moreover, the petitioners here x x x were not penalized for the exercise of their right to assemble
peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission
found them guilty of conduct prejudicial to the best interest of the service for having absented themselves
without proper authority, from their schools during regular school days, in order to participate in the mass
protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of
education, for which they were responsible. Had petitioners availed themselves of their free time - recess, after
classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within
the bounds of law, no one - not the DECS, the CSC or even this Court - could have held them liable for the valid
exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from
their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition
against strikes by government workers. Their act by their nature was enjoined by the Civil Service law, rules
and regulations, for which they must, therefore, be made answerable. (Jacinto v. CA, 281 SCRA 657, Nov. 14,

The Non-Impairment Clause

210. Is the constitutional prohibition against impairing contractual obligations absolute?

Held: 1. Nor is there merit in the claim that the resolution and memorandum circular violate the
contract clause of the Bill of Rights.

The executive order creating the POEA was enacted to further implement the social justice provisions of
the 1973 Constitution, which have been greatly enhanced and expanded in the 1987 Constitution by placing
them under a separate Article (Article XIII). The Article on Social Justice was aptly described as the heart of
the new Charter by the President of the 1986 Constitutional Commission, retired Justice Cecilia Munoz Palma.
Social justice is identified with the broad scope of the police power of the state and requires the extensive use of
such power. x x x.

The constitutional prohibition against impairing contractual obligations is not absolute and is not to be
read with literal exactness. It is restricted to contracts with respect to property or some object of value and
which confer rights that may be asserted in a court of justice; it has no application to statutes relating to public
subjects within the domain of the general legislative powers of the State and involving the public rights and
public welfare of the entire community affected by it. It does not prevent a proper exercise by the State of its
police power by enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or
general welfare of the community, even though contracts may thereby be affected, for such matters cannot be
placed by contract beyond the power of the State to regulate and control them.

Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power
of the State and not only may regulations which affect them be established by the State, but all such regulations
must be subject to change from time to time, as the general well-being of the community may require, or as the
circumstances may change, or as experience may demonstrate the necessity. And under the Civil Code,
contracts of labor are explicitly subject to the police power of the State because they are not ordinary contracts
but are impressed with public interest. Article 1700 thereof expressly provides:

Art. 1700. The relations between capital and labor are not merely contractual. They are so
impressed with public interest that labor contracts must yield to the common good. Therefore, such
contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor and similar subjects.

The challenged resolution and memorandum circular being valid implementations of E.O. No. 797
(Creating the POEA), which was enacted under the police power of the State, they cannot be struck down on
the ground that they violate the contract clause. To hold otherwise is to alter long-established constitutional
doctrine and to subordinate the police power to the contract clause. (The Conference of Maritime Manning
Agencies, Inc. v. POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])

2. Petitioners pray that the present action should be barred, because private respondents have
voluntarily executed quitclaims and releases and received their separation pay. Petitioners claim that the
present suit is a grave derogation of the fundamental principle that obligations arising from a valid contract have
the force of law between the parties and must be complied with in good faith.


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The Court disagrees. Jurisprudence holds that the constitutional guarantee of non-impairment of
contract is subject to the police power of the state and to reasonable legislative regulations promoting health,
morals, safety and welfare. Not all quitclaims are per se invalid or against public policy, except (1) where there
is clear proof that the waiver was wangled from an unsuspecting or gullible person, or (2) where the terms of
settlement are unconscionable on their face. In these cases, the law will step in to annul the questionable
transactions. Such quitclaim and release agreements are regarded as ineffective to bar the workers from
claiming the full measure of their legal rights.

In the case at bar, the private respondents agreed to the quitclaim and release in consideration of their
separation pay. Since they were dismissed allegedly for business losses, they are entitled to separation pay
under Article 283 of the Labor Code. And since there was thus no extra consideration for the private
respondents to give up their employment, such undertakings cannot be allowed to bar the action for illegal
dismissal. (Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, 296 SCRA 108, 124,
[Panganiban])

3. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the
imposition of the VAT on the sales and leases of real estate by virtue of contracts entered prior to the effectivity
of the law would violate the constitutional provision that No law impairing the obligation of contracts shall be
passed. It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment,
fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to
fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into
contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment
presupposes the maintenance of a government which retains adequate authority to secure the peace and good
order of society.

In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power
of taxation save only where a tax exemption has been granted for a valid consideration. x x x. (Tolentino v.
Secretary of Finance, 235 SCRA 630, 685-686, Aug. 25, 1994, En Banc [Mendoza])

4. Since timber licenses are not contracts, the non-impairment clause x x x cannot be invoked.

X x x, even if it is to be assumed that the same are contracts, the instant case does not involve a law or
even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the
non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been
passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such a law could have only been passed in
the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced
and healthful ecology, promoting their health and enhancing their general welfare. x x x.

In short, the non-impairment clause must yield to the police power of the state.

Finally, it is difficult to imagine x x x how the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new
timber license for, save in cases of renewal, no contract would have as yet existed in the other instances.
Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. (Oposa v. Factoran, Jr.,
224 SCRA 792 [1993])

5. Anent petitioners contention that the forcible refund of incentive benefits is an unconstitutional
impairment of a contractual obligation, suffice it to state that [n]ot all contracts entered into by the government
will operate as a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts.
The acts involved in this case are governmental. Besides, the Court is in agreement with the Solicitor General
that the incentive pay or benefit is in the nature of a bonus which is not a demandable or enforceable obligation.
(Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11, 1998, En Banc [Purisima])

The In-Custodial Investigation Rights of an Accused Person

211. State the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer
or his companions must do and observe at the time of making an arrest and again at and during the time of
the custodial interrogation.

Held: Lastly, considering the heavy penalty of death and in order to ensure that the evidence against
an accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down
the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his
companions must do and observe at the time of making an arrest and again at and during the time of the
custodial interrogation in accordance with the Constitution, jurisprudence and Republic Act No. 7438 (An Act
Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of
the Arresting, Detaining, and Investigating Officers and Providing Penalties for Violations Thereof). It is high-
time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must update in the light of new legal
developments:

1) The person arrested, detained, invited or under custodial investigation must be informed in a
language known to and understood by him of the reason for the arrest and he must be shown the
warrant of arrest, if any. Every other warnings, information or communication must be in a
language known to and understood by said person;

107
2) He must be warned that he has a right to remain silent and that any statement he makes may be
used as evidence against him;
3) He must be informed that he has the right to be assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own choice;
4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be
appointed by the court upon petition of the person arrested or one acting on his behalf;
5) That whether or not the person arrested has a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel of after a valid
waiver has been made;
6) The person arrested must be informed that, at any time, he has the right to communicate or confer
by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either
retained or appointed), any member of his immediate family, or any medical doctor, priest or
minister chosen by him or by any one from his immediate family or by his counsel, or be visited
by/confer with duly accredited national or international non-government organization. It shall be the
responsibility of the officer to ensure that this is accomplished;
7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood the same;
8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be
done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses to speak;
9) That the person arrested must be informed that he may indicate in any manner at any time or stage
of the process that he does not wish to be questioned with warning that once he makes such
indication, the police may not interrogate him if the same had not yet commenced, or the
interrogation must cease if it has already begun;
10) The person arrested must be informed that his initial waiver of his right to remain silent, the right to
counsel or any of his rights does not bar him from invoking it at any time during the process,
regardless of whether he may have answered some questions or volunteered some statements;
11) He must also be informed that any statement or evidence, as the case may be, obtained in violation
of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be admissible
in evidence.
(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam])

212. Explain the kind of information that is required to be given by law enforcement officers to suspect during
custodial investigation.

Held: [I]t is settled that ones right to be informed of the right to remain silent and to counsel
contemplates the transmission of meaningful information rather just the ceremonial and perfunctory recitation of
an abstract constitutional principle. It is not enough for the interrogator to merely repeat to the person under
investigation the provisions of Section 12, Article III of the 1987 Constitution; the former must also explain the
effects of such provision in practical terms e.g., what the person under investigation may or may not do and
in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on
the part of the police investigator to explain, and contemplates effective communication which results in the
subjects understanding of what is conveyed. Since it is comprehension that is sought to be attained, the
degree of explanation required will necessarily vary and depend on the education, intelligence, and other
relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel,
it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the
same and should be told that he could ask for counsel if he so desired or that one could be provided him at his
request. If he decides not to retain a counsel of his choice or avail of one to be provided for him and, therefore,
chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the
assistance of counsel, who, under prevailing jurisprudence, must be a lawyer. (People v. Canoy, 328 SCRA
385, March 17, 2000, 1
st
Div. [Davide, CJ])

213. What is the meaning of competent counsel under Section 12 of the Bill of Rights?

Held: The meaning of competent counsel was explained in People v. Deniega as follows:

x x x [T]he lawyer called to be present during such investigation should be as far as reasonably
possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the
accuseds behalf, it is important that he should be competent and independent, i.e., that he is willing to
fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be
giving a routine, peremptory and meaningless recital of the individuals rights. In People v. Basay (219
SCRA 404, 418), this Court stressed that an accuseds right to be informed of the right to remain silent
and to counsel contemplates the transmission of meaningful information rather than just the ceremonial
and perfunctory recitation of an abstract constitutional principle.

Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter
could not afford one) should be engaged by the accused (himself), or by the latters relative or person
authorized by him to engage an attorney or by the court, upon proper petition of the accused or person
authorized by the accused to file such petition. Lawyers engaged by the police, whatever testimonials
are given as proof of their probity and supposed independence, are generally suspect, as in many
areas, the relationship between lawyers and law enforcement authorities can be symbiotic.

x x x The competent or independent lawyer so engaged should be present from the beginning
to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the

108
investigation, and stopping the interrogation once in a while either to give advice to the accused that he
may either continue, choose to remain silent or terminate the interview.
(People v. Espiritu, 302 SCRA 533, Feb. 2, 1999, 3
rd
Div. [Panganiban])

214. Can a PAO lawyer be considered an independent counsel within the contemplation of Section 12,
Article III, 1987 Constitution?

Held: In People v. Oracoy and People v. Bandula, the SC has held that a PAO lawyer can be
considered an independent counsel within the contemplation of the Constitution considering that he is not a
special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is
admittedly adverse to that of the accused-appellant. Thus, the assistance of a PAO lawyer satisfies the
constitutional requirement of a competent and independent counsel for the accused. (People v. Bacor, 306
SCRA 522, April 30, 1999, 2
nd
Div. [Mendoza])

215. Is the confession of an accused given spontaneously, freely and voluntarily to the Mayor admissible in
evidence, considering that the Mayor has operational supervision and control over the local police and
may arguably be deemed a law enforcement officer?

Held: While it is true that a municipal mayor has operational supervision and control over the local
police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of
Article III of the Constitution, however, appellants confession to the mayor was not made in response to any
interrogation by the latter. In fact, the mayor did not question the appellant at all. No police authority ordered
appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the
mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him.
When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled
confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional
procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning
by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the
crime. What the Constitution bars is the compulsory of incriminating facts or confessions. The rights under
Section 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to
admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan, 269
SCRA 95, March 3, 1997)

216. Are confessions made in response to questions by news reporters admissible in evidence?

Answer: Yes. Confessions made in response to questions by news reporters, not by the police or any
other investigating officer, are admissible. In People v. Vizcarra, where the accused, under custody, gave
spontaneous answers to a televised interview by several press reporters in the office of the chief of the CIS, it
was held that statements spontaneously made by a suspect to news reporters on a televised interview are
deemed voluntary and are admissible in evidence. In People v. Andan, 269 SCRA 95, March 3, 1997, it was
held that appellants confessions to the news reporters were given free from any undue influence from the police
authorities. The news reporters acted as news reporters when they interviewed appellant. They were not acting
under the direction and control of the police. They did not force appellant to grant them an interview and
reenact the commission of the crime. In fact, they asked his permission before interviewing him. The Supreme
Court further ruled that appellants verbal confessions to the newsmen are not covered by Section 12(1) and (3)
of Article III of the Constitution and, therefore, admissible in evidence.

217. Discuss why lower courts should act with extreme caution in admitting in evidence accuseds
videotaped media confessions.

Held: Apropos the court a quos admission of accused-appellants videotaped confession, we find such
admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt
willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial
investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and
forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought
succor from the newsmen who, in all likelihood, would have been sympathetic with him. X x x

X x x However, because of the inherent danger in the use of television as a medium for admitting ones
guilt, and the recurrence of this phenomenon in several cases, it is prudent that trial courts are reminded that
extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the
connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and
place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation
would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.

We do not suggest that videotaped confessions given before media men by an accused with the
knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and
invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is
essential to make sharp judgments in determining whether a confession was given under coercive physical or
psychological atmosphere.

A word of caution then to lower courts: we should never presume that all media confessions described
as voluntary have been freely given. This type of confession always remains suspect and therefore should be
thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous
task for the courts to make. It requires persistence and determination in separating polluted confessions from

109
untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution.
(People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2n
d
Div. [Bellosillo])

218. Discuss the two kinds of involuntary or coerced confessions under Section 12, Article III of the 1987
Constitution. Illustrate how the Court should appreciate said involuntary or coerced confessions.

Held: There are two kinds of involuntary or coerced confessions treated in this constitutional provision:
(1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation,
which are dealt with in paragraph 2 of Section 12, and (2) those which are given without the benefit of Miranda
warnings, which are the subject of paragraph 1 of the same Section 12.

Accused-appellant claims that his confession was obtained by force and threat. Aside from this bare
assertion, he has shown no proof of the use of force and violence on him. He did not seek medical treatment
nor even a physical examination. His allegation that the fact that he was made to sign the confession five times
is proof that he refused to sign it.

X x x

We discern no sign that the confession was involuntarily executed from the fact that it was signed by
accused-appellant five times.

X x x

Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing
the declarants consent in executing the same has been vitiated, such confession will be sustained.

Moreover, the confession contains details that only the perpetrator of the crime could have given. x x x.
It has been held that voluntariness of a confession may be inferred from its being replete with details which
could possibly be supplied only by the accused, reflecting spontaneity and coherence which cannot be said of a
mind on which violence and torture have been applied. When the details narrated in an extrajudicial confession
are such that they could not have been concocted by one who did not take part in the acts narrated, where the
claim of maltreatment in the extraction of the confession is unsubstantiated and where abundant evidence exists
showing that the statement was voluntarily executed, the confession is admissible against the declarant. There
is greater reason for finding a confession to be voluntary where it is corroborated by evidence aliunde which
dovetails with the essential facts contained in such confession.

But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant
was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is
called in the United States from which Article III, Section 12(1) was derived, is presumed to be psychologically
coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere
of police interrogation, the suspect really needs the guiding hand of counsel.

Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation
must be given the following warnings: (1) he must be informed of his right to remain silent; (2) he must be
warned that anything he says can and will be used against him; and (3) he must be told that he has a right to
counsel, and that if he is indigent, a lawyer will be appointed to represent him.

X x x

There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort
to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he
wanted the police to appoint one for him. This kind of giving of warnings, in several decisions of this Court, has
been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect.
Especially in this case, care should have been scrupulously observed by the police investigator that accused-
appellant was specifically asked these questions considering that he only finished the fourth grade of the
elementary school. x x x

Moreover, Article III, Section 12(1) requires that counsel assisting suspects in custodial interrogations
be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though
presumably competent, cannot be considered an independent counsel as contemplated by the law for the
reason that he was station commander of the WPD at the time he assisted accused-appellant. x x x.

This is error. As observed in People v. Bandula, the independent counsel required by Article III, Section
12(1) cannot be special counsel, public or private prosecutor, municipal attorney, or counsel of the police whose
interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station
Commander of the WPD, was part of the police force who could not be expected to have effectively and
scrupulously assisted accused-appellant in the investigation. To allow such a happenstance would render
illusory the protection given to the suspect during custodial investigation. (People v. Obrero, 332 SCRA 190,
220 208, May 17, 2000, 2
nd
Div. [Mendoza])

219. What are the requirements for an extra-judicial confession of an accused to be admissible in evidence?

Held: 1. In jurisprudence, no confession can be admitted in evidence unless it is given:

1) Freely and voluntarily, without compulsion, inducement or trickery;

110
2) Knowingly based on an effective communication to the individual under custodial investigation of his
constitutional rights; and
3) Intelligently with full appreciation of its importance and comprehension of its consequences.

Once admitted, the confession must inspire credibility or be one which the normal experience of
mankind can accept as being within the realm of probability.

A confession meeting all the foregoing requisites constitutes evidence of a high order since it is
supported by the strong presumption that no person of normal mind will knowingly, freely and deliberately
confess that he is the perpetrator of a crime unless prompted by truth and conscience. When all these
requirements are met and the confession is admitted in evidence, the burden of proof that it was obtained by
undue pressure, threat or intimidation rests upon the accused. (People v. Fabro, 277 SCRA 19, Aug. 11, 1997
[Panganiban])

2. Numerous decisions of this Court rule that for an extrajudicial confession to be admissible, it must
be: 1) voluntary; 2) made with the assistance of competent and independent counsel; 3) express; and 4) in
writing.

The mantle of protection afforded by the above-quoted constitutional provision covers the period from
the time a person is taken into custody for the investigation of his possible participation in the commission of a
crime or from the time he is singled out as a suspect in the commission of the offense although not yet in
custody. The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar
atmosphere running through menacing police interrogation procedures where the potentiality for compulsion,
physical or psychological is forcefully apparent.

However, the rule is not intended as a deterrent to the accused from confessing guilt if he voluntarily
and intelligently so desires but to protect the accused from admitting what he is coerced to admit although
untrue. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1
st

220. Is the choice of a lawyer by a person under custodial investigation who cannot afford the services of a
counsel exclusive as to preclude other equally competent and independent attorneys from handling his
defense?

Held: It must be remembered in this regard that while the right to counsel is immutable, the option to
secure the services of counsel de parte is not absolute. Indeed

The phrase competent and independent and preferably of his own choice were explicit
details which were added upon the persistence of human rights lawyers in the 1986 Constitutional
Commission who pointed out cases where, during the martial law period, the lawyers made available to
the detainee would be one appointed by the military and therefore beholden to the military. (Citing I
Record of the Constitutional Commission 731-734; I Bernas, The Constitution of the Republic of the
Philippines, 1987 1
st
ed., p. 347)

X x x x x x x x x

Withal, the word preferably under Section 12(1), Article 3 of the 1987 Constitution does not
convey the message that the choice of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from handling his defense. If the rule
were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused
who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for
one reason or another, is not available to protect his interest. This absurd scenario could not have been
contemplated by the framers of the charter.

While the initial choice in cases where a person under custodial investigation cannot afford the services
of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may
reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed
engaged by the accused where he never raised any objection against the formers appointment during the
course of the investigation and the accused thereafter subscribes to the veracity of his statement before the
swearing officer.

Verily, to be an effective counsel [a] lawyer need not challenge all the questions being propounded to
his client. The presence of a lawyer is not intended to stop an accused from saying anything which might
incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead
the accused to admit something false. The counsel, however, should never prevent an accused from freely and
voluntarily telling the truth. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1
st
Div. [Ynares-
Santiago])

221. Should courts be allowed to distinguish between preliminary questioning and custodial investigation
proper when applying the exclusionary rule?

Held: The exclusionary rule sprang from a recognition that police interrogatory procedures lay fertile
grounds for coercion, physical and psychological, of the suspect to admit responsibility for the crime under
investigation. It was not intended as a deterrent to the accused from confessing guilt, if he voluntarily and
intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue.
Law enforcement agencies are required to effectively communicate the rights of a person under investigation
and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such

111
right. Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper
when applying the exclusionary rule. Any information or admission given by a person while in custody which
may appear harmless or innocuous at the time without the competent assistance of an independent counsel
should be struck down as inadmissible. It has been held, however, that an admission made to news reporters
or to a confidant of the accused is not covered by the exclusionary rule.

The admission allegedly made by the appellant is not in the form of a written extra-judicial confession;
the admission was allegedly made to the arresting officer during an informal talk at the police station after his
arrest as a prime suspect in the rape and killing of x x x. The arresting policeman testified that the appellant
admitted that he was with the victim on the evening of January 12, 1994, the probable time of the commission of
the crime and that he carried her on his shoulder but that he was too drunk to remember what subsequently
happened. The arresting policeman admitted that he did not inform the appellant of his constitutional rights to
remain silent and to counsel. We note that the alleged admission is incriminating because it places the accused
in the company of the victim at the time the crime was probably committed.

The exclusionary rule applies.

The accused was under arrest for the rape and killing of x x x and any statement allegedly made by him
pertaining to his possible complicity in the crime without prior notification of his constitutional rights is
inadmissible in evidence. The policemans apparent attempt to circumvent the rule by insisting that the
admission was made during an informal talk prior to custodial investigation prior is not tenable. The appellant
was not invited to the police station as part of a general inquiry for any possible lead to the perpetrators of the
crime under investigation. At the time the alleged admission was made the appellant was in custody and had
been arrested as the prime suspect in the rape and killing of x x x. The exclusionary rule presumes that the
alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the
absence of a written extra-judicial confession to that effect and the appellants denial in court of the alleged oral
admission. The alleged admission should be struck down as inadmissible. (People v. Bravo, 318 SCRA 812,
Nov. 22, 1999, En Banc [Gonzaga-Reyes])

222. Explain the procedure for out-of-court identification of suspects and the test to determine the
admissibility of such identification.

Held: 1. In People v. Teehankee, Jr., the Court x x x explained the procedure for out-of-court
identification and the test to determine the admissibility of such identification. It listed the following ways of
identifying the suspects during custodial investigation: show-up, mug shots and line-ups. The Court there ruled:

x x x. Out-of-court identification is conducted by the police in various ways. It is done thru
show-ups where the suspect alone is brought face to face with the witness for identification. It is done
thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru
line ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since
corruption of out-of-court identification contaminates the integrity of in court identification during the trial
of the case, courts have fashioned out rules to assure its fairness and its compliance with the
requirements of constitutional due process. In resolving the admissibility of and relying on out-of- court
identification of suspects, courts have adopted the totality of circumstances test where they consider the
following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the
witness degree of attention at that time; (3) the accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between
the crime and the identification; and (6) the suggestiveness of the identification procedure. (People v.
Timon, 281 SCRA 577, Nov. 12, 1997 [Panganiban])

2. x x x. The totality test has been fashioned precisely to assure fairness as well as compliance with
constitutional requirements of due process in regard to out-of-court identification. These cited factors must be
considered to prevent contamination of the integrity of in-court identifications better. (People v. Gamer, 326
SCRA 660, Feb. 29, 2000, 2
nd
Div. [Quisumbing])

223. Does the prohibition for custodial investigation conducted without the assistance of counsel extend to a
person in a police line-up? Consequently, is the identification by private complainant of accused who was
not assisted by counsel during police line-up admissible in evidence?

Held: The prohibition x x x does not extend to a person in a police line-up because that stage of an
investigation is not yet a part of custodial investigation. It has been repeatedly held that custodial investigation
commences when a person is taken into custody and is singled out as a suspect in the commission of the crime
under investigation and the police officers begin to ask questions on the suspects participation therein and
which tend to elicit an admission. The stage of an investigation wherein a person is asked to stand in a police
line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general
inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled
identification at the police line-up does not preclude the admissibility of an in-court identification. The
identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors
is admissible in evidence although the accused-appellant was not assisted by counsel. x x x (People v.
Pavillare, 329 SCRA 684, 694-695, April 5, 2000, En Banc [Per Curiam])

224. Petitioner in a case x x x posits the theory that since he had no counsel during the custodial
investigation when his urine sample was taken and chemically examined, Exhibits L and M, x x x are also
inadmissible in evidence since his urine sample was derived in effect from an uncounselled extra-judicial

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confession. Petitioner claims that the taking of his urine sample allegedly violates Article III, Section 2 of the
Constitution x x x. Should his contentions be upheld?

Held: We are not persuaded. The right to counsel begins from the time a person is taken into custody
and placed under investigation for the commission of a crime, i.e., when the investigating officer starts to ask
questions to elicit information and/or confession or admissions from the accused. Such right is guaranteed by
the Constitution and cannot be waived except in writing and in the presence of counsel. However, what the
Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but
not an inclusion of his body in evidence, when it may be material. In fact, an accused may validly be compelled
to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable
the foregoing things to be done, without running afoul of the proscription against testimonial compulsion. The
situation in the case at bar falls within the exemption under the freedom from testimonial compulsion since what
was sought to be examined came from the body of the accused. This was a mechanical act the accused was
made to undergo which was not meant to unearth undisclosed facts but to ascertain physical attributes
determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not
compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to
undergo a drug test. (Gutang v. People, 335 SCRA 479, July 11, 2000, 2
nd
Div. [De Leon])

The Right to Bail

225. In bail application where the accused is charged with a capital offense, will it be proper for the judge to
grant bail without conducting hearing if the prosecutor interposes no objection to such application? Why?

Held: Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail
applications, in which the accused stands charged with a capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the
prosecutor knows what he is doing on account of familiarity with the case. Said reasoning is tantamount to
ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is
strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be
decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor.

Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite the prosecution's
refusal to adduce evidence in opposition to the application to grant and fix bail. (Joselito V. Narciso v. Flor
Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3
rd
Div. [Panganiban])

226. What are the duties of the judge in cases of bail applications where the accused is charged with capital
offense?

Held: Basco v. Rapatalo enunciated the following duties of the trial judge in such petition for bail:

1) Notify the prosecutor of the hearing of the application for bail or require him to submit his
recommendation;
2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to
present evidence to show that the guilt of the accused is strong for the purpose of enabling the court
to exercise its sound discretion;
3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of
the prosecution;
4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond.
Otherwise, petition should be denied.

The Court added: The above-enumerated procedure should now leave no room for doubt as to the
duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in
connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of
the judiciary to disclaim knowledge or awareness thereof.

Additionally, the court's grant or refusal of bail must contain a summary of the evidence for the
prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence
is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of
procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the
denial of the application for bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504,
March 17, 2000, 3
rd
Div. [Panganiban])

227. Should the accused who remained at large after their conviction be allowed provisional liberty? Can the
bail bond that the accused previously posted be used during the entire period of appeal?

Held: Despite an order of arrest from the trial court and two warnings from the Court of Appeals,
petitioners had remained at large. It is axiomatic that for one to be entitled to bail, he should be in the custody of
the law, or otherwise, deprived of liberty. The purpose of bail is to secure ones release and it would be
incongruous to grant bail to one who is free. Petitioners Compliance and Motion x x x came short of an
unconditional submission to respondent courts lawful order and to its jurisdiction.

The trial court correctly denied petitioners motion that they be allowed provisional liberty after their
conviction, under their respective bail bonds. Apart from the fact that they were at large, Section 5, Rule 114 of
the Rules of Court, as amended by Supreme Court Administrative Circular 12-94, provides that:

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X x x

The Court, in its discretion, may allow the accused to continue on provisional liberty under the same bail
bond during the period to appeal subject to the consent of the bondsman.

The bail bond that the accused previously posted can only be used during the 15-day period to appeal
(Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114 which
provides that the bail shall be effective upon approval and remain in force at all stages of the case, unless
sooner cancelled, until the promulgation of the judgment of the Regional Trial Court, irrespective of whether the
case was originally filed in or appealed to it. This amendment, introduced by SC Administrative Circular 12-94
is a departure from the old rules which then provided that bail shall be effective and remain in force at all stages
of the case until its full determination, and thus even during the period of appeal. Moreover, under the present
rule, for the accused to continue his provisional liberty on the same bail bond during the period to appeal,
consent of the bondsman is necessary. From the record, it appears that the bondsman x x x filed a motion in
the trial court x x x for the cancellation of petitioners bail bond for the latters failure to renew the same upon its
expiration. Obtaining the consent of the bondsman was, thus, foreclosed. (Maguddatu v. Court of Appeals,
326 SCRA 362, Feb. 23, 2000, 1
st
Div. [Kapunan])

228. Is a condition in an application for bail that accused be first arraigned before he could be granted bail
valid?

Held: In requiring that petitioner be first arraigned before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment
and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his
presence at the arraignment, approval of petitioners bail bonds should be deferred until he could be arraigned.
After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of the hearing
and his failure to appear is unjustified, since under Art. III, Sec. 14(2) of the Constitution, trial in absencia is
authorized. This seems to be the theory of the trial court in its x x x order conditioning the grant of bail to
petitioner on his arraignment.

This theory is mistaken. In the first place x x x in cases where it is authorized, bail should be granted
before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the
information is quashed and the case is dismissed, there would then be no need for the arraignment of the
accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment
precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment.
Under Rule 114, Sec. 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that the accused
shall appear before the proper court whenever so required by the court or these Rules, while under Rule 116,
Sec. 1(b) the presence of the accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him
in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail
because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing
of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios
certainly undermine the accuseds constitutional right not to be put on trial except upon valid complaint or
information sufficient to charge him with a crime and his right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1,
2000, 2
nd
Div. [Mendoza])

229. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding?

Held: We agree with petitioner. As suggested by the use of the word conviction, the constitutional
provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt. It follows that the constitutional provision on bail will not
apply to a case like extradition, where the presumption of innocence is not an issue.

The provision in the Constitution stating that the right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to
bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of
habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion. (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in
nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct
from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the
criminal cases against him, not before the extradition court. (Government of the United States of America v.
Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])


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230. What is the exception to the No Bail Rule in Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the judiciary has
the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough
to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty
or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application.

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential
extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an
exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight
risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances
including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an
executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its
barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial
prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by
caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or
compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes
the limits of its own prerogatives and the need to fulfill international obligations. (Government of the United
States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

231. Are there special circumstances compelling enough for the Court to grant Mark Jimenezs request for
provisional release on bail?

Held: Along this line, Jimenez contends that there are special circumstances that are compelling
enough for the Court to grant his request for provisional release on bail. We have carefully examined these
circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos, the Court has already debunked the
disenfranchisement argument x x x.

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it
was already of public knowledge that the United States was requesting his extradition. Hence, his constituents
were or should have been prepared for the consequences of the extradition case against their representative,
including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos,
we are constrained to rule against his claim that his election to public office is by itself a compelling reason to
grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be
unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are resorted to merely to determine whether the extradition
petition and its annexes conform to the Extradition Treaty, not to determine his guilt or innocence. Neither is it,
as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal
action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings.
This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely
anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of
bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail
would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out
and unreasonably delay the extradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of
the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee
as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching
closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his
ground and still be within reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.


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In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the
present case, the extradition court may continue hearing evidence on the application for bail, which may be
granted in accordance with the guidelines in this Decision. (Government of the United States of America v.
Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

The Right to be Informed of the Nature and Cause of Accusation against the Accused

232. What are the objectives of the right to be informed of the nature and cause of accusations against the
accused?

Held: Instructive in this regard is Section 6, Rule 110 of the Rules of Court x x x.

The purpose of the above-quoted rule is to inform the accused of the nature and cause of the
accusation against him, a right guaranteed by no less than the fundamental law of the land (Article III, Section
14[2], 1987 Constitution). Elaborating on the defendants right to be informed, the Court held in Pecho v. People
that the objectives of this right are:

1) To furnish the accused with such a description of the charge against him as will enable him to make
the defense;
2) To avail himself of his conviction or acquittal for protection against a further prosecution for the
same cause; and
3) To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to
support a conviction, if one should be had.

It is thus imperative that the Information filed with the trial court be complete to the end that the
accused may suitably prepare for his defense. Corollary to this, an indictment must fully state the elements of
the specific offense alleged to have been committed as it is the recital of the essentials of a crime which
delineates the nature and cause of accusation against the accused.

X x x

In the case under scrutiny, the information does not allege the minority of the victim x x x although the
same was proven during the trial x x x. The omission is not merely formal in nature since doctrinally, an
accused cannot be held liable for more than what he is indicted for. It matters not how conclusive and
convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, not charged in the
Complaint or Information on which he is tried or therein necessarily included. He has a right to be informed of
the nature of the offense with which he is charged before he is put on trial. To convict an accused of an offense
higher than that charged in the Complaint or Information on which he is tried would constitute unauthorized
denial of that right. (People v. Bayya, 327 SCRA 771, March 10, 2000, En Banc [Purisima])

The Right to a Fair Trial

233. What is the purpose of the rule barring trial or sentence of an insane person? What are the reasons
underlying it?

Held: The rule barring trial or sentence of an insane person is for the protection of the accused, rather
than of the public. It has been held that it is inhuman to require an accused disabled by God to make a just
defense for his life or liberty. To put a legally incompetent person on trial or to convict and sentence him is a
violation of the constitutional rights to a fair trial; and this has several reasons underlying it. For one, the
accuracy of the proceedings may not be assured, as an incompetent defendant who cannot comprehend the
proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, he is not
in a position to exercise many of the rights afforded a defendant in a criminal case, e.g., the right to effectively
consult with counsel, the right to testify in his own behalf, and the right to confront opposing witnesses, which
rights are safeguards for the accuracy of the trial result. Second, the fairness of the proceedings may be
questioned, as there are certain basic decisions in the course of a criminal proceeding which a defendant is
expected to make for himself, and one of these is his plea. Third, the dignity of the proceedings may be
disrupted, for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may
destroy the decorum of the court. Even if the defendant remains passive, his lack of comprehension
fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially an adversarial
proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses its character as
a reasoned interaction between an individual and his community and becomes an invective against an
insensible object. Fourth, it is important that the defendant knows why he is being punished, a comprehension
which is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not
realize the moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be
frustrated when the force of the state is brought to bear against one who cannot comprehend its significance.
(People v. Estrada, 333 SCRA 699, 718-719, June 19, 2000, En Banc [Puno])
The Right to an Impartial Trial

234. What are the two principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases?

Held: There are two (2) principal legal and philosophical schools of thought on how to deal with the rain
of unrestrained publicity during the investigation and trial of high profile cases. The British approach the

116
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat. The American approach is different. US
courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to
a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of
irreparable harm, strong likelihood, clear and present danger, etc. (Estrada v. Desierto, G.R. Nos. 146710-15,
235. Should the Ombudsman be stopped from conducting the investigation of the cases filed against
petitioner (former President) Estrada due to the barrage of prejudicial publicity on his guilt?

Held: Petitioner x x x contends that the respondent Ombudsman should be stopped from conducting
the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits
that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his
right to due process.

X x x

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases. In People v. Teehankee, Jr., later reiterated in the case of
Larranaga v. Court of Appeals, et al., we laid down the doctrine that:

We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of
an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances
an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded
as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press
does not simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that
the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is
impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system brings news as they
happen straight to our breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not
that of a hermit who is out of touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose their impartiality. x x x. Our judges are
learned in the law and trained to disregard off-court evidence and on-camera performances of parties to
a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their
impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity.
In the case at bar, the records do not show that the trial judge developed actual bias against appellant
as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.

We expounded further on this doctrine in the subsequent case of Webb v. Hon. Raul de Leon, etc. and
its companion cases, viz.:

Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty whole undergoing a preliminary investigation.

X x x

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications
industry. For sure, few cases can match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public with views not too many of which are
sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their
lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses
and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:

x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nations organic laws were adopted, criminal trials both

117
here and in England had long been presumptively open, thus giving assurance that the proceedings
were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition, the significant community therapeutic value of
public trials was recognized: when a shocking crime occurs, a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work
effectively, it is important that societys criminal process satisfy the appearance of justice, Offutt v.
United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people
to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness inheres in the very
nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362 US
610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters relating
to the functioning of government. In guaranteeing freedoms such as those of speech and press, the
First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to
those explicit guarantees; the First Amendment right to receive information and ideas means, in the
context of trials, that the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public
place where the people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and quality of what takes
place.

(c) Even though the Constitution contains no provision which by its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have
been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal
trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of speech and of the press could be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. v.
Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of
the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness
of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel
is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of
bias for it does not appear that they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted despite it summary nature
and the generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the
DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof. He needs to show more than weighty social science
evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the
cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive prejudicial
publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot
second guess whether its recommendation will be unfavorable to the petitioner. (Estrada v. Desierto, G.R.
Nos. 146710-15, March 2, 2001, En Banc [Puno])

The Right against Self-Incrimination

236. Accused-appellant alleges that while in the custody of police officers, some hair strands were taken
from him without his consent and submitted to the NBI for investigation, in violation of his right against self-
incrimination. Aside from executing a waiver of the provisions of Article 125 of the Revised Penal Code,
accused-appellant executed a waiver of the provisions of Article III, Section 12 of the Constitution regarding
the rights of an accused during custodial investigation. It appears, however, that the waivers were executed
by the accused without the assistance of a counsel of his own choice.

Held: The use of evidence against the accused obtained by virtue of his testimony or admission without
the assistance of counsel while under custodial investigation is proscribed under Sections 12 and 17, Article III
of the Constitution x x x.


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The aforesaid rules are set forth in the Constitution as a recognition of the fact that the psychological if
not physical atmosphere of custodial investigations in the absence of procedural safeguards is inherently
coercive in nature. However, to paraphrase Justice Sanchez in the case of Chavez v. Court of Appeals (24
SCRA 663 [1968]), Compulsion does not necessarily connote the use of violence; it may be the product of
unintentional statements. Pressure which operates to overbear his will, disable him from making a free and
rational choice or impair his capacity for making rational judgment would be sufficient. So is moral coercion
tending to force testimony from the unwilling lips of the defendant. Needless to say, the above-mentioned
provisions are an affirmation that coercion can be mental as well as physical and that the blood of the accused
is not the only hallmark of an unconstitutional inquisition. (Blackburn v. Alabama, 361 US 199)

It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the
use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion
of his body in evidence when it may be material. For instance, substance emitted from the body of the accused
may be received as evidence in prosecution for acts of lasciviousness (US v. Tan Teng, 23 Phil. 145 [1912]) and
morphine forced out of the mouth of the accused may also be used as evidence against him (US v. Ong Siu
Hong, 36 Phil. 735 [1917]). Consequently, although accused-appellant insists that hair samples were forcibly
taken from him and submitted to the NBI for forensic examination, the hair samples may be admitted in
evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under duress. (People v. Rondero, 320 SCRA 383, 399-
401, Dec. 9, 1999, En Banc [Per Curiam])

237. Does the right against self-incrimination extend to administrative proceedings?

Held: In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as
an administrative investigation of a licensed physician who is charged with immorality, which could result in his
loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal v. Kapunan
(6 SCRA 1059 [1962]), pointed out that the revocation of ones license as a medical practitioner, is an even
greater deprivation than forfeiture of property. (Secretary of Justice v. Lantion, 322 SCRA 160, 184, Jan. 18,
2000, En Banc [Melo])

238. May the right against self-incrimination be validly invoked during inquiry in aid of legislation?

Held: [I]t has been held that a congressional committees right to inquire is subject to all relevant
limitations placed by the Constitution on governmental action, including the relevant limitations of the Bill of
Rights.

In another case

x x x the mere semblance of legislative purpose would not justify an inquiry in the face of the
Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the interest of
the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however,
that every congressional investigation is justified by a public need that over-balances any private rights
affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary
to insure that the Congress does not unjustifiably encroach upon an individuals right to privacy nor
abridge his liberty of speech, press, religion or assembly. (Watkins v. US, 354 USS 178 citing US v.
Rumely, 345 US 41)

One of the basic rights guaranteed by the Constitution to an individual is the right against self-
incrimination. This right construed as the right to remain completely silent may be availed of by the accused in a
criminal case; but it may be invoked by other witnesses only as questions are asked of them.

This distinction is enunciated by the Court in Romeo Chavez v. The Honorable Court of Appeals, et al.
thus

Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as
each question requiring an incriminating answer is shot at him, an accused may altogether refuse to
take the witness stand and refuse to answer any and all questions.

Moreover, this right of the accused is extended to respondents in administrative investigations but only if
they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman v.
Pamaran, the Court reiterated the doctrine in Cabal v. Kapunan to illustrate the right of witnesses to invoke the
right against self-incrimination not only in criminal proceedings but also in all other types of suit.

It was held that:

We did not therein state that since he is not an accused and the case is not a criminal case,
Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-
incrimination only when a question which tends to elicit an answer that will incriminate him is
propounded to him. Clearly then, it is not the character of the suit involved but the nature of the
proceedings that controls. The privilege has consistently been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether
a party or not.


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We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by
the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the
questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of
powers between the legislative and the judicial departments of government, ordained by the Constitution.
(Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])
239. What are the two types of immunity statutes? Which has broader scope of protection?

Held: Our immunity statutes are of American origin. In the United States, there are two types of
statutory immunity granted to a witness. They are the transactional immunity and the use-and-derivative-use
immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer
be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-
and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived
from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 797-798, April 26, 1994, En Banc [Puno])

240. Is the grant of immunity to an accused willing to testify for the government a special privilege and,
therefore, must be strictly construed against the accused?

Held: [W]e reject respondent courts ruling that the grant of section 5 immunity must be strictly
construed against the petitioners. It simplistically characterized the grant as a special privilege, as if it was
gifted by the government, ex gratia. In taking this posture, it misread the raison d etre and the long pedigree of
the right against self-incrimination vis--vis immunity statutes.

The days of inquisition brought about the most despicable abuses against human rights. Not the least
of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. To guard
against the recurrence of this totalitarian method, the right against self-incrimination was ensconced in the
fundamental laws of all civilized countries. Over the years, however, came the need to assist government in its
task of containing crime for peace and order is a necessary matrix of public welfare. To accommodate the
need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in varying shapes
were enacted which would allow government to compel a witness to testify despite his plea of the right against
self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has
come to be known as transactional or a use-derivative-use immunity x x x. Quite clearly, these immunity
statutes are not a bonanza from government. Those given the privilege of immunity paid a high price for it the
surrender of their precious right to be silent. Our hierarchy of values demands that the right against self-
incrimination and the right to be silent should be accorded greater respect and protection. Laws that tend to
erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the
individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan,
231 SCRA 783, 805-806, April 26, 1994, En Banc [Puno])
The Right against Double Jeopardy
241. Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20,
Section 1, Article III of the Constitution ordains that no person shall be twice put in jeopardy of punishment for
the same offense. The second sentence of said clause provides that if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put
in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense
charged in one case is not included in, or does not include, the crime charged in the other case. The second
sentence applies, even if the offense charged are not the same, owing to the fact that one constitutes a violation
of an ordinance and the other a violation of statute. If the two charges are based on one and the same act,
conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other.
Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of
punishment or the same offense. So long as jeopardy has been attached under one of the informations
charging said offense, the defense may be availed of in the other case involving the same offense, even if there
has been neither conviction nor acquittal in either case.

Elsewhere stated, where the offense charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only where an identity is shown to exist between
the earlier and the subsequent offenses charged. The question of identity or lack of identity of offenses is
addressed by examining the essential elements of each of the two offenses charged, as such elements are set
out in the respective legislative definitions of the offenses involved. (People v. Quijada, 259 SCRA 191, July
24, 1996)

242. What must be proved to substantiate a claim of double jeopardy? When may legal jeopardy attach?

Held: To substantiate a claim of double jeopardy, the following must be proven:

(1) A first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly
terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is
necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a
frustration thereof.


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Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated
without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

243. In its decision in a criminal case, the Judge promulgated only the civil aspect of the case, but not the
criminal. Will the promulgation of the criminal aspect later constitute double jeopardy?

Held: Petitioner contends that "the promulgation by Judge Ramos on April 4, 1995 of the Respondent
Court's decision of June 30, 1991 by reading its dispositive portion has effectively terminated the criminal cases
against the petitioner x x x." In other words, petitioner claims that the first jeopardy attached at that point.

The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the recovery of
indemnity. Hence, a decision in such case disposes of both the criminal as well as the civil liabilities of an
accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal.

[T]he promulgation of the CA Decision was not complete. In fact and in truth, the promulgation was not
merely incomplete; it was also void. In excess of its jurisdiction, the trial judge rendered a substantially
incomplete promulgation on April 4, 1995, and he repeated his mistake in his April 12, 1996 Order. We
emphasize that grave abuse of discretion rendered the aforementioned act of the trial court void. Since the
criminal cases have not yet been terminated, the first jeopardy has not yet attached. Hence, double jeopardy
cannot prosper as a defense.

We must stress that Respondent Court's questioned Decision did not modify or amend its July 30, 1991
Decision. It merely ordered the promulgation of the judgment of conviction and the full execution of the penalty
it had earlier imposed on petitioner. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

244. What are the exceptions to the rule that the dismissal of a criminal case resulting in acquittal made with
the express consent of the accused or upon his own motion will not place the accused in double jeopardy?

Held: In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was
made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused
before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in
acquittal made with the express consent of the accused or upon his own motion will not place the accused in
double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of
the right to speedy trial. Double jeopardy may attach when the proceedings have been prolonged
unreasonably, in violation of the accuseds right to speedy trial. (Almario v. Court of Appeals, 355 SCRA 1,
Mar. 22, 2001, 2
nd
Div. [Quisumbing]

245. If the criminal case was dismissed predicated on the right of the accused to speedy trial, but later the
trial court reconsidered its decision and allowed the case to be reinstated as it noted that the delay in the
trial was due to circumstances beyond the control of the parties and of the trial court, i.e., the presiding
judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately
appointed, nor another judge detailed to his sala, is there violation of the accuseds right against double
jeopardy?

Held: Here we must inquire whether there was unreasonable delay in the conduct of the trial so that
violation of the right to speedy trial of the accused x x x resulted. For it must be recalled that in the application
of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of
the facts and circumstances peculiar to each case. Both the trial court and the appellate court noted that after
pre-trial of petitioners case was terminated x x x continuous trial was set x x x. The scheduled hearings,
however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as
trial judge was not immediately appointed, nor another judge detailed to his sala.
X x x

As observed by respondent appellate court, delay in the trial was due to circumstances beyond the
control of the parties and of the trial court. x x x. Thus, after a closer analysis of these successive events, the
trial court realized that the dates of the hearings were transferred for valid grounds. Hence, the trial court set
aside its initial order and reinstated the cases against petitioner, which order the appellate court later sustained.

That there was no unreasonable delay of the proceedings is apparent from the chronology of the
hearings with the reasons for their postponements or transfers. x x x

There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we
concur with the conclusion reached by the Court of Appeals that petitioners right to speedy trial had not been
infringed. Where the right of the accused to speedy trial had not been violated, there was no reason to support
the initial order of dismissal.

It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order
was reconsidered seasonably. For as petitioners right to speedy trial was not transgressed, this exception to
the fifth element of double jeopardy that the defendant was acquitted or convicted, or the case was dismissed
or otherwise terminated without the express consent of the accused was not met. The trial courts initial order
of dismissal was upon motion of petitioners counsel, hence made with the express consent of petitioner. That
being the case, despite the reconsideration of said order, double jeopardy did not attach. As this Court had
occasion to rule in People v. Tampal, reiterated in People v. Leviste, where we overturned an order of dismissal
by the trial court predicated on the right to speedy trial

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It is true that in an unbroken line of cases, we have held that the dismissal of cases on the
ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the
accused for the same offense. It must be stressed, however, that these dismissals were predicated on
the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench
considering that the right of the private respondents to speedy trial has not been violated by the State.
For this reason, private respondents cannot invoke their right against double jeopardy.

Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of
the cases against petitioner. (Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2
nd
Div.
[Quisumbing]

246. Is there double jeopardy when an accused was acquitted in a criminal case for reckless imprudence but
the civil aspect of the case was elevated to the Court of Appeals and the latter found him liable for indemnity
and damages?

Held: Petitioner opines that the Court of Appeals should not have disturbed the findings of the trial
court on the lack of negligence or reckless imprudence under the guise of determining his civil liability. He
argues that the trial courts finding that he was neither imprudent nor negligent was the basis for his acquittal,
and not reasonable doubt. He submits that in finding him liable for indemnity and damages, the appellate court
not only placed his acquittal in suspicion, but also put him in double jeopardy.

Private respondents contend that while the trial court found that petitioners guilt had not been proven
beyond reasonable doubt, it did not state in clear and unequivocal terms that petitioner was not recklessly
imprudent or negligent. Hence, impliedly the trial court acquitted him on reasonable doubt. Since civil liability is
not extinguished in criminal cases, if the acquittal is based on reasonable doubt, the Court of Appeals had to
review the findings of the trial court to determine if there was a basis for awarding indemnity and damages.

Preliminarily, petitioners claim that the decision of the appellate court awarding indemnity placed him in
double jeopardy is misplaced. x x x. When a person is charged with an offense and the case is terminated
either by acquittal or conviction or in any manner without the consent of the accused, the latter cannot again be
charged with the same or identical offense. This is double jeopardy. For double jeopardy to exist, the following
elements must be established: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy
must have terminated; and (3) the second jeopardy must be for the same offense as the first. In the instant
case, petitioner had once been placed in jeopardy by the filing of Criminal Case No. 066 and the jeopardy was
terminated by his discharge. The judgment of acquittal became immediately final. Note, however, that what
was elevated to the Court of Appeals by private respondents was the civil aspect of Criminal Case No. 066.
Petitioner was not charged anew in CA-G.R. CV No. 19240 with a second criminal offense identical to the first
offense. The records clearly show that no second criminal offense was being imputed to petitioner on appeal.
In modifying the lower courts judgment, the appellate court did not modify the judgment of acquittal. Nor did it
order the filing of a second criminal cases against petitioner for the same offense. Obviously, therefore, there
was no second jeopardy to speak of. Petitioners claim of having been placed in double jeopardy is incorrect.

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First
is an acquittal on the ground that the accused is not the author of the act or omission complained of. This
instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or
omission cannot and can never be held liable for such or omission. There being no delict, civil liability ex delicto
is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than
the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. The second
instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of
the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by
preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the
civil action for damages is for the same act or omission. Although the two actions have different purposes, the
matters discussed in the civil case are similar to those discussed in the criminal case. However, the judgment in
the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined,
even though both actions involve the same act or omission. The reason for this rule is that the parties are not
the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioners
acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into
the question of petitioners negligence or reckless imprudence. (Manantan v. Court of Appeals, 350 SCRA
387, Jan. 29, 2001, 2
nd
Div. [Quisumbing])

The Right against Ex Post Facto Law and Bill of Attainder

247. What is a bill of attainder? Is P.D. 1866 a bill of attainder?

Held: [T]he Court, in People v. Ferrer, defined a bill of attainder as a legislative act which inflicts
punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder
are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or
otherwise, and the lack of judicial trial. This last element, the total lack of court intervention in the finding of guilt
and the determination of the actual penalty to be imposed, is the most essential. P.D. No. 1866 does not
possess the elements of a bill of attainder. It does not seek to inflict punishment without a judicial trial.
Nowhere in the measure is there a finding of guilt and an imposition of a corresponding punishment. What the
decree does is to define the offense and provide for the penalty that may be imposed, specifying the qualifying
circumstances that would aggravate the offense. There is no encroachment on the power of the court to
determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of
illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been

122
established also beyond reasonable doubt as the Constitution and judicial precedents require. (Misolas v.
Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes])

248. What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?

Held: Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal law.
It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the
Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes,
treat of their nature, and provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the
Sandiganbayans jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court
as not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts
applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of
R.A. 8249 cannot be challenged as unconstitutional.

Petitioners and intervenors contention that their right to a two-tiered appeal which they acquired under
R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been
rejected by the court several times considering that the right to appeal is not a natural right but statutory in
nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not
included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and
being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out
a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter the rules of
evidence or the mode of trial. It has been ruled that adjective statutes may be made applicable to actions
pending and unresolved at the time of their passage.

At any rate, R.A. 8249 has preserved the accuseds right to appeal to the Supreme Court to review
questions of law. On the removal of the intermediate review of facts, the Supreme Court still has the power of
review to determine if the presumption of innocence has been convincingly overcome. (Panfilo M. Lacson v.
The Executive Secretary, et. al., G.R. No. 128096, Jan. 20, 1999 [Martinez])

PART II

C. ADMINISTRATIVE LAW

280. Describe the Administrative Code of 1987.

Held: The Code is a general law and incorporates in a unified document the major structural,
functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and
embodies changes in administrative structures and procedures designed to serve the people. (Fourth Whereas
Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain
provisions on the organization, powers and general administration of departments, bureaus and offices under
the executive branch, the organization and functions of the Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration, i.e.,
internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R.
No. 127685, July 23, 1998 [Puno])

281. What is Administrative Power?

Held: Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules
and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

282. What is an Administrative Order?

Held: An administrative order is an ordinance issued by the President which relates to specific aspects
in the administrative operation of government. It must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July
23, 1998 [Puno])

283. What is the Government of the Republic of the Philippines?

Ans.: The Government of the Republic of the Philippines refers to the corporate governmental entity
through which the functions of the government are exercised throughout the Philippines, including, save as the
contrary appears from the context, the various arms through which political authority is made effective in the
Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay
subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive Order No.
292)

284. What is an Agency of the Government?


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Ans.: Agency of the Government refers to 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. (Sec. 2[4], Introductory Provisions, Executive Order No. 292)

285. What is a Department?

Ans.: Department refers to an executive department created by law. 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. (Sec. 2[7], Introductory Provisions, Executive Order No. 292)

286. What is a Bureau?

Ans.: Bureau refers to any principal subdivision or unit of any department. 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. (Sec. 2[8],
Introductory Provisions, Executive Order No. 292)

287. What is an Office?
Ans.: 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. (Sec. 2[9], Introductory Provisions, Executive
Order No. 292)

288. What is a Government Instrumentality? What are included in the term Government
Instrumentality?

Ans.: A government 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, enjoying operational autonomy, usually through a charter.
The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.
(Sec. 2[10], Introductory Provisions, Executive Order No. 292)

289. What is a Regulatory Agency?

Ans.: A 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. (Sec. 2[11], Introductory
Provisions, Executive Order No. 292)

290. What is a Chartered Institution?

Ans.: A 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 state
universities and colleges and the monetary authority of the State. (Section 2[12], Introductory Provisions,
Executive Order No. 292)

291. What is a Government-Owned or Controlled Corporation?

Ans.: Government-owned or 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; x x x (Sec.
2[13], Introductory Provisions, Executive Order No. 292)

292. When is a Government-Owned or Controlled Corporation deemed to be performing proprietary
function? When is it deemed to be performing governmental function?

Held: Government-owned or controlled corporations may perform governmental or proprietary
functions or both, depending on the purpose for which they have been created. If the purpose is to obtain
special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health,
safety and for the advancement of public good and welfare, affecting the public in general, the function is
governmental. Powers classified as proprietary are those intended for private advantage and benefit.
(Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

293. The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation
with an original charter under R.A. No. 95, as amended. Its charter, however, was amended to
vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees
and other charges, etc. With the amendnt of its charter, has it been impliedly converted to a
private corporation?

Held: The test to determine whether a corporation is government owned or controlled, or private in
nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under
the general corporation law? Those with special charters are government corporations subject to its provisions,
and its employees are under the jurisdiction of the Civil Service Commission. The PNRC was not impliedly
converted to a private corporation simply because its charter was amended to vest in it the authority to secure

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loans, be exempted from payment of all duties, taxes, fees and other charges, etc. (Camporedondo v. NLRC,
G.R. No. 129049, Aug. 6, 1999, 1
st
Div. [Pardo])

294. When may the Government not validly invoke the rule that prescription does not run against
the State? Illustrative Case.

Held: While it is true that prescription does not run against the State, the same may not be invoked by
the government in this case since it is no longer interested in the subject matter. While Camp Wallace may
have belonged to the government at the time Rafael Galvezs title was ordered cancelled in Land Registration
Case No. N-361, the same no longer holds true today.

Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of 1992,
created the Bases Conversion and Development Authority. X x x

X x x

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to
protect. Consequently, the Republic is not a real party in interest and it may not institute the instant action. Nor
may it raise the defense of imprescriptibility, the same being applicable only in cases where the government is a
party in interest. x x x. Being the owner of the areas covered by Camp Wallace, it is the Bases Conversion and
Development Authority, not the Government, which stands to be benefited if the land covered by TCT No. T-
5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their extensions to the
BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military
reservations into alternative productive uses and to enhance the benefits to be derived from such property as a
measure of promoting the economic and social development, particularly of Central Luzon and, in general, the
countrys goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these
military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of
its interests, but simply a recognition of the need to create a body corporate which will act as its agent for the
realization of its program. It is consequently asserted that the Republic remains to be the real party in interest
and the Conversion Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with a personality
separate and distinct from the government. X x x

It may not be amiss to state at this point that the functions of government have been classified into
governmental or constituent and proprietary or ministrant. While public benefit and public welfare, particularly,
the promotion of the economic and social development of Central Luzon, may be attributable to the operation of
the BCDA, yet it is certain that the functions performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular, and the countrys goal for
enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been
created by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA and the
NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at
promoting public interest and public welfare, are not government-function corporations invested with
governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a
corporate body performing proprietary functions.

X x x

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to cancel
petitioners title, not the Republic, the former being the real party in interest. One having no right or interest to
protect cannot invoke the jurisdiction of the court as a party plaintiff in an action. A suit may be dismissed if the
plaintiff or the defendant is not a real party in interest. x x x

However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is the proper
party to sue for the recovery of possession of property which at the time of the installation of the suit was no
longer held by the national government body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court
ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted
as principal of the Philippine Ports Authority, directly exercising the commission it had earlier conferred
on the latter as its agent. We may presume that, by doing so, the Republic of the Philippines did not
intend to retain the said rentals for its own use, considering that by its voluntary act it had transferred
the land in question to the Philippine Ports Authority effective July 11, 1974. The Republic of the
Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the
disputed property it continues to recognize. We may expect the that the said rentals, once collected by
the Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority conformably to
the purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the
Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the
petitioner therein were the same. To dismiss the complaint in E.B. Marcha would have brought needless delay
in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated
upon. Such is not the case here since to allow the government to sue herein enables it to raise the issue of
imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the

125
State does not apply to corporations or artificial bodies created by the State for special purposes, it being said
that when the title of the Republic has been divested, its grantees, although artificial bodies of its own creation,
are in the same category as ordinary persons. By raising the claim of imprescriptibility, a claim which cannot be
raised by the BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even supplants the
latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent
as it would allow the Republic to prosecute, on behalf of government-owned or controlled corporations, causes
of action which have already prescribed, on the pretext that the Government is the real party in interest against
whom prescription does not run, said corporations having been created merely as agents for the realization of
government programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having
acquired the property in 1963, or 5 years after the issuance of the original certificate of title, as a third
transferee. If only not to do violence and to give some measure of respect to the Torrens System, petitioner
must be afforded some measure of protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334,
Feb. 20, 2001, 3
rd
Div. [Melo])

295. Discuss the nature and functions of the National Telecommunications Commission (NTC), and
analyze its powers and authority as well as the laws, rules and regulations that govern its
existence and operations.

Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the functions
formerly assigned to the Board of Communications and the Communications Control Bureau, which were both
abolished under the said Executive Order. Previously, the NTCs function were merely those of the defunct
Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known
as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the
PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the
Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public
Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications
facilities and services, radio communications systems, telephone and telegraph systems. Such power includes
the authority to determine the areas of operations of applicants for telecommunications services. Specifically,
Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of
Public Convenience for the operation of public services within the Philippines whenever the Commission finds
that the operation of the public service proposed and the authorization to do business will promote the public
interests in a proper and suitable manner. (Commonwealth Act No. 146, Section 16[a]) The procedure
governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v.
Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1
st

296. Is the filing of the administrative rules and regulations with the UP Law Center the operative
act that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15,
Section 3 of its 1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any
stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed
for, based on the pleading, together with the affidavits and supporting documents attached thereto,
without prejudice to a final decision after completion of the hearing which shall be called within thirty
(30) days from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which
were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules
deleted the phrase on its own initiative; accordingly, a provisional authority may be issued only upon filing of
the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to
the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general
circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC stating that
the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken
effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules
were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative
Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the
rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which
are not filed within three (3) months from the date shall not thereafter be the basis of any sanction
against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.

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(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to
public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the
Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as
the Congress may select, and to other persons at a price sufficient to cover publication and mailing or
distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a similar case, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise of such
quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the
respondents filed their applications for importations, was not published in the Official Gazette or in a
newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is
invalid within the context of Article 2 of Civil Code, which reads:

Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the Philippines),
unless it is otherwise provided. X x x

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with,
and published by the UP Law Center in the National Administrative Register, does not cure the defect
related to the effectivity of the Administrative Order.

This Court, in Tanada v. Tuvera stated, thus:

We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative power or, at present, directly conferred by the Constitution.
Administrative Rules and Regulations must also be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.

X x x

We agree that the publication must be in full or it is no publication at all since its
purpose is to inform the public of the contents of the laws.

The Administrative Order under consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a
valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua
non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which
repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O.
200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service
Act, fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid
delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-
called letters of instructions issued by administrative superiors concerning the rules and guidelines to be
followed by their subordinates in the performance of their duties (PHILSA International Placement & Services
Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general
circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take
effect only after their publication in a newspaper of general circulation (Section 20 thereof). In the absence of
such publication, therefore, it is the 1978 Rules that govern. (Republic v. Express Telecommunication Co.,
Inc., 373 SCRA 316, Jan. 15, 2002, 1
st

297. May a person be held liable for violation of an administrative regulation which was not
published?


127
Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA
Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from
applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera, the Court held, as follows:

We hold therefore that all statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and the public, need not be published. Neither is publication required of
the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.

Applying this doctrine, we have previously declared as having no force and effect the following
administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and
Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories;
b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper
mining companies to the national government; c) Memorandum Circulars issued by the POEA regulating the
recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC 89-08-01 issued by the
Philippine International Trading Corporation regulating applications for importation from the Peoples Republic of
China; and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management
discontinuing the payment of other allowances and fringe benefits to government officials and employees. In all
these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not
published or filed with the National Administrative Register as required by the Administrative Code of 1987.

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same
was never published or filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement
and documentation fees for private employment agencies or authority holders. Under the said Order, the
maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said
circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances which
should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a
valid delegation. Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been
published or filed with the National Administrative Register, the same is ineffective and may not be enforced.
(Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356
SCRA 174, April 4, 2001, 3
rd
Div., [Gonzaga-Reyes])

298. Does the publication requirement apply as well to administrative regulations addressed only
to a specific group and not to the general public?

Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is
not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific
group of persons and not to the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private employment
agencies or authority holders, does not take it away from the ambit of our ruling in Tanada v. Tuvera. In the
case of Phil. Association of Service Exporters v. Torres, the administrative circulars questioned therein were
addressed to an even smaller group, namely Philippine and Hong Kong agencies engaged in the recruitment of
workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars
may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations
must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The
only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of
instructions issued by administrative superiors concerning the rules and guidelines to be followed by their
subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been
shown to fall under any of these exceptions.

In this regard, the Solicitor Generals reliance on the case of Yaokasin v. Commissioner of Customs is
misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack
of publication as they were addressed to a particular class of persons, the customs collectors, who were also
the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders

128
clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions
from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which
does not obtain in the case at bench.

X x x

To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA
Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner
for lack of publication. (Philsa International Placement and Services Corporation v. Secretary of Labor
and Employment, 356 SCRA 174, April 4, 2001, 3
rd
Div., [Gonzaga-Reyes])

299. May a successful bidder compel a government agency to formalize a contract with it
notwithstanding that its bid exceeds the amount appropriated by Congress for the project?

Held: Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987
Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction
is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal
year.

X x x

It is quite evident from the tenor of the language of the law that the existence of appropriations and the
availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of
government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the
proposed contract. Using this as our premise, we cannot accede to PHOTOKINAs contention that there is
already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom
Environmental Corporation that the effect of an unqualified acceptance of the offer or proposal of the bidder is
to perfect a contract, upon notice of the award to the bidder, however, such statement would be
inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold
otherwise is to allow a public officer to execute a binding contract that would obligate the government in an
amount in excess of the appropriations for the purpose for which the contract was attempted to be made. This
is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding
stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the
requirements. The BAC shall rate a bid passed only if it complies with all the requirements and the submitted
price does not exceed the approved budget for the contract. (Implementing Rules and Regulations [IRR] for
Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid
in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY
2000, p. 1018, supra.), the only fund appropriated for the project was P1 Billion Pesos and under the
Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated
is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a
contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project.
This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the
Notice of Award on the ground that in the eyes of the law, the same is null and void.

X x x

Even the draft contract submitted by Commissioner Sadain that provides for a contract price in the
amount of P1.2 Billion Pesos is unacceptable. x x x While the contract price under the draft contract is only
P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e.,
the issuance of identification cards for only 1,000,000 voters in specified areas. In effect, the implementation of
the VRIS Project will be segmented or chopped into several phases. Not only is such arrangement
disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the
uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to
appropriate the amount necessary for the completion of the entire project, what good will the accomplished
Phase I serve? As expected, the project failed to sell with the Department of Budget and Management. Thus,
Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELECs request for the
issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the
total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter
into a multi-year contract without a multi-year obligational authority, thus:

SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects,
no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the
Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year
Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the
amount programmed for implementation during said calendar year.

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them
not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act
otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. x x x

X x x

129

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil
Code of the Philippines). This is to say that the proposed contract is without force and effect from the very
beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by
lapse of time or ratification.

X x x

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize
the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project,
the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on
Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-
Gutierrez])

300. What is the remedy available to a party who contracts with the government contrary to the
requirements of the law and, therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the government has no other
recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any
contract entered into contrary to the above-mentioned requirements shall be void, and the officers entering into
the contract shall be liable to the Government or other contracting party for any consequent damage to the
same as if the transaction had been wholly between private parties. So when the contracting officer transcends
his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the
Government is not bound under the contract. It would be as if the contract in such case were a private one,
whereupon, he binds himself, and thus, assumes personal liability thereunder. Otherwise stated, the proposed
contract is unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional
mandate cited above constrains us to remind all public officers that public office is a public trust and all public
officers must at all times be accountable to the people. The authority of public officers to enter into government
contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative,
they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must
exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident
action. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002,
En Banc [Sandoval-Gutierrez])

301. Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners motion to dismiss, the CHR theorizes that the intention of
the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has
not heretofore been shared by this Court. In Carino v. Commission on Human Rights, the Court x x x has
observed that it is only the first of the enumerated powers and functions that bears any resemblance to
adjudication of adjudgment, but that resemblance can in no way be synonymous to the adjudicatory power
itself. The Court explained:

x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate much less take over the functions of
the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it
may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered
such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied
by the authority of applying the law to those factual conclusions to the end that the controversy may be decided
or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be
provided by law. This function, to repeat, the Commission does not have.
(Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])

302. Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary
injunction?

Held: In Export Processing Zone Authority v. Commission on Human Rights, the Court x x x explained:

The constitutional provision directing the CHR to provide for preventive measures and legal aid
services to the underprivileged whose human rights have been violated or need protection may not be
construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, if
that were the intention, the Constitution would have expressly said so. Jurisdiction is conferred only by
the Constitution or by law. It is never derived by implication.

Evidently, the preventive measures and legal aid services mentioned in the Constitution refer
to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek
from the proper courts on behalf of the victims of human rights violations. Not being a court of justice,
the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued
by the judge of any court in which the action is pending [within his district], or by a Justice of the Court

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of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is
available only in a pending principal action, for the preservation or protection of the rights and interest of
a party thereto, and for no other purpose.

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations
to any appropriate agency of government. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117,
134-135, Jan. 5, 1994, En Banc [Vitug, J.])

303. Does the petition for annulment of proclamation of a candidate merely involve the exercise by
the COMELEC of its administrative power to review, revise and reverse the actions of the
board of canvassers and, therefore, justifies non-observance of procedural due process, or
does it involve the exercise of the COMELEC's quasi-judicial function?

Held: Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation,
COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC
include the power to determine the number and location of polling places, appoint election officials and
inspectors, conduct registration of voters, deputize law enforcement agencies and governmental
instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties,
organizations or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and
recommend to the President the removal of or imposition of any other disciplinary action upon any officer or
employee it has deputized for violation or disregard of its directive, order or decision. In addition, the
Commission also has direct control and supervision over all personnel involved in the conduct of election.
However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a
manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the veracity of their allegations and to decide whether the
alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of
its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of
judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an
officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial
tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private
respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

304. Discuss the contempt power of the Commission on Human Rights (CHR). When may it be
validly exercised?

Held: On its contempt powers, the CHR is constitutionally authorized to adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court. Accordingly, the CHR acted within its authority in providing in its revised rules, its power to cite or hold
any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the
procedure and sanctions provided for in the Rules of Court. That power to cite for contempt, however, should
be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential
to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline
to honor summons, and the like, in pursuing its investigative work. The order to desist (a semantic interplay for
a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an
adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA
117, 134, Jan. 5, 1994, En Banc [Vitug, J.])

305. Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the administrative tribunal
to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that
demand the special competence of administrative agencies even if the question involved is also judicial in
character. It applies where a claim is originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed
within the special competence of an administrative body; in such case, the judicial process is suspended
pending referral of such issues to the administrative body for its view.

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto
itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of
special competence. (Villaflor v. CA, 280 SCRA 297, Oct. 9, 1992, 3
rd
Div. [Panganiban])

306. Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the exceptions
thereto.

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he
should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity
to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the
courts judicial power can be sought. The premature invocation of courts jurisdiction is fatal to ones cause of
action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of
cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal

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reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier
disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and
convenience will shy away from a dispute until the system of administrative redress has been completed and
complied with so as to give the administrative agency concerned every opportunity to correct its error and to
dispose of the case.
This doctrine is disregarded:

when there is a violation of due process;
when the issue involved is purely a legal question;
when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
when there is estoppel on the part of the administrative agency concerned;
when there is irreparable injury;
when the respondent is a department secretary whose acts as an alter ego of the President bears the
implied and assumed approval of the latter;
when to require exhaustion of administrative remedies would be unreasonable;
when it would amount to a nullification of a claim;
when the subject matter is a private land in land case proceeding;
when the rule does not provide a plain, speedy and adequate remedy, and
when there are circumstances indicating the urgency of judicial intervention.
(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature,
i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of
action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132, March 3, 1997, 3
rd
Div. [Davide])

D. THE LAW OF PUBLIC OFFICERS

307. Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting by one
having the authority therefor of an individual to discharge and perform the duties and functions of an office or
trust. The appointment is deemed complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment
necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who is best
qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the
appointing power x x x.

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the
power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999,
3
rd
Div. [Vitug])

308. May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the
ground that somebody else is better qualified?

Held: The head of an agency who is the appointing power is the one most knowledgeable to decide
who can best perform the functions of the office. Appointment is an essentially discretionary power and must be
performed by the officer vested with such power according to his best lights, the only condition being that the
appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who should have been preferred. Indeed, this is a
prerogative of the appointing authority which he alone can decide. The choice of an appointee from among
those who possess the required qualifications is a political and administrative decision calling for considerations
of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office
concerned, the person most familiar with the organizational structure and environmental circumstances within
which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and
respect the appointment even if it be proved that there are others with superior credentials. The law limits the
Commissions authority only to whether or not the appointees possess the legal qualifications and the
appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the
Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we.
(Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])

309. Does the next-in-rank rule import any mandatory or peremptory requirement that the person
next-in-rank must be appointed to the vacancy?

Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which
denotes a scalar ascent of an officer to another position higher either in rank or salary. And even in
promotions, it can be disregarded for sound reasons made known to the next-in-rank, as the concept does not
import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the
vacancy. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion,
transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have

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appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be
filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several
alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the
position next in rank thereto shall be considered for promotion.

In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-
in-rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service
Commission, the Court elaborated the import of the rule in the following manner:

One who is next-in-rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither
grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote
such person to the next higher position x x x
(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])

310. Can a person who lacks the necessary qualifications for a public position be appointed to it in
a permanent capacity? Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is
embraced in the Career Executive Service. X x x

In the case at bar, there is no question that private respondent does not have the required CES
eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career
Executive Service.

In the case of Achacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who meets all the
requirements for the position to which he s being appointed, including the appropriate eligibility prescribed.
Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it
could be withdrawn at will by the appointing authority and at a moments notice, conformably to established
jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in
the petitioners Reply and of the Solicitor-Generals Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure in its occupant even if he does not possess the required qualifications. Such right will have
to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who
does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as
an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

Evidently, private respondents appointment did not attain permanency. Not having taken the necessary
Career Executive Service examination to obtain the requisite eligibility, he did not at the time of his appointment
and up to the present, possess the needed eligibility for a position in the Career Executive Service.
Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel and/or Director
III, was merely temporary. Such being the case, he could be transferred or reassigned without violating the
constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility
and flexibility concepts in the assignment of personnels under the Career Executive Service do not apply to him
because he s not a Career Executive Service Officer. Obviously, the contention is without merit. As correctly
pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never
meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them
with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application in the
present case. To reiterate, private respondents appointment is merely temporary; hence, he could be
transferred or reassigned to other positions without violating his right to security of tenure. (De Leon v. Court
of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])

311. In the career executive service, is a career executive service (CES) eligibility all that an
employee needs to acquire security of tenure? Is appointment to a CES rank necessary for
the acquisition of such security of tenure?

Held: In the career executive service, the acquisition of security of tenure which presupposes a
permanent appointment is governed by the rules and regulations promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in
the career executive service may attain security of tenure, to wit:

CES eligibility; and
Appointment to the appropriate CES rank.

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In addition, it must be stressed that the security of tenure of employees in the career executive service
(except first and second level employees in the civil service), pertains only to rank and not to the office or to the
position to which they may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him wherever he is transferred or
reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary
grade, as he is compensated according to his CES rank and not on the basis of the position or office he
occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does
not possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the
LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES,
respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly
reassigned to other positions in the career executive service. x x x

Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES
personnel may be reassigned or transferred from one position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES
eligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I, Article
IV, paragraph 5(c), of the Integrated Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the required Career
Executive Service examination and that he shall not be promoted to a higher class until he qualified in
such examination.

Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said
eligibility, in the same manner that the appointment of respondent who does not possess the required CES rank
(CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary capacity.
(General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1
st

312. How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-Career
Positions.

Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far
as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V,
E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of
merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the
duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I,
Bk. V, E.O. No. 292).

313. What is a primarily confidential position? What is the test to determine whether a position is
primarily confidential or not?

Held: A primarily confidential position is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse
without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state.
(De los Santos v. Mallare, 87 Phil. 289 [1950])

Under the proximity rule, the occupant of a particular position could be considered a confidential
employee if the predominant reason why he was chosen by the appointing authority was the latters belief that
he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear
or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal,
where the position occupied is more remote from that of the appointing authority, the element of trust between
them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

314. Does the Civil Service Law contemplate a review of decisions exonerating officers or
employees from administrative charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase
party adversely affected by the decision refers to the government employee against whom the administrative
case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office and not included are cases where the penalty imposed is
suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary (Paredes v.
Civil Service Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges, there is no
occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule
prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating
officers or employees from administrative charges enunciated in Paredes v. Civil Service Commission (192
SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215

134
SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and
more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R.
No. 135805, April 29, 1999, En Banc [Pardo])

315. What is preventive suspension? Discuss its nature.

Held: 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. 807. 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. (Beja, Sr. v. CA, 207 SCRA 689, March 31,
1992 [Romero])

316. Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil
service employee placed under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are charged with
offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil
Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47,
par. 4, Civil Service Law, EO No. 292).

Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the
disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in
any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered
within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. However,
no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act
of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was
revised in 1975 and the provision on the payment of salaries during suspension was deleted.

But although it is held that employees who are preventively suspended pending investigation are not
entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the
period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the
disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is
exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with
full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])

317. Discuss the power of Ombudsman to conduct administrative investigations, and to impose
preventive suspension.

Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to
conduct administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x.

Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of
the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from
the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular
act or omission is different from the question of whether or not petitioner, after investigation, may be held
administratively liable. This distinction ought here to be kept in mind even as we must also take note that the
power to investigate is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official
subject to its administrative investigation is provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the Ombudsman can
preventively suspend all officials under investigation by his office, regardless of the branch of government in
which they are employed, excepting of course those removable by impeachment, members of Congress and the
Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy
Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman
to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using

135
his office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p. 7, 306
SCRA 287) or to tamper with records that might be vital to the prosecution of the case against him (Yasay, Jr. v.
Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view, the present
controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the
circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he
set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the
evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six
months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding
office for the entire period of six months, which is the maximum provided by law.

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension
rests with the Ombudsman. The discretion as regards the period of such suspension also necessarily belongs
to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law. But, in
our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period
of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. X x x

X x x

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the
imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the
case brought before us, it does appear to us that the imposition of the maximum period of six months is
unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that
initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than
necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period
during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of
preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who
wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2
nd
Div. [Quisumbing])

318. Distinguish preventive suspension under the Local Government Code from preventive
suspension under the Ombudsman Act.
Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim
that the Local Government Code, which he averred should apply to this case of an elective local official, has
been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined,
and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to
refute first the charges against him, and for the maximum period of six months provided by the Ombudsman
Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct
from those initiated under the Local Government Code. Respondents point out that the shorter period of
suspension under the Local Government Code is intended to limit the period of suspension that may be
imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations.
In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be
similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive suspension.

X x x

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension
imposable under the Local Government Code. Political color could taint the exercise of the power to suspend
local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman, considering the
constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents
would have us believe.

In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his
power to investigate local elective officials by virtue of the Local Government Code, we said:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific
matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and
strike down the other.

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is
much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J.
Vitug, the two provisions govern differently.

However, petitioner now contends that Hagad did not settle the question of whether a local elective
official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have
held in other cases that there could be preventive suspension even before the charges against the official are
heard, or before the official is given an opportunity to prove his innocence. Preventive suspension is merely a
preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the
official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of
the Ombudsman Law x x x.

136

Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation,
the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says
the inquiry was converted into an administrative investigation without him being given the required number of
hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to
the complaint against him. This, however, does not make invalid the preventive suspension order issued
against him. As we have earlier stated, a preventive suspension order may be issued even before the charges
against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the
complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of
Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2
nd
Div.
[Quisumbing])

319. Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress
and, therefore, the Sandiganbayan erred in decreeing the preventive suspension order against
Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act
No. 3019 not encroach on the power of Congress to discipline its own ranks under the
Constitution?

Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any
government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the
suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official
charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. X x
x

In the relatively recent case of Segovia v. Sandiganbayan, the Court reiterated:

The validity of Section 13, R.A. 3019, as amended treating of the suspension pendente lite of
an accused public officer may no longer be put at issue, having been repeatedly upheld by this Court.

X x x

The provision of suspension pendente lite applies to all persons indicted upon a valid
information under the Act, whether they be appointive or elective officials; or permanent or temporary
employees, or pertaining to the career or non-career service. (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon
determination of the validity of the information filed before it. Once the information is found to be sufficient in
form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems
to be no ifs and buts about it. Explaining the nature of the preventive suspension, the Court in the case of
Bayot v. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if
acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension.

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear and
unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld
Sandiganbayans authority to decree the suspension of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has been charged.
Thus, it has been held that the use of the word office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular office under which he stands accused. (Bayot v.
Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

En passant, while the imposition of suspension is not automatic or self-operative as the validity of the
information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct
thereof. It has been said that

x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state
that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic
Act 3019 or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension
from office under Section 13 of the Act; or he may present a motion to quash the information on any of the
grounds provided for in Rule 117 of the Rules of Court x x x.

x x x


137
Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground
that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on
bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other
grounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for
which the accused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of
the provisions on bribery of the Revised Penal Code, should be treated only in the same manner as a
challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph
(a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense.
In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted,
constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the
Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511,
517-519 [1988])

The law does not require that the guilt of the accused must be established in a pre-suspension
proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the
strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence before the court could have a valid basis in decreeing preventive suspension pending the
trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of
the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation,
that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office
under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds
set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure.

X x x

The pronouncement, upholding the validity of the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution which provides that each

x x x house may determine the rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an
erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al., the Court
affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on
the encroachment by the court on the prerogatives of Congress. The Court ruled:

x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with
the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or
expel a Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days in unavailing, as it appears to be quite distinct from
the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure,
prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the
House of Representatives.
The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members
of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three
co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and
the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively
prevents one branch from unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution,
empowers the Court to act not only in the settlement of actual controversies involving rights which are legally
demandable and enforceable, but also in the determination of whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. The provision allowing the Court to look into any possible grave abuse of discretion committed by
any government instrumentality has evidently been couched in general terms in order to make it malleable to
judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply
an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction.
When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court
subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the
Court should not deign substitute its own judgment over that of any of the other two branches of government. It
is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel
door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary
needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.


138
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First
Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless,
deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner.
(Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

320. May an elective public official be validly appointed or designated to any public office or
position during his tenure?

Ans.: No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure. (Sec. 7, 1
st
par., Art. IX-B, 1987 Constitution)

321. May an appointive public official hold any other office or employment?

Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporation. (Sec. 7, 2
nd
par., Art. IX-B, 1987 Constitution)

322. May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold
any other office or employment?

Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.
(Sec. 13, Art. VII, 1987 Constitution)

323. Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy
reference is quoted anew, thus: Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their subsidiaries.

We rule in the negative.

X x x

The practice of designating members of the Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government agencies and instrumentalities, including government-owned
and controlled corporations, became prevalent during the time legislative powers in this country were exercised
by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of
newly-created agencies, instrumentalities and government-owned and controlled corporations created by
presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or
assistants were designated to head or sit as members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of office. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the peoples sense of propriety and morality in government service
were the data contained therein that Roberto v. Ongpin was a member of the governing boards of twenty-nine
(29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar
E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of
fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each;
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that
the 1986 Constitutional Commission, convened as it was after the people successfully unseated former
President Marcos, should draft into its proposed Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and
employment. X x x

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both elective and
appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec.
13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and
his official family in so far as holding other offices or employment in the government or elsewhere is concerned.

139

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of
the Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, [N]o Senator or Member of the House of Representatives may hold
any other office or employment in the Government x x x. Under section 5(4), Article XVI, [N]o member of the
armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or any of their subsidiaries. Even Section
7(2), Article IX-B, relied upon by respondents provides [U]nless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the Government.

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that
[T]he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. In the latter
provision, the disqualification is absolute, not being qualified by the phrase in the Government. The prohibition
imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.

Going further into Section 13, Article VII, the second sentence provides: They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official family,
which prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent of
the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said
class stricter prohibitions.

X x x

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary functions of
their positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to
be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies
and assistants.

This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section 13,
Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents would have us to do, would render nugatory
and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect
to holding other offices or employment in the government during their tenure. Respondents interpretation that
Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the
Executive Branch from the President to assistant Secretary, on the one hand, and the generality of civil servants
from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or
position in the government during their tenure.

Moreover, respondents reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of
Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an
elective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or designation
in any capacity to any public office or position during his tenure. Surely, to say that the phrase unless
otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7, par. (1) of
Article IX-B would render meaningless the specific provisions of the Constitution authorizing the Vice-President
to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without relinquishing the Vice-
Presidency where the President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such absurd
consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7,
par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the
exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed vis--vis Section
13, Article VII.

X x x
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on
the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding
multiple offices or employment in the government during their tenure, the exception to this prohibition must be
read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the privilege of holding multiple
government offices and employment. Verily, wherever the language used in the constitution is prohibitory, it is
to be understood as intended to be a positive and unequivocal negation (Varney v. Justice, 86 Ky 596; 6 S.W.
457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase unless otherwise provided in this Constitution
must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or

140
acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary
of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

X x x

It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President, members
of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the
government, except in those cases specified in the Constitution itself and as above clarified with respect to
posts held without additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the
debate and deliberation on the general rule laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitutions manifest intent and the peoples understanding
thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-
B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly
restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in
addition to their primary position to not more than two (2) positions in the government and government
corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the Government,
considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of
their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the
executive official concerned without additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of any other office within the contemplation of the
constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it
to say that the feared impractical consequences are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived from a department heads ability and expertise, he should
be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and energy among too many
positions and responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national
and economic development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders respondents x x x
to immediately relinquish their other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. (Civil Liberties Union v. Executive
Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

324. Does the prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution apply to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of said officials office?

Held: The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and as required
(As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the Constitution, which is
permissive. Required suggests an imposition, and therefore, obligatory in nature) by the primary functions of
said officials office. The reason is that these posts do not comprise any other office within the contemplation
of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.
To characterize these posts otherwise would lead to absurd consequences, among which are: The President of
the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115. Neither
can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.

X x x
Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding
the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions
held without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned officials office. The term ex-officio means from office; by virtue of office. It refers
to an authority derived from official character merely, not expressly conferred upon the individual character, but
rather annexed to the official position. Ex officio likewise denotes an act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred by the office. An ex-
officio member of a board is one who is a member by virtue of his title to a certain office, and without further

141
warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority (Sec. 7, E.O. 778), and
the Light Rail Transit Authority (Sec. 1, E.O. 210).

The Court had occasion to explain the meaning of an ex-officio position in Rafael v. Embroidery and
Apparel Control and Inspection Board, thus: An examination of Section 2 of the questioned statute (R.A. 3137)
reveals that for the chairman and members of the Board to qualify they need only be designated by the
respective department heads. With the exception of the representative from the private sector, they sit ex-
officio. I order to be designated they must already be holding positions in the offices mentioned in the law.
Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the
act, be designated a representative from that office. The same is true with respect to the representatives from
the other offices. No new appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their original
appointments.

The term primary used to describe functions refers to the order of importance and thus means chief
or principal function. The term is not restricted to the singular but may refer to the plural (33A Words and
Phrases, p. 210). The additional duties must not only be closely related to, but must be required by the officials
primary functions. Examples of designations to positions by virtue of ones primary functions are the Secretaries
of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics Board.

If the functions to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview
of any other office prohibited by the Constitution. An example would be the Press Undersecretary sitting as a
member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions and/or monetary compensation, such as but
not limited to chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments
by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-
recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction,
continuity and coordination among the different offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President and his alter
egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure
that the laws are faithfully executed. Without these additional duties and functions being assigned to the
President and his official family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they
would be deprived of the means for control and supervision, thereby resulting in an unwieldy and confused
bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must
be required by the primary functions of the official concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that
the official concerned has no right to receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an
ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be
in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is prohibited by the Constitution. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

325. Should members of the Cabinet appointed to other positions in the government pursuant to
Executive Order No. 284 which later was declared unconstitutional by the SC for being
violative of Section 13, Article VII of the Constitution be made to reimburse the government for
whatever pay and emoluments they received from holding such other positions?

Held: During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. It has been held that in cases where there is
no de jure officer, a de facto officer, who, in good faith has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action
recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly,
supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer
de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned positions may
therefore be retained by them. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991,
En Banc [Fernan, CJ])


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326. May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may hold any other office or
employment in the government, or any subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall
he be appointed to any office which may have been created or the emoluments thereof increased during the
term for which he was elected. (Sec. 13, Art. VI, 1987 Constitution).

327. What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of
a relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the
bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O.
Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

328. What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in
a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable to the case of a member of any family who, after
his or her appointment to any position in an office or bureau, contracts marriage with someone in the same
office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.
(Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

329. What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officers previous misconduct to the extent
of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal
cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held administratively accountable for misconduct committed
during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it
is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed
with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.
(Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

330. What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection has rendered the
administrative case filed against him moot and academic. This is because his reelection operates as a
condonation by the electorate of the misconduct committed by an elective official during his previous term.
Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija, citing Conant
v. Brogan, that

x x x When the people have elected a man to office, it must be assumed that they did this with
knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he
had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically
overrule the will of the people.

Respondents, on the other hand, contend that while the contract in question was signed during the
previous term of petitioner, it was to commence or be effective only on September 1998 or during his current
term. It is the respondents submission that petitioner went beyond the protective confines of jurisprudence
when he agreed to extend his act to his current term of office. Aguinaldo cannot apply, according to
respondents, because what is involved in this case is a misconduct committed during a previous term but to be
effective during the current term.

Respondents maintain that,

x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period
making the supply contract commence or be effective during his succeeding or current term and during
his current term of office he acceded to the suspensive period making the contract effective during his
current term by causing the implementation of the contract.

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.


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Further, respondents point out that the contract in question was signed just four days before the date of
the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office,
they did so with full knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials previous acts is presumed and the court
need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Ramon R.
Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his
previous term, although disbursements of public funds to cover payments under the agreement were still being
done during his subsequent term. Petitioner argues that, following Salalima, the doctrine of Aguinaldo applies
even where the effects of the acts complained of are still evident during the subsequent term of the reelected
official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner,
the sole act for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The
charge, in his view, excludes the contracts execution or implementation, or any act subsequent to the perfection
of the contract.

In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case
because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he
filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the
Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection.

X x x

We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate,
for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it
may preventively suspend him for a reasonable period, can that office hold him administratively liable for said
acts?

In a number of cases, we have repeatedly held that a reelected local official may not be held
administratively accountable for misconduct committed during his prior term of office. The rationale for this
holding is that when the electorate put him back into office, it is resumed that it did so with full knowledge of his
life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such
reelection is considered a condonation of his past misdeeds.

However, in the present case, respondents point out that the contract entered into by petitioner with F.E.
Zuellig was signed just four days before the date of the elections. It was not made an issue during the election,
and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his
life and character.

For his part, petitioner contends that the only conclusive determining factor as regards the peoples
thinking on the matter is an election. On this point we agree with petitioner. That the people voted for an official
with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the
extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on the matter do not
distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the
officials reelection, except that it must be prior to said date.

As held in Salalima,

The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is
still a good law. Such a rule is not only founded on the theory that an officials reelection expresses the
sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative
discipline which was committed during his previous term. We may add that sound policy dictates it. To rule
otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and
his political enemies, who may not stop to hound the former during his new term with administrative cases for
acts alleged to have been committed during his previous term. His second term may thus be devoted to
defending himself in the said cases to the detriment of public service x x x.

The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively
liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was
reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This
situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract
with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during
petitioners second term.

However, respondents argue that the contract, although signed on May 7, 1998, during petitioners prior
term, is to be made effective only during his present term.

We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner
(representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioners
prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now
alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract
already became extant on the day the contract was signed. It hardly matters that the deliveries under the
contract are supposed to have been made months later.

144

While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig,
however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling
in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might
have been committed in signing the subject contract. The ruling now is limited to the question of whether or not
he may be held administratively liable therefor, and it is our considered view that he may not. (Garcia v.
Mojica, 314 SCRA 207, Sept. 10, 1999, 2
nd
Div. [Quisumbing])

331. Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting
as a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from office without due process and
therefore illegal.

Held: Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office for so long as his ad interim
appointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil
Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the
COMELEC en banc.

Petitioners appointment papers x x x indisputably show that she held her Director IV position in the EID
only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES), and neither does
she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service
Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x

X x x

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment
was contrary to the Civil Service Law. X x x

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code x x x.

X x x

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election
period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300
dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x

X x x

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELEC
Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant
to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because
that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300
to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to
approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300
should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need
of securing a second approval from the COMELEC en banc to actually implement such transfer or
reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating
Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,
En Banc [Carpio])

332. May the appointment of a person assuming a position in the civil service under a completed
appointment be validly recalled or revoked?


145
Held: It has been held that upon the issuance of an appointment and the appointees assumption of the
position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the
appointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-settled
that the person assuming a position in the civil service under a completed appointment acquires a legal, not just
an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well,
which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid
cause to do so, provided that there is previous notice and hearing.

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue
Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous
notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to
remove the private respondents without regard for the simple requirements of due process of law. While he
argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he
does not have blanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke the
recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code
specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the
CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval
are proven to be in disregard of applicable provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of
the position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission. The appointment shall remain effective until disapproved by the
Commission. In no case shall an appointment take effect earlier than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any
of the following grounds:

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
Failure to pass through the agencys Selection/Promotion Board;
Violation of the existing collective agreement between management and employees relative to
promotion; or
Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight
appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called midnight
appointments, specifically those made within two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94,
Feb. 28, 2001, En Banc [Ynares-Santiago])

333. Is a government employee who has been ordered arrested and detained for a non-bailable
offense and for which he was suspended for his inability to report for work until the
termination of his case, still required to file a formal application for leave of absence to ensure
his reinstatement upon his acquittal and thus protect his security of tenure? Concomitantly,
will his prolonged absence from office for more than one (1) year automatically justify his
being dropped from the rolls without prior notice despite his being allegedly placed under
suspension by his employer until the termination of his case, which finally resulted in his
acquittal for lack of evidence?

Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government of
Makati City. With her meager income she was the lone provider for her children. But her simple life was
disrupted abruptly when she was arrested without warrant and detained for more than three (3) years for a crime
she did not commit. Throughout her ordeal she trusted the city government that the suspension imposed on her
was only until the final disposition of her case. As she drew near her vindication she never did expect the worst
to come to her. On the third year of her detention the city government lifted her suspension, dropped her from
the rolls without prior notice and without her knowledge, much less gave her an opportunity to forthwith correct
the omission of an application for leave of absence belatedly laid on her.

Upon her acquittal for lack of evidence and her release from detention she was denied reinstatement to
her position. She was forced to seek recourse in the Civil Service Commission which ordered her immediate
reinstatement with back wages from 19 October 1994, the date when she presented herself for reassumption of
duties but was turned back by the city government, up to the time of her actual reinstatement.

X x x

Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt, a
dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R.
Galzote and the automatic leave of absence espoused by the Civil Service Commission. Against this concern is

146
the punctilious adherence to technicality, the requirement that private respondent should have filed an
application for leave of absence in proper form. The instant case is therefore a dispute between, at its worst,
private respondents substantial compliance with the standing rules, and the City Governments insistence that
the lowly clerk should have still gone through the formalities of applying for leave despite her detention, of which
petitioner had actual notice, and the suspension order couched in simple language that she was being
suspended until the final disposition of her criminal case.

The meaning of suspension until the final disposition of her case is that should her case be dismissed
she should be reinstated to her position with payment of back wages. She did not have to apply for leave of
absence since she was already suspended by her employer until her case would be terminated. We have done
justice to the workingman in the past; today we will do no less by resolving all doubts in favor of the humble
employee in faithful obeisance to the constitutional mandate to afford full protection to labor (Const., Art. XIII,
Sec. 3, par. 1; Art. II, Sec. 18)

X x x

As may be gleaned from the pleadings of the parties, the issues are: (1) whether private respondent
Eusebia R. Galzote may be considered absent without leave; (b) whether due process had been observed
before she was dropped from the rolls; and, (3) whether she may be deemed to have abandoned her position,
hence, not entitled to reinstatement with back salaries for not having filed a formal application for leave.
Encapsulated, the issues may be reduced to whether private respondent may be considered absent without
leave or whether she abandoned her job as to justify being dropped from the service for not filing a formal
application for leave.

Petitioner would have private respondent declared on AWOL and faults her for failing to file an
application for leave of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-
1631 dated 27 December 1991, as amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI,
Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC Nos. 41, s. 1998
and 14, s. 1999) of the CSC Rules and rejects the CSCs ruling of an automatic leave of absence for the period
of her detention since the current Civil Service Law and Rules do not contain any specific provision on
automatic leave of absence.

The Court believes that private respondent cannot be faulted for failing to file prior to her detention an
application for leave and obtain approval thereof. The records clearly show that she had been advised three (3)
days after her arrest, or on 9 September 1991, that petitioner City government of Makati City had placed her
under suspension until the final disposition of her criminal case. This act of petitioner indubitably recognized
private respondents predicament and thus allowed her to forego reporting for work during the pendency of her
criminal case without the needless exercise of strict formalities. At the very least, this official communication
should be taken as an equivalent of a prior approved leave of absence since it was her employer itself which
placed her under suspension and thus excused her from further formalities in applying for such leave.
Moreover, the arrangement bound the City Government to allow private respondent to return to her work after
the termination of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently served as legitimate
reason for her to altogether dispense with the formal application for leave; there was no reason to, as in fact it
was not required, since she was for all practical purposes incapacitated or disabled to do so.

Indeed, private respondent did not have the least intention to go on AWOL from her post as Clerk III of
petitioner, for AWOL means the employee leaving or abandoning his post without justifiable reason and without
notifying his employer. In the instant case, private respondent had a valid reason for failing to report for work as
she was detained without bail. Hence, right after her release from detention, and when finally able to do so, she
presented herself to the Municipal Personnel Officer of petitioner City Government to report for work. Certainly,
had she been told that it was still necessary for her to file an application for leave despite the 9 September 1991
assurance from petitioner, private respondent would have lost no time in filing such piece of document. But the
situation momentarily suspending her from work persisted: petitioner City Government did not alter the modus
vivendi with private respondent and lulled her into believing that its commitment that her suspension was only
until the termination of her case was true and reliable. Under the circumstances private respondent was in,
prudence would have dictated petitioner, more particularly the incumbent city executive, in patria potestas, to
advise her that it was still necessary although indeed unnecessary and a useless ceremony to file such
application despite the suspension order, before depriving her of her legitimate right to return to her position.
Patria potestas in piatate debet, non in atrocitate, consistere. Paternal power should consist or be exercised in
affection, not in atrocity.

It is clear from the records that private respondent Galzote was arrested and detained without a warrant
on 6 September 1991 for which reason she and her co-accused were subjected immediately to inquest
proceedings. This fact is evident from the instant petition itself and its attachments x x x. Hence, her ordeal in
jail began on 6 September 1991 and ended only after her acquittal, thus leaving her no time to attend to the
formality of filing a leave of absence.

But petitioner City Government would unceremoniously set aside its 9 September 1991 suspension
order claiming that it was superseded three (3) years later by a memorandum dropping her from the rolls
effective 21 January 1993 for absence for more than one (1) year without official leave. Hence, the
suspension order was void since there was no pending administrative charge against private respondent so that
she was not excused from filing an application for leave.

We do not agree. In placing private respondent under suspension until the final disposition of her
criminal case, the Municipal Personnel Officer acted with competence, so he presumably knew that his order of
suspension was not akin to either suspension as penalty or preventive suspension since there was no

147
administrative case against private respondent. As competence on the part of the MPO is presumed, any error
on his part should not prejudice private respondent, and that what he had in mind was to consider her as being
on leave of absence without pay and their employer-employee relationship being merely suspended, not
severed, in the meantime. This construction of the order of suspension is actually more consistent with logic as
well as fairness and kindness to its author, the MPO. Significantly, the idea of a suspended employer-employee
relationship is widely accepted in labor law to account for situations wherein laborers would have no work to
perform for causes not attributable to them. We find no basis for denying the application of this principle to the
instant case which also involves a lowly worker in the public service.

Moreover, we certainly cannot nullify the City Governments order of suspension, as we have no reason
to do so, much less retroactively apply such nullification to deprive private respondent of a compelling and valid
reason for not filing the leave application. For as we have held, a void act though in law a mere scrap of paper
nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the
existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal
consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon
the order of suspension in lieu of a formal leave application.

At any rate, statements are, or should be, construed against the one responsible for the confusion;
otherwise stated, petitioner must assume full responsibility for the consequences of its own act, hence, he
should be made to answer for the mix-up of private respondent as regards the leave application. At the very
least, it should be considered estopped from claiming that its order of suspension is void or that it did not excuse
private respondent from filing an application for leave on account of her incarceration. It is a fact that she relied
upon this order, issued barely three (3) days from the date of her arrest, and assumed that when the criminal
case would be settled she could return to work without need of any prior act. x x x

X x x

The holding of the Civil Service Commission that private respondent was on automatic leave of absence
during the period of her detention must be sustained. The CSC is the constitutionally mandated central
personnel agency of the Government tasked to establish a career service and adopt measures to promote
morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service (Const., Art. IX-
B, Sec. 3) and strengthen the merit and rewards system, integrate all human resources development programs
for all levels and ranks, and institutionalize a management climate conducive to public accountability. Besides,
the Administrative Code of 1987 further empowers the CSC to prescribe, amend, and enforce rules and
regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws, and for
matters concerning leaves of absence, the Code specifically vests the CSC to ordain

Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be entitled to
leave of absence, with or without pay, as may be provided by law and the rules and regulations of the
Civil Service Commission in the interest of the service.

Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December 1991 entitled Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws which it has several
times amended through memorandum circulars. It devotes Rule XVI to leaves of absence. Petitioner City
Government relies upon Secs. 20 and 35 to debunk the CSC ruling of an automatic leave of absence.
Significantly, these provisions have been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of
Rule XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC
No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999.

X x x

As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an approved leave of absence
to avoid being an AWOL. However, these provisions cannot be interpreted as exclusive and referring only to
one mode of securing the approval of a leave of absence which would require an employee to apply for it,
formalities and all, before exceeding thirty (30) days of absence in order to avoid from being dropped from the
rolls. There are, after all, other means of seeking and granting an approved leave of absence, one of which is
the CSC recognized rule of automatic leave of absence under specified circumstances. x x x

X x x

As properly noted, the CSC was only interpreting its own rules on leave of absence and not a statutory
provision (As a matter of fact, Sec. 60 of the Administrative Code does not provide for any rule on leave of
absence other than that civil servants are entitled to leave of absence) in coming up with this uniform rule.
Undoubtedly, the CSC like any other agency has the power to interpret its own rules and any phrase contained
in them with its interpretation significantly becoming part of the rules themselves. x x x

X x x

Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the
Implementation of Government Reorganization) and RA 7160 (The Local Government Code of 1991), civil
servants who are found illegally dismissed or retrenched are entitled to full pay for the period of their separation.

Our final point. An efficient and honest bureaucracy is never inconsistent with the emphasis on and the
recognition of the basic rights and privileges of our civil servants or, for that matter, the constitutional mandates
of the Civil Service Commission. In fact only from an enlightened corps of government workers and an effective
CSC grows the professionalization of the bureaucracy. Indeed the government cannot be left in the lurch; but

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neither could we decree that government personnel be separated from their jobs indiscriminately regardless of
fault. The fine line between these concerns may be difficult to clearly draw but if we only exerted extra effort to
rebel against the allure of legal over-simplification, justice would have been done where it is truly due. (City
Government of Makati City v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc
[Bellosillo])

334. What is abandonment of office? What are its essential elements?

Held: Abandonment of an office is the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. In order to constitute abandonment of an office, it
must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must be a
complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of
duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are,
therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or
external act by which the intention is carried into effect.

Generally speaking, a person holding a public office may abandon such office by non-user or
acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, non-
performance of the duties of an office does not constitute abandonment where such non-performance results
from temporary disability or from involuntary failure to perform. Abandonment may also result from an
acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an
unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an
abandonment of the office. Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is
afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may
recover the effect. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-
Reyes])

335. By accepting another position in the government during the pendency of a case brought
precisely to assail the constitutionality of his removal - may a person be deemed to have
abandoned his claim for reinstatement?

Held: Although petitioners do not deny the appointment of Canonizado as Inspector General, they
maintain that Canonizados initiation and tenacious pursuance of the present case would belie any intention to
abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful
employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado
assumed office as Inspector General he never received the salary pertaining to such position x x x.

X x x

By accepting the position of Inspector General during the pendency of the present case brought
precisely to assail the constitutionality of his removal from the NAPOLCOM Canonizado cannot be deemed to
have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily
leave his post as Commissioner, but was compelled to do so on the strength of Section 8 of RA 8551 x x x

In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of
petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful desire
or intention to abandon his official duties. In fact, Canonizado, together with petitioners x x x lost no time
disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect x x x petitioners
instituted the current action x x x assailing the constitutionality of certain provisions of said law. The removal of
petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary
relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-
Reyes])

336. Distinguish term of office from tenure of the incumbent.

Held: In the law of public officers, there is a settled distinction between term and tenure. [T]he term
of an office must be distinguished from the tenure of the incumbent. The term means the time during which the
officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent actually holds the office. The
term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or
beyond the power of the incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc
[Pardo])

337. Discuss the operation of the rotational plan insofar as the term of office of the Chairman and
Members of the Constitutional Commissions is concerned.

Held: In Republic v. Imperial, we said that the operation of the rotational plan requires two conditions,
both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a
common date, and (2) that any vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term.

Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions
under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five

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and three years should lead to the regular recurrence of the two-year interval between the expiration of the
terms.

Applying the foregoing conditions x x x, we rule that the appropriate starting point of the terms of office
of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 2,
1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the
interval between the start of the term and the actual qualification of the appointee must be counted against the
latter. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

338. What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that the office has a fixed
term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or
appointed for a fixed term shall remain in office not only for that term but until their successors have been
elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of
the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over
until his successor is elected and qualified, even though it be beyond the term fixed by law.

Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to
stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing
holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to
assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an executive or
administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to
exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is
specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in
the performance of government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2
nd

Div. [Bellosillo])

2. The rule is settled that unless holding over be expressly or impliedly prohibited, the incumbent may
continue to hold over until someone else is elected and qualified to assume the office. This rule is demanded
by the most obvious requirements of public policy, for without it there must frequently be cases where, from a
failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely
suspended. Otherwise stated, the purpose is to prevent a hiatus in the government pending the time when the
successor may be chosen and inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11, 1993, En
Banc [Davide, Jr.])

339. What is resignation? What are the requisites of a valid resignation?

Held: 1. It is the act of giving up or the act of an officer by which he declines his office and renounces
the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention
to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a
part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is
required by reason of Article 238 of the Revised Penal Code. (Sangguniang Bayan of San Andres,
Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)

2. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent
to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed
by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As
long as the resignation is clear, it must be given legal effect. (Estrada v. Desierto, G.R. Nos. 146710-15,
March 2, 2001, en Banc [Puno])

340. What is abandonment of an office? What are its requisites? How is it distinguished from
resignation?

Held: Abandonment of an office has been defined as the voluntary relinquishment of an office by the
holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a
species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary
relinquishment through nonuser.

Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant
effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy.

Clear intention to abandon should be manifested by the officer concerned. Such intention may be
express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be
with the officers actual or imputed intention to abandon and relinquish the office. Abandonment of an office is
not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the
law will infer a relinquishment. Therefore, there are two essential elements of abandonment; first, an intention to
abandon and, second, an overt or external act by which the intention is carried into effect. (Sangguniang
Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)

341. What is the effect of acceptance of an incompatible office to a claim for reinstatement?


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Held: The next issue is whether Canonizados appointment to and acceptance of the position of
Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a
well-settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto
vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy
considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The
incompatibility contemplated is not the mere physical impossibility of one persons performing the duties of the
two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds
from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism
should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the
other.

There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS
are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS
from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment
of any PNP personnel, whereas the NAPOLCOM has the power of control and supervision over the PNP.
However, the rule on incompatibility of duties will not apply to the case at bar because at no point did
Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first
office by the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General
x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. x x x Thus, to reiterate,
the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two
positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently.

X x x

As in the Tan v. Gimenez and Gonzales v. Hernandez cases, Canonizado was compelled to leave his
position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law.
Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his
appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this
subsequent position by a desire to continue serving the country, in whatever capacity. Surely, this selfless and
noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and
ones family, either of which are sufficient to justify Canonizados acceptance of the position of Inspector
General. A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to
earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore,
prohibiting Canonizado from accepting a second position during the pendency of his petition would be to
unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be
attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first resign
as Inspector General of the IAS-PNP. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc
[Gonzaga-Reyes])

342. When may unconsented transfers be considered anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez:

"x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies
only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not
pr[o]scribe a transfer carried out under a specific statute that empowers the head of an agency to
periodically reassign the employees and officers in order to improve the service of the agency. x x x"

The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only
means that an employee cannot be dismissed (or transferred) from the service for causes other than those
provided by law and after due process is accorded the employee. What it seeks to prevent is capricious
exercise of the power to dismiss. But where it is the law-making authority itself which furnishes the ground for
the transfer of a class of employees, no such capriciousness can be raised for so long as the remedy proposed
to cure a perceived evil is germane to the purposes of the law. (Agripino A. De Guzman, Jr., et al. v.
COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

343. Discuss Abolition of Office?

Held: The creation and abolition of public offices is primarily a legislative function. It is acknowledged
that Congress may abolish any office it creates without impairing the officer's right to continue in the position
held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of
economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or
personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away with such office wholly and permanently, as the
word "abolished" denotes. Where one office is abolished and replaced with another office vested with similar
functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul we said:

It is true that a valid and bona fide abolition of an office denies to the incumbent the right to
security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and
restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of
the position of PGH Director. This is because where the abolished office and the offices created in its
place have similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V.
Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle
enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which

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merely changes the nomenclature of positions is invalid and does not result in the removal of the
incumbent.

The above notwithstanding, and assuming that the abolition of the position of the PGH Director
and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not
justified for the reason that the duties and functions of the two positions are basically the same.

This was also our ruling in Guerrero v. Arizabal, wherein we declared that the substantial identity in the
functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a
reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25,
2000, En Banc [Gonzaga-Reyes])

344. What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between them. It involves a
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions. Naturally, it may result in the loss of one's position through removal or abolition of an office.
However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison:

x x x As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or
separation actually occurs because the position itself ceases to exist. And in that case, security of
tenure would not be a Chinese wall. Be that as it may, if the "abolition" which is nothing else but a
separation or removal, is done for political reasons or purposely to defeat security of tenure, or
otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab
initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or
where claims of economy are belied by the existence of ample funds.
(Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc
[Gonzaga-Reyes])

2. While the Presidents power to reorganize can not be denied, this does not mean however that the
reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization is
regarded as valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court has had the occasion
to clarify that:

As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to
make the bureaucracy more efficient. In that event no dismissal or separation actually occurs because
the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall.
Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political
reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes
place and whatever abolition done is void ab initio. There is an invalid abolition as where there is
merely a change of nomenclature of positions or where claims of economy are belied by the existence
of ample funds.
(Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

345. What are the circumstances evidencing bad faith in the removal of employees as a result of
reorganization and which may give rise to a claim for reinstatement or reappointment)?

Held:

Where there is a significant increase in the number of positions in the new staffing pattern of the
department or agency concerned;
Where an office is abolished and another performing substantially the same functions is created;
Where incumbents are replaced by those less qualified in terms of status of appointment, performance
and merit;
Where there is a reclassification of offices in the department or agency concerned and the reclassified
offices perform substantially the same functions as the original offices;
Where the removal violates the order of separation provided in Section 3 hereof.
(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

E. ELECTION LAWS

346. Discuss the Right of Suffrage, and its substantive and procedural requirements.

Held: In a representative democracy such as ours, the right of suffrage, although accorded a prime
niche in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper bounds
and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature,
which statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from
ravishment and preserve the democratic institutions our people have, for so long, guarded against the spoils of
opportunism, debauchery and abuse.

To be sure, the right of suffrage x x x is not at all absolute. Needless to say, the exercise of the right of
suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements

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embodied in our Constitution, statute books and other repositories of law. Thus, as to the substantive aspect,
Section 1, Article V of the Constitution provides:

SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES
NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND
WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE
WHEREIN THEY PROPOSE TO VOTE FOR AT LAST SIX MONTHS IMMEDIATELY PRECEDING
THE ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL
BE IMPOSED ON THE EXERCISE OF SUFFRAGE.

As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain
procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in
order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the
fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189,
otherwise known as the Voters Registration Act of 1996. (Akbayan-Youth v. COMELEC, 355 SCRA 318,
Mar. 26, 2001, En Banc [Buena])

347. Discuss the nature of Voters Registration.

Held: Stated differently, the act of registration is an indispensable precondition to the right of suffrage.
For registration is part and parcel of the right to vote and an indispensable element in the election process.
Thus, x x x registration cannot and should not be denigrated to the lowly stature of a mere statutory
requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the
State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate
the act of voters registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the
incidental yet generally important end, that even pre-election activities could be performed by the duly
constituted authorities in a realistic and orderly manner one which is not indifferent and so far removed from
the pressing order of the day and the prevalent circumstances of the times. (Akbayan-Youth v. COMELEC,
355 SCRA 318, Mar. 26, 2001, En Banc [Buena])

348. Discuss the reason behind the principle of ballot secrecy. May the conduct of exit polls
transgress the sanctity and the secrecy of the ballot to justify its prohibition?

Held: The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons,
from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed
is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate
voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective
votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third
party. This result cannot, however, be achieved merely through the voters verbal and confidential disclosure to
a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or
suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our
people. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc
[Panganiban])

349. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of
the Republic of the Philippines?

Held: [P]etitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year
and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner
cites the ruling of the Court in Caasi v. Court of Appeals (G.R. No. 88831, 8 November 1990, 191 SCRA 229) to
support his claim. In that case, the Court held that a green card holder immigrant to the United States is
deemed to have abandoned his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the
legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by
providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a
Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of
the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.

X x x

The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of
the Philippines abroad as it appears in R.A. No. 9189 x x x.

X x x Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or
permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring
that he/she shall resume actual physical permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act.


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Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos
abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the
Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of
Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it
contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are
perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore,
a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by
the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period,
risks a declaration of unconstitutionality. However, the risk is more apparent than real.

X x x

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to
take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a whole. X x x

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of
the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be
stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting
said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as
defined in Article VI (the Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the significance of absentee
voting. The concept of absentee voting is relatively new. X x x

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a
resident and an absentee (1 WORDS AND PHRASES 264 citing Savant v. Mercadal, 66 So. 961, 962, 136 La.,
248). However, under our election laws and the countless pronouncements of the Court pertaining to elections,
an absentee remains attached to his residence in the Philippines as residence is considered synonymous with
domicile.

X x x

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require Congress to establish a
system for overseas absentee voting x x x.

X x x

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad
principally for economic reasons and hence they contribute in no small measure to the economic uplift of this
country, their voices are marginal insofar as the choice of this countrys leaders is concerned.

The Constitutional Commission realized that under the laws then existing and considering the novelty of
the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides for the residency requirement of
voters x x x. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede
the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas
absentee voting.

The discussion of the Constitutional Commission on the effect of the residency requirement prescribed
by Section 1, Article V of the Constitution on the proposed system for absentee voting for qualified Filipinos
abroad is enlightening x x x.

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility
of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except
for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term
qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As
stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the
assumption is that they have the qualifications and none of the disqualifications to vote. In fine-tuning the
provision on absentee voting, the Constitutional Commission discussed how the system should work x x x.

It is clear from these discussions of the members of the Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin.
The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents
domicile of origin is in the Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the
residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which
may be applied in construing constitutional provisions (Marcelino v. Cruz, 121 SCRA 51, 56), the strategic
location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in

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effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote though they do not
satisfy the residency requirement in Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A.
No. 9189, was deliberated upon on the Senate floor x x x.

X x x

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process x x x
which does not require physical residency in the Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified x x x.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or
permanent resident who is recognized as such in the host country because immigration or permanent
residence in another country implies renunciation of ones residence in his country of origin. However, same
Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes
an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not otherwise disqualified by law
must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee
voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers
of the Constitution to mandate Congress to establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising
act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent
resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit
expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a political exercise.

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their
status in their host countries, they are presumed to have relinquished their intent to return to this country; thus,
without the affidavit, the presumption of abandonment of Philippine domicile shall remain.

Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate
required the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his
intention to return to his domicile of origin and not to preempt that choice by legislation. X x x

X x x

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. No. 9189, they may still be
considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration
under the new law for the purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume
actual physical permanent residence in the Philippines not later than three years from approval of his/her
registration, the Filipinos abroad must also declare that they have not applied for citizenship in another country.
Thus, they must return to the Philippines otherwise, their failure to return shall be cause for the removal of their
names from the National Registry of absentee voters and his/her permanent disqualification to vote in
absentia.

Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad
who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the
Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over the country where he/she has indicated his/her address
for purposes of the elections, while providing for safeguards to a clean election.

X x x

Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law
prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the
qualified citizen of the Philippines abroad is not physically present in the country. The provisions of Sections
5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines.
He is presumed not to have lost his domicile by his physical absence from this country. His having become an
immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by
Sections 5(d) and 8(c) of the law.

Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility
of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to
vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the

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Department of Foreign Affairs gave enough resources and talents to ensure the integrity and credibility of any
election conducted pursuant to R.A. No. 9189.

As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as
deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of immigrants renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest the proclamation of the winning
candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the
probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country
beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. X x x

Congress itself was conscious of said probability and in fact, it has addressed the expected problem.
Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to
lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two
consecutive national elections, his name may be ordered removed from the National Registry of Overseas
Absentee Voters.

Other serious legal questions that may be raised would be: what happens to the votes cast by the
qualified voters abroad who were not able to return within three years as promised? What is the effect on the
votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad
who failed to return within three years shall not be invalidated because they were qualified to vote on the date of
the elections, but their failure to return shall be cause for the removal of the names of the immigrants or
permanent residents from the National Registry of Absentee Voters and their permanent disqualification to vote
in absentia.

In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A.
No. 9189 as constitutionally defective. (Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc
[Austria-Martinez])

350. Discuss the meaning and purpose of residency requirement in Election Law.

Held: 1. The meaning and purpose of the residency requirement were explained recently in our
decision in Aquino v. Comelec, as follows:

X x x [T]he place where a party actually or constructively has his permanent home, where he,
no matter where he may be found at any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election
law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained
in Gallego v. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the
community from taking advantage of favorable circumstances existing in that community for electoral
gain. While there is nothing wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the essence of representation, which is to
place through the assent of voters those most cognizant and sensitive to the needs of a particular
district, if a candidate falls short of the period of residency mandated by law for him to qualify. That
purpose could be obviously best met by individuals who have either had actual residence in the area for
a given period or who have been domiciled in the same area either by origin or by choice.
(Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza])

2. The Constitution and the law requires residence as a qualification for seeking and holding elective
public office, in order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their constituencies; likewise, it enables the electorate
to evaluate the office seekers qualifications and fitness for the job they aspire for. Inasmuch as Vicente Y.
Emano has proven that he, together with his family, (1) had actually resided in a house he bought in 1973 in
Cagayan de Oro City; (2) had actually held office there during his three terms as provincial governor of Misamis
Oriental, the provincial capitol being located therein; and (3) has registered as voter in the city during the period
required by law, he could not be deemed a stranger or newcomer when he ran for and was overwhelmingly
voted as city mayor. Election laws must be liberally construed to give effect to the popular mandate. (Torayno,
Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc [Panganiban])

3. Generally, in requiring candidates to have a minimum period of residence in the area in which they
seek to be elected, the Constitution or the law intends to prevent the possibility of a stranger or newcomer
unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an
elective office to serve that community. Such provision is aimed at excluding outsiders from taking advantage
of favorable circumstances existing in that community for electoral gain. Establishing residence in a community
merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of
voters those most cognizant and sensitive to the needs of the community. This purpose is best met by
individuals who have either had actual residence in the area for a given period or who have been domiciled in
the same area either by origin or by choice. (Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En
Banc [Panganiban])

351. Does the fact that a person is registered as a voter in one district proof that he is not
domiciled in another district?


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Held: The fact that a person is registered as a voter in one district is not proof that he is not domiciled
in another district. Thus, in Faypon v. Quirino, this Court held that the registration of a voter in a place other
than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Marcita
Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza])

352. What are the three classes of domicile? Discuss.

Held: There are three classes of domicile, namely: domicile of origin, domicile of choice, and domicile
by operation of law. At any given point, a person can only have one domicile.

Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition
of another domicile. More specifically, it is the domicile of the childs parents or of the persons upon whom the
child is legally dependent at birth. Although referred to as domicile of birth, domicile of origin is actually the
domicile of ones parents at the time of birth and may not necessarily be the actual place of ones birth (25 Am
Jur 2d, Domicil Sec 11 at 13). Domicile of choice is a domicile chosen by a person to replace his or her former
domicile. An adult may change domicile at will. The choice involves an exercise of free will and presumes legal
capacity to make a choice. While intention is a principal feature of domicile of choice, a mere intention without
the fact of actual presence in the locality cannot bring about the acquisition of a new domicile. Domicile of
choice generally consists of a bodily presence in a particular locality and a concurrent intent to remain there
permanently or at least indefinitely (Id. at Sec 12). Domicle by operation of law is a domicile that the law
attributes to a person independent of a persons residence or intention. It applies to infants, incompetents, and
other persons under disabilities that prevent them from acquiring a domicile of choice (Id. at sec 13). (Puno,
Concurring and Dissenting Opinion in Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc
[Austria-Martinez])

353. What is required to successfully effect a change of domicile? Is a Filipino who becomes an
immigrant or permanent resident of a foreign country considered to have changed his
domicile?

Held: In Romualdez-Marcos v. COMELEC, we ruled that domicile of origin is not easily lost. To
successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of
domicile; a bona fide intention of abandoning the former place of residence and establishing a new one; and
acts which correspond with purpose. This change of domicile is effected by a Filipino who becomes an
immigrant or a permanent resident of a foreign country. Thus, we held in Caasi v. Court of Appeals
(Supra note 4), viz:

Miguels application for immigrant and permanent residence in the U.S. and his possession of a
green card attesting to such status are conclusive proof that he is a permanent resident of the U.S.
despite his occasional visits to the Philippines. The waiver of such immigrant status should be as
indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that
status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor
x x x (Id. at 237)

The doctrine in Caasi is by no means new. Our election laws have continuously regarded immigrants
or permanent residents of a foreign country to have lost their domiciles in the Philippines and hence are not
qualified to run for public office (See for instance, Rep. Act No. 7160, section 40(f); B.P. Blg. 52, sec. 4; B.P.
Blg. 881, sec. 68). There is no reason not to apply the Caasi ruling in disputes involving the qualification
of voters. In essence, both cases concern the fulfillment of the residence requirements. (Puno, Concurring
and Dissenting Opinion in Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc [Austria-
Martinez])

354. What is the Lone Candidate Law? What are its salient provisions?

Ans.: The Lone Candidate Law is Republic Act No. 8295, enacted on June 6, 1997. Section 2 thereof
provides that Upon the expiration of the deadline for the filing of the certificate of candidacy in a special election
called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one
(1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper
proclaiming body of the Commission on Elections without holding the special election upon certification by the
Commission on Elections that he is the only candidate for the office and is thereby deemed elected.

Section 3 thereof provides that the lone candidate so proclaimed shall assume office not earlier than
the scheduled election day, in the absence of any lawful ground to deny due course or cancel the certificate of
candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa
Bilang 881 also known as the Omnibus Election Code.

355. Who are disqualified to run in a special election under the Lone Candidate Law?

Ans.: Section 4 of the Lone Candidate Law provides that In addition to the disqualifications mentioned
in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known
as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified
to run in a special election called to fill the vacancy in an elective office, to wit:

a) Any elective official who has resigned from his office by accepting an appointive office or for
whatever reason which he previously occupied but has caused to become vacant due to his
resignation; and

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b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually
causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage
to any person or persons aspiring to become a candidate or that of the immediate member of his
family, his honor or property that is meant to eliminate all other potential candidate.

356. What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing
the time limit therefor?

Held: The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the
time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the
candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the
tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly
registered candidates, there might be as many persons voted for as there are voters, and votes might be cast
even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in
the same election. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

357. May a disqualified candidate and whose certificate of candidacy was denied due course and/or
canceled by the Comelec be validly substituted?

Held: Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the place of
somebody who does not exist or who never was. The Court has no other choice but to rule that in all instances
enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy
seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the
first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of
candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted
under Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])

358. Should the votes cast for the substituted candidate be considered votes for the substitute
candidate?

Ans.: Republic Act No. 9006, otherwise known as the Fair Election Act, provides in Section 12
thereof: In case of valid substitutions after the official ballots have been printed, the votes cast for the
substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this
purpose, the official ballots shall provide spaces where the voters may write the name of the substitute
candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same
family name, this provision shall not apply.

359. What is the effect of the filing of certificate of candidacy by elective officials?

Ans.: COMELEC Resolution No. 3636, promulgated March 1, 2001, implementing the Fair Election
Act (R.A. No. 9006) provides in Section 26 thereof: any elective official, whether national or local, who has filed
a certificate of candidacy for the same or any other office shall not be considered resigned from his office.

Note that Section 67 of the Omnibus Election Code and the first proviso in the third paragraph of
Section 11 of Republic Act No. 8436 which modified said Section 67, were expressly repealed and rendered
ineffective, respectively, by Section 14 (Repealing Clause) of The Fair Election Act (R.A. No. 9006).

360. What kind of material misrepresentation is contemplated by Section 78 of the Omnibus
Election Code as a ground for disqualification of a candidate? Does it include the use of
surname?

Held: Therefore, it may be concluded that the material misrepresentation contemplated by Section 78
of the (Omnibus Election) Code refers to qualifications for elective office. This conclusion is strengthened by the
fact that the consequences imposed upon a candidate guilty of having made a false representation in his
certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a
person of such a basic and substantial political right to be voted for a public office upon just any innocuous
mistake.

[A]side from the requirement of materiality, a false representation under Section 78 must consist of a
deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In
other words, it must be made with an intention to deceive the electorate as to ones qualifications for public
office. The use of a surname, when not intended to mislead or deceive the public as to ones identity, is not
within the scope of the provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En
Banc [Gonzaga-Reyes])

361. Who has authority to declare failure of elections and the calling of special election? What are
the three instances where a failure of election may be declared?

Held: The COMELECs authority to declare failure of elections is provided in our election laws. Section
4 of RA 7166 provides that the Comelec sitting en banc by a majority vote of its members may decide, among
others, the declaration of failure of election and the calling of special election as provided in Section 6 of the
Omnibus Election Code. X x x

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There are three instances where a failure of election may be declared, namely, (a) the election in any
polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other
analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the
closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c)
after the voting and during the preparation and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other
analogous causes. In these instances, there is a resulting failure to elect. This is obvious in the first two
scenarios, where the election was not held and where the election was suspended. As to the third scenario,
where the preparation and the transmission of the election returns give rise to the consequence of failure to
elect, it must x x x, be interpreted to mean that nobody emerged as a winner. (Banaga, Jr. v. COMELEC, 336
SCRA 701, July 31, 2000, En Banc [Quisumbing])

362. What are the two conditions that must concur before the COMELEC can act on a verified
petition seeking to declare a afailure of election?

Held: Before the COMELEC can act on a verified petition seeking to declare a failure of election two
conditions must concur, namely: (1) no voting took place in the precinct or precincts on the date fixed by law, or
even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected
the result of the election. Note that the cause of such failure of election could only be any of the following: force
majeure, violence, terrorism, fraud or other analogous causes.

Thus, in Banaga, Jr. v. COMELEC, the SC held:

We have painstakingly examined the petition filed by petitioner Banaga before the Comelec. But
we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he
aver that although there was voting, nobody was elected. On the contrary, he conceded that an election
took place for the office of vice-mayor of Paranaque City, and that private respondent was, in fact,
proclaimed elected to that post. While petitioner contends that the election was tainted with widespread
anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must
be such that it prevented or suspended the holding of an election, or marred fatally the preparation and
transmission, custody and canvass of the election returns. These essential facts ought to have been
alleged clearly by the petitioner below, but he did not.

363. Cite instances when Comelec may or may not validly declare failure of elections.

Held: In Mitmug v. COMELEC, petitioner instituted with the COMELEC an action to declare failure of
election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He also
lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his
municipality. The Comelec denied motu proprio and without due notice and hearing the petition to declare
failure of election despite petitioners argument that he has meritorious grounds in support thereto, that is,
massive disenfranchisement of voters due to terrorism. On review, we ruled that the Comelec did not gravely
abuse its discretion in denying the petition. It was not proven that no actual voting took place. Neither was it
shown that even if there was voting, the results thereon would be tantamount to failure to elect. Considering
that there is no concurrence of the conditions seeking to declare failure of election, there is no longer need to
receive evidence on alleged election irregularities.

In Sardea v. COMELEC, all election materials and paraphernalia with the municipal board of
canvassers were destroyed by the sympathizers of the losing mayoralty candidate. The board then decided to
use the copies of election returns furnished to the municipal trial court. Petitioner therein filed a petition to stop
the proceedings of the board of canvassers on the ground that it had no authority to use said election returns
obtained from the municipal trial court. The petition was denied. Next, he filed a petition assailing the
composition of the board of canvassers. Despite that petition, the board of canvassers proclaimed the winning
candidates. Later on, petitioner filed a petition to declare a failure of election alleging that the attendant facts
would justify declaration of such failure. On review, we ruled that petitioners first two actions involved pre-
proclamation controversies which can no longer be entertained after the winning candidates have been
proclaimed. Regarding the petition to declare a failure of election, we held that the destruction and loss of
copies of election returns intended for the municipal board of canvassers on account of violence is not one of
the causes that would warrant the declaration of failure of election. The reason is that voting actually took place
as scheduled and other valid election returns still existed. Moreover, the destruction or loss did not affect the
result of the election. We also declared that there is failure of elections only when the will of the electorate has
been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as
possible be respected.

X x x

In Loong v. COMELEC, the petition for annulment of election results or to declare failure of elections in
Parang, Sulu, on the ground of statistical improbability and massive fraud was granted by the COMELEC. Even
before the technical examination of election documents was conducted, the Comelec already observed badges
of fraud just by looking at the election results in Parang. Nevertheless, the Comelec dismissed the petition for
annulment of election results or to declare failure of elections in the municipalities of Tapul, Panglima Estino,
Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of untimeliness of
the petition, despite a finding that the same badges of fraud evident from the results of the election based on the
certificates of canvass of votes in Parang, are also evident in the election results of the five mentioned
municipalities. We ruled that Comelec committed grave abuse of discretion in dismissing the petition as there is
no law which provides for a reglementary period to file annulment of elections when there is yet no

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proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, we ordered the
Comelec to reinstate the aforesaid petition. Those circumstances, however, are not present in this case, so that
reliance on Loong by petitioner Banaga is misplaced. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31,
2000, En Banc [Quisumbing])

364. Is a petition to declare failure of election different from a petition to annul the election results?

Held: A prayer to declare failure of elections and a prayer to annul the election results x x x are actually
of the same nature. Whether an action is for declaration of failure of elections or for annulment of election
results, based on allegations of fraud, terrorism, violence or analogous causes, the Omnibus Election Code
denominates them similarly. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc
[Quisumbing])

365. What conditions must concur before the Comelec can act on a verified petition seeking to
declare a failure of election? Is low turn-out of voters enough basis to grant the petition?

Held: Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or,
even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast
would affect the result of the election.

There can be failure of election in a political unit only if the will of the majority has been defiled and
cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision
in our election laws which requires that a majority of registered voters must cast their votes. All the law requires
is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of
ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same
must still be respected. (Mitmug v. COMELEC, 230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo])

366. Distinguish a petition to declare failure of elections from an election protest.

Held: While petitioner may have intended to institute an election protest by praying that said action may
also be considered an election protest, in our view, petitioners action is a petition to declare a failure of
elections or annul election results. It is not an election protest.

First, his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No. 7166 in
relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to postponement, failure of
election and special elections while Section 6 of the Omnibus Election Code relates to failure of election. It is
simply captioned as Petition to Declare Failure of Elections and/or For Annulment of Elections.

Second, an election protest is an ordinary action while a petition to declare a failure of elections is a
special action under the 1993 Comelec Rules of Procedure as amended. An election protest is governed by
Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule 26 under special
actions.

In this case, petitioner filed his petition as a special action and paid the corresponding fee therefor.
Thus, the petition was docketed as SPA-98-383. This conforms to petitioners categorization of his petition as
one to declare a failure of elections or annul election results. In contrast, an election protest is assigned a
docket number starting with EPC, meaning election protest case.

Third, petitioner did not comply with the requirements for filing an election protest. He failed to pay the
required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the election
tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly warrant the
outright dismissal of his action.

Fourth, an en banc decision of Comelec in an ordinary action becomes final and executory after thirty
(30) days from its promulgation, while an en banc decision in a special action becomes final and executory after
five (5) days from promulgation, unless restrained by the Supreme Court (Comelec Rules of Procedure, Rule
18, Section 13 [a], [b]). For that reason, a petition cannot be treated as both an election protest and a petition to
declare failure of elections.

Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local
elections for the office of vice-mayor in Paranaque City held on May 11, 1998, denigrates the true will of the
people as it was marred with widespread anomalies on account of vote buying, flying voters and glaring
discrepancies in the election returns. He averred that those incidents warrant the declaration of a failure of
elections.

Given these circumstances, public respondent cannot be said to have gravely erred in treating
petitioners action as a petition to declare failure of elections or to annul election results. (Banaga, Jr. v.
COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

367. What are pre-proclamation cases, and exceptions thereto? What Court has jurisdiction over
pre-proclamation cases?

Held: Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the
board of canvassers which may be raised by any candidate or by any registered political party or coalition of
political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234,

160
235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns
(Section 241, Omnibus Election Code). The Comelec has exclusive jurisdiction over all pre-proclamation
controversies (Section 242, supra). As an exception, however, to the general rule, Section 15 of Republic Act
7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing
pre-proclamation cases. It states:

Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President,
Senator, and Members of the House of Representatives. - For purposes of the elections for President,
Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall
be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be. However, this does not preclude the
authority of the appropriate canvassing body motu proprio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or election returns before it.

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in
a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second
sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass
or election returns even in elections for president, vice-president and members of the House of Representatives
for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay
the proclamation of the winner in the election. The rule is consistent with and complements the authority of the
Comelec under the Constitution to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall (Section 2[1], Article IX-C, 1987 Constitution) and its power
to decide, except those involving the right to vote, all questions affecting elections. (Section 2[3], Article IX-C,
supra) (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

368. Who has authority to rule on petitions for correction of manifest error in the certificate of
canvass or election returns?

Held: The authority to rule on petitions for correction of manifest error is vested in the Comelec en
banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the error is discovered
before proclamation, the board of canvassers may motu proprio, or upon verified petition by any candidate,
political party, organization or coalition of political parties, after due notice and hearing, correct the errors
committed. The aggrieved party may appeal the decision of the board to the Commission and said appeal shall
be heard and decided by the Commission en banc. Section 5, however, of the same rule states that a petition
for correction of manifest error may be filed directly with the Commission en banc provided that such errors
could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of
the winning candidate had already been made. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.
26, 2000 [Puno])

369. Distinguish Election Protest from Petition for Quo Warranto.

Held: In Samad v. COMELEC, we explained that a petition for quo warranto under the Omnibus
Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat
the respondent from office but not necessarily to install the petitioner in his place. An election protest is a
contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and
counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the
plurality of the legal votes and therefore is entitled to hold the office. (Dumayas, Jr. v. COMELEC, G.R. Nos.
141952-53, April 20, 2001, En Banc [Quisumbing])

370. What is a counter-protest? When should it be filed?

Held: Under the Comelec Rules of Procedure, the protestee may incorporate in his answer a counter-
protest. It has been said that a counter-protest is tantamount to a counterclaim in a civil action and may be
presented as a part of the answer within the time he is required to answer the protest, i.e., within five (5) days
upon receipt of the protest, unless a motion for extension is granted, in which case it must be filed before the
expiration of the extended time.

As early as in the case of Arrieta v. Rodriguez, the SC had firmly settled the rule that the counter-protest
must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the
belatedly filed counter-protest. (Kho v. COMELEC, 279 SCRA 463, Sept. 25, 1997, En Banc [Torres])

371. What is the effect of death of a party in an election protest? Should it warrant the dismissal of
the protest?

Held: An election protest involves both the private interests of the rival candidates and the public
interest in the final determination of the real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. X x x. But while the right to a public office is
personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that after the death of either would oust the court of all authority to continue
the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is
imbued with paramount public interests. The death of the protestant neither constitutes a ground for the
dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest. (De Castro v.
COMELEC, 267 SCRA 806, Feb. 7, 1997)

372. Does the fact that one or a few candidates in an election got zero votes in one or a few
precincts adequately support a finding that the election returns are statistically improbable?

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Held: From experiences in past elections, it is possible for one candidate or even a few candidates to
get zero votes in one or a few precincts.

Standing alone and without more, the bare fact that a candidate for public office received zero votes in
one or two precincts can not adequately support a finding that the subject election returns are statistically
improbable. A no-vote for a particular candidate in election returns is but one strand in the web of circumstantial
evidence that those election returns were prepared under duress, force and intimidation. In the case of Una
Kibad v. Comelec, the SC warned that the doctrine of statistical improbability must be viewed restrictively, the
utmost care being taken lest in penalizing the fraudulent and corrupt practices, innocent voters become
disenfranchised, a result which hardly commends itself. (Arthur V. Velayo v. COMELEC, G.R. No. 135613,

373. What Court has jurisdiction over election protests and quo warranto proceedings involving
Sangguniang Kabataan (SK) elections?

Held: Any contest relating to the election of members of the Sangguniang Kabataan (including the
chairman) whether pertaining to their eligibility or the manner of their election is cognizable by MTCs,
MCTCs, and MeTCs. Section 6 of Comelec Resolution No. 2824 which provides that cases involving the
eligibility or qualification of SK candidates shall be decided by the City/Municipal Election Officer whose decision
shall be final, applies only to proceedings before the election. Before proclamation, cases concerning eligibility
of SK officers and members are cognizable by the Election Officer. But after the election and proclamation, the
same cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based
on the principle that it is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of
election officials.

The case of Jose M. Mercado v. Board of Election Supervisors, in which this Court ruled that election
protests involving SK elections are to be determined by the Board of Election Supervisors was decided under
the aegis of Comelec Resolution No. 2499, which took effect on August 27, 1992. However, Comelec
Resolution No. 2824, which took effect on February 6, 1996 and was passed pursuant to R.A. 7808, in relation
to Arts. 252-253 of the Omnibus Election Code, has since transferred the cognizance of such cases from the
Board of Election Supervisors to the MTCs, MCTCs and MeTCs. Thus, the doctrine of Mercado is no longer
controlling. (Francis King L. Marquez v. COMELEC, G.R. No. 127318, Aug. 25, 1999, En Banc [Purisima])

374. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the
COMELEC en banc?

Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:

SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within
twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within
two (2) days thereafter certify the case to the Commission en banc.

Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must
have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is
that an order is final in nature if it completely disposes of the entire case. But if there is something more to be
done in the case after its issuance, that order is interlocutory.

As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October
11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the
election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued
the interlocutory order of October 11, 1999 that should resolve petitioners motion for reconsideration, not the
COMELEC en banc. Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC
Rules of Procedure, which states:

Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on interlocutory orders of the
division, which shall be resolved by the divisions which issued the order.

That only final orders of a Division may be raised before the COMELEC en banc is in accordance with
Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final
decisions shall be decided by the Commission on Elections en banc, thus:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in division, provided
that motions for reconsideration of decisions shall be decided by the Commission en banc.

It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions
for reconsideration only of decisions of a Division, meaning those acts of final character. Clearly, the assailed
order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en
banc. (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-
Gutierrez])


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F. THE LAW OF PUBLIC CORPORATIONS

375. What is an autonomous region?

Ans.: An autonomous region consists of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of the Constitution and the national sovereignty as well as the
territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution)

376. What are administrative regions? Are they considered territorial and political subdivisions of
the State? Who has the power to create administrative regions?

Held: Administrative regions are mere groupings of contiguous provinces for administrative purposes.
They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the
power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has
traditionally been lodged with the President to facilitate the exercise of the power of general supervision over
local governments. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])

377. Is there a conflict between the power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local government units?

Held: There is no conflict between the power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local government units because the requirement of
a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to
administrative regions. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])

378. What is the Metropolitan Manila Development Authority (MMDA)? Is it a local government unit
or public corporation endowed with legislative power? May it validly exercise police power?
How is it distinguished from the former Metro Manila Council (MMC) created under PD No.
824?

Held: Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve
(12) cities and five (5) municipalities x x x. With the passage of Republic Act No. 7924 in 1995, Metropolitan
Manila was declared as a special development and administrative region and the Administration of
metrowide basic services affecting the region placed under a development authority referred to as the
MMDA.

The governing board of the MMDA is the Metro Manila Council. The Council is composed of the
mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors League
and the president of the Metro Manila Councilors League. The Council is headed by a Chairman who is
appointed by the President and vested with the rank of cabinet member. As the policy-making body of the
MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the necessary
rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and
promulgates the rules and regulations for the delivery of basic services, collection of service and regulatory fees,
fines and penalties. X x x

Clearly, the scope of the MMDAs function is limited to the delivery of the seven (7) basic services. One
of these is transport and traffic management x x x.

X x x

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given
to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the
MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of
the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bills
presentation to Congress. X x x

It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed
with legislative power. It is not even a special metropolitan political subdivision as contemplated in Section 11,
Article X of the Constitution. The creation of a special metropolitan political subdivision requires the approval
by a majority of the votes cast in a plebiscite in the political units directly affected. R.A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact,
part of his function is to perform such other duties as may be assigned to him by the President, whereas in local
government units, the President merely exercises supervisory authority. This emphasizes the administrative
character of the MMDA.

Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924.
Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local
government units, acting through their respective legislative councils, that possess legislative power and police
power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution
ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal x x x.
(MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1
st
Div. [Puno])

379. Discuss the concept of local autonomy.


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Held: Autonomy is either decentralization of administration or decentralization of power. There is
decentralization of administration when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government and in the process to make local governments more
responsive and accountable, and ensure their fullest development as self-reliant communities and make them
more effective partners in the pursuit of national development and social progress. At the same time, it relieves
the central government of the burden of managing local affairs and enables it to concentrate on national
concerns. The President exercises general supervision over them, but only to ensure that local affairs are
administered according to law. He has no control over their acts in the sense that he can substitute their
judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in favor of local
government units declared autonomous. In that case, the autonomous government is free to chart its own
destiny and shape its own future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to self-immolation, since in that event, the
autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona
v. Mangelin, 170 SCRA 786, Feb. 28, 1989, En Banc [Sarmiento])

380. What kind of local autonomy is contemplated by the Constitution? What about the autonomy
contemplated insofar as the autonomous regions are concerned?

Held: 1. The principle of local autonomy under the 1987 Constitution simply means decentralization.
It does not make local governments sovereign within the state or an imperium in imperio. Remaining to be an
intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio,
the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and
resources. Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially
the peripheral local government units to develop not only at their own pace and discretion but also with their own
resources and assets. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima])

2. The constitutional guarantee of local autonomy in the Constitution refers to the administrative
autonomy of local government units or, cast in more technical language, the decentralization of government
authority.

On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which
is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative
autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with
a basic structure consisting of an executive department and a legislative assembly and special courts with
personal, family and property law jurisdiction in each of the autonomous regions. (Cordillera Broad Coalition
v. COA, 181 SCRA 495, Jan. 29, 1990, En Banc [Cortes])

381. What is the meaning of "devolution"?

Ans: The term devolution refers to the act by which the National government confers power and
authority upon the various local government units to perform specific functions and responsibilities. (Sec. 17[e],
2
nd
par., Local Government Code)

382. The City of Butuan enacted an ordinance prohibiting the Land Transportation Office (LTO) to
register motor vehicles, tricycles in particular, as well as to issue licenses for the driving
thereof, contending that these powers have been devolved to local governments under the
Local Government Code. Was the City of Butuan correct in its assertion?

Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate
the operation of tricycles-for-hire and to grant franchises for the operation thereof had been devolved to local
governments under the Local Government Code. Clearly unaffected by the Local Government Code are the
powers of the LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles used or
operated on or upon any public highway in the country. This can be gleaned from the explicit language of the
statute itself, as well as the corresponding guidelines issued by the DOTC. In fact, even the power of LGUs to
regulate the operation of tricycles and to grant franchises for the operation thereof are still subject to the
guidelines prescribed by the DOTC. (LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000, 3
rd
Div. [Vitug])

383. The City of Pasig created Barangays Karangalan and Napico and plebiscites were scheduled
to ratify said creation. It was found, however, that the two proposed barangays were subject
of a pending boundary dispute between the City of Pasig and the Municipality of Cainta in the
RTC of Antipolo. Whether or not the plebiscites scheduled should be suspended or cancelled
in view of the pending boundary dispute between the two local governments and, if one had
already been held, whether it should be nullified.

Held: To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006 involving
the boundary dispute between the Municipality of Cainta and the City of Pasig presents a prejudicial question
which must first be decided before the plebiscites for the creation of the proposed barangays may be held.

X x x

In the case at bar, while the City of Pasig vigorously claims that the areas covered by the proposed
Barangays Karangalan and Napico are within its territory, it can not deny that portions of the same area are
included in the boundary dispute case pending before the Regional Trial Court of Antipolo. Surely, whether the
areas in controversy shall be decided as within the territorial jurisdiction of the Municipality of Cainta or the City

164
of Pasig has material bearing to the creation of the proposed Barangays Karangalan and Napico. Indeed, a
requisite for the creation of a barangay is for its territorial jurisdiction to be properly identified by metes and
bounds or by more or less permanent natural boundaries (Sec. 386[b], R.A. No. 7160). Precisely because
territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is resolved with
finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not
only that, we would be paving the way for potentially ultra vires acts of such barangays. X x x

Moreover, considering the expenses entailed in the holding of plebiscites, it is far more prudent to hold
in abeyance the conduct of the same, pending final determination of whether or not the entire area of the
proposed barangays are truly within the territorial jurisdiction of the City of Pasig.

Neither do we agree that merely because a plebiscite had already been held in the case of the
proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and
academic. The issue raised by the Municipality of Cainta in its petition before the COMELEC against the
holding of the plebiscite for the creation of Barangay Napico are still pending determination before the Antipolo
Regional Trial Court.

X x x

Therefore, the plebiscite on the creation of Barangay Karangalan should be held in abeyance pending
final resolution of the boundary dispute between the City of Pasig and the Municipality of Cainta by the Regional
Trial Court of Antipolo City. In the same vein, the plebiscite held on March 15, 1997 to ratify the creation of
Barangay Napico, Pasig City, should be annulled and set aside. (City of Pasig v. COMELEC, 314 SCRA 179,
Sept. 10, 1999, En Banc [Ynares-Santiago])

384. Are the Internal Revenue Allotments (IRAs) considered income and, therefore, to be included
in the computation of the average annual income of a municipality for purposes of its
conversion into an independent component city?

Held: Yes. The IRAs are items of income because they form part of the gross accretion of the funds of
the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any
further action on the part of the local government unit. They thus constitute income which the local government
can invariably rely upon as the source of much needed funds.

X x x

[T]o reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same
as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local
Government Code that unequivocally makes it distinct from special funds or transfers referred to when the Code
speaks of funding support from the national government, its instrumentalities and government-owned or
controlled corporations.

Thus, Department of Finance Order No. 35-93 correctly encapsulizes the full import of the above
disquisition when it defined ANNUAL INCOME to be revenues and receipts realized by provinces, cities and
municipalities from regular sources of the Local General Fund including the internal revenue allotment and other
shares provided for in Sections 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as
other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others. Such
order, constituting executive or contemporaneous construction of a statute by an administrative agency charged
with the task of interpreting and applying the same, is entitled to full respect and should be accorded great
weight by the courts, unless such construction is clearly shown to be in sharp conflict with the Constitution, the
governing statute, or other laws. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc
[Hermosisima, Jr., J.])

385. State the importance of drawing with precise strokes the territorial boundaries of a local
government unit.

Held: The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of
its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the
boundaries of local government units will sow costly conflicts in the exercise of governmental powers which
ultimately will prejudice the peoples welfare. This is the evil sought to be avoided by the Local Government
Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with
technical descriptions. (Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno])

386. R.A. 7854 was enacted converting the Municipality of Makati into a highly urbanized city.
Section 2 thereof did not provide for a cadastral type of description of its boundary but merely
provided that the boundary of the new city of Makati shall be the boundary of the present
municipality of Makati. Petitioners contended in a petition brought the SC that R.A. 7854 was
defective because it did not comply with the requirement in the Local Government Code that
the territorial jurisdiction of newly created or converted cities should be described by metes
and bounds, with technical descriptions. Note that at the time the law was enacted, there
was a pending boundary dispute between Makati and one of its neighbors, Taguig, before the
regular court. Should the contention be upheld?


165
Held: Given the facts of the cases at bench, we cannot perceive how this evil (uncertainty in the
boundaries of local government units will sow costly conflicts in the exercise of government powers which
ultimately will prejudice the peoples welfare) can be brought about by the description made in Section 2 of R.A.
No. 7854. Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati
will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land
area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the
established land area of Makati. In language that cannot be any clearer, Section 2 stated that the citys land
area shall comprise the present territory of the municipality.

The deliberations of Congress will reveal that there is a legitimate reason why the land area of the
proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the
consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over Fort
Bonifacio was under court litigation. Out of a becoming sense of respect to a co-equal department of
government, the legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have
ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical
descriptions. We take judicial notice of the fact that Congress has also refrained from using the metes and
bounds description of the land area of other local government units with unsettled boundary disputes.

We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty
which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local
government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of
Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these
peculiar circumstances, we are not prepared to hold that Section 2 of R.A. No. 7854 is unconstitutional. We
sustain the submission of the Solicitor General in this regard, viz:

Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the
requirement stated therein, viz: the territorial jurisdiction of newly created or converted cities should be
described by metes and bounds, with technical descriptions was made in order to provide a means
by which the area of said cities may be reasonably ascertained. In other words, the requirement on
metes and bounds was meant merely as a tool in the establishment of local government units. It is not
an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e.,
by referring to common boundaries with neighboring municipalities, as in this case, then, it may be
concluded that the legislative intent behind the law has been sufficiently served.

Certainly, Congress did not intend that laws creating new cities must contain therein detailed
technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To
require such description in the law as a condition sine qua non for its validity would be to defeat the very
purpose which the Local Government Code seeks to serve. The manifest intent of the Code is to
empower local government units and to give them their rightful due. It seeks to make local governments
more responsive to the needs of their constituents while at the same time serving as a vital cog in
national development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of
description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes
a case of the master serving the slave, instead of the other way around. This could not be the
intendment of the law. X x x
(Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno])

387. Discuss the authority of mayors to issue or grant licenses and business permits, and how
should it be exercised.

Held: The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is
provided for by law.

X x x

However, the power to grant or issue licenses or business permits must always be exercised in
accordance with law, with utmost observance of the rights of all concerned to due process and equal protection
of the law.

Succinct and in point is the ruling of this Court, that:

x x x While a business may be regulated, such regulation must, however, be within the bounds
of reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive
amounting to an arbitrary interference with the business or calling subject of regulation. A lawful
business or calling may not, under the guise of regulation, be unreasonably interfered with even by the
exercise of police power. X x x

X x x The exercise of police power by the local government is valid unless it contravenes the
fundamental law of the land or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common right. (Balacuit v. CFI of
Agusan del Norte, 163 SCRA 182) (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, 326-327,
March 31, 2000, En Banc [Purisima])

388. Distinguish the power to grant a license or permit to do business and the power to issue a
license to engage in the practice of a particular profession.


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Held: Distinction must be made between the grant of a license or permit to do business and the
issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local
authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A
business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial
activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the
practice or exercise of his or her profession. (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, 328,
March 31, 2000, En Banc [Purisima])

389. Acebedo Optical Company, Inc. applied for a permit to engage in the business of running an
optical shop. Its application was granted with several conditions. The conditions, in essence,
prohibit it from engaging in the practice of optometry as a corporate body or entity. Later, the
grant was revoked by the Mayor on the alleged ground that it violated all the conditions of its
business permit. Was the revocation valid?

Held: In the case at bar, what is sought by petitioner (Acebedo Optical Company, Inc.) from respondent
City Mayor is a permit to engage in the business of running an optical shop. It does not purport to seek a
license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ,
persons who are duly licensed to practice optometry by the Board of Examiners in Optometry.

The case of Samahan ng Optometrists sa Pilipinas v. Acebedo International Corporation, G.R. No.
117097, promulgated by this Court on March 21, 1997, is in point. X x x

The First Division of this Court x x x ruled in favor of respondent Acebedo International Corporation,
holding that the fact that private respondent hires optometrists who practice their profession in the course of
their employment in private respondents optical shops, does not translate into a practice of optometry by private
respondent itself. The Court further elucidated that in both the old and new Optometry Law, R.A. No. 1998, it is
significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court
concluded thus:

All told, there is no law that prohibits the hiring by corporations of optometrists or considers the
hiring by corporations of optometrists as a practice by the corporation itself of the profession of
optometry.

In the present case, the objective of the imposition of subject conditions on petitioners business permit
could be attained by requiring the optometrists in petitioners employ to produce a valid certificate of registration
as optometrists, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate
the conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of
a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency
specifically empowered by law to supervise the profession, in this case the Professional Regulations
Commission and the Board of Examiners in Optometry.

It is significant to note that during the deliberations of the bicameral conference committee of the Senate
and the House of Representatives on R.A. 8050 x x x the committee failed to reach a consensus as to the
prohibition on indirect practice of optometry by corporations. (Acebedo Optical Company, Inc. v. CA, 329
SCRA 314, 328-330, March 31, 2000, En Banc [Purisima])

390. May a local government unit validly authorize an expropriation of private property through a
mere resolution of its lawmaking body?

Held: The Local Government Code expressly and clearly requires an ordinance or a local law for that
purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice.
The case of Province of Camarines Sur v. Court of Appeals which held that a mere resolution may suffice to
support the exercise of eminent domain by a local government unit is not in point because the applicable law at
that time was B.P. 337, the previous Local Government Code, which had provided that a mere resolution would
enable an LGU to exercise eminent domain. In contrast, R.A. 7160, the present Local Government Code,
explicitly required an ordinance for this purpose. (Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA
678, July 20, 1998 [Panganiban])

391. What are the requisites before a Local Government Unit can validly exercise the power of
eminent domain?

Held: In Municipality of Paranaque v. V.M. Realty Corp. (292 SCRA 678, July 20, 1998
[Panganiban]), it was clarified that the requisites before a local government unit can validly exercise the power
of eminent domain are:

An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of
the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a
particular private property;
The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the
poor and the landless;
There is payment of just compensation, as required under Section 9, Article III of the Constitution, and
other pertinent laws;
A valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted.


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392. May the Sangguniang Panlalawigan validly disapprove a resolution or ordinance of a
municipality calling for the expropriation of private property to be made site of a Farmers
Center and Other Government Sports Facilities on the ground that said expropriation is
unnecessary considering that there are still available lots of the municipality for the
establishment of a government center?

Held: Under the Local Government Code, the Sangguniang Panlalawigan is granted the power to
declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan
or Mayor to issue. As held in Velazco v. Blas, The only ground upon which a provincial board may declare any
municipal resolution, ordinance or order invalid is when such resolution, ordinance, or order is beyond the
powers conferred upon the council or president making the same. A strictly legal question is before the
provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial boards
disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such
resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board
passes these limits, it usurps the legislative functions of the municipal council or president. Such has been the
consistent course of executive authority. (Moday v. CA, 268 SCRA 586, Feb. 20, 1997)

393. Is a contract entered into by the city mayor involving the expenditure of public funds by the
local government without prior appropriation by the city council valid and binding?

Held: If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the
Auditing Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg. 337, or the Local
Government Code of 1983, which empowered the Sangguniang Panlungsod to appropriate funds for expenses
of the city government, and fix the salaries of its officers and employees according to law, there would be no
debate that prior appropriation by the city council and a certification that funds are available therefore is indeed
mandatorily required.

X x x

However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioners
arguments, does not provide that the absence of an appropriation law ipso facto makes a contract entered into
by a local government unit null and void. Section 84 of the statute specifically provides:

Revenue funds shall not be paid out of any public treasury or depository except in pursuance of
an appropriation law or other specific statutory authority.

Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also in
pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a contract is entered
into by a city mayor pursuant to specific statutory authority, the law, i.e., PD 1445 allows the disbursement of
funds from any public treasury or depository therefor. It can thus be plainly seen that the law invoked by
petitioner Quezon City itself provides that an appropriation law is not the only authority upon which public funds
shall be disbursed.

Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal
authority. The Local Government Code of 1983, or B.P. Blg. 337, which was then in force, specifically and
exclusively empowered the city mayor to represent the city in its business transactions, and sign all warrants
drawn on the city treasury and all bonds, contracts and obligations of the city. Such power granted to the city
mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or authority of the city council. We
note that while the subsequent Local Government Code of 1991, which took effect after the execution of the
subject contracts, provides that the mayors representation must be upon authority of the sangguniang
panlungsod or pursuant to law or ordinance, there was no such qualification under the old code. (Citations
omitted)

We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337, which
was then in force, from that of the Local Government Code of 1991, R.A. No. 7160, which now requires that the
mayors representation of the city in its business transactions must be upon authority of the sangguniang
panlungsod or pursuant to law or ordinance (Section 455 [vi]. No such prior authority was required under B.P.
Blg. 337. This restriction, therefore, cannot be imposed on the city mayor then since the two contracts were
entered into before R.A. No. 7160 was even enacted.

Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the contracts,
neither does said law prohibit him from entering into contracts unless and until funds are appropriated therefor.
In fact, it is his bounden duty to so represent the city in all its business transactions. On the other hand, the city
council must provide for the depositing, leaving or throwing of garbage and to appropriate funds for such
expenses. (Section 177 [b]). It cannot refuse to so provide and appropriate public funds for such services which
are very vital to the maintenance of cleanliness of the city and the good health of its inhabitants.

By entering into the two contracts, Mayor Simon did not usurp the city councils power to provide for the
proper disposal of garbage and to appropriate funds therefor. The execution of contracts to address such a
need is his statutory duty, just as it is the city councils duty to provide for said services. There is no provision in
B.P. Blg. 337, however, that prohibits the city mayor from entering into contracts for the public welfare, unless
and until there is prior authority from the city council. This requirement was imposed much later by R.A. No.
7160, long after the contracts had already been executed and implemented.

Even the very Charter of Quezon City, more particularly Section 9(f), Section 12(a)and Section 12(m)
thereof, simply provide that the mayor shall exercise general powers and duties, such as signing all warrants

168
drawn on the city treasurer and all bonds, contracts, and obligations of the city, even as it grants the City
Council the power, by ordinance or resolution, to make all appropriations for the expenses of the government
of the city, as well as to prohibit the throwing or depositing of offal, garbage, refuse, or other offensive matter in
the same, and to provide for its collection and disposition x x x. (Citations omitted)

While the powers and duties of the Mayor and the City Council are clearly delineated, there is nothing in
the cited provisions, nor even in the statute itself, that requires prior authorization by the city council by proper
enactment of an ordinance before the City Mayor can enter into contracts.

Private respondent Lexber asserts that the subject contract was entered into by Mayor Simon in behalf
of the Quezon City government pursuant to specific statutory authority, more particularly the provisions of
Executive Order No. 392 (Constituting the Metro Manila Authority [MMA]). City of Quezon v. Lexber
Incorporated, 354 SCRA 493, Mar. 15, 2001, 1
st

394. Who has the legal authority to represent a municipality in lawsuits?

Held: Only the provincial fiscal, provincial attorney, and municipal attorney should represent a
municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to
represent it in lawsuits. (Ramos v. CA, 269 SCRA 34, March 3, 1997)

395. What are the exceptional instances when a private attorney may be validly hired by a
municipality in its lawsuits?

Held: In Alinsug v. RTC Br. 58, San Carlos City, Negros Occidental, it was held that the law allows a
private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving
the provincial government or another municipality or city within the province. This provision has its apparent
origin in De Guia v. The Auditor General where the Court held that the municipalitys authority to employ a
private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve
and represent it. (Ramos v. CA, 269 SCRA 34, March 3, 1997)

396. Cite instances when the provincial fiscal may be disqualified to represent in court a particular
municipality.

Held: As held in Enriquez, Sr. v. Gimenez, the provincial fiscal may be disqualified to represent in court
a particular municipality in the following instances:

If and when original jurisdiction of case involving the municipality is vested in the Supreme Court;
When the municipality is a party adverse to the provincial government or to some other municipality in
the same province; and
When, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir,
legatee, creditor or otherwise.
(Ramos v. CA, 269 SCRA 34, March 3, 1997)

397. May a municipality be represented by a private law firm which had volunteered its services
gratis, in collaboration with the municipal attorney and the fiscal?

Held: No. Such representation will be violative of Section 1983 of the old Administrative Code. This
strict coherence to the letter of the law appears to have been dictated by the fact that the municipality should
not be burdened with expenses of hiring a private lawyer and that the interests of the municipality would be
best protected if a government lawyer handles its litigations.

Private lawyers may not represent municipalities on their own. Neither may they do so even in
collaboration with authorized government lawyers. This is anchored on the principle that only accountable
public officers may act for and in behalf of public entities and that public funds should not be expended to hire
private lawyers. (Ramos v. CA, 269 SCRA 34, March 3, 1997)

398. May a municipality adopt the work already performed in good faith by a private lawyer, which
work proved beneficial to it?

Held: Although a municipality may not hire a private lawyer to represent it in litigations, in the interest of
substantial justice, however, it was held that a municipality may adopt the work already performed in good faith
by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the
adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to
the private lawyer. Unless so expressly adopted, the private lawyers work cannot bind the municipality.
(Ramos v. CA, 269 SCRA 34, March 3, 1997)

399. Does the Presidents power of general supervision extend to the liga ng mga barangay, which
is not a local government unit?

Held: We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled
that the liga ng mga barangay is a government organization, being an association, federation, league or union
created by law or by authority of law, whose members are either appointed or elected government officials. The
Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary
purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and
crystallizing issues affecting barangay government administration and securing, through proper and legal
means, solutions thereto (Sec. 491, Local Government Code). X x x

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X x x

The ligas are primarily governed by the provisions of the Local Government Code (Book III, Title VI,
Local Government Code). However, their respective constitution and by-laws shall govern other matters
affecting internal organization of the liga not otherwise provided for in the Local Government Code provided that
the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government
Code and shall always conform to the provisions of the Constitution and existing laws (Sec. 507, Local
Government Code).

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG
insofar as it authorizes the filing a Petition for Review of the BES with the regular courts in a post proclamation
electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that
in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG
Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and
adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga
Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an
exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given
the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to
merely monitoring compliance by local government units of such issuances. To monitor means to watch,
observe or check and is compatible with the power of supervision of the DILG Secretary over local
governments, which is limited to checking whether the local government unit concerned or the officers thereof
perform their duties as per statutory enactments. Besides, any doubt as to the power of the DILG Secretary to
interfere with local affairs should be resolved in favor of the greater autonomy of the local government.

The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess
of jurisdiction in not dismissing the respondents Petition for Review for failure to exhaust all administrative
remedies and for lack of jurisdiction. (Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3
rd
Div.
[Gonzaga-Reyes])

400. May the President validly withhold a portion of the internal revenue allotments of Local
Government Units legally due them by administrative fiat?

Held: The Constitution vests the President with the power of supervision, not control, over local
government units (LGUs). Such power enables him to see to it that LGUs and their officials execute their tasks
in accordance with law. While he may issue advisories and seek their cooperation in solving economic
difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their
goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a
portion of internal revenue allotments legally due them cannot be directed by administrative fiat.

X x x

Section 4 of AO 372 cannot x x x be upheld. A basic feature of local fiscal autonomy is the automatic
release of the shares of LGUs in the National internal revenue. This is mandated by no less than the
Constitution. The Local Government Code (Sec. 286[a]) specifies further that the release shall be made directly
to the LGU concerned within five (5) days after every quarter of the year and shall not be subject to any lien or
holdback that may be imposed by the national government for whatever purpose. As a rule, the term shall is
a word of command that must be given a compulsory meaning. The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the
LGUs IRA pending the assessment and evaluation by the Development Budget Coordinating Committee of the
emerging fiscal situation in the country. Such withholding clearly contravenes the Constitution and the law.
Although, temporary, it is equivalent to a holdback, which means something held back or withheld. Often
temporarily. Hence, the temporary nature of the retention by the national government does not matter. Any
retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis,
Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal
autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold
the LGUs IRA, but the rule of law requires that even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.
(Pimentel, Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En Banc [Panganiban])

401. What is meant by fiscal autonomy of Local Governments? Does it rule out in any manner
national government intervention by way of supervision in order to ensure that local programs
are consistent with national goals?

Held: Under existing law, local government units, in addition to having administrative autonomy in the
exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have
the power to create their own sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to allocate their resources in accordance with their
own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the
constraints thereof. They are not formulated at the national level and imposed on local governments, whether
they are relevant to local needs and resources or not. Hence, the necessity of a balancing of viewpoints and the
harmonization of proposals from both local and national officials, who in any case are partners in the attainment
of national goals.

170

Local fiscal autonomy does not, however, rule out any manner of national government intervention by
way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national
goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the
government (Section 9, Article XII of the Constitution), primarily responsible for formulating and implementing
continuing, coordinated and integrated social and economic policies, plans and programs (Section 3, Chapter 1,
Subtitle C, Title II, Book V, EO 292 [Administrative Code of 1987]) for the entire country. However, under the
Constitution, the formulation and the implementation of such policies and programs are subject to consultations
with the appropriate public agencies, various private sectors, and local government units. The President
cannot do so unilaterally. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc [Panganiban])

402. What are the requisites before the President may interfere in local fiscal matters?

Held: x x x [T]he Local Government Code provides (Sec. 284. See also Art. 379 of the Rules and
Regulations Implementing the Local Government Code of 1991):

x x x [I]n the event the national government incurs an unmanaged public sector deficit, the
President of the Philippines is hereby authorized, upon the recommendation of [the] Secretary of
Finance, Secretary of the Interior and Local Government and Secretary of Budget and Management,
and subject to consultation with the presiding officers of both Houses of Congress and the presidents of
the liga, to make the necessary adjustments in the internal revenue allotment of local government units
but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal
revenue taxes of the third fiscal year preceding the current fiscal year x x x

There are therefore several requisites before the President may interfere in local fiscal matters: (1) an
unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the
Senate and the House of Representatives and the presidents of the various local leagues; and (3) the
corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government,
and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty
percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current
one. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc [Panganiban])

403. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a
petition for the disqualification of respondent Sulong, pursuant to Sec. 40[b] of Republic Act
No. 7160 (Local Government Code), which disqualifies from running for any elective local
position those removed from office as a result of an administrative case. It appears that
respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May
11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for
disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan,
respondent Sulong, along with a municipal councilor of Lapuyan and several other
individuals, was administratively charged (AC No. 12-91) with various offenses, and that, on
February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the
charges and ordered his removal from office. Petitioner claimed that this decision had
become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente
Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.

Respondent Sulong denied that the decision in AC No. 12-91 had become final and
executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed
a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on
February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in
AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of
appeal; that the said complainant had not yet complied therewith and his (respondent
Sulongs) motion had consequently remained pending. Respondent Sulong denied he had
been removed from office by virtue of the decision in AC No. 12-91.

Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v.
Commission on Elections in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of
Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang
Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections in which we held that
an elective local executive officer, who is removed before the expiration of the term for which he was elected, is
disqualified from being a candidate for a local elective position under Section 40[b] of the Local Government
Code.

X x x

However, Reyes cannot be applied to this case because it appears that the 1992 decision of the
Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of
public funds, has not until now become final. x x x The filing of his motion for reconsideration prevented the
decision of Sangguniang Panlalawigan from becoming final.

While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the
same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. x x x.

There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga
del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having
become moot and academic because it was overtaken by the local elections of May [11], 1992.

171

Neither can the succession of the then vice-mayor of Lapuyan x x x and the highest ranking municipal
councilor of Lapuyan x x x to the offices of mayor and vice-mayor, respectively, be considered proof that the
decision in AC No. 12-91 had become final because it appears to have been made pursuant to Sec. 68 of the
Local Government Code, which makes decisions in administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is
unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified,
especially since at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan
had been rendered nearly ten years ago. (Atty. Miguel M. Lingating v. Commission on Elections and Cesar
B. Sulong, G.R. No. 153475, Nov. 13, 2002, En Banc [Mendoza])

404. Under Section 8, Article X of the Constitution, "[T]he term of office of elective local officials x x
x shall be three years and no such official shall serve for more than three consecutive terms."
How is this term limit for elective local officials to be interpreted?

Held: The term limit for elective local officials must be taken to refer to the right to be elected as well as
the right to serve in the same elective position. Consequently, it is not enough that an individual has served
three consecutive terms in an elective local office, he must also have been elected to the same position for the
same number of times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No.
133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

405. Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the
incumbent. Six months before the next election, he resigns and is twice elected thereafter.
Can he run again for mayor in the next election?

Ans.: Yes, because although he has already first served as mayor by succession and subsequently
resigned from office before the full term expired, he has not actually served three full terms in all for the purpose
of applying the term limit. Under Art. X, Sec. 8, voluntary renunciation of the office is not considered as an
interruption in the continuity of his service for the full term only if the term is one for which he was elected.
Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be
considered to have completed one term. His resignation constitutes an interruption of the full term.

406. Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for
misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more
term in the next election?

Ans.: Yes, because he has served only two full terms successively.

In both cases, the mayor is entitled to run for reelection because the two conditions for the application of
the disqualification provisions have not concurred, namely, that the local official concerned has been elected
three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local
official is considered to have served three full terms notwithstanding his resignation before the end of the first
term, the fact remains that he has not been elected three times. In the second case, the local official has been
elected three consecutive times, but he has not fully served three consecutive terms.

407. Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total
failure of the two conditions to concur for the purpose of applying Art. X, Sec. 8. Suppose he
is twice elected after that term, is he qualified to run again in the next election?

Ans.: Yes, because he was not elected to the office of mayor in the first term but simply found himself
thrust into it by operation of law. Neither had he served the full term because he only continued the service,
interrupted by the death, of the deceased mayor. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495,
Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

408. What are the policies embodied in the constitutional provision barring elective local officials,
with the exception of barangay officials, from serving more than three consecutive terms?

Held: To prevent the establishment of political dynasties is not the only policy embodied in the
constitutional provision in question (barring elective local officials, with the exception of barangay officials, from
serving more than three consecutive terms). The other policy is that of enhancing the freedom of choice of the
people. To consider, therefore, only stay in office regardless of how the official concerned came to that office
whether by election or by succession by operation of law would be to disregard one of the purposes of the
constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998,
295 SCRA 157, En Banc [Mendoza])

409. Lonzanida was previously elected and served two consecutive terms as mayor of San
Antonio, Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he
again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office
and discharged the rights and duties of mayor until March 1998 when he was ordered to
vacate the post by reason of the COMELEC decision on the election protest against him which
declared his opponent Juan Alvez the duly elected mayor. Alvez served the remaining portion
of the 1995-1998 mayoral term. Is Lonzanida still qualified to run for mayor of San Antonio,
Zambales in the May 1998 local elections?


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Held: The two requisites for the application of the three-term rule was absent. First, Lonzanida cannot
be considered as having been duly elected to the post in the May 1995 elections, and second, he did not fully
serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and
revision of the contested ballots the COMELEC itself declared by final judgment that Lonzanida lost in the May
1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of
office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by the SC that a proclamation subsequently declared void is no
proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of
the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the
election protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March
1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which
presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May
1995 mayoral elections.

Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was
ordered to vacate his post before the expiration of the term. His opponents' contention that Lonzanida should
be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term
has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e.,
that he has fully served three consecutive terms. The second sentence of the constitutional provision under
scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which he was elected." The clear intent of the framers of the
Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the
same time respect the people's choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three
term limit; conversely, involuntary severance from office for any length of time short of the full term provided by
law amounts to an interruption of continuity of service. Lonzanida vacated his post a few months before the
next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, Lonzanida did not fully serve the 1995-1998 mayoral term.

In sum, Lonzanida was not the duly elected mayor and that he did not hold office for the full term;
hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of
computing the three-term limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28, 1999, En Banc [Gonzaga-
Reyes])

410. Mayor Edward S. Hagedorn of Puerto Princesa City was elected for three consecutive times in
the 1992, 1995 and 1998 elections and served in full his three consecutive terms as Mayor. In
the 2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran and
won as Mayor of Puerto Princesa in that election. On July 2, 2002, the Preparatory Recall
Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of
incumbent Mayor Socrates. The COMELEC scheduled a Special Recall Election for Mayor of
that City on September 24, 2002. Is Mayor Hagedorn qualified to run again for Mayor in that
Special Recall Election considering the circumstances?

Held: The three-term limit rule for elective local officials is found in Section 8, Article X of the
Constitution x x x.

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local
Government Code x x x.

These constitutional and statutory provisions have two parts. The first part provides that an elective
local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms
count in determining the three-term limit rule. The second part states that voluntary renunciation of office for
any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from
office for any length of time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three
consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of
service.

X x x

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as
long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in
the term following the third consecutive term is a subsequent election but not an immediate reelection after the
third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other
subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth
term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by

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the framers of the Constitution is the immediate reelection after the third term, not any other subsequent
election.

X x x

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection
that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not
seek reelection in the 2001 elections.

X x x

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was
Socrates. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of
his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on
June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless
continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns previous
three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not.
An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or
consecutive character of Hagedorns service as mayor.

X x x In Hagedorns case, the nearly 15-month period he was out of office, although short of a full term
of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not
require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any
length of time, as long as the cause is involuntary, is sufficient to break an elective local officials continuity of
service. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002,
En Banc [Carpio])

411. Petitioners would seek the disqualification of respondent Leonardo B. Roman on the ground
of his having transgressed the three-term limit under Section 8, Article X, of the 1987
Constitution and Section 43 of Republic Act No. 7160 (Local Government Code). The focal
issue presented before the Court x x x would revolve on the question of whether or not private
respondent Roman exceeded the three-term limit for elective local officials, expressed in the
Constitution and the Local Government Code, when he again ran for the position of Governor
in the 14
th
of May 2001 elections, having occupied and served in that position following the
1993 recall elections, as well as the 1995 and 1998 regular elections, immediately prior to the
2001 elections. In fine, should respondents incumbency to the post of Governor following the
recall elections be included in determining the three-consecutive term limit fixed by law?

Held: After due deliberation, the Court voted 8 to 7 to DISMISS the petition.

VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as
revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an
uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, a recall
term should not be counted or used as a basis for the disqualification whether served prior (as in this case) or
subsequent (as in the Socrates case) to the nine-year, full three-term limit.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petition on the ground
that, in accordance with the ruling in Borja, Jr. v. COMELEC; Arcos v. COMELEC; Lonzanida v. COMELEC; and
Adormeo v. COMELEC, a term during which succession to a local elective office takes place or a recall election
is held should not be counted in determining whether an elective local official has served more than three
consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for
more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the
continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by the
incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B.
Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since
on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms
(1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position.

PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued that a recall term
should not be considered as one full term, because a contrary interpretation would in effect cut short the elected
officials service to less than nine years and shortchange his constituents. The desire to prevent monopoly of
political power should be balanced against the need to uphold the voters obvious preference who, in the
present case, is Roman who received 97 percent of the votes cast. He explained that, in Socrates, he also
voted to affirm the clear choice of the electorate, because in a democracy the people should, as much as legally
possible, be governed by leaders freely chosen by them in credible elections. He concluded that, in election
cases, when two conflicting legal positions are of almost equal weight, the scales of justice should be tilted in
favor of the peoples overwhelming choice.

AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear from the
constitutional provision that the disqualification applies only if the terms are consecutive and the service is full
and continuous. Hence, service for less than a term, except only in case of voluntary renunciation, should not
count to disqualify an elective local official from running for the same position. This case is different from
Socrates, where the full three consecutive terms had been continuously served so that disqualification had
clearly attached.


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On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and AUSTRIA-MARTINEZ,
CORONA, and CALLEJO, SR., JJ., concurred, holds the view that the recall term served by respondent Roman,
comprising the period June 28, 1994 to June 30, 1995, should be considered as one term. Since he thereafter
served for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was
actually his fourth term and contravenes Art. X, Sec. 8 of the Constitution. For this reason, she voted to grant
the petition and to declare respondents election on May 14, 2002 as null and void.

CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant the petition. He held
that a recall term constitutes one term and that to totally ignore a recall term in determining the three-term limit
would allow local officials to serve for more than nine consecutive years contrary to the manifest intent of the
framers of the Constitution. He contended that respondent Romans election in 2001 cannot exempt him from
the three-term limit imposed by the Constitution.

In his Separate Opinion, Justice Vitug voted to dismiss the petition on the following considerations:

In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1) that the
elective local official concerned has been elected for three consecutive terms to the same local government
position, and (2) that he has served three consecutive full terms, albeit a voluntary renunciation of the office
for any length of time shall not be deemed to be an interruption in the continuity of the service for the full term for
which he is elected. The constitutional provision does not appear to be all that imprecise for and in its
application. Section 8, Article X, of the Constitution is explicit that the term of office of elective local officials x x
x shall be three years which phrase is forthwith followed by its mandate that no such official shall serve for
more than three consecutive terms, and that [v]oluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for which he [is] elected.
The law evidently contemplates a continuous full three-year term before the proscription can apply.

The Constitutional Commission, in its deliberations, referred to a full nine (9) years of service for each
elective local government official in the application of the prohibition, envisioning at the same time a continuous
and uninterrupted period of nine years by providing for only one exception, i.e., when an incumbent voluntarily
gives up the office.

X x x

A winner who dislodges in a recall election an incumbent elective local official merely serves the
balance of the latters term of office; it is not a full three-year term. It also goes without saying that an incumbent
elective local official against whom a recall election is initiated and who nevertheless wins in a recall election
must be viewed as being a continuing term of office and not as a break in reckoning his three consecutive
terms. X x x

If involuntary severance from the service which results in the incumbents being unable to finish his
term of office because of his ouster through valid recall proceedings negates one term for purposes of applying
the three-term limit, as so intimated in Lonzanida, it stands to reason that the balance of the term assumed by
the newly elected local official in a recall election should not also be held to be one term in reckoning the three-
term limit. In both situations, neither the elective local official who is unable to finish his term nor the elected
local official who only assumes the balance of the term of the ousted local official following the recall election
could be considered to have served a full three-year term set by the Constitution.

This view is not inconsistent, but indeed in line, with the conclusion ultimately reached in Socrates v.
Commission on Elections, where the Court has considered Hagedorn, following his three full terms of nine
years, still qualified to run in a recall election conducted about a year and a half after the most recent regular
local elections. A recall term then, not being a full three-year term, is not to be counted or used as a basis for
disqualification whether it is held prior or subsequent to the nine year full three-term limit.

This same issue has been passed and ruled upon by the Commission on Elections no less than five
times. Consistently, it has held that the term of a newcomer in recall elections cannot be counted as a full term
and may not thus be included in counting the three-term limit prescribed under the law. The Commission on
Elections, with its fact-finding facilities, its familiarity with political realities, and its peculiar expertise in dealing
with election controversies, should be in a good vantage point to resolve issues of this nature. Concededly, no
ready made formulae are always extant to address occasional complex issues, allowing time and experience to
merely evolve and ultimately provide acceptable solutions. In the administration of election laws, it would be
unsound by an excessive zeal to remove from the Commission on Elections the initiative it takes on such
questions which, in fact, by legal mandate properly belong to it.

Nor should it be ignored that the law here involved is a limitation on the right of suffrage not only on the
candidate for office but also, and most importantly, on the electorate. Respondent Roman has won the election
to the post of Governor of Bataan with a comfortable margin against his closest opponent. Where a candidate
appears to be the clear choice of the people, doubts on the candidates eligibility, even only as a practical
matter, must be so resolved as to respect and carry out, not defeat, the paramount will of the electorate. While
the Constitution would attempt to prevent the monopolization of political power, indeed a wise rule, the precept
of preserving the freedom of choice of the people on who shall rightfully hold the reins of government for them is
no less than fundamental in looking at its overriding intent. (Melanio L. Mendoza and Mario E. Ibarra v.
Commission on Elections and Leonardo B. Roman, G.R. No. 149736, Dec. 17, 2002, En Banc)

412. When may a permanent vacancy arise under Section 44 of the Local Government Code?


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Held: Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant
office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office. (Navarro v. Court of Appeals, 355 SCRA
672, Mar. 28, 2001, 1
st
Div. [Kapunan])

413. How is Section 45(b) of the Local Government Code to be interpreted? What is the reason
behind the right given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian?

Held: What is crucial is the interpretation of Section 45(b) providing that x x x only the nominee of the
political party under which the Sanggunian member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner
hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member
who caused the vacancy x x x.

The reason behind the right given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election.

With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor,
a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political
party of petitioner Tamayo. Otherwise, REFORMA-LMs representation in the Sanggunian would be diminished.
To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member,
would result in the increase of that partys representation in the Sanggunian at the expense of the REFORMA-
LM. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in
statutory construction which is to ascertain and give effect to the intent and purpose of the law. As earlier
pointed out, the reason behind par. (b), section 44 of the Local Government Code is the maintenance of party
representation in the Sanggunian in accordance with the will of the electorate.

The last vacancy in the Sanggunian refers to that created by the elevation of the member formerly
occupying the next higher in rank which in turn also had become vacant by any of the causes already
enumerated. The term last vacancy is thus used in Sec. 45 (b) to differentiate it from the other vacancy
previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the
elevation of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity.
(Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1
st
Div. [Kapunan])

414. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside
over the sessions of the Sangguniang Panlalawigan (SP)? If no, who may preside in the
meantime?

Held: Being the acting governor, the Vice-governor cannot continue to simultaneously exercise the
duties of the latter office, since the nature of the duties of the Provincial Governor calls for a full-time occupant to
discharge them. Such is not only consistent with but also appears to be the clear rationale of the new (Local
Government) Code wherein the policy of performing dual functions in both offices has already been abandoned.
To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding vacancy in
the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This
event constitutes an inability on the part of the regular presiding officer (Vice-Governor) to preside during the
SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code
concerning the election of a temporary presiding officer. The continuity of the Acting Governors (Vice-
Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section
49(b), in the event of the inability of the regular presiding officer to preside at the sanggunian session, the
members present and constituting a quorum shall elect from among themselves a temporary presiding officer.
(Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [Ynares-Santiago])

415. Distinguish an ordinance from a mere resolution.

Held: A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are
enacted differently a third reading is necessary for an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members. (Municipality of Paranaque v. V.M. Realty
Corporation, 292 SCRA 678, July 20, 1998 [Panganiban])

416. On its first regular session, may the Sanggunian transact business other than the matter of
adopting or updating its existing rules or procedure?

Held: We cannot infer the mandate of the (Local Government) Code that no other business may be
transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law
requires is that on the first regular session x x x the sanggunian concerned shall adopt or update its existing
rules or procedures. There is nothing in the language thereof that restricts the matters to be taken up during
the first regular session merely to the adoption or updating of the house rules. If it were the intent of Congress
to limit the business of the local council to such matters, then it would have done so in clear and unequivocal
terms. But as it is, there is no such intent.

Moreover, adopting or updating of house rules would necessarily entail work beyond the day of the first
regular session. Does this mean that prior thereto, the local council's hands were tied and could not act on any
other matter? That would certainly be absurd for it would result in a hiatus and a paralysis in the local

176
legislature's work which could not have been intended by the law. (Malonzo v. Zamora, 311 SCRA 224, July
27, 1999, En Banc [Romero])

417. May local elective officials practice their profession or engage in any occupation?

Ans.: Sec. 90, Local Government Code, provides:

SEC. 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the exercise of their functions as local chief
executives.

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools
except during session hours: Provided, That sanggunian members who are also members of the Bar shall not:

Appear as counsel before any court in any civil case wherein a local government unit or any office,
agency, or instrumentality of the government is the adverse party;
Appear as counsel in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office;
Collect any fee for their appearance in administrative proceedings involving the local government
unit of which he is an official; and
Use property and personnel of the government except when the sanggunian member concerned is
defending the interest of the Government.

(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, that the officials concerned do not derive monetary compensation therefrom.

418. What is recall?

Held: Recall is a mode of removal of a public officer by the people before the end of his term of office.
The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of
constitutional restraint, the power is implied in all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a
fundamental right of the people in a representative democracy. (Garcia v. COMELEC, 227 SCRA 108, Oct. 5,
1993, En Banc [Puno])

419. What is the ground for recall? Is this subject to judicial inquiry?

Held: Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local
Government Code of 1991: The Key to National Development, stressed the same reason why the substantive
content of a vote of lack of confidence is beyond any inquiry, thus:

There is only one ground for recall of local government officials: loss of confidence. This
means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local
elective official without specifying any particular ground except loss of confidence. There is no need for
them to bring up any charge of abuse or corruption against the local elective officials who are subject of
any recall petition.

In the case of Evardone v. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the
Court ruled that loss of confidence as a ground for recall is a political question. In the words of the
Court, 'whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent
mayor is a political question.
(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno])

420. The members of the Preparatory Recall Assembly (PRA) of the province of Bataan adopted a
resolution calling for the recall of Governor Garcia. It was admitted, however, by the
proponents of the recall resolution that only those members of the assembly inclined to agree
were notified of the meeting where said resolution was adopted as a matter of strategy and
security. They justified these selective notices on the ground that the law (Local Government
Code) does not specifically mandate the giving of notice. Should this submission be
sustained?

Held: We reject this submission of the respondents. The due process clause of the Constitution
requiring notice as an element of fairness is inviolable and should always be considered part and parcel of every
law in case of its silence. The need for notice to all the members of the assembly is also imperative for these
members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of
the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The
resolution to recall should articulate the majority will of the members of the assembly but the majority will can be
genuinely determined only after all the members of the assembly have been given a fair opportunity to express
the will of their constituents. Needless to stress, the requirement of notice is mandatory for it is indispensable in
determining the collective wisdom of the members of the Preparatory Recall Assembly. Its non-observance is
fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan. (Garcia v.
COMELEC, G.R. No. 111511, Sept. 21, 1993; 227 SCRA 100, Oct. 5, 1993, En Banc [Puno])

421. Will it be proper for the Commission on Elections to act on a petition for recall signed by just
one person?


177
Held: A petition for recall signed by just one person is in violation of the statutory 25% minimum
requirement as to the number of signatures supporting any petition for recall. Sec. 69(d) of the Local
Government Code of 1991 expressly provides that 'recall of any elective x x x municipal x x x official may also
be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in
the local government unit concerned during the election in which the local official sought to be recalled was
elected.' The law is plain and unequivocal as to what constitutes recall proceedings: only a petition of at least
25% of the total number of registered voters may validly initiate recall proceedings. (Angobung v. COMELEC,
G.R. No. 126576, March 5, 1997)

422. What are the limitations on recall?

Ans.: Section 74, Local Government Code, provides:

SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election
only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the officials assumption to office or
one (1) year immediately preceding a regular local election.

423. Section 74 of the Local Government Code provides that no recall shall take place within one
year x x x immediately preceding a regular local election. What does the term regular local
election, as used in this section, mean?

Held: The term regular local election under Sec. 74 of the Local Government Code of 1991 which
provides that no recall shall take place within one (1) year x x x immediately preceding a regular local election
refers to one where the position of the official sought to be recalled is to be actually contested and filled by the
electorate (Paras v. Comelec, G.R. No. 123169, Nov. 4, 1996). The one-year time bar will not apply where the
local official sought to be recalled is a Mayor and the approaching election is a barangay election. (Angobung
v. COMELEC, G.R. No. 126576, March 5, 1997)

424. Does the word Recall in paragraph (b) of Section 74 of the Local Government Code include
the convening of the Preparatory Recall Assembly and the filing by it of a recall resolution?
Discuss.

Held: We can agree that recall is a process which begins with the convening of the preparatory recall
assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and
then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution
or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date.
However, as used in paragraph (b) of Sec. 74, recall refers to the election itself by means of which voters
decide whether they should retain their local official or elect his replacement.

X x x

To sum up, the term recall in paragraph (b) refers to the recall election and not to the preliminary
proceedings to initiate recall

Because Sec. 74 speaks of limitations on recall which, according to Sec. 69, is a power which shall be
exercised by the registered voters of a local government unit. Since the voters do not exercise such
right except in an election, it is clear that the initiation of recall proceedings is not prohibited within
the one-year period provided in paragraph (b);
Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for
judging an elective local official, and final judging is not done until the day of the election; and
Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly guaranteed in the Constitution.
(Jovito O. Claudio v. COMELEC, G.R. No. 140560, May 4, 2000, En Banc [Mendoza])

425. The members of the Preparatory Recall Assembly (PRA) of Puerto Princesa City met and
adopted a resolution calling for the recall of incumbent Mayor Dennis Victorino M. Socrates on
the ground of loss of confidence on July 2, 2002. Mayor Socrates argued that they have no
authority to adopt said Recall Resolution because a majority of PRA members were seeking a
new electoral mandate in the barangay elections scheduled on July 15, 2002. Should his
contention be sustained?

Held: This argument deserves scant consideration considering that when the PRA members adopted
the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay
members with no legal disqualification to participate in the recall assembly under Section 70 of the Local
Government Code. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov.
12, 2002, En Banc [Carpio])

426. Whether or not a local elective official who became City Mayor by legal succession can be the
subject of a recall election by virtue of a Preparatory Recall Assembly Resolution which was
passed or adopted when the she was still the Vice-Mayor.

Held: The specific purpose of the Preparatory Recall Assembly was to remove Amelita S. Navarro as
the elected Vice-Mayor of Santiago City since PRA Resolution No. 1 dated July 12, 1999 expressly states that
x x x it is hereby resolved to invoke the rescission of the electoral mandate of the incumbent City Vice-Mayor

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Amelita S. Navarro for loss of confidence through a recall election to be set by the Commission on Election as
provided for under Section 71 of the Local Government Code of 1991. However, the said PRA Resolution No.
1 is no longer applicable to her inasmuch as she had already vacated the office of Vice-Mayor on October 11,
1999 when she assumed the position of City Mayor of Santiago City.

Even if the Preparatory Recall Assembly were to reconvene to adopt another resolution for the recall of
Amelita Navarro, this time as Mayor of Santiago City, the same would still not prosper in view of Section 74 (b)
of the Local Government Code of 1991 which provides that No recall shall take place within one (1) year from
the date of the officials assumption of office or one (1) year immediately preceding a regular election. There is
no more allowable time in the light of that law within which to hold recall elections for that purpose. The then
Vice-Mayor Amelita S. Navarro assumed office as Mayor of Santiago City on October 11, 1999. One year after
her assumption of office as Mayor will be October 11, 2000 which is already within the one (1) year prohibited
period immediately preceding the next regular election in May 2001. (Afiado v. Commission on Elections,
340 SCRA 600, Sept. 18, 2000, En Banc [De Leon]

427. May the Punong Barangay validly appoint or remove the barangay treasurer, the barangay
secretary, and other appointive barangay officials without the concurrence of the majority of
all the members of the Sangguniang Barangay?

Held: The Local Government Code explicitly vests on the punong barangay, upon approval by a
majority of all the members of the sangguniang barangay, the power to appoint or replace the barangay
treasurer, the barangay secretary, and other appointive barangay officials. Verily, the power of appointment is
to be exercised conjointly by the punong barangay and a majority of all the members of the sangguniang
barangay. Without such conjoint action, neither an appointment nor a replacement can be effectual.

Applying the rule that the power to appoint includes the power to remove x x x the questioned dismissal
from office of the barangay officials by the punong barangay without the concurrence of the majority of all the
members of the Sangguniang Barangay cannot be legally justified. To rule otherwise could also create an
absurd situation of the Sangguniang Barangay members refusing to give their approval to the replacements
selected by the punong barangay who has unilaterally terminated the services of the incumbents. It is likely that
the legislature did not intend this absurdity to follow from its enactment of the law. (Ramon Alquizola, Sr. v.
Gallardo Ocol, G.R. No. 132413, Aug. 27, 1999, 3
rd
Div. [Vitug])

G. PUBLIC INTERNATIONAL LAW

428. What is the Doctrine of Incorporation? How is it applied by local courts?

Held: Under the doctrine of incorporation, rules of international law form part of the law of the land and
no further legislative action is needed to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law and the provisions of
the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give
effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally
accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the
Constitution. In a situation however, where the conflict is irreconcilable and a choice has to be made between a
rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the
municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in
all circumstances. The fact that international law has been made part of the law of the land does not pertain to
or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international law are given equal standing with,
but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori
takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is
the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the Constitution. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
No. 139465, Jan. 18, 2000, En Banc [Melo])

429. Discuss the contemporary view on the rightful place of an Individual in International Law?
Does he remain a mere object of International Law, or is he now a proper subject of
International Law?

Held: Then came the long and still ongoing debate on what should be the subject of international law.
The 20
th
century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of
Italys Mussolini and Germanys Hitler, the militarism of Japans Hirohito and the communism of Russias Stalin,
etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some
species of human rights have already been accorded universal recognition. Today, the drive to internationalize
rights of women and children is also on high gear. The higher rating given to human rights on the hierarchy of
values necessarily led to the re-examination of the rightful place of the individual in international law. Given the
harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are
not its subject. For its undesirable corollary is that sub-doctrine that an individuals right in international law is a
near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is
a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a
mere object transported from one state to the other as an exercise of the sovereign will of the two states
involved. The re-examination consigned this pernicious doctrine to the museum of ideas. The new thinkers of
international law then gave a significant shape to the role and rights of the individual in state-concluded treaties

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and other international agreements. x x x (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v.
People, G.R. No. 125865, Mar. 26, 2001, 1
st
Div. [Motion for Reconsideration])

430. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his
cause?

Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under
both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the
validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of its espousal
on the relations between the Philippine government and the Holy See. Once the Philippine government decides
to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the
person of its subjects, respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason])

431. Discuss the Indigenous International Movement. Is the Philippines an active participant in the
Indigenous International Movement?

Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active participation in the
indigenous international movement.

The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to
prehistoric times. The movement received a massive impetus during the 1960s from two sources. First, the
decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own
destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights. The
rise of the civil rights movement and anti-racism brought to the attention of North American Indians, Aborigines
in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were founded, and during the 1980s,
indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first
Asians to take part in the international indigenous movement. It was the Cordillera Peoples Alliance that carried
out successful campaigns against the building of the Chico River Dam in 1981-82 and they have since become
one of the best-organized indigenous bodies in the world.

Presently, there is a growing concern for indigenous rights in the international scene. This came as a
result of the increased publicity focused on the continuing disrespect for indigenous human rights and the
destruction of the indigenous peoples environment, together with the national governments inability to deal with
the situation. Indigenous rights came as a result of both human rights and environmental protection, and have
become a part of todays priorities for the international agenda.

International organizations and bodies have realized the necessity of applying policies, programs and
specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a
result of the dismal experience of projects in Latin America. The World Bank now seeks to apply its current
policy on IPs to some of its projects in Asia. This policy has provided an influential model for the projects of the
Asian Development Bank.

The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State
policy the promotion of their rights within the framework of national unity and development (Section 22, Article II,
1987 Constitution). The IPRA amalgamates the Philippine category of ICCs with the international category of
IPs, and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United
Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.

ILO Convention No. 169 is entitled the Convention Concerning Indigenous and Tribal Peoples in
Independent Countries (also referred to as the Indigenous and Tribal Peoples Convention, 1989) and was
adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and
many other international instruments on the prevention of discrimination. ILO Convention No. 169 revised the
Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries passed on June 26, 1957. Developments in international law made it
appropriate to adopt new international standards on indigenous peoples with a view to removing the
assimilationist orientation of the earlier standards, and recognizing the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development. (Separate Opinion, Puno, J., in
Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 238-241, Dec. 6, 2000, En Banc)

432. Is sovereignty really absolute and all-encompassing? If no, what are its restrictions and
limitations?

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Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are considered to be automatically part of our own laws.
One of the oldest and most fundamental rules in international law is pacta sunt servanda international
agreements must be performed in good faith. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the
obligations.

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted
by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2, 1997
[Panganiban])

433. Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation
of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law
became controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the
Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties
according to International Law.

The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field
of international relations.

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international
persons - the Holy See and Vatican City.

The Vatican City fits into none of the established categories of states, and the attribution to it of
sovereignty must be made in a sense different from that in which it is applied to other states. In a community
of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes
and international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the worldwide interests and
activities of the Vatican City are such as to make it in a sense an international state.

One authority wrote that the recognition of the Vatican City as a state has significant implication - that it
is possible for any entity pursuing objects essentially different from those pursued by states to be invested with
international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is
the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957. This appears to be the universal practice in international relations. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])

434. What are the conditions before the rights of belligerency may be accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before the rights of
belligerency are accorded them, namely:

An organized civil government that has control and direction over the armed struggle launched by the
rebels;
Occupation of a substantial portion of the national territory;
Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome;
Willingness on the part of the rebels to observe the rules and customs of war.


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435. Discuss the legal consequences that follow recognition of belligerency.

Ans.: Before recognition as such, it is the legitimate government that is responsible for the acts of the
rebels affecting foreign nationals and their properties. Once recognition is given, the legitimate government may
no longer be held responsible for their acts; responsibility is shifted to the rebel government;

The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws
and customs of war in conducting the hostilities;

From the point of view of third States, the effect of recognition of belligerency is to put them under
obligation to observe strict neutrality and abide by the consequences arising from that position;

On the side of the rebels, recognition of belligerency puts them under responsibility to third States and
to the legitimate government for all their acts which do not conform to the laws and customs of war. (Salonga &
Yap, Public International Law, 5th Ed. [1992], p. 33)

436. Discuss the occasions when the use of force may be allowed under the UN Charter.

Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is
when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under
Art. 42. The second is when it is employed in the exercise of the inherent right of self-defense under conditions
prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his
column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)

437. Is the United States justified in invading Iraq invoking its right to defend itself against an
expected attack by Iraq with the use of its biological and chemical weapons of mass
destruction?

Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the
use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush
is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The
cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense.

Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent
right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have
taken the necessary measures to maintain international peace and security. It was the United States that made
the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right
of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled A New
World Order written in his column Separate Opinion published in the March 30, 2003 issue of the
Philippines Daily Inquirer)

438. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the
US justify the attack initiated by the latter?

Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified
in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a
person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The
process cannot be reversed. The warrant must first be issued before the search and seizure can be made.

The American invasion was made without permission from the Security Council as required by the UN
Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively
legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an
article entitled A New World Order written in his column Separate Opinion published in the March
30, 2003 issue of the Philippines Daily Inquirer)

439. What Crimes come within the jurisdiction of the Rome Statute of the International Criminal
Court?

Ans.: 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to
the following crimes:

The crime of genocide;
Crimes against humanity;
War crimes;
The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in
accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant
provisions of the Charter of the United Nations. (Art. 5, Rome Statute of the International Criminal Court)

440. What is Genocide?

Ans.: For the purpose of this Statute, genocide means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:

182

Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
(Art. 6, Rome Statute of the International Criminal Court)

441. What are Crimes against Humanity?

Ans.: 1. For the purpose of this Statute, crime against humanity means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with knowledge
of the attack:

Murder;
Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form
of sexual violence of comparable gravity;
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
Enforced disappearance of persons;
The crime of apartheid;
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body
or to mental or physical health.

2. For the purpose of paragraph 1:

Attack directed against any civilian population means a course of conduct involving the multiple
commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack;
Extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access
to food and medicine, calculated to bring about the destruction of part of a population;
Enslavement means the exercise of any or all of the powers attaching to the right of ownership over a
person and includes the exercise of such power in the course of trafficking in persons, in particular
women and children;
Deportation or forcible transfer of population means forced displacement of the persons concerned by
expulsion or other coercive acts from the area in which they are lawfully present, without grounds
permitted under international law;
Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a
person in the custody or under the control of the accused; except that torture shall not include pain
or suffering arising only from, inherent in or incidental to lawful, sanctions;
Forced pregnancy means the unlawful confinement, of a woman forcibly made pregnant, with the
intent of affecting the ethnic composition of any population or carrying out other grave violations of
international law. This definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
Persecution means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity;
The crime of apartheid means inhumane acts of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of systematic oppression and domination by
one racial group over any other racial group or groups and committed with the intention of
maintaining that regime;
Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with
the authorization, support or acquiescence of, a State or a political organization, followed by a
refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts
of those persons, with the intention of removing them from the protection of the law for a prolonged
period of time.

3. For the purpose of this Statute, it is understood that the term gender refers to the two sexes, male
and female, within the context of society. The term gender does not indicate any meaning different from the
above.
(Art. 7, Rome Statute of the International Criminal Court)

442. What are International Organizations? Discuss their nature.

Held: International organizations are institutions constituted by international agreement between two or
more States to accomplish common goals. The legal personality of these international organizations has been
recognized not only in municipal law, but in international law as well.


183
Permanent international commissions and administrative bodies have been created by the agreement of
a considerable number of States for a variety of international purposes, economic or social and mainly non-
political. In so far as they are autonomous and beyond the control of any one State, they have distinct juridical
personality independent of the municipal law of the State where they are situated. As such, they are deemed to
possess a species of international personality of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb.
14, 1992)

443. Discuss the basic immunities of international organizations and the reason for affording them
such immunities.

Held: One of the basic immunities of an international organization is immunity from local jurisdiction,
i.e., that it is immune from legal writs and processes issued by the tribunals of the country where it is found. The
obvious reason for this is that the subjection of such an organization to the authority of the local courts would
afford a convenient medium through which the host government may interfere in their operations or even
influence or control its policies and decisions; besides, such subjection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities impartially on behalf of its member-states. (SEAFDEC-
AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)

444. Is the determination of the executive branch of the government that a state or instrumentality
is entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political
question and therefore, conclusive upon the courts?

Held: The issue of petitioners (The Holy See) non-suability can be determined by the trial court without
going to trial in light of the pleadings x x x. Besides, the privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines foreign relations, the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights,
privileges and immunities of a diplomatic mission or embassy in this country. The determination of the
executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a
political question that is conclusive upon the courts. Where the plea of immunity is recognized and affirmed by
the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of
the government in conducting the countrys foreign relations. As in International Catholic Migration Commission
and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. (Holy See,
The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

445. Should Courts blindly adhere and take on its face the communication from the Department of
Foreign Affairs (DFA) that a person is covered by any immunity?

Held: Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner
is covered by any immunity. The DFAs determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex parte the DFAs advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution, the latters right to due process was
violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The
needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that
the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. (Liang v.
People, 323 SCRA 692, Jan. 28, 2000, 1
st

446. Discuss the basis of the argument that a determination by the DFA that a person is entitled to
diplomatic immunity is a political question binding on the courts.

Held: Petitioners argument that a determination by the Department of Foreign Affairs that he is entitled
to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the
case of WHO, et al. v. Aquino, et al., viz:

It is a recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure
and detention of property, as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of the government follows the
action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.

This ruling was reiterated in the subsequent cases of International Catholic Migration Commission v.
Calleja; The Holy See v. Rosario, Jr.; Lasco v. United Nations; and DFA v. NLRC.

The case of WHO v. Aquino involved the search and seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the
Host Agreement executed between the Philippines and the WHO.

ICMC v. Calleja concerned a petition for certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they

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are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor
over the case would defeat the very purpose of immunity, which is to shield the affairs of international
organizations from political pressure or control by the host country and to ensure the unhampered performance
of their functions.

Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the petitioners defense of sovereign immunity. It ruled that
where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state
over any real action relating to private immovable property situated in the territory of the receiving state, which
the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should
immunity be recognized as regards the sovereign itself, which in that case is the Holy See.

In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was
sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked
by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank.
Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development
Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be
prosecuted for acts allegedly done in the exercise of his official functions.

The term international organizations

is generally used to describe an organization set up by agreement between two or more states.
Under contemporary international law, such organizations are endowed with some degree of
international legal personality such that they are capable of exercising specific rights, duties and
powers. They are organized mainly as a means for conducting general international business in which
the member states have an interest. (ICMC v. Calleja)

International public officials have been defined as:

x x x persons who, on the basis of an international treaty constituting a particular international
community, are appointed by this international community, or by an organ of it, and are under its control
to exercise, in a continuous way, functions in the interest of this particular international community, and
who are subject to a particular personal status.

Specialized agencies are international organizations having functions in particular fields, such as
posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy,
finance, trade, education and culture, health and refugees. (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1
st

447. What are the differences between Diplomatic and International Immunities? Discuss.

Held: There are three major differences between diplomatic and international immunities. Firstly, one
of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be
appointed from among the nationals of the receiving State only with the express consent of that State; apart
from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their
functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State.
International immunities may be specially important in relation to the State of which the official is a national.
Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State; in the case of international immunities there is no sending State and
an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in
some international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for
diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection. (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1
st

448. Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of international
immunities are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1)
that international institutions should have a status which protects them against control or interference by any
one government in the performance of functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations concerned are represented; (2) that no
country should derive any financial advantage by levying fiscal charges on common international funds; and (3)
that the international organization should, as a collectivity of States Members, be accorded the facilities for the
conduct of its official business customarily extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is not concerned with the status, dignity
or privileges of individuals, but with the elements of functional independence necessary to free international
institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all
their members. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar.
26, 2001, 1
st


185
449. What are the three methods of granting privileges and immunities to the personnel of
international organizations? Under what category does the Asian Development Bank and its
Personnel fall?

Held: Positive international law has devised three methods of granting privileges and immunities to the
personnel of international organizations. The first is by simple conventional stipulation, as was the case in the
Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state,
upon whose territory the international organization is to carry out its functions, recognizes the international
character of the organization and grants, by unilateral measures, certain privileges and immunities to better
assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the
state in question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine
at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two.
In this third method, one finds a conventional obligation to recognize a certain status of an international
organization and its personnel, but the status is described in broad and general terms. The specific definition
and application of those general terms are determined by an accord between the organization itself and the
state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the
United Nations.

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended to international
officials. The connection consists in the granting, by contractual provisions, of the relatively well-established
body of diplomatic privileges and immunities to international functionaries. This connection is purely historical.
Both types of officials find the basis of their special status in the necessity of retaining functional independence
and freedom from interference by the state of residence. However, the legal relationship between an
ambassador and the state to which he is accredited is entirely different from the relationship between the
international official and those states upon whose territory he might carry out its functions.

The privileges and immunities of diplomats and those of international officials rest upon different legal
foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state based on
customary international law, those granted to international officials are based on treaty or conventional law.
Customary international law places no obligation on a state to recognize a special status of an international
official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty
provisions.

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is
free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the
diplomats position is firmly established in customary international law. The diplomatic envoy is appointed by the
sending State but it has to make certain that the agreement of the receiving State has been given for the person
it proposes to accredit as head of the mission to that State (Article 4, Vienna Convention on Diplomatic
Relations).

The staff personnel of an international organization the international officials assume a different
position as regards their special status. They are appointed or elected to their position by the organization itself,
or by a competent organ of it; they are responsible to the organization and their official acts are imputed to it.
The juridical basis of their special position is found in conventional law, since there is no established basis of
usage or custom in the case of the international official. Moreover, the relationship between an international
organization and a member-state does not admit of the principle of reciprocity, for it is contradictory to the basic
principle of equality of states. An international organization carries out functions in the interest of every member
state equally. The international official does not carry out his functions in the interest of any state, but in serving
the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of
the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of
states for one state member of an international organization to assert a capacity to extract special privileges for
its nationals from other member states on the basis of a status awarded by it to an international organization. It
is upon this principle of sovereign equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an
international organization does not have a capacity to declare him persona non grata.

The functions of the diplomat and those of the international official are quite different. Those of the
diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its
specific interest, at the capital of another state. The functions of the international official are carried out in the
international interest. He does not represent a state or the interest of any specific state. He does not usually
represent the organization in the true sense of that term. His functions normally are administrative, although
they may be judicial or executive, but they are rarely political or functions of representation, such as those of the
diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent
is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of
the activities of the international official does not, usually, cause serious dislocation of the functions of an
international secretariat.

On the other hand, they are similar in the sense that acts performed in an official capacity by either a
diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the
entity he represents, the state in the case of the diplomat, and the organization in the case of the international

186
official. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26,
2001, 1
st

450. What is the reason behind the current tendency of reducing privileges and immunities of
personnel of international organizations to a minimum?

Held: Looking back over 150 years of privileges and immunities granted to the personnel of
international organizations, it is clear that they were accorded a wide scope of protection in the exercise of their
functions The Rhine Treaty of 1804 between the German Empire and France which provided all the rights of
neutrality to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878
which granted the European Commission of the Danube complete independence of territorial authorities in the
exercise of its functions; The Convention of the League which granted diplomatic immunities and privileges.
Today, the age of the United Nations finds the scope of protection narrowed. The current tendency is to reduce
privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be
considered as a lowering of the standard but rather as a recognition that the problem on the privileges and
immunities of international officials is new. The solution to the problem presented by the extension of diplomatic
prerogatives to international functionaries lies in the general reduction of the special position of both types of
agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the current direction of the law
seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is true with
respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states
have been more generous in granting privileges and immunities to organizations than they have to the
personnel of these organizations.

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations
states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case
it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the
Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of
legal process subject to the same exception. Finally, Article 50[1] of the ADB Charter and Section 5 of the
Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.

The phrase immunity from every form of legal process as used in the UN General Convention has
been interpreted to mean absolute immunity from a states jurisdiction to adjudicate or enforce its law by legal
process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation
or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB
Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their
charters by language similar to that applicable to the United Nations. It is clear therefore that these
organizations were intended to have similar privileges and immunities. From this, it can be easily deduced that
international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic
envoys.

Even in the United States this seems to be the prevailing rule x x x.

On the other hand, international officials are governed by a different rule. Section 18[a] of the General
Convention on Privileges and Immunities of the United Nations states that officials of the United Nations shall be
immune from legal process in respect of words spoken or written and all acts performed by them in their official
capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB
provides under Article 55[i] that officers and employees of the bank shall be immune from legal process with
respect to acts performed by them in their official capacity except when the Bank waives immunity. Section 45
[a] of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. There
can be no dispute that international officials are entitled to immunity only with respect to acts performed in their
official capacity, unlike international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international
functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that
an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts
are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for
them. In strict law, it would seem that even the organization itself could have no right to waive an officials
immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act
which is not, in the wider sense of the term, his act al all. It is the organization itself, as a juristic person, which
should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name
of the organization. Provisions for immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern international organizations. The acceptance of the
principle is sufficiently widespread to be regarded as declaratory of international law. (Concurring Opinion,
Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1
st
Div. [Motion for
Reconsideration])

451. What is the status of the international official with respect to his private acts?

Held: Section 18 [a] of the General Convention has been interpreted to mean that officials of the
specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local
courts to assume jurisdiction in such cases without the necessity of waiver. It has earlier been mentioned that
historically, international officials were granted diplomatic privileges and immunities and were thus considered

187
immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed
because of practical necessity and because the proper functioning of the organization did not require such
exclusive immunity for its officials. Thus, the current status of the law does not maintain that states grant
jurisdictional immunity to international officials for acts of their private lives. This much is explicit from the
charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the
General Convention. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865,
Mar. 26, 2001, 1
st

452. Who is competent to determine whether a given act of international officials and
representatives is private or official?

Held: In connection with this question, the current tendency to narrow the scope of privileges ad
immunities of international officials and representatives is most apparent. Prior to the regime of the United
Nations, the determination of this question rested with the organization and its decision was final. By the new
formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision,
under the provisions of the General Convention of the United Nations, or the Special Convention for Specialized
Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international
tribunal by procedures outlined in these instruments. Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the
organization, the determination of the nature of the act is made at the national level.

It appears that the inclination is to place the competence to determine the nature of an act as private or
official in the courts of the state concerned. That the practical notion seems to be to leave to the local courts
determination of whether or not a given act is official or private does not necessarily mean that such
determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for
settlement of disputes between the organization and the member states as provided in Section 30 of the
General Convention. Thus, the decision as to whether a given act is official or private is made by the national
courts in the first instance, but it may be subjected to review in the international level if questioned by the United
Nations.

x x x

Under the Third Restatement of the Law, it is suggested that since an international official does not
enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is
subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the
act in question was an official act. Whether an act was performed in the individuals official capacity is a
question for the court in which a proceeding is brought, but if the international organization disputes the courts
finding, the dispute between that organization and the state of the forum is to be resolved by negotiation, by an
agreed mode of settlement or by advisory opinion of the International Court of Justice.

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over
private acts without a waiver of immunity, the determination of the official or private character of a particular act
may pass from international to national, Jenks proposes three ways of avoiding difficulty in the matter. The first
would be for a municipal court before which a question of the official or private character of a particular act arose
to accept as conclusive in the matter any claim by the international organization that the act was official in
character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of
State. Such a claim would be in effect a claim by the organization that the proceedings against the official were
a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not subject to
delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in
the matter a statement by the executive government of the country where the matter arises certifying the official
character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks
opines that it is possible that none of these three solutions would be applicable in all cases; the first might be
readily acceptable only in the clearest cases and the second is available only if the executive government of the
country where the matter arises concurs in the view of the international organization concerning the official
character of the act. However, he surmises that taken in combination, these various possibilities may afford the
elements of a solution to the problem. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People,
G.R. No. 125865, Mar. 26, 2001, 1
st

453. Discuss the extent of the international officials immunity for official acts.

Held: The international officials immunity for official acts may be likened to a consular officials
immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or
omissions in the performance of his official functions, in the absence of special agreement. Since a consular
officer is not immune from all legal processes, he must respond to any process and plead and prove immunity
on the ground that the act or omission underlying the process was in the performance of his official functions.
The issue has not been authoritatively determined, but apparently the burden is on the consular official to prove
his status as well as his exemption in the circumstances. In the United States, the US Department of State
generally has left it to the courts to determine whether a particular act was within a consular officers official
duties. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26,
2001, 1
st

454. Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the

188
sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to
private acts or acts jure gestionis.

Some states passed legislation to serve as guidelines for the executive or judicial determination when
an act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of
1976, which defines a commercial activity as either a regular course of commercial conduct or a particular
commercial transaction or act. Furthermore, the law declared that the commercial character of the activity
shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather
than by reference to its purpose. The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a commercial activity as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a commercial character.

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private
party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with respect
to the Communist states which took control of nationalized business activities and international trading. (Holy
See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

455. Cite some transactions by a foreign state with private parties that were considered by the
Supreme Court as acts jure imperii and acts jure gestionis.

Held: This Court has considered the following transactions by a foreign state with private parties as
acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers; (2)
the conduct of public bidding for the repair of a wharf at a United States Naval Station; and (3) the change of
employment status of base employees.

On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public; and (2) the bidding for the operation of barber shops in Clark Air
Base in Angeles City. The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States government impliedly
divested itself of it sovereign immunity from suit. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994,
En Banc [Quiason])

456. What should be the guidelines to determine what activities and transactions shall be
considered commercial and as constituting acts jure gestionis by a foreign state?

Held: In the absence of legislation defining what activities and transactions shall be considered
commercial and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they
may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for
gain or profit.

As held in United States of America v. Guinto:

There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or private
capacity. It is only when the contract involves its sovereign or governmental capacity that no such
waiver may be implied.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

457. May the Holy See be sued for selling the land it acquired by donation from the Archdiocese of
Manila to be made site of its mission or the Apostolic Nunciature in the Philippines but which
purpose cannot be accomplished as the land was occupied by squatters who refused to
vacate the area?

Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the ordinary course of
a real estate business, surely the said transaction can be categorized as an act jure gestionis. However,
petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed
that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. x x x

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence
of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna

189
Convention on Diplomatic Relations. This treaty was concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable property
situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the
purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should
immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the
same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of
the donation. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

458. How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of suggestion, where the foreign state or
the international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the court a suggestion that the defendant
is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification
to that effect instead of submitting a suggestion.

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v.
Calleja, the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In
World Health Organization v. Aquino, the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the commander of the United States Naval Base at Olongapo City, Zambales, a
suggestion to respondent Judge. The Solicitor General embodied the suggestion in a Manifestation and
Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioners claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels. In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and transactions
involved. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

459. What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime against the law of a State
and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those
who are merely charged with an offense but have not been brought to trial; to those who have been tried and
convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It
does not apply to persons merely suspected of having committed an offense but against whom no charge has
been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.
(Weston, Falk, D' Amato, International Law and Order, 2
nd
ed., p. 630 [1990], cited in Dissenting Opinion,
Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

460. Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but
their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to
plain good will. The classical commentators on international law thus focused their early views on the nature of
the duty to surrender an extraditee --- whether the duty is legal or moral in character. Grotius and Vattel led the
school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. In
sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect
obligation which could become enforceable only by a contract or agreement between states.

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no
duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v.
Rauscher, held: x x x it is only in modern times that the nations of the earth have imposed upon themselves the
obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial
and punishment. This has been done generally by treaties x x x. Prior to these treaties, and apart from them
there was no well-defined obligation on one country to deliver up such fugitives to another; and though such
delivery was often made it was upon the principle of comity x x x. (Dissenting Opinion, Puno, J., in
Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

190

461. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will
be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are
only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by
one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United
States v. Galanis:

An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that
accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid
treaty. (Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional
Procedural Protections To Fugitives Fighting Extradition from the United States, 19 Michigan Journal of
International Law 729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a
prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered
final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the
final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations
before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily
apply to the former. This we hold for the procedural due process required by a given set of circumstances must
begin with a determination of the precise nature of the government function involved as well as the private
interest that has been affected by governmental action. The concept of due process is flexible for not all
situations calling for procedural safeguards call for the same kind of procedure. (Secretary of Justice v. Hon.
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

462. Will the retroactive application of an extradition treaty violate the constitutional prohibition
against "ex post facto" laws?

Held: The prohibition against ex post facto law applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no merit in the contention that the ruling sustaining an
extradition treatys retroactive application violates the constitutional prohibition against ex post facto laws. The
treaty is neither a piece of criminal legislation nor a criminal procedural statute. (Wright v. CA, 235 SCRA 341,
Aug. 15, 1994 [Kapunan])

463. Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides
that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in light of its object and purpose. x x x. It cannot be gainsaid that today,
countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition treaties provide the assurance that the
punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties
should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory
state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not
prevent the escape of extraditees from the long arm of the law and expedite their trial. x x x

[A]n equally compelling factor to consider is the understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the issue in question by other countries with similar
treaties with the Philippines. The rule is recognized that while courts have the power to interpret treaties, the
meaning given them by the departments of government particularly charged with their negotiation and
enforcement is accorded great weight. The reason for the rule is laid down in Santos III v. Northwest Orient
Airlines, et al., where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption
that it was first carefully studied and determined to be constitutional before it was adopted and given the force
of law in the country. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En
Banc [Puno])

464. Discuss the Five Postulates of Extradition.

Held:

1. Extradition Is a Major Instrument for the Suppression of Crime.


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Extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and
custodial transfer of a fugitive from one state to the other.

Today, a majority of nations in the world community have come to look upon extradition as the major
effective instrument of international co-operation in the suppression of crime. It is the only regular system that
has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with
municipal and international law.

2. The Requesting State Will Accord Due Process to the Accused.

Second, an extradition treaty presupposes that both parties thereto have examined, and that both
accept and trust, each others legal system and judicial process. More pointedly, our duly authorized
representatives signature on an extradition treaty signifies our confidence in the capacity and willingness of the
other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith
that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the
criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would
have been directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis.

Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in
nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui
generis in a class by itself they are not.

The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable.

Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our
legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the
national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the Philippine policy
of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand,
failure to fulfill our obligations thereunder paints at bad image of our country before the world community. Such
failure would discourage other states from entering into treaties with us, particularly an extradition treaty that
hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the
Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent
to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has
done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the
proper warrant, and the other government is under obligation to make the surrender. Accordingly, the
Philippines must be ready and in a position to deliver the accused, should it be found proper.

There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the
accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting
state. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept.
24, 2002, En Banc [Panganiban])

465. Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the request
expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of
the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The
proceedings are intended merely to assist the requesting state in bringing the accused or the fugitive who has
illegally escaped back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the
reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and the
willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or
innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the
accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest
of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of
the requesting state, the reasonable prima facie presumption is that the person would escape again if given the
opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall
make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the

192
Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to
require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a
history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the
community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the
highest court in the requesting state for the grant of bail therein may be considered, under the principle of
reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due
process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to
the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to
be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of
democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the
need for respect for the prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise review authority to
prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process
every little step of the way, lest these summary extradition proceedings become not only inutile but also sources
of international embarrassment due to our inability to comply in good faith with a treaty partners simple request
to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and
escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral
justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the
legalistic contortions, delays and technicalities that may negate that purpose. (Government of the United
States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

466. What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular designation. There are
many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement,
compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no significance. Certain terms are useful, but
they furnish little more than mere description

Article 2[2] of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may
be given to them in the internal law of the State. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

467. Discuss the binding effect of treaties and executive agreements in international law.

Held: [I]n international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the functionaries have remained within their powers.
International law continues to make no distinction between treaties and executive agreements: they are equally
binding obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary

468. Do the Philippines recognize the binding effect of executive agreements even without the
concurrence of the Senate or Congress?

Held: In our jurisdiction, we have recognized the binding effect of executive agreements even without
the concurrence of the Senate or Congress. In Commissioner of Customs v. Eastern Sea Trading, we had
occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days of our
history we have entered into executive agreements covering such subjects as commercial and consular
relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has never been seriously
questioned by our courts." (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary

193

469. What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records the winding up
of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the
conference. It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which
may have taken place over several years. It will not require the concurrence of the Senate. The documents
contained therein are deemed adopted without need for ratification. (Tanada v. Angara, 272 SCRA 18, May 2,
1997 [Panganiban])

470. What is the most-favored-nation clause? What is its purpose?

Answer: 1. The most-favored-nation clause may be defined, in general, as a pledge by a contracting
party to a treaty to grant to the other party treatment not less favorable than that which has been or may be
granted to the most favored among other countries. The clause has been commonly included in treaties of
commercial nature. (Salonga & Yap, Public International Law, 5
th
Edition, 1992, pp. 141-142)

2. The purpose of a most favored nation clause is to grant to the contracting party treatment not less
favorable than that which has been or may be granted to the "most favored" among other countries. The most
favored nation clause is intended to establish the principle of equality of international treatment by providing that
the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of
the most favored nation (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87,
107-108, June 25, 1999, 3
rd

471. What are the two types of most-favored nation clause?

Held: There are generally two types of most-favored-nation clause, namely, conditional and
unconditional. According to the clause in its unconditional form, any advantage of whatever kind which has
been or may in future be granted by either of the contracting parties to a third State shall simultaneously and
unconditionally be extended to the other under the same or equivalent conditions as those under which it has
been granted to the third State. (Salonga & Yap, Public International Law, 5
th
Edition, 1992, pp. 141-142)

472. Discuss the essence of the principle behind the "most-favored-nation" clause as applied to tax
treaties?

Held: The essence of the principle is to allow the taxpayer in one state to avail of more liberal
provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party
provided that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is
liable.

In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999,
the SC did not grant the claim filed by S.C. Johnson and Son, Inc., a non-resident foreign corporation based in
the USA, with the BIR for refund of overpaid withholding tax on royalties pursuant to the most-favored-nation
clause of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. It held:

Given the purpose underlying tax treaties and the rationale for the most favored nation clause,
the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if
the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid
under similar circumstances. This would mean that private respondent (S.C. Johnson and Son, Inc.)
must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in
respect of the taxes imposable upon royalties earned from sources within the Philippines as those
allowed to their German counterparts under the RP-Germany Tax Treaty.

The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax
crediting. Article 24 of the RP-Germany Tax Treaty x x x expressly allows crediting against German
income and corporation tax of 20% of the gross amount of royalties paid under the law of the
Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision
with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross
amount of royalties paid. X x x

X x x The entitlement of the 10% rate by U.S. firms despite the absence of matching credit (20%
for royalties) would derogate from the design behind the most favored nation clause to grant equality of
international treatment since the tax burden laid upon the income of the investor is not the same in the
two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment
of most favored nation treatment precisely to underscore the need for equality of treatment.

473. Discuss the nature of ratification in the treaty-making process?

Held: Ratification is generally held to be an executive act, undertaken by the head of state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may
provide in its domestic legislation the process of ratification of a treaty. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

474. How is the consent of the State to be bound by a treaty by ratification expressed?


194
Held: The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty
provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification
should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or
was expressed during the negotiation. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary

475. Discuss the effect of the ratification of the Visiting Forces Agreement (VFA).

Held: With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less
than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules
for the conduct of its international relations. While the international obligation devolves upon the state and not
upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of its government or any official thereof. As
an integral part of the community of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient
excuse for non-compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty.

Equally important is Article 26 of the Convention which provides that Every treaty in force is binding
upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of
positive international law, supported by the jurisprudence of international tribunals. (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342
SCRA 449, 492-493, En Banc [Buena])

476. Explain the pacta sunt servanda rule.

Held: One of the oldest and most fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties x x x. A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment
of the obligations undertaken. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

477. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are).

Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which
would justify non-performance of a treaty obligation if the conditions with rela tion to which the parties contracted
have changed so materially and so unexpectedly as to create a situation in which the exaction of performance
would be unreasonable. The key element of this doctrine is the vital change in the condition of the contracting
parties that they could not have foreseen at the time the treaty was concluded. (Santos III v. Northwest Orient
Airlines, 210 SCRA 256, June 23, 1992)

478. Does the rebus sic stantibus rule operate automatically to render a treaty inoperative?

Held: The doctrine of rebus sic stantibus does not operate automatically to render the treaty
inoperative. There is a necessity for a formal act of rejection, usually made by the head of state, with a
statement of the reasons why compliance with the treaty is no longer required. (Santos III v. Northwest Orient
Airlines, 210 SCRA 256, June 23, 1992)

479. What is the Doctrine of Effective Nationality (Genuine Link Doctrine)?

Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of
Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be treated as if he
had only one. Without prejudice to the application of its law in matters of personal status and of any
convention in force, a third State shall, of the nationalities which any such person possesses, recognize
exclusively in its territory either the nationality of the country in which he is habitually and principally
resident or the nationality of the country with which in the circumstances he appears to be in fact most
closely connected. (Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989)


195

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POLITICAL LAW REVIEWER 2012 (Sandoval Notes)

Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)

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