FOUR HUNDRED AND SIXTY-NINE (469) QUESTIONS AND ANSWERS IN

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

(Culled from Significant Laws and Decisions of the Supreme Court)
Attorney EDWIN REY SANDOVAL
(As of April 15, 2004)

PART II
C.

ADMINISTRATIVE LAW

1. 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])

2. 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])

3. 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])

4. 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)

5. What is an Agency of the Government?

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)

6. 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)

7. 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)

8. 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)

9. What is a government instrumentality?

instrumentality?

What are included in the term government

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)

10. 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)

11. 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)

12. 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)

13. 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])

14. 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 amendment 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 loans, be exempted from payment of all duties, taxes,
fees and other charges, etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div.

[Pardo])

15. 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
Xxx
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.
Xxx
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 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, 3rd Div. [Melo])

16. Discuss the nature and functions of the 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 Div. [Ynares-Santiago])

17. 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.
(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.
Xxx
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 governs. (Republic v. Express

Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1 st Div. [Ynares-Santiago])

18. May a person be held liable for violation of an administrative regulation which was not
published?
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])

19. 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
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 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.

Customs is misplaced.

Xxx
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])

20. 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.
Xxx
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.
Xxx
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
Xxx
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.
Xxx
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])

21. 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,

[Sandoval-Gutierrez])

G.R.

No.

151992,

Sept.

18,

2002,

En

Banc

22. 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.])

23. 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 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.])

24. 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])

25. 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.])

26. 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 287)

27. Discuss the Doctrine of Exhaustion of Administrative Remedies. Enumerate 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 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:

1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)

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)

D.

THE LAW OF PUBLIC OFFICERS

28. 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, 3rd Div. [Vitug])

29. 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.])

30. 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 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])

31. 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])

32. 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: The petitions are impressed with merit.

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:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
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, 1st Div.

[Ynares-Santiago])

33. 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).

34. 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)

35. 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 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])

36. 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])

37. 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])

38. 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.
xxx
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory
power to conduct administrative investigations. x x x
x.

Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority 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 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
Xxx
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, 2nd Div. [Quisumbing])

39. 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.
Xxx
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.
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, 2nd Div. [Quisumbing])

40. 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
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.
Xxx
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.
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])

41. 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, 1st par., Art. IX-B, 1987 Constitution)

42. 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, 2nd par., Art.

IX-B, 1987 Constitution)

43. 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)

44. 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.
Xxx
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.
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.
Xxx
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.
Xxx
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 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.
Xxx
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] )

45. 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.
Xxx
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 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])

46. 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])

47. 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).
The first sentence is referred to as an incompatible office; the second is a forbidden office.

48. 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)
b)
c)
d)

appointing authority;
recommending authority;
chief of the bureau or office; and
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])

49. 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)

50. 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])

51. 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.
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.
Xxx
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.
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, 2nd Div.

[Quisumbing])

52. 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
Xxx
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.
Xxx
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.
Xxx
Xxx

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])

53. May the appointment of a person assuming a position in the civil service under a completed
appointment be validly recalled or revoked?
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:
(a) Non-compliance with the procedures/criteria provided in the agencys Merit
Promotion Plan;
(b) Failure to pass through the agencys Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees
relative to promotion; or
(d) 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])

54. 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?
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.
Xxx

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 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)
Xxx
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 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
Xxx
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.
Xxx
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
Xxx
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.
xxx
Xxx
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 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])

55. 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])

56. 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.
Xxx
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])

57. 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])

58. 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 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])

59. 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, 2nd 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.])

60. 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])

61. 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)

62. What is the effect of acceptance of an incompatible office to a claim for reinstatement?
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.
Xxx
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])

63. 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])

64. 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 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])

65. 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)

66. 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:
1) Where there is a significant increase in the number of positions in the new staffing pattern of
the department or agency concerned;
2) Where an office is abolished and another performing substantially the same functions is
created;
3) Where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit;
4) 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;
5) 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

67. 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])

68. 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 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])

69. 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])

70. 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])

71. Does the fact that a person is registered as a voter in one district proof that he is not
domiciled in another district?
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])

72. 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.

73. 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)
b)

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
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.

74. 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)

75. 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])

76. 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.

77. 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).

78. 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])

79. 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
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])

80. 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.

81. 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.
Xxx
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 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])

82. 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])

83. 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])

84. 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])

85. 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, 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])

86. 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])

87. 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])

88. 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])

89. 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)

90. 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?
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, March 9, 2000, En Banc [Puno])

91. 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])

92. 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])

F.

THE LAW OF PUBLIC CORPORATIONS

93. 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)

94. 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])

95. 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])

96. 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.
Xxx

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, 1st Div. [Puno])

97. Discuss the concept of local autonomy.

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])

98. 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])

99. What is the meaning of "devolution"?

Answer: 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], 2nd par., Local Government Code)

100.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, 3rd Div. [Vitug])

101.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.

Xxx
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 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.
Xxx
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])

102.Whether or not the Internal Revenue allotments (IRAs) are 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
funds of the local government unit. The IRAs regularly and automatically
without need of any further action on the part of the local government
income which the local government can invariably rely upon as the source of

of the gross accretion of the

accrue to the local treasury
unit . They thus constitute
much needed funds.

Xxx
[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.])

103.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])

104.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?
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])

105.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.
Xxx
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])

106.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.
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])

107.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])

108.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])

109.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:
1) 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;
2) The power of eminent domain is exercised for public use, purpose or welfare, or for the
benefit of the poor and the landless;
3) There is payment of just compensation, as required under Section 9, Article III of the
Constitution, and other pertinent laws;
4) 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.

110.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)

111.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.
Xxx
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 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]). x x x (City of

Quezon v. Lexber Incorporated, 354 SCRA 493, Mar. 15, 2001, 1st Div. [Ynares-Santiago])

112.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)

113.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)

114.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:
1) If and when original jurisdiction of case involving the municipality is vested in the Supreme
Court;
2) When the municipality is a party adverse to the provincial government or to some other
municipality in the same province; and
3) 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)

115.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)

116.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)

117.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
Xxx
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, 3rd Div. [Gonzaga-Reyes])

118. 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.
Xxx
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])

119.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.
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])

120.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])

121.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.
Xxx
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.
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])

122.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])

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?
Answer: 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.

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?
Answer: 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.

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?
Answer: 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])

123.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])

124. 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?
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])

125.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.
Xxx
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 the framers of the Constitution is the immediate reelection after the
third term, not any other subsequent election.
Xxx
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.
Xxx
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])

126.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 14th 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.
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.
Xxx
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)

127.When may a permanent vacancy arise under Section 44 of the Local Government Code?
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, 1st Div. [Kapunan])

128.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,

1st Div. [Kapunan])

129.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])

130. 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])

131. 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 legislature's work which could not have been intended by the law. (Malonzo v.

Zamora, 311 SCRA 224, July 27, 1999, En Banc [Romero])

132.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:
(1) 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;
(2) 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;
(3) Collect any fee for their appearance in administrative proceedings involving the local
government unit of which he is an official; and
(4) 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.

133.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])

134.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])

135.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])

136.Will it be proper for the Commission on Elections to act on a petition for recall signed by
just one person?
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)

137.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.

138.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)

139.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.
Xxx
To sum up, the term recall in paragraph (b) refers to the recall election and not to the
preliminary proceedings to initiate recall
1) 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);
2) 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
3) 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])

140.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])

141.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 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]

142.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,

3rd Div. [Vitug])

G.

PUBLIC INTERNATIONAL LAW

143.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])

144.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 20th 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 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])

145.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])

146.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)

147.Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and
limitations?
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])

148.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])

149.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:
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.

150.Discuss the legal consequences that follow recognition of belligerency.

Ans.:

1) 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;
2) The legitimate government, once it recognizes the rebels as belligerents, is bound to observe
the laws and customs of war in conducting the hostilities;
3) 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;
4) 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)

151.State 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)

152.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)

153.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)

154.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:
(a)
(b)
(c)
(d)

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)

155.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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

(Art. 6, Rome Statute of the International Criminal Court)

156.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:
(a)
(b)
(c)
(d)
(e)

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;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) 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;

(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) Persecution means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity;
(h) 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;
(i) 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)

157.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.
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)

158.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)

159.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])

160.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,

1st Div. [Ynares-Santiago])

161.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 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 Div.
[Motion for Reconsideration])

162.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, 1st Div. [Motion for Reconsideration])

163.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, 1st Div. [Motion for Reconsideration])

164.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 official. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v.

People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

165.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])

166.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 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 Div. [Motion for
Reconsideration])

167.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.
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 Div. [Motion for
Reconsideration])

168.Discuss the extent of the international officials immunity for official acts.
Held: One final point. 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 Div.
[Motion for Reconsideration])

169.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 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])

170.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])

171.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])

172.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 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])

173.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])

174.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, 2nd 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)

175.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)

176.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])

177.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])

178.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])

179.Discuss the Five Postulates of Extradition.

Held:

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, 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.
With the advent of easier and faster means of international travel, the flight of affluent criminals
from one country to another for the purpose of committing crime and evading prosecution has become
more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and
crimes that transcend international boundaries.
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.
Indeed, in this era of globalization, easier and faster international travel, and an expanding ring
of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate
with other states in order to improve our chances of suppressing crime in our country.
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.
Given the foregoing, it is evident that the extradition court is not called upon to ascertain the
guilt or the innocence of the person sought to be extradited. Such determination during the extradition
proceedings will only result in needless duplication and delay. Extradition is merely a measure of
international judicial assistance through which a person charged with or convicted of a crime is restored
to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting
authorities to enter into questions that are the prerogative of that jurisdiction . 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.
4. 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.
5. 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])

180.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 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])

181.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])

182.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:

(BAYAN [Bagong Alyansang Makabayan] v.

Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])
they are equally binding obligations upon nations.

183.Does 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 Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])

184.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])

185.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, 5th

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, 3rd Div.
[Gonzaga-Reyes])

186.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, 5th Edition, 1992, pp. 141-142)

187.What is 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.

188.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])

189.How is the consent of the State to be bound by a treaty by ratification expressed?

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 Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En
Banc [Buena])

190.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])

191.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])

192.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)

193.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)

194.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)