Survey of 2015-2016 Supreme Court Decisions

in POLITICAL LAW

Dean Ed Vincent S. Albano

CITIZENSHIP

Foundling born in the Philippines, a natural-born citizen.

In Mary Grace Natividad S. Poe-Llamansares v. COMELEC, et al., G.R. Nos.
221697; 221698-700, March 8, 2016, Perez, J, the Supreme Court has written finis to the
controversial issue on the citizenship of Sen. Grace Poe. In fact, the Court said that “the
questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly
diseased with grave abuse of discretion from root to fruits.” It ruled that a foundling is a
natural-born citizen of the Philippines.

In this case, Sen. Grace Poe was found abandoned at a Parish Church of Jaro, Iloilo.
She was registered as a foundling and issued a Foundling Certificate and later on adopted.
When she reached the age of majority, she registered as a voter and voted. She left for the
United States to pursue her studies and got married where children were born. She became a
naturalized American citizen in October 2001. On December 13, 2004, she came back to the
Philippines to attend to her ailing father, the Late Fernando Poe, Jr. After her father’s death,
she came back to the Philippines, more particularly on May 24, 2005. She secured a TIN,
then her children followed suit; acquired property where she and her children resided. On
July 7, 2006, she took her oath as a Filipino citizen pursuant to RA 9225, otherwise known as
Citizenship Retention and Reacquisition Act of 2003. She filed a sworn petition for reacquisition
of Philippine citizenship with the Bureau of Immigration. She likewise filed a petition for
reacquisition of Filipino citizenship for and in behalf of her children which was granted. She
registered as a voter; secured Philippine passport. She was appointed as Chairperson of the
MTRCB. After executing an affidavit of Renunciation of American citizenship, she took her
oath as Chairperson of the MTRCB. On July 12, 2011, she executed an affidavit of renunciation
of American citizenship before the Vice Counsel of the USA and was issued a Certificate of
Loss of Nationality of the USA. On October 2, 2012, she filed her COC for Senator stating
that her period of residence in the Philippines was 6 years and 6 months before May 13, 2013
elections. She was elected. On October 15, 2015, she filed her COC for President and stated
that she would a 10 years and 11 months resident of the Philippines before the May 9, 2016
elections.

One issue that was resolved by the Supreme Court was the fact that Sen. Grace Poe is
admittedly foundling. Is she a natural-born citizen of the Philippines?
Held: Yes, a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution’s enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. During the deliberations in the 1935 Constitutional
convention, there was an attempt to amend the proposed provisions on citizenship to include
foundlings in the concept of natural-born citizens but it was not carried out because there
was any objection to the notion that persons of unknown parentage are not citizens but only
because their number was not enough to merit specific mention. In fact some delegates were
 The Bedan Review

able to convince their colleagues that there is no more need to expressly declare foundlings
a Filipinos because they are already impliedly so recognized. In the words of Chief Justice
Fernando, “the constitution is not silently silent, it is silently vocal. In fact, there is nothing in
the 1935, 1973, 1987 Constitution for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to deny the use of the constitution to discriminate
against foundlings to show that the Constitution really intended to take this path to the dark
side and inflict this across the board marginalization.

No provisions of the Constitution discriminate against foundlings.

There was no provisions in the Constitution with intent or language permitting
discrimination against foundlings. On the contrary, all three Constitutions guarantee the
basic right to equal protection of the laws. All exhort the State to render social justice. Of
special consideration are several provisions in the present charter: Article II, Section 11 which
provides that the “State values the dignity of every human person and guarantees full respect
for human rights,” Article XIII, Section 1 which mandates Congress to “give highest priority
to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x” and Article XV, Section 3
which requires the State to defend the “right of children to assistance, including proper care
and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development.” Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their unfortunate status.

Other provisions of Philippine law that would support the principle that foundlings are
Filipinos.
Domestic laws on adoption also support the principle that foundlings are Filipinos.
These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to be adopted. The most basic of such laws
is Article 15 of the Civil Code which provides that “[l]aws relating to family rights, duties,
status, conditions, legal capacity of persons are binding on citizens of the Philippines even
though living abroad.” Adoption deals with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic, 117 Phil. 976 [1963],
a child left by an unidentified mother was sought to be adopted by aliens. The Court said:

In this connection, it should be noted that this is a proceedings

in rem, which no court may entertain unless it has jurisdiction, not only over
the subject matter of the case and over the parties, but also over the res,
which is the personal status of Baby Rose as well as that of petitioners herein.
Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the
status of a natural person is determined by the latter’s nationality. Pursuant
to this theory, we have jurisdiction over the status of Baby Rose, she being a
citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.

Recent legislation is more direct. R.A. No. 8043 entitled “An Act Establishing the
Rules to Govern the Inter-Country Adoption of Filipino Children and For Other Purposes”
(otherwise known as the “Inter-Country Adoption Act of 1995”), R.A. No. 8552, entitled “An
Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes” (otherwise known as the Domestic Adoption Act of 1998) and this Court’s A.M.
No. 02-6-02-SC or the “Rule on Adoption,” all expressly refer to “Filipino children” and

236
 The Bedan Review

include foundlings as among Filipino children who may be adopted (Mary Grace Natividad
S. Poe-Llamansares v. COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8, 2016,
Perez, J).

It has been argued that the process to determine that the child is a foundling leading
to the issuance of a foundling certificate under these laws and the issuance of said certificate
are acts to acquire or perfect Philippine citizenship which make the foundling a naturalized
Filipino at best. Is the contention correct? The SC said:

This is erroneous. Under Article IV, Section 2 “Natural-born

citizens are those who are citizens of the Philippines from birth without having
to perform any act to acquire or perfect their Philippine citizenship.” In the
first place, “having to perform an act” means that the act must be personally
done by the citizen. In this instance, the determination of foundling status is
done not by the child but by the authorities (Sec. 5, RA No. 8552). Secondly,
the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not
analogous to naturalization proceedings to acquire Philippine citizenship, or
the election of such citizenship by one born of an alien father and a Filipino
mother under the 1935 Constitution, which is an act to perfect it.

Under the provisions of Section 5 of the RA No. 8552: “Location

of Unknown Parent(s). - It shall be the duty of the Department or the child-
caring agency which has custody of the child to exert all efforts to locate
his/her unknown biological parent(s). If such efforts fail, the child shall be
registered as a foundling and subsequently be the subject of legal proceedings
where he/she shall be declared abandoned.”

Status of foundlings under international law.

Answer: Foundlings are citizens under international law. Under the 1987 Constitution,
an international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation (Razon, Jr.
v. Tagitis, 621 Phil. 536, 600 (2009) citing Pharmaceutical and Health Care Assoc. of the
Philippines v. Duque Ill, 561 Phil. 386, 398 (2007)). On the other hand, generally accepted
principles of international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty obligations. Generally
accepted principles of international law include international custom as evidence of a general
practice accepted as law, and general principles of law recognized by civilized nations (Article
38.1, paragraphs (b) and (c) of the Statute of the International Court of Justice). International
customary rules are accepted as binding as a result from the combination of two elements:
the established, widespread, and consistent practice on the part of States; and a psychological
element known as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it (Mijares v. Ranada, 495 Phil. 372, 395 [2005]). “General principles
of law recognized by civilized nations” are principles “established by a process of reasoning” or
judicial logic, based on principles which are “basic to legal systems generally,” (Pharmaceutical
and Health Care Assoc. of the Philippines v. Duque Ill, 561 Phil. 386, 400 [2007]) such as
“general principles of equity, i.e., the general principles of fairness and justice,” and the “general
principle against discrimination” which is embodied in the “Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights, the International

237
 The Bedan Review

Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect
of Employment and Occupation” (International School Alliance of Educators v. Quisumbing,
388 Phil. 661, 672-673 (2000), CONSTITUTION, Art. III, Sec. I). These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights.

Specific provisions of the UDHR UNCRC NCCPR that support the view that Sen.
Grace Poe is a citizen of the Philippines under international law.

Universal Declaration of Human Rights (“UDHR”) has been interpreted by this Court
as part of the generally accepted principles of international law and binding on the State. 130
Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right
to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child
(UNCRC). Article 7 of the UNCRC imposes the following obligations on our country:

1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance

with their national law and their obligations under the relevant international
instruments in this field, in particular where the child would otherwise be
stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and
Political Rights (ICCPR). Article 24 thereof provide for the right of every child “to acquire a
nationality.”

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines
to grant nationality from birth and ensure that no child is stateless. This grant of nationality
must be at the time of birth, and it cannot be accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old (Mary Grace Natividad S. Poe-
Llamansares v. COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8, 2016, Perez, J).

Two (2) conventions which grant citizenship to foundlings but they have not been ratified by
the Philippines; effect.
The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the nationality of the country of birth, to wit:

A child whose parents are both unknown shall have the nationality
of the country of birth. If the child’s parentage is established, its nationality
shall be determined by the rules applicable in cases where the parentage is

238
 The Bedan Review

known.

A foundling is, until the contrary is proved, presumed to have

been born on the territory of the State in which it was found.

The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness. It provides that a foundling found in the territory of a Contracting
State shall, in the absence of proof to the contrary, be considered to have been born within the
territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory
to the Universal Declaration on Human Rights, Article 15(1) ofwhich131 effectively affirms
Article 14 of the 1930 Hague Convention. Article 2 of the 1961 “United Nations Convention
on the Reduction of Statelessness” merely “gives effect” to Article 15(1) of the UDHR.

In Razon v. Tagitis, the Court noted that the Philippines had not signed or ratified the
“International Convention for the Protection of All Persons from Enforced Disappearance.”
Yet, the proscription against enforced disappearances in the said convention was nonetheless
binding as a “generally accepted principle of international law.” Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although
the convention had been ratified by only sixteen states and had not even come into force and
which needed the ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional state organs, regional
state practice in Latin America, and State Practice in the United States.

The approach in Razon and Mijares effectively takes into account the fact that
“generally accepted principles of international law” are based not only on international
custom, but also on “general principles of law recognized by civilized nations,” as the phrase
is understood in Article 38.1 paragraph ( c) of the ICJ Statute. Justice, fairness, equity and
the policy against discrimination, which are fundamental principles underlying the Bill of
Rights and which are “basic to legal systems generally,” support the notion that the right against
enforced disappearances and the recognition of foreign judgments, were correctly considered
as “generally accepted principles of international law” under the incorporation clause.

The COMELEC also ruled that petitioner’s repatriation in July 2006 under the
provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The
COMELEC reasoned that since the applicant must perform an act, what is reacquired is not
“natural-born” citizenship but only plain “Philippine citizenship.” The SC had this to say:

The COMELEC’s rule arrogantly disregarded consistent jurisprudence on the matter

of repatriation statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 409 Phil. 633, 649 [2001], repatriation
was explained as follows:

Moreover, repatriation results in the recovery of the original

239
 The Bedan Review

nationality. This means that a naturalized Filipino who lost his citizenship
will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-
born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases.
They include Sobejana-Condon v. COMELEC, 692 Phil. 407, 420 [2012], where we described
it as an “abbreviated repatriation process that restores one’s Filipino citizenship x x x.” Also
included is Parreno v. Commission on Audit, 551 Phil. 368, 381 [2007], which cited Tabasa
v. Court of Appeals, 531 Phil. 407, 417 [2006], where it was said that “[t]he repatriation of the
former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission
on Audit is categorical that “if petitioner reacquires his Filipino citizenship (under R.A.
No. 9225), he will ... recover his natural-born citizenship” (Mary Grace Natividad S. Poe-
Llamansares v. COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8, 2016).

The COMELEC construed the phrase “from birth” in the definition of natural citizens
as implying “that natural-born citizenship must begin at birth and remain uninterrupted and
continuous from birth.”

The SC said such ruling is not correct. R.A. No. 9225 was obviously passed in line with
Congress’ sole prerogative to determine how citizenship may be lost or reacquired. Congress
saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost.
It is not for the COMELEC to disagree with the Congress’ determination.

More importantly, COMELEC’s position that natural-born status must be continuous

was already rejected in Bengson III v. HRET where the phrase “from birth” was clarified to
mean at the time of birth: “A person who at the time of his birth, is a citizen of a particular
country, is a natural-born citizen thereof.” Neither is “repatriation” an act to “acquire or
perfect” one’s citizenship. In Bengson III v. HRET, it was pointed out that there are only two
types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and that
there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under

the present Constitution that there are only two classes of citizens: (1) those
who are natural-born and (2) those who are naturalized in accordance with
law. A citizen who is not a naturalized Filipino, ie., did not have to undergo
the process of naturalization to obtain Philippine citizenship, necessarily
is a natural-born Filipino. Noteworthy is the absence in said enumeration
of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable
law for the reacquisition thereof. As respondent Cruz was not required
by law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed
all the necessary qualifications to be elected as member of the House of
Representatives (G.R. No. 217126-27, 10 November 2015).

The COMELEC cannot reverse a judicial precedent. That is reserved to the Court.
And while we may always revisit a doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr., where

240
 The Bedan Review

it was decreed reversed the condonation doctrine, we cautioned that it “should be prospective
in application for the reason that judicial decisions applying or interpreting the laws of the
Constitution, until reversed, shall form part of the legal system of the Philippines” (Mary Grace
Natividad S. Poe-Llamansares v. COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8,
2016).

On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before and
until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months.

Effect of such migration to the USA and how did she reacquire her original domicile.
When she immigrated to the U.S. in 1991, she lost her original domicile, which is
the Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. An intention to remain there; and 3. An intention to abandon the
old domicile (Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660
(2009) citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009) further citing Papandayan,
Jr. v. COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC, Br.
7, Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA408, 415). To successfully
effect a change of domicile, one must demonstrate an actual removal or an actual change of
domicile; a bona fide intention of abandoning the former place of residence and establishing
a new one and definite acts which correspond with the purpose. In other words, there must
basically be animus manendi coupled with animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the new domicile must be actual
(Domino v. COMELEC, 369 Phil. 798, 819 [1999]; Mary Grace Natividad S. Poe-Llamansares
v. COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8, 2016).

Petitioner presented voluminous evidence showing that she and her family abandoned
their U.S. domicile and relocated to the Philippines for good. These evidence include
petitioner’s former U.S. passport showing her arrival on 24 May 2005 and her return to the
Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal
Industry inquiring how to ship their dog to the Philippines; school records of her children
showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax
identification card for petitioner issued on July 2005; titles for condominium and parking slot
issued in February 2006 and their corresponding tax declarations issued in April 2006; receipts
dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items
from petitioner’s family; March 2006 e-mail to the U.S. Postal Service confirming request for
change of address; final statement from the First American Title Insurance Company showing
sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to
the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May
2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005
and that she and her family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner’s husband (confirming that the spouses jointly decided to relocate to

241
 The Bedan Review

the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to
ell the family home) (Mary Grace Natividad S. Poe-Llamansares v. COMELEC, et al., G.R.
Nos. 221697; 221698-700, March 8, 2016).

LEGISLATIVE DEPARTMENT

HRET has the power to determine whether a person is a nuisance candidate.

In Tañada v. HRET, G.R. No. 217012, March 21, 2016, Carpio, J, Tañada filed
a petition to cancel the COC and to declare Alvin john as a nuisance candidate. Both were
running for representative in Quezon. The COMELEC cancelled the COC of Alvin John,
but did not declare him a nuisance candidate. In the meantime, the elections were held where
Angelica Tan emerged as the winner. Tañada filed a petition to consolidate the votes of Alvin
John and his votes but the COMELEC denied it. Tan was declared the winner. Tañada filed
a petition to annul the proclamation which was granted, but in the meantime Tan took her
oath and assumed office. Tañada filed a petition for certiorari from the COMELEC ruling
not declaring Alvin John a nuisance candidate, but the SC dismissed the petition for lack of
jurisdiction since Tan has already assumed office, hence, a special civil action for certiorari was
filed with the SC questioning the HRET ruling of lack of jurisdiction. He further contended
that the votes of Alvin John should be consolidated with his votes. In denying the petition the
SC

Held: The HRET did not commit any grave abuse of discretion in declaring that it has no
jurisdiction to determine whether Alvin John was a nuisance candidate considering that
the COMELEC ruling that he was not a nuisance candidate has already become final and
executory.

Tañada’s petition challenging Alvin John’s nuisance candidacy filed before the HRET,
and now before the Court, was a mere afterthought. It was only after Angelina was proclaimed
a winner that Wigberto renewed his zeal in pursuing Alvin John’s alleged nuisance candidacy.
It is not enough for Wigberto to have Alvin John’s COC cancelled, because the effect of such
cancellation only led to stray votes. Alvin John must also be declared a nuisance candidate,
because only then will Alvin John’s votes be credited to Wigberto.

On the issue of whether the HRET has jurisdiction, the SC ruled that it has jurisdiction
over questions involving the elections, returns and qualifications of candidates who have already
assumed their office as members of House of Representatives. Issues concerning the conduct
of the canvass and the resulting proclamation of candidates are matters which fall under the
scope of the terms “election” and “returns” and hence, properly fall under the HRET’s sole
jurisdiction.

Furthermore, the SC said that under Article VI, Sec 17 of the 1987 Constitution
and Rule 15 of the 2011 HRET Rules declare that HRET’s power to judge election contests
is limited to Members of the House of Representatives. Alvin John is not a Member of the
House of Representatives.

Note: The motion for reconsideration is a prohibited pleading. Rule 13 Sec 1(d) of the
COMELEC Rules of Procedure specifically prohibits the filing of a motion for reconsideration

242
 The Bedan Review

of an en banc ruling, resolution, order or decision except in election offense cases. Consequently,
when a COMELEC en banc ruling become final and executory, it precludes a party from
raising again in any other forum the nuisance candidacy as an issue.

INTERNATIONAL LAW

In Laude, et al. v. Hon. Roline M. Ginez-Jabalde, et al., G.R. No. 217456, November 24,
2015, Leonen, J, during the pendency of the murder case against Pemberton, petitioners filed a
Motion to Compel the AFP to Surrender Custody of Accused to the Olongapo City Jail which
was denied. They advanced that Philippine authorities ought to “have primary jurisdiction over
respondent Pemberton’s person while he is being tried in a Philippine Court,” in accordance
with Article V, paragraph [3][b] of the Visiting Forces Agreement.

They argued that even though the Visiting Forces Agreement gives the United States
the “sole discretion” to decide whether to surrender custody of an accused American military
personnel to the Philippine authorities, “the rule is that . . . the Court still has control over any
proceeding involving a jurisdictional matter brought before it, even if it may well involve the
country’s relations with another foreign power.

Pemberton contended that under VFA, the custody over him rightfully remains with
the USA authorities citing Sec. 6 of the VFA which provides that the “custody of any United
States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside
with United States military authorities, if they so request, from the commission of the offense,
until completion of all judicial proceedings.” Ruling that the contention of petitioners is not
correct, the SC

Held: Article 2, paragraph (3) of the International Covenant on Civil and Political Rights states:
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that
the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of judicial
remedy;
(c) To ensure that the competent authorities shall enforce such
remedies when granted.

The Philippines, as a State Party, is obligated to comply with its obligations under
the International Covenant on Civil and Political Rights. To do otherwise would be to ignore
completely the nature of the obligation contemplated by the provision in an attempt to justify
their failure to comply with a domestic procedural rule aimed to protect a human right in a
proceeding, albeit that of the adverse party.

On March 29, 2004, the United Nations Human Rights Committee issued General
Comment No. 31,125 which pertained to the nature of the general legal obligations imposed
by the International Covenant on Civil and Political Rights on State Parties. On Article 2,

243
 The Bedan Review

paragraph (3), the General Comment states:

15. Article 2, paragraph 3, requires that in addition to effective

protection of Covenant rights[,] States Parties must ensure that individuals
also have accessible and effective remedies to vindicate those rights. Such
remedies should be appropriately adapted so as to take account of the
special vulnerability of certain categories of person, including in particular
children. The Committee attaches importance to States Parties’ establishing
appropriate judicial and administrative mechanisms for addressing claims
of rights violations under domestic law. The Committee notes that the
enjoyment of the rights recognized under the Covenant can be effectively
assured by the judiciary in many different ways, including direct applicability
of the Covenant, application of comparable constitutional or other provisions
of law, or the interpretive effect of the Covenant in the application of national
law. Administrative mechanisms are particularly required to give effect to the
general obligation to investigate allegations of violations promptly, thoroughly
and effectively through independent and impartial bodies. National human
rights institutions, endowed with appropriate powers, can contribute to this
end. A failure by a State Party to investigate allegations of violations could in
and of itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make

reparation to individuals whose Covenant rights have been violated. Without
reparation to individuals whose Covenant rights have been violated, the
obligation to provide an effective remedy, which is central to the efficacy of
article 2, paragraph 3, is not discharged. In addition to the explicit reparation
required by articles 9, paragraph 5, and 14, paragraph 6, the Committee
considers that the Covenant generally entails appropriate compensation. The
Committee notes that, where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights
violations.

The obligation contemplated by Article 2, paragraph (3) is for the State Party to
establish a system of accessible and effective remedies through judicial and administrative
mechanisms. The present trial of Pemberton, indicates that there is a legal system of redress for
violated rights. That petitioners chose to act on their own, in total disregard of the mechanism
for criminal proceedings established by this court, should not be tolerated under the guise of
a claim to justice. This is especially in light of petitioners’ decision to furnish the accused in
the case a copy of her Motion only during the hearing. Upholding human rights pertaining to
access to justice cannot be eschewed to rectify an important procedural deficiency that was not
difficult to comply with. Human rights are not a monopoly of petitioners. The accused also
enjoys the protection of these rights.

EXECUTIVE DEPARTMENT

Executive power; vested in the President.

In Saguisag, et al. v. Executive Secretary, et al.,G.R. No. 212426, January 12, 2016,
a petition was filed questioning the Constitutionality of the Enhanced Defense Cooperation
Agreement [EDCA] between the Philippines and the USA. To resolve the issues, the Supreme
Court was confronted with several issues, one of which relates to the duty of the State to protect

244
 The Bedan Review

its citizens, represented by the President. State the Constitutional provision on such duty. The
SC

Held: The 1987 Constitution has “vested the executive power in the President of the Republic
of the Philippines” (Constitution, Art. VII, Sec. 1). While the vastness of the executive power
that has been consolidated in the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the government, of which the President
is the head:

The prime duty of the Government is to serve and protect the

people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service (Sec. 4, Article
II, Constitution; Rene A.V. Saguisag, et al. v. Executive Secretary, et al., G.R.
No. 212426 and companion cases, January 12, 2016, Sereno, J)

The duty to protect the State and its people must be carried out earnestly and effectively
throughout the whole territory of the Philippines in accordance with the Constitutional
provision on national territory. Hence, the President of the Philippines, as the sole repository
of executive power, is the guardian of the Philippine archipelago, including all the islands and
waters embraced therein and all other territories over which it has sovereignty or jurisdiction.
These territories consist of its terrestrial, fluvial, and aerial domains; including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas; and the waters
around, between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions.

How the President carries out such important duty.

To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP), which is the protector of the people and the state. The
AFP’s role is to secure the sovereignty of the State and the integrity of the national territory. In
addition, the Executive is Constitutionally empowered to maintain peace and order; protect
life, liberty, and property; and promote the general welfare (Constitution, Art. II, Sec. 3). In
recognition of these powers, Congress has specified that the President must oversee, ensure,
and reinforce our defensive capabilities against external and internal threats (see Constitution,
Art. VII, Sec. 18 in relation to Art. II, Secs. 3, 4 & 7; Executive Order No. 292 [Administrative
Code of 1987], Book IV [Executive Branch], Title VIII [National Defense], Secs. l, 15, 26 &
33 [hereinafter Administrative Code of 1987]) and, in the same vein, ensure that the country
is adequately prepared for all national and local emergencies arising from natural and man-
made disasters (Administrative Code of 1987, Book IV [Executive Branch], Title XII [Local
Government], Sec. 3[5]; Saguisag, et al. v. Executive Secretary, et al., supra)

Power is not absolute.

This power is limited by the Constitution itself, because the President may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion, (Constitution,
Art. VII, Sec. 18) but not suspend the privilege of the writ of habeas corpus for a period
exceeding 60 days, or place the Philippines or any part thereof under martial law exceeding
that same span. In the exercise of these powers, the President is also duty-bound to submit a

245
 The Bedan Review

report to Congress, in person or in writing, within 48 hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus; and Congress may in turn
revoke the proclamation or suspension. The same provision provides for the Supreme Court’s
review of the factual basis for the proclamation or suspension, as well as the promulgation of
the decision within 30 days from filing (Saguisag, et al. v. Executive Secretary, et al., supra)

The power and duty to conduct foreign relations.

Under the Constitution, who is the sole organ in the conduct of foreign relations.
Explaining such power the SC

Held: The President carries the mandate of being the sole organ in the conduct of foreign
relations (See Constitution, Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book
IV [Executive Branch], Title I Foreign Affairs), Secs. 3[1] and 20; Akbayan Citizens Action
Party v. Aquino, 580 Phil. 422 [2008]; Pimentel v. Office of the Executive Secretary, 501
Phil. 303 (2005); People’s Movement for Press Freedom v. Manglapus, G.R. No. 84642,
13 September 1988 (unreported) (citing United States v. Curtiss-Wright Export Corp., 299
U.S. 304 [1936]); Joaquin Bernas, Foreign Relations in Constitutional Law, 101 (1995); Irene
R. Cortes, The Philippine Presidency: A Study of Executive Power 187 [1966]; Vicente G.
Sinco, Philippine Political Law: Principles and Concepts 297 [10th ed., 1954]). Since every
state has the capacity to interact with and engage in relations with other sovereign states (See
1933 Montevideo Convention on the Rights and Duties of States, Art. 1, 165 LNTS 19; James
Crawford, The Creation of States in International Law 61 [2”d ed. 2007]), it is but logical that
every state must vest in an agent the authority to represent its interests to those other sovereign
states.

The conduct of foreign relations is full of complexities and consequences, sometimes

with life and death significance to the nation especially in times of war. It can only be entrusted to
that department of government which can act on the basis of the best available information and
can decide with decisiveness. x x x It is also the President who possesses the most comprehensive
and the most confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs
is dominant and the President is traditionally accorded a wider degree of discretion in the
conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences (Vinuya v. Executive Secretary, 633
Phil. 538, 570 [2010] [quoting the Dissenting Opinion of then Assoc. Justice Reynato S. Puno
in Secretary of Justice v. Lantion, 379 Phil. 165, 233-234 [2004]; Saguisag, et al. v. Executive
Secretary, et al., supra)

Role of the Senate in relation to the power of the President as the sole organ in international
relations.
The power to defend the State and to act as its representative in the international
sphere inheres in the person of the President. This power, however, does not crystallize into
absolute discretion to craft whatever instrument the Chief Executive so desires. The Senate

246
 The Bedan Review

has a role in ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds
of its members (Saguisag, et al. v. Executive Secretary, et al., supra)

EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain “Agreed Locations” in the country. It was not transmitted to the Senate on the
executive’s understanding that to do so was no longer necessary. Accordingly, in June 2014,
the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal requirements for the agreement to enter
into force in the two countries (Saguisag, et al. v. Executive Secretary, et al., supra)

Why the President invested as the sole organ in international relations by the Constitution.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court
held that “[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.” It is quite apparent that if, in the maintenance of our
international relations, embarrassment - perhaps serious embarrassment - is to be avoided and
success for our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible
where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials (Saguisag, et al. v. Executive Secretary, et al.)

This ruling has been incorporated in our jurisprudence through Bayan v. Executive
Secretary and Pimentel v. Executive Secretary; where it was said:

The conduct of foreign relations is full of complexities and

consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness .... It is also the President who possesses the
most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity
of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora
of other problems with equally undesirable consequences (Saguisag, et al. v.
Executive Secretary, et al., supra)

Where the power of the President to enter into executive agreements emanate.
The power of the President to enter into binding executive agreements without Senate
concurrence is already well-established in this jurisdiction (Land Bank v. Atlanta Industries,
Inc., supra note 172; Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra
note 39; Neri v. Senate Committee on Accountability of Public Officers and Investigations,

247
 The Bedan Review

supra note 172; DBM-PS v. Kolonwel Trading, 551 Phil. 1030 (2007); Abaya v. Ebdane,
supra note 172; Republic v. Quasha, supra note 173; Adolfo v. Court of First Instance of
Zambales, supra note 173; Commissioner of Internal Revenue v. Guerrero, supra note 173;
Gonzales v. Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea Trading,
supra note 173; USAFFE Veterans Ass ‘n., Inc. v. Treasurer of the Phil., supra note 173;
Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Abbot Laboratories v. Agrava, supra
note 173; II Record, Constitutional Commission, 544-546 (31 July 1986); CORTES, supra
note 15, at 190; SINCO, supra note 15, at 303-305). That power has been alluded to in
our present and past Constitutions, (194 Constitution, Art. VIII (Judicial Department), Secs.
4(2) & 5(2)(a); Constitution (l 973, as amended), Art. X (The Judiciary), Secs. 2(2) & 5(2)
(a), Art. XVII (Transitory Provisions), Sec. 12; Constitution (l 935), Ordinance Appended
to the Constitution or “Parity Amendment.”) in various statutes, (Republic Act No. 9184
(Government Procurement Reform Act) (2003), Sec. 4; Administrative Code of 1987, Book
II, Sec. 18(2)(a); Presidential Decree No. 1464, as amended (Tariff and Customs Code of
1978), Sec. 402(f); Republic Act No. 1789 (Reparations Law) (1957), Sec. 18.; Commonwealth
Act No. 733 (Acceptance of Executive Agreement Under Title IV of [United States] Public
Law 371-791 h Congress) (1946)), in Supreme Court decisions, and during the deliberations
of the Constitutional Commission. They cover a wide array of subjects with varying scopes
and purposes, 198 including those that involve the presence of foreign military forces in the
country.

As the sole organ of our foreign relations and the constitutionally assigned chief architect
of our foreign policy, the President is vested with the exclusive power to conduct and manage
the country’s interface with other states and governments. Being the principal representative of
the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and
develops diplomatic relations with other states and governments; negotiates and enters into
international agreements; promotes trade, investments, tourism and other economic relations;
and settles international disputes with other states.

The constitutional mandate emanates from the inherent power of the President to
enter into agreements with other states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence. The existence of this presidential
power is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides
for a check on its exercise. Executive agreements are among those official governmental acts
that can be the subject of this Court’s power of judicial review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the

law or the Rules of Court may provide, final judgments and orders of lower
courts in:
(a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question (Saguisag, et al. v.
Executive Secretary, et al., supra)

Basis why EDCA is an executive agreement.

EDCA can be in the form of an executive agreement, since it merely involves
“adjustments in detail” in the implementation of the MDT and the VFA. There are existing
treaties between the Philippines and the U.S. that have already been concurred in by the

248
 The Bedan Review

Philippine Senate and have thereby met the requirements of the Constitution under Section
25. Because of the status of these prior agreements, EDCA need not be transmitted to the
Senate (Saguisag, et al. v. Executive Secretary, et al., supra)

Concept of executive agreements.

In Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 [1961], executive
agreements are defined as “international agreements embodying adjustments of detail carrying
out well-established national policies and traditions and those involving arrangements of a
more or less temporary nature.” In Bayan Muna v. Romulo, it was clarified that executive
agreements can cover a wide array of subjects that have various scopes and purposes. They are
no longer limited to the traditional subjects that are usually covered by executive agreements as
identified in Eastern Sea Trading. The Court thoroughly discussed this matter in the following
manner:

The categorization of subject matters that may be covered by

international agreements mentioned in Eastern Sea Trading is not cast in
stone. x x x.
As may be noted, almost half a century has elapsed since the
Court rendered its decision in Eastern Sea Trading. Since then, the conduct
of foreign affairs has become more complex and the domain of international
law wider, as to include such subjects as human rights, the environment,
and the sea. In fact, in the US alone, the executive agreements executed
by its President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation,
peace corps, arms limitation, and nuclear safety, among others. Surely, the
enumeration in Eastern Sea Trading cannot circumscribe the option of
each state on the matter of which the international agreement format would
be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
. . . It would be useless to undertake to discuss here the large variety
of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into
under the trade agreement act, have been negotiated with foreign
governments. . . . They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etc (Saguisag, et al. v.
Executive Secretary, et al., supra)

Distinguishing feature of executive agreements.

One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence (Commissioner of Customs v.
Eastern Sea Trading, supra). This distinctive feature was recognized as early as in Eastern Sea
Trading (1961), viz:

Treaties are formal documents which require ratification with the

approval of two-thirds of the Senate. Executive agreements become binding
through executive action without the need of a vote by the Senate or by
Congress.
xx xx
[T]he right of the Executive to enter into binding agreements

249
 The Bedan Review

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.
That notion was carried over to the present Constitution. The
Constitutional Commission members ultimately decided that the term
“international agreements” as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no longer needed
(Saguisag, et al. v. Executive Secretary, et al., supra)

Reason why executive agreements may dispense with the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence
because of the legal mandate with which they are concluded. Executive agreements merely
involve arrangements on the implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation
by an act of the Legislature; or (3) in the exercise of the President’s independent powers under
the Constitution. The raison d’etre of executive agreements hinges on prior constitutional or
legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in

international agreements. International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a treaty - which
connotes a formal, solemn instrument - to engagements concluded in modem, simplified
forms that no longer necessitate ratification. An international agreement may take different
forms: treaty, act, protocol, agreement, concordat, compromis d’arbitrage, convention,
covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum
of agreement, modus vivendi, or some other form. Consequently, under international law, the
distinction between a treaty and an international agreement or even an executive agreement is
irrelevant for purposes of determining international rights and obligations (Saguisag, et al. v.
Executive Secretary, et al., supra)

JUDICIAL DEPARTMENT

Power of courts to issue provisional injunctive reliefs carries with it power to issue auxiliary
courts.
Under its rule-making authority, the Court has periodically passed various rules
of procedure, among others, the current 1997 Rules of Civil Procedure. Identifying the
appropriate procedural remedies needed for the reasonable exercise of every court’s judicial
power, the provisional remedies of temporary restraining orders and writs of preliminary
injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute

temporary measures availed of during the pendency of the action. They are, by nature, ancillary
because they are mere incidents in and are dependent upon the result of the main action. It
is well-settled that the sole object of a temporary restraining order or a writ of preliminary

250
 The Bedan Review

injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits
of the case can be heard. They are usually granted when it is made to appear that there is a
substantial controversy between the parties and one of them is committing an act or threatening
the immediate commission of an act that will cause irreparable injury or destroy the status quo
of the controversy before a full hearing can be had on the merits of the case. In other words,
they are preservative remedies for the protection of substantive rights or interests, and, hence,
not a cause of action in itself, but merely adjunct to a main suit. In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties. Rule
58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO
and a WPI. A preliminary injunction is defined under Section 1,205 Rule 58, while Section
3206 of the same Rule enumerates the grounds for its issuance. Meanwhile, under Section
5207 thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary
injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its
inherent power to issue all auxiliary writs, processes, and other means necessary to carry its
acquired jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. – When by law jurisdiction

is conferred on a court or judicial officer, all auxiliary writs, processes and
other means necessary to carry it into effect may be employed by such
court or officer; and if the procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by law208 or by these rules, any
suitable process or mode of proceeding may be adopted which appears
comfortable to the spirit of the said law or rules.

In City of Manila v. Grecia-Cuerdo, G.R. No. 175723, February 4, 2014, 715 SCRA
182, which is a case involving “[t]he supervisory power or jurisdiction of the [Court of Tax
Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction” over “decisions, orders
or resolutions of the RTCs in local tax cases originally decided or resolved by them in the
exercise of their original or appellate jurisdiction,” the Court ruled that said power “should
coexist with, and be a complement to, its appellate jurisdiction to review, by appeal, the final
orders and decisions of the RTC, in order to have complete supervision over the acts of the
latter:”

A grant of appellate jurisdiction implies that there is included in

it the power necessary to exercise it effectively, to make all orders that will
preserve the subject of the action, and to give effect to the final determination
of the appeal. It carries with it the power to protect that jurisdiction and to
make the decisions of the court thereunder effective. The court, in aid of
its appellate jurisdiction, has authority to control all auxiliary and incidental
matters necessary to the efficient and proper exercise of that jurisdiction. For
this purpose, it may, when necessary, prohibit or restrain the performance
of any act which might interfere with the proper exercise of its rightful
jurisdiction in cases pending before it.

Inherent powers of a court endowed with subject matter jurisdiction or the inherent powers
doctrine.
A court which is endowed with a particular jurisdiction should have powers which
are necessary to enable it to act effectively within such jurisdiction. These should be regarded
as powers which are inherent in its jurisdiction and the court must possess them in order

251
 The Bedan Review

to enforce its rules of practice and to suppress any abuses of its process and to defeat any
attempted thwarting of such process.

Indeed, courts possess certain inherent powers which may be said to be implied
from a general grant of jurisdiction, in addition to those expressly conferred on them. These
inherent powers are such powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or are essential to the existence, dignity and functions of the courts, as well as to
the due administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court’s jurisdiction
and render it effective in behalf of the litigants.

Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that “where a general
power is conferred or duty enjoined, every particular power necessary for the exercise of
the one or the performance of the other is also conferred” (citing Cooley, Constitutional
Limitations, 8th Ed., Vol. I, pp. 138-139).

The “inherent powers doctrine refers to the principle by which the courts deal with
diverse matters over which they are thought to have intrinsic authority like procedural [rule-
making] and general judicial housekeeping. To justify the invocation or exercise of inherent
powers, a court must show that the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers enable the judiciary to accomplish
its constitutionally mandated functions” (Black’s Law Dictionary, 8th Ed., p. 798).

Section 14, RA 6770 encroaches on the rule-making power of the SC.

When Congress passed the first paragraph of Section 14, RA 6770 and, in so doing,
took away from the courts their power to issue a TRO and/or WPI to enjoin an investigation
conducted by the Ombudsman, it encroached upon this Court’s constitutional rule-making
authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary writs
created under the provisions of the Rules of Court, are matters of procedure which belong
exclusively within the province of this Court. Rule 58 of the Rules of Court did not create,
define, and regulate a right but merely prescribed the means of implementing an existing right
since it only provided for temporary reliefs to preserve the applicant’s right in esse which is
threatened to be violated during the course of a pending litigation. In the case of Fabian, it was
stated that:

If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right then
the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the exercise of
its legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of
The National Power Corporation from Payment of Filing/ Docket Fees; (629 Phil. 1[2010]; (b)
Re: Petition for Recognition of the Exemption of the Government Service Insurance System
(GSIS) from Payment of Legal Fees (262 Phil. 93 [2010]; and (c) Baguio Market Vendors
Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes, (627 Phil. 543 [2010].
While these cases involved legislative enactments exempting government owned and controlled

252
 The Bedan Review

corporations and cooperatives from paying filing fees, thus, effectively modifying Rule 141 of
the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that the prerogative to
amend, repeal or even establish new rules of procedure solely belongs to the Court, to the
exclusion of the legislative and executive branches of government. On this score, the Court
described its authority to promulgate rules on pleading, practice, and procedure as exclusive
and “[o]ne of the safeguards of [its] institutional independence.”

When Congress creates lower courts, it defines their jurisdiction; no violation of rule-making
power of SC.
That Congress has been vested with the authority to define, prescribe, and apportion
the jurisdiction of the various courts under Section 2, Article VIII, as well as to create statutory
courts under Section 1, Article VIII, does not result in an abnegation of the Court’s own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article
VIII. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress creates a court
and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the
Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman misconceived, because it does not define,
prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases; the
certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP
129 which were not shown to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly promulgated
rules of procedure, which utility is both integral and inherent to every court’s exercise of
judicial power. Without the Court’s consent to the proscription, as may be manifested by
an adoption of the same as part of the rules of procedure through an administrative circular
issued therefor, there thus, stands to be a violation of the separation of powers principle.

Sec. 14, RA 6770 dilutes court’s ability to carry out functions.

The breach of Congress in prohibiting provisional injunctions, such as in the first
paragraph of Section 14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court’s ability to carry out its functions. This is so since a
particular case can easily be mooted by supervening events if no provisional injunctive relief
is extended while the court is hearing the same. Accordingly, the court’s acquired jurisdiction,
through which it exercises its judicial power, is rendered nugatory. Indeed, the force of judicial
power, especially under the present Constitution, cannot be enervated due to a court’s inability
to regulate what occurs during a proceeding’s course. As earlier intimated, when jurisdiction
over the subject matter is accorded by law and has been acquired by a court, its exercise thereof
should be unclipped. To give true meaning to the judicial power contemplated by the Framers
of our Constitution, the Court’s duly promulgated rules of procedure should therefore remain
unabridged, this, even by statute. Truth be told, the policy against provisional injunctive writs
in whatever variant should only subsist under rules of procedure duly promulgated by the
Court given its sole prerogative over the same.

253
 The Bedan Review

LOCAL GOVERNMENT UNIT

Condonation doctrine abandoned.

“All government is a trust, every branch of government is a trust, and immemorially
acknowledged so to be” (“The Works of Jeremy Bentham, published under the superintendence
of his executor, John Bowring,” Vol. II, Chapter IV, p. 423, London [1843]).

Such statement is founded on the constitutionally embedded rule that a public office
is a public trust.

In Conchita Carpio-Morales v. CA, et al., G.R. No. 217126-27, November 10,

2015, Perlas-Bernabe, J, Mayor Junjun Binay was preventively suspended by the Office of
the Ombudsman for alleged irregularities attending the Makati Parking Building Project. He
filed a Petition for Certiorari with the CA seeking to nullify the suspension order contending
among others that the cases occurred during his second term. Due to his re-election, such
administrative cases against him became moot and academic due to the condonation doctrine
which was the basis of the CA in issuing a TRO citing Garcia, Jr. v. CA, 604 Phil. 677 [2009]
that he can no longer be administratively charged (Citing Aguinaldo v. Santos, G.R. No. 94115,
August 21, 1992, 212 SCRA 768; Salalima v. Guingona, Jr., 326 Phil. 847 [1996]; Mayor
Garcia v. Mojica, 372 Phil. 892 [1999]). The Office of the Ombudsman sought a review of the
condonation doctrine contending that there is no basis in law and the Constitution. It was first
enunciated in Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 466 [1959]). During
his second term, the Acting Provincial Governor filed administrative charges against him before
the Provincial Board for grave abuse of authority and usurpation of judicial functions. In his
defense, he argued that he cannot be made liable during his previous acts charged against him
since they were committed during his previous term of office, and therefore, invalid grounds
for disciplining him during his second term. To cut the story short, the SC, exonerated him,
resorting to American jurisprudence although they were conflicting decisions. In ruling that
Binay’s contention is not correct, the SC

Held: There is no basis in the Constitution and the law to adopt the condonation doctrine.
While the SC ruled in Pascual in favor of Governor Pascual using the condonation doctrine,
that due to his re-election, he cannot be made liable for acts committed in a previous term,
resorting to American jurisprudence, there was however, a basis for US jurisprudence while in
the Philippines, there is none.

There is no truth in Pascual’s postulation that the courts would be depriving the
electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an
individual to hold a public office. In this jurisdiction, there is, again, no legal basis to conclude
that election automatically implies condonation. Neither is there any legal basis to say that every
democratic and republican state has an inherent regime of condonation. If condonation of an
elective official’s administrative liability would perhaps, be allowed in this jurisdiction, then the
same should have been provided by law under our governing legal mechanisms. May it be at
the time of Pascual or at present, by no means has it been shown that such a law, whether in a
constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it
cannot be said that the electorate’s will has been abdicated (Conchita Carpio-Morales v. CA,
et al., G.R. No. 217126-27, November 10, 2015, Perlas-Bernabe, J).

254
 The Bedan Review

Infirmity of the Pascual doctrine; doctrine abandoned.

There are infirmities in the Pascual doctrine. Pascual’s proposition that the electorate,
when reelecting a local official, are assumed to have done so with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty
of any. Suffice it to state that no such presumption exists in any statute or procedural rule.
Besides, it is contrary to human experience that the electorate would have full knowledge of a
public official’s misdeeds. The reality that most corrupt acts by public officers are shrouded in
secrecy, and concealed from the public. Misconduct committed by an elective official is easily
covered up, and is almost always unknown to the electorate when they cast their votes. At a
conceptual level, condonation presupposes that the condoner has actual knowledge of what
is to be condoned. Thus, there could be no condonation of an act that is unknown. In Walsh
v. City Council of Trenton, 117 N.J.L. 64; 186 A. 818 [1936], decided by the New Jersey
Supreme Court it was said:

Many of the cases holding that re-election of a public official

prevents his removal for acts done in a preceding term of office are reasoned
out on the theory of condonation. We cannot subscribe to that theory
because condonation, implying as it does forgiveness, connotes knowledge
and in the absence of knowledge there can be no condonation. One cannot
forgive something of which one has no knowledge (Conchita Carpio-Morales
v. CA, et al., G.R. No. 217126-27, November 10, 2015, Perlas-Bernabe, J).

Prospectivity of abandonment.
The Court’s abandonment of the condonation doctrine should be prospective
in application for the reason that judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal system of the Philippines (See Article 8
of the Civil Code). Unto the Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v.
Judicial Bar Council:

Judicial decisions assume the same authority as a statute itself

and, until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria that must control the actuations, not only of
those called upon to abide by them, but also of those duty-bound to enforce
obedience to them (632 Phil 657 [2010]).
Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a
general rule, recognized as “good law” prior to its abandonment. Consequently, the people’s
reliance thereupon should be respected. The landmark case on this matter is People v. Jabinal,
154 Phil. 565 [1974], wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view

is adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the faith
thereof.

Effect of the 1987 Constitution and laws on the condonation doctrine.

Reading the 1987 Constitution together with the other legal provisions led the Court
to the conclusion that the doctrine of condonation is actually bereft of legal bases.

255
 The Bedan Review

To begin with, the concept of public office is a public trust and the corollary requirement
of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official’s administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support
the notion that an official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this jurisdiction, liability arising
from administrative offenses may be condoned by the President in light of Section 19, Article
VII of the 1987 Constitution which was interpreted in Llamas v. Orbos, 279 Phil. 920, 937
[1991], to apply to administrative offenses (Conchita Carpio-Morales v. CA, et al., G.R. No.
217126-27, November 10, 2015, Perlas-Bernabe, J).

Note: The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same token,
if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary
to provide for the exclusion of impeachment cases from the coverage of Article VII, Section
19 of the Constitution. Following petitioner’s proposed interpretation, cases of impeachment
are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.
In the same vein, there is valid and convincing reason why the President can grant executive
clemency in administrative cases. It is Our considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with
much more reason can she grant executive clemency in administrative cases, which are clearly
less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold
him administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with
the penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to
the penalty of dismissal from service (Conchita Carpio-Morales v. CA, et al., G.R. No. 217126-
27, November 10, 2015, Perlas-Bernabe, J).
Preventive suspension and suspension as penalty distinguished.
In Conchita Morales v. CA, et al., G.R. No. 217126-27, November 10, 2015, Perlas-
Bernabe, J, the SC once again ruled on the distinctions between preventive suspension and
suspension as a penalty and

Held: By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio, 503 Phil. 886 [2005], the Court explained the
distinction, stating that its purpose is to prevent the official to be suspended from using his
position and the powers and prerogatives of his office to influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between

suspension as preventive measure and suspension as penalty. The distinction,
by considering the purpose aspect of the suspensions, is readily cognizable as
they have different ends sought to be achieved.

256
 The Bedan Review

Preventive suspension is merely a preventive measure, a

preliminary step in an administrative investigation. The purpose of the
suspension order is to prevent the accused from using his position and the
powers and prerogatives of his office to influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against
him. If after such investigation, the charge is established and the person
investigated is found guilty of acts warranting his suspension or removal,
then he is suspended, removed or dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly

provided by Section 24 of Rule XIV of the Omnibus Rules Implementing
Book V of the Administrative Code of 1987 (Executive Order No. 292) and
other Pertinent Civil Service Laws.

Section. 24. Preventive suspension is not a punishment or penalty

for misconduct in office but is considered to be a preventive
measure.

Not being a penalty, the period within which one is under preventive
suspension is not considered part of the actual penalty of suspension. So
Section 25 of the same Rule XIV provides:

Section 25. The period within which a public officer or employee

charged is placed under preventive suspension shall not be
considered part of the actual penalty of suspension imposed upon
the employee found guilty.

Requisites for issuance of preventive suspension.

The requisites for issuing a preventive suspension order are explicitly stated in Section
24, RA 6770:

Section 24. Preventive Suspension. – The Ombudsman or his Deputy may

preventively suspend any officer or employee under his authority pending
an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the respondent’s continued
stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay shall not be counted
in computing the period of suspension herein provided (Emphasis and
underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty;
(b) The charge would warrant removal from the service; or
(c) The respondent’s continued stay in office may prejudice the
case filed against him (Ombudsman v. Valeroso, 548 Phil. 688, 695 [2007]).

257
 The Bedan Review

ELECTION

Jurisdiction of COMELEC.
In Querubin, et al. v. COMELEC, et al., G.R. No. 218787, December 8, 2015,
Velasco, J , the COMELEC declared Smartmatic JV eligible to participate in the bidding
process for the COMELEC’s procurement of 23,000 units of optical mark readers. Resorting
to the Supreme Court based on Rule 64, petitioners questioned the decision arguing that
judgment or final order or resolution of the COMELEC may be brought by the aggrieved
party to the Supreme Court on certiorari under Rule 65. It was postulated that such resolution
declaring Smartmatic JV eligible is a judgment within the contemplation of the Rule, hence, a
proper subject of a Rule 64 petition. Ruling that the contention is not correct, the SC

Held: Article IX-A, Section 7 of the 1987 Constitution provides that unless otherwise provided
by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.

Though the provision appears unambiguous and unequivocal, the phrase “decision,
order, or ruling” of constitutional commissions, the COMELEC included, that may be brought
directly to the Supreme Court on certiorari is not all-encompassing, and that it only relates to
those rendered in the commissions’ exercise of adjudicatory or quasi-judicial powers (Garces
v. Court of Appeals, G.R. No. 114795, July 17, 1996, 259 SCRA 99, 107). In the case of
the COMELEC, this would limit the provision’s coverage to the decisions, orders, or rulings
issued pursuant to its authority to be the sole judge of generally all controversies and contests
relating to the elections, returns, and qualifications of elective offices (Bedol v. Comelec, G.R.
No. 179830, December 3, 2009, 606 SCRA 554).

Rights beget responsibilities; progress begets change.

A constitutional challenge against the biometrics validation requirement imposed
under RA 10367, including COMELEC Resolution Nos. 9721, 9863, and 10013 was filed as
non-compliance with the same results in the penalty of deactivation. Petitioners posited that
it has risen to the level of an unconstitutional substantive requirement in the exercise of the
right of suffrage. They submitted that the statutory requirement of biometric validation is no
different from the unconstitutional requirement of literacy and property because mere non-
validation already absolutely curtails the exercise of the right of suffrage through deactivation.
Further, they advanced the argument that deactivation is not the disqualification by law
contemplated as a valid limitation to the exercise of suffrage under the 1987 Constitution.
Rule on the contention. Explain.

Held: The contention is untenable. The right to vote is not a natural right but is a right created
by law. Suffrage is a privilege granted by the State to such persons or classes as are most likely
to exercise it for the public good. In the early stages of the evolution of the representative
system of government, the exercise of the right of suffrage was limited to a small portion of
the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise in
the modern states has come to embrace the mass of the audit classes of persons are excluded
from the franchise” (The People of the Philippine Islands v. Corral, 62 Phil. 945, 948 [1936];
Kabataang Party-List, et al. v. COMELEC, et al., G.R. No. 221318, December 16, 2015,

258
 The Bedan Review

Perlas-Bernabe, J).

Section 1, Article V of the 1987 Constitution delineates the current parameters for the
exercise of suffrage:

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 least six months immediately preceding
the election. No literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.

Requirements before a person may exercise the right of suffrage.

One must meet the following qualifications in order to exercise the right of suffrage:
first, he must be a Filipino citizen; second, he must not be disqualified by law; and third, he
must have resided in the Philippines for at least one (1) year and in the place wherein he
proposes to vote for at least six (6) months immediately preceding the election.

The second item more prominently reflects the franchised nature of the right of
suffrage. The State may therefore regulate said right by imposing statutory disqualifications,
with the restriction, however, that the same do not amount to a “literacy, property or other
substantive requirement.” The limitation is geared towards the elimination of irrelevant
standards that are purely based on socio-economic considerations that have no bearing on the
right of a citizen to intelligently cast his vote and to further the public good (Kabataang Party-
List, et al. v. COMELEC, et al., G.R. No. 221318, December 16, 2015, Perlas-Bernabe, J).

Biometrics validations passes the strict scrutiny test.

Petitioners asserted that biometrics validation gravely violates the Constitution,
considering that, applying the strict scrutiny test, it is not poised with a compelling reason for
state regulation and hence, an unreasonable deprivation of the right to suffrage. They cited
the case of White Light Corp. v. City of Manila, 596 Phil. 444 [2009] (White Light), wherein
the Court stated that the scope of the strict scrutiny test covers the protection of the right of
suffrage. Ruling that the contention is not correct, the SC

Held: The regulation passes the strict scrutiny test.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. The scope of strict scrutiny has
been expanded to protect fundamental rights such as suffrage, judicial access, and interstate
travel.

Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving
that interest, and the burden befalls upon the State to prove the same (Garcia v. Drilon, G.R.

259
 The Bedan Review

No. 179267, June 25, 2013, 699 SCRA 352, 450. See also Separate Concurring Opinion of
Chief Justice Reynato S. Puno in Ang Ladlad LGBT Party v. COMELEC, 632 Phil. 32, 106
(2010)).

The biometrics validation requirement under RA 10367 advances a compelling state

interest. It was precisely designed to facilitate the conduct of orderly, honest, and credible
elections by containing – if not eliminating, the perennial problem of having flying voters, as
well as dead and multiple registrants. The objective of the law was to cleanse the national voter
registry so as to eliminate electoral fraud and ensure that the results of the elections were truly
reflective of the genuine will of the people. The foregoing consideration is unquestionably a
compelling state interest (Kabataang Party-List, et al. v. COMELEC, et al., G.R. No. 221318,
December 16, 2015, Perlas-Bernabe, J).

Note: The regulation is the least restrictive means for achieving the above-said interest.
Section 697 of Resolution No. 9721 sets the procedure for biometrics validation, whereby
the registered voter is only required to: (a) personally appear before the Office of the Election
Officer; (b) present a competent evidence of identity; and (c) have his photo, signature, and
fingerprints recorded. It is, in effect, a manner of updating one’s registration for those already
registered under RA 8189, or a first-time registration for new registrants. The re-registration
process is amply justified by the fact that the government is adopting a novel technology like
biometrics in order to address the bane of electoral fraud that has enduringly plagued the
electoral exercises in this country. While registrants may be inconvenienced by waiting in long
lines or by not being accommodated on certain days due to heavy volume of work, these are
typical burdens of voting that are remedied by bureaucratic improvements to be implemented
by the COMELEC as an administrative institution.

That being said, the assailed regulation on the right to suffrage was sufficiently justified
as it was indeed narrowly tailored to achieve the compelling state interest of establishing a clean,
complete, permanent and updated list of voters, and was demonstrably the least restrictive
means in promoting that interest.

260