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FOUR HUNDRED AND SEVENTY-NINE (479)

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 August 25, 2006)

PART I

A. POLITICAL LAW

That branch of public law which deals with the

organization and operations of the governmental organs of the State and defines the

relations of the State with the inhabitants of its territory.

Scope/Divisions of Political Law:

1) Constitutional Law—the study of the maintenance

of the proper balance between authority as represented by the three inherent powers of the

state and liberty as guaranteed by the Bill of Rights.

2) Administrative Law-- That branch of public law which fixes the organization, determines

the competence of administrative authorities who

executes the law, and indicates to the individual remedies for the violation of his right.

3) Law on Municipal Corporations 4) Law of Public Officers

5) Elections Law

Basis:

1) 1987 Constitution 2) 1973 and 1935

Constitutions 3) Organic laws made to

apply to the

Philippines— a) Philippine Bill

of 1902 b) Jones Law of

1916

c) Tydings-McDuffie Law

of 1934 4) Statutes, executive

orders and decrees, and judicial decisions 5) US Constitution

PHILIPPINE CONSTITUTION Constitution—it is the document, which serves as the

fundamental law of the State; that body of rules and maxims in accordance with which the power of

sovereignty are habitually exercised.

That written instrument enacted by direct action of the

people by which the fundamental powers of the government are established, limited and defined, and by

which those powers are distributed among the several departments for their safe and useful exercise for the

benefit of the body politic.

It is the basic and paramount law to which all other laws

must conform and to which all persons, including the highest officials of the land, must defer. No act shall be

valid, how noble its intention, if it conflicts with the Constitution. The Constitution must ever remain supreme.

All must bow to the mandate of this law. Right or wrong,

the Constitution must be upheld as long as the sovereign people have not changed it.

Classification:

1. Written or unwritten

Written Unwritten

one whose precepts are

embodied in one document or set of

documents -consists of rules which

have not been

integrated into a single,

concrete form but are scattered in various sources

Examples: a. statutes of

fundamentalcharacter; b. judicial decisions;

c. commentaries of publicists;

d. customs and traditions; e. certain common law

principles

2. Enacted (conventional) or Evolved (Cumulative)

3. Rigid Flexible

Rigid Flexible

Constitution Statute

legislation direct from the

people

legislation from the people’s

representative;

states general principles; provides the details of the

subject matter of

which it treats;

intended not merely to

meet existing conditions;

intended primarily to meet

existing conditions only;

it is the fundamental law of

the State

it conforms to the

Constitution

Enacted (conventional) Evolved (Cumulative)

formally struck off at a

definite time and place following a conscious or

deliberate effort taken by a

constituent body or ruler

the result of political

evolution, not inaugurated at any specific time but

changing by accretion

rather than by any systematic method

LEX REVIEWS AND SEMINARS INC; NATIONAL BAR REVIEW CENTER

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one that can be amended

only by a formal and usually difficult process

one that can be changed by

ordinary legislation

- The Philippine Constitution is written, conventional and rigid. It is embodied in one document and can be

amended only by a formal and usually difficult process.

Interpretation:

1) Verba Legis—whenever possible, the words used in the Constitution must be given their ordinary

meaning except where technical terms are employed.

2) When there is Ambiguity—ratio legis et anima--

A doubtful provision shall be examined in the light of the history of the times and the conditions and

circumstances under which the Constitution was framed. (Civil Liberties Union vs. Executive

Secretary, 194 SCRA 317) 3) Ut magis valeat quam pereat—the

Constitution has to be interpreted as a whole.

(Francisco vs. HR, G.R. No. 160261, November 10, 2003) If the plain meaning of

the word is not found to be clear, resort to other aids is available—construe the Constitution from

what “appears upon its face”. The proper

interpretation, therefore, depends more on how it was understood by the people adopting it than in

the framers’ understanding thereof.

In case of doubt, the provision should be considered as self-executing; mandatory rather than directory;

and prospective rather than retroactive.

Self-executing provision—one which is complete in

itself and becomes operative without the aid of supplementary or enabling legislation, or that which

supplies a sufficient rule by means of which the right it

grants may be enjoyed or protected.

Essential Qualities of the Written Constitution: 1) Broad;

2) Brief; and

3) Definite.

Essential parts of a good written Constitution: a) Constitution of Liberty—sets forth the

fundamental civil and political rights of the citizens and imposes limitations on the powers of the

government as a means of securing the

enjoyment of those rights. e.g. Bill of Rights b) Constitution of Government—outlines the

organization of the government, enumerates its powers, lays down certain rules relative to its

administration and defines the electorate. e.g. Legislative, Executive and Judicial Departments, Constitutional Commissions

c) Constitution of Sovereignty—the provisions pointing out the mode or procedure in accordance

with which formal changes in the fundamental law may be brought about. e.g. Art. XVII-

Amendments or Revisions

Effects of Declaration of Unconstitutionality:

2 Views: a) ORTHODOX VIEW—

i. an unconstitutional act is not a law;

ii. it confers no rights; iii. it imposes no duties;

iv. it affords no protection; v. it creates no office;

vi. it is inoperative, as if it had not been

passed at all.

b) MODERN VIEW—Courts simply refuse to recognize the law and determine the rights of the

parties as if the statute had no existence. Certain

legal effects of the statute prior to its declaration of unconstitutionality may be recognized. Thus, a

public officer who implemented an unconstitutional law prior to the declaration of

unconstitutionality cannot be held liable (Ynot vs. IAC).

Partial Unconstitutionality Requisites:

a) The legislature must be willing to retain the valid portion(s), usually shown by the presence of a

separability clause in the law—INTENT OF THE

LEGISLATIVE; and b) The valid portion can stand independently as

law—INDEPENDENCE OF THE PROVISIONS. Distinguish sovereignty from dominion.

Held: Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It

is often referred to as the power of imperium, which is defined as the government authority possessed by the

State. On the other hand, dominion, or dominium, is the

capacity of the State to own or acquire property such as lands and natural resources. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, See Footnote 86) What is the Doctrine of Constitutional Supremacy?

Held: Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the

Constitution, that law or contract, whether promulgated

by the legislative or by the executive branch or entered into by private persons for private purposes, is null and

void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme

law of the nation, it is deemed written in every statute

and contract. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

What are self-executing and non-self executing provisions of the Constitution?

Held: A provision which lays down a general

principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision

which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that

which supplies sufficient rule by means of which the right

it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the

nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they

can be determined by an examination and construction of

its terms, and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

Are provisions of the Constitution self-executing or non-self executing? Why?

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Held: Unless it is expressly provided that a

legislative act is necessary to enforce a constitutional

mandate, the presumption now is that all provisions are self-executing. If the constitutional provisions are treated

as requiring legislation instead of self-executing, the

legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be

cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]) What is the “Filipino First” Policy enshrined in the Constitution?

Ans.: In the grant of rights, privileges, and

concessions covering the national economy and patrimony, the State shall give preference to qualified

Filipinos. (Sec. 10, 2nd par., Art. XII, 1987 Constitution)

Is the “Filipino First” Policy expressed in Section 10, Article XII of the Constitution a self-executing provision?

Held: Yes. It is a mandatory, positive command

which is complete in itself and which needs no further guidelines or implementing laws or rules for its

enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se

judicially enforceable. When our Constitution mandates

that [i]n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that – qualified Filipinos must be preferred. (Manila Prince Hotel v. GSIS, G.R. No. 118295, May 2, 1997, 267 SCRA 408 [Bellosillo])

Give examples of non-self executing provisions of the Constitution.

Held: By its very nature, Article II of the

Constitution is a “declaration of principles and state

policies.” These principles in Article II are not intended to be self-executing principles ready for enforcement through

the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and

by the legislature in its enactment of laws. As held in the

leading case of Kilosbayan, Incorporated v. Morato (246 SCRA 540, 564, July 17, 1995), the principles and state

policies enumerated in Article II and some sections of Article XII are not “self-executing provisions, the disregard

of which can give rise to a cause of action in courts. They do not embody judicially enforceable constitutional rights

but guidelines for legislation.” (Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban])

When are acts of persons considered “State action” covered by the Constitution?

Held: In constitutional jurisprudence, the act of persons distinct from the government are considered

“state action” covered by the Constitution (1) when the activity it engages in is a “public function”; (2) when the

government is so significantly involved with the private

actor as to make the government responsible for his action; and (3) when the government has approved or

authorized the action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

PREAMBLE

WE, THE SOVEREIGN FILIPINO PEOPLE,

IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY

AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS,

PROMOTE THE COMMON GOOD, CONSERVE AND

DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS

OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE,

FREEDOM, LOVE, EQUALITY, AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

The Preamble is not a source of power or right for any department of government. It sets down the origin,

scope, and purpose of the Constitution. It bears witness to the fact that the Constitution is the manifestation of the

sovereign will of the Filipino people.

The identification of the Filipino people as the author of the constitution calls attention to an important principle:

that the document is not just the work of representatives of the people but of the people themselves who put their

mark approval by ratifying it in a plebiscite. 1) It does not confer rights nor impose duties.

2) Indicates authorship of the Constitution;

enumerates the primary aims and aspirations of the framers; and serves as an aid in the

construction of the Constitution.

ARTICLE I

NATIONAL TERRITORY The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarines areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” Two (2) Parts of the National Territory:

1) The Philippine archipelago with all the islands and waters embraced therein; and

2) All other territories over which the Philippines has

sovereignty or jurisdiction.

Do you consider the Spratlys Group of Islands as part of Philippine

Archipelago? _Spratlys Group of Islands is not part of the Philippine Archipelago because it is too far away from

the three main islands of the Philippines. It is found,

geographically, almost in the middle of the South China Sea. It is not part of the Philippine Archipelago.

Historically, when we talk about Philippine Archipelago, we refer to those islands and waters that were ceded by the

Spain to the United States by virtue of Treaty of Paris in

1898. And that did not include the Spratlys Group of Islands yet. Under the treaty, the islands that were ceded

by Spain were identified—the main islands—Luzon, Visayas and Mindanao. Clearly, it did not include the

Spratlys Group of Islands.

Spratlys Group of Islands was only discovered sometime

in the 1950’s by a Filipino, Tomas Cloma. The latter waived his rights over the islands in favor of the Philippine

Government. In effect, the government stepped into the shoes of the discoverer. By then President Marcos, what

he did the moment Tomas Cloma waived his rights over

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the Spratlys Group of Islands, is to have the islands

immediately occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a

regular municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan. And

then he had the elections immediately held in the islands

so from that time on until now, we continue to hold elections there. The Philippine exercises not only

jurisdiction but also sovereignty over the Spratlys Group of Islands, yet it is not part of the Philippine Archipelago.

Geographically, it is too far away from the Philippine Archipelago.

On May 20, 1980, the Philippines registered its claim with the UN Secretariat.

The Philippine claim to the islands is justified by reason of history, indispensable need, and effective occupation and

control. Thus, in accordance with the international law,

the Spratlys Group of islands is subject to the sovereignty of the Philippines.

Do you consider the Spratlys group of Islands as

part of our National Territory? Yes. Article I of the Constitution provides: “The national territory comprises the Philippine archipelago, x x x, and all other territories over which the Philippines has sovereignty or jurisdiction, x x x.” The Spratlys Group of islands falls under the second phrase “and all other territories over which the Philippines

has sovereignty or jurisdiction”. It is part of our national

territory because Philippines exercise sovereignty (through election of public officials) over Spratlys Group of Islands. What was the basis of the Philippines’ claim over

the Spratlys?

Through discovery of Tomas Cloma and occupation

Modes of acquiring territories: 1) Discovery and Occupation—which are terra nullius

(land belonging to no one) Doctrine of Effective Occupation—discovery alone is

not enough. Mere discovery gives only an inchoate right

to the discoverer. For title to finally vest, discovery must be followed by effective occupation in a reasonable

time and attestation of the same. 2) Cession by Treaty. Examples are Treaty of

Paris, treaty between France and US ceding

Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter;

3) Prescription—which is a concept under the Civil Code. Territory may also be acquired through

continuous and uninterrupted possession over a long period of time. However, in international law,

there is no rule of thumb as to the length of time

for acquisition of territory through prescription. In this connection, consider the Grotius Doctrine

of immemorial prescription, which speaks of uninterrupted possession going beyond memory.

4) Conquest or Subjugation (conquistadores)—

this is no longer recognized inasmuch as the UN Charter prohibits resort to threat or use of force

against the territorial integrity or political independence of any state; and

5) Accretion—another concept in the Civil Code. It

is the increase in the land area of the State, either through natural means, or artificially, through

human labor.

Other territories over which the Philippines has sovereignty or jurisdiction:

1. Batanes—(1935 Constitution);

2. Those contemplated under Article I, 1973

Constitution—belonging to the Philippines by historic right or legal title;

PD 1596, June 11, 1978-- constituting the Spratly’s Group of Islands as a regular municipality claiming it the

Municipality of Kalayaan, placing it under the Province of

Palawan.

“xxx The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” This second sentence of Article I is not the Archipelago Doctrine. This is only our restatement/reaffirmation of our

adherence to the Archipelago Doctrine simply because we are an archipelago consisting of 7,107 islands. It is

essential for our national survival that we adhere to the

archipelago principle.

Archipelago Doctrine—merely emphasizes the unity of lands and waters. It is a body of waters interconnected

with other natural features. Under the United Nation Convention on the Law of Sea (UNCLOS), it consists of

drawing imaginary baseline connecting the outermost

islands of the archipelago in which all waters, islands is considered as one integrated whole. An archipelago is

defined as group of islands, interconnecting waters and other natural features which are so closely interrelated

that such islands, waters and natural features form an

intrinsic geographical, economical and political entity, or which historically been regarded as such.

Correlate this doctrine to right of innocent of passage,

right of arrival under stress and UNCLOS requiring the

designation of archipelagic seaways so that foreign vessels may pas through an archipelago.

Components of National Territory: i. Terrestrial—land mass on which the inhabitants live;

ii. Fluvial—maritime;

a. Internal or national waters—bodies of water within the land mass, among them are:

i. Rivers—which may be: 1. National

2. Boundary—divides the territories of States

3. International—flows thru various States a. Thalweg Doctrine—for boundary rivers, in

the absence of an agreement between the riparian states, the boundary line is laid on the

middle of the main navigable channel. b. Middle of the Bridge Doctrine—where there

is a bridge over a boundary river, the boundary

line is the middle or center of the bridge.

ii. Bays and gulfs—a bay is a well-marked indentation whose penetration is in such proportion to

the width of its mouth as to contain a land-locked

waters and constitutes more than a curvature of the coast. Also referred to as juridical bay. The area

must be as large as, or larger than, a semi-circle whose diameter is a line drawn across the mouth of

such indentation, or if the mouth is less than 24 miles

wide. e.g. Hudson Bay in Canada, one whose waters are

considered internal because of the existence of a historic title.

iii. Straits—narrow passageways connecting 2 bodies

of water. If the distance between the 2 opposite coast

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is not more than 6 miles, they are considered internal

waters. In international law, when a strait within a country

has a width of more than six (6) miles, the center lane in excess of the three (3) miles on both sides is

considered international waters.

iv. Canals—the most famous is the Suez Canal,

which is neutralized, and the Panama Canal, which is open to everyone in times of war or peace.

b. Archipelagic waters—are the waters enclosed by

the archipelagic baselines, regardless of their depth or

distance from the coast. Archipelagic State—a state made up wholly of

one or two archipelagos. It may include other islands.

Straight Archipelagic Baseline—to determine the archipelagic waters, the state shall draw

straight baselines connecting the outermost points of the outermost islands and drying reefs,

provided that the ratio of the area of the water to the area of the land, including atolls, is between

1:1 and 9:1. The length of such baselines shall

not exceed 100 nautical miles, except up to 3% of the total number of baselines enclosing any

archipelago may exceed that length, up to a maximum 125 miles. The baselines drawn should

not depart, to any appreciable extent, from the

general configuration of the archipelago. All the waters within the baselines shall then be

considered internal waters. The breadth of the 12-mile territorial sea, the contiguous zone, the

exclusive economic zone and the continental shelf

shall then be measured from the archipelagic baselines.

Vessels may be allowed innocent passage

within the archipelagic waters, but this right may be suspended, after publication, in the interest of

international security. The coastal state may also

designate archipelagic sea lanes for continuous, unobstructed transit of vessels.

c. Territorial Sea—the belt of the sea located between

the coast and the internal waters of the coastal state on the other hand, and the high seas on the other,

extending up to 12 nautical miles from the low-water mark, or in the case of archipelagic states, from the

baselines.

Baseline—is a line from which the breadth of the

territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the

maritime boundary of the coastal state.

Types of baseline:

i. Normal Baseline Method ii. Straight Baseline method

d. Contiguous Zone—extends up to 12 nautical miles

from the territorial sea; this shall not exceed 24 nautical

miles from the archipelagic baselines. The coastal state may exercise limited jurisdiction

over the contiguous zone: 1. To prevent infringement of customs, fiscal

immigration or sanitary laws and regulations within its territory or territorial sea; and

2. To punish infringement of the above laws and

regulations committed within its territory.

e. Exclusive Economic Zone—shall not extend beyond 200 nautical miles from the archipelagic baselines.

f. Continental shelf—it is the seabed and subsoil of the submarine areas extending beyond the Philippine

territorial sea throughout the natural prolongation of the land territory. It extends up to:

i. The outer edge of the continental margin; or ii. A distance of 200 nautical miles from the

archipelagic baselines, whichever is the farthest.

The continental shelf does not form part of the Philippine

territory. The Philippines has the sovereign rights over the continental

shelf for the purpose of exploring it and exploiting its

natural resources.

g. High Seas—treated as res communes, thus, not territory of any particular State. These are the waters

which do not constitute the internal waters, archipelagic waters, territorial sea and exclusive economic zones of a

state. They are beyond the jurisdiction and sovereign

rights of States.

Freedom of navigation—refers to the right to sail ship on the high sea, subject to international law and the laws

of the flag of the state.

iii. Aerial—this refers to the air space above the land

and waters of the State (See Discussions under International Law)

ARTICLE II DECLARATION OF PRINCIPLES AND

STATE POLICIES Sec. 1, Article II

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Relate this to Article XI) Essential features: Representation and Renovation. Manifestations:

1) Ours is a government of law and not of men (Villavicencio vs. Lukban, 39 Phil 778)

2) Rule of the majority. (Plurality in elections) 3) Accountability of public officials 4) Bill of rights 5) Legislature cannot pass irrepealable laws. 6) Separation of powers.

Republicanism What is a republican form of government? It is a government of the people, by the people, and for the people, a representative government wherein the powers and duties of government are exercised and discharged for the common good and welfare.thus, the supreme power resides on the body of people. Characteristics of a republican form of government:

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1) The people do not govern themselves directly but through their representatives;

2) It is founded upon popular suffrage; 3) There is the tripartite system of the

government, the mutual interdependence of the three departments of the government.

STATE—a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience. (CIR vs. Campos Rueda, 42 SCRA 23) State vs. Nation State is a legal or juristic concept while a Nation is an ethnic or racial concept State vs. Government State possesses a government to which a great body of inhabitants render habitual obedience while a Government is merely an instrumentality of the State through which the will of the State is implemented and realized. Elements of State:

1) People—the inhabitants of the State; the # of which is capable for self-sufficiency and self-defense; of both sexes for perpetuity.

a. Inhabitants; b. Citizens; c. Electors.

2) Territory—a fixed portion of the surface of the earth inhabited by the people of the State.

3) Government—the agency or instrumentality through which the will of the State is formulated, expressed and realized.

De Jure vs. De Facto De Jure has a rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof while a De Facto Actually exercises the power or control but without legal title.

a) De facto proper—government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;

b) Government of Paramount Forces—established and maintained by the military forces who invade and occupy a territory of the enemy in the course of war;

c) Independent Government—established by the inhabitants of the country who rise in insurrection against the parent State.

Presidential vs. Parliamentary

1) In Presidential, there is separation of legislative and executive powers. The first is lodged in the President and the second is vested in Congress while in Parliamentary there is fusion of both executive and legislative powers in Parliament, although

the actual exercise of the executive powers is vested in a Prime Minister who is chosen by, and accountable to, Parliament.

2) In Presidential it embodies interdependence by separation and coordination while in Parliamentary, It embodies interdependence by integration.

Doctrine of Parens Patriae—the government as guardian of the rights of the people may initiate legal actions for and in behalf of particular individual. (Government of the Philippine Islands vs. Monte de Piedad, 35 SCRA 738; Cabañas vs. Pilapil, 58 SCRA 94)

4) Sovereignty—It is the right to exercise the functions of a State to the exclusion of any other State.

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. In its Declaration of Principles and State Policies, the Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. “Government of Laws and Not of Men.”—sovereignty of the people also includes the concept that government officials have only the authority given them by law and defined by law, and such authority continues only with the consent of the people. Kinds of Sovereignty:

a) Legal—the power to issue final commands; b) Political—the sum total of all the influences

which lie behind the law; c) Internal—the supreme power over everything

within its territory; d) External—also known as independence—

freedom from external control. Characteristics:

i. Permanence ii. Exclusiveness iii. Comprehensiveness iv. Absoluteness v. Indivisibility vi. Inalienability vii. Imprescriptibility

Sovereignty, often referred to as Imperium—is the State’s authority to govern; it includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion.

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It is the government authority possessed by the State expressed in the concept of sovereignty. Dominium—is the capacity of the State to own or acquire property such as lands and natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972; Separate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No. 135385, December 2000) Effect of Belligerent Occupation—there is no change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant. Principle of Jus Postliminium—at the end of the occupation, when the occupant is ousted from the territory, the political laws which have been suspended shall automatically become effective again. (Peralta vs. Director of Prisons, No. L049, November 12, 1945) Effect of Change of Sovereignty—political laws of the former sovereign are abrogated unless they are expressly reenacted by the affirmative act of the new sovereign. Municipal laws remain in force. (Macariola vs. Asuncion, Adm. Case No. 133-J, May31, 1982) Effect of Revolutionary Government—it is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same way it repudiated the Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers did not exceed the authority granted them by the revolutionary government. The directives or orders should not have also violated the Covenant or the Declaration. (Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003) Jurisdiction—is the manifestation of sovereignty.

a) Territorial—power of the State over persons and things within its territory subject to its control and protection.

b) Personal—power of the State over its nationals, which may be exercised by the state even if the individual is outside the territory of the State.

c) Extraterritorial—power of the State over persons, things or acts beyond its territorial limits by reason of their effects to its territory.

The Doctrine of State Immunity from Suit

Discuss the basis of the doctrine of State immunity from suit.

Held: The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its

consent,” reflects nothing less than a recognition of the

sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it

from the jurisdiction of courts. It is based on the very essence of sovereignty. As has been aptly observed by

Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but

on the logical and practical ground that there can be no

legal right as against the authority that makes the law on which the right depends. True, the doctrine, not too

infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to

defeat any legitimate claim against it by simply invoking

its non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the

doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the

performance of its multifarious functions would be far greater in severity than the inconvenience that may be

caused private parties, if such fundamental principle is to

be abandoned and the availability of judicial remedy is not to be accordingly restricted. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

Is the rule absolute, i.e., that the State may not be sued at all? How may consent of the State to be sued given?

Held: The rule, in any case, is not really absolute

for it does not say that the state may not be sued under any circumstances. On the contrary x x x the doctrine

only conveys, “the state may not be sued without its consent;” its clear import then is that the State may at

times be sued. The State's consent may be given either expressly or impliedly. Express consent may be made

through a general law (i.e., Commonwealth Act No. 327, as amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State thereby) or a special law. In this

jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the

Philippine government “consents and submits to be sued upon any money claim involving liability arising from

contract, express or implied, which could serve as a basis

of civil action between the private parties.” Implied consent, on the other hand, is conceded when the State

itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. In this

situation, the government is deemed to have descended

to the level of the other contracting party and to have divested itself of its sovereign immunity. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]) The rule that when the State enters into a contract with a private individual or entity, it is deemed to have descended to the level of that private individual or entity and, therefore, is deemed to have tacitly given its consent to be sued, is that without any qualification? What is the Restrictive Doctrine of State Immunity from Suit?

8

Held: This rule x x x is not x x x without qualification. Not all contracts entered into by the

government operate as a waiver of its non-suability; distinction must still be made between one which is

executed in the exercise of its sovereign function and

another which is done in its proprietary capacity.

In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the

improvements on the wharves in the naval installation at Subic Bay, we held:

“The traditional rule of immunity exempts a State from being sued in the courts of another

State without its consent or waiver. This rule is a necessary consequence of the principle of

independence and equality of States. However,

the rules of International Law are not petrified; they are constantly developing and evolving. And

because the activities of states have multiplied, it has been necessary to distinguish them - between

sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now

extends only to acts jure imperii. The restrictive application of State immunity is now the rule in

the United States, the United Kingdom and other states in Western Europe.

X x x

The restrictive application of State immunity is proper only when the proceedings

arise out of commercial transactions of the foreign

sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to

have descended to the level of an individual and can thus be deemed to have tacitly given its

consent to be sued only when it enters into business contracts. It does not apply where the

contracts relate to the exercise of its sovereign

functions. In this case the projects are an integral part of the naval base which is devoted to the

defense of both the United States and the Philippines, indisputably a function of the

government of the highest order; they are not

utilized for nor dedicated to commercial or business purposes.”

(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

When is a suit against a public official deemed to be a suit against the State? Discuss.

Held: 1. The doctrine of state immunity from suit

applies to complaints filed against public officials for acts done in the performance of their duties. The rule is that

the suit must be regarded as one against the State where

the satisfaction of the judgment against the public official concerned will require the State itself to perform a

positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.

The rule does not apply where the public official is charged in his official capacity for acts that are unlawful

and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability

arising from acts committed in bad faith.

Neither does it apply where the public official is

clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may

have been committed while he occupied a public position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd Div. [Quisumbing])

2. As early as 1954, this Court has pronounced

that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when

his acts are wholly without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine still found application, this Court saying that

immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not

claimed by any other official of the Republic. (Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.])

State instances when a suit against the State is proper.

Held: Some instances when a suit against the State is proper are:

1) When the Republic is sued by name; 2) When the suit is against an unincorporated

government agency; 3) When the suit is on its face against a

government officer but the case is such that

ultimate liability will belong not to the officer but to the government.

Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.])

Hundreds of landless peasants, farmers and farmworkers marched in Mendiola on their way to Malacanang protesting against the implementation of the Comprehensive Agrarian Reform Program of the government. As the demonstration became unruly, police and military personnel assigned in the area violently dispersed the rallyists causing deaths and injuries to several demonstrators, in what is now referred to as the infamous “Mendiola Massacre.” The next day, an indignation rally was held where no less than the President herself joined. In that rally, she promised to look into the plight of the victims and their heirs and she created a Task Force to investigate the cause of the Mendiola massacre. After investigation, the Task Force found that although initially, the police and military personnel assigned in the area performed their functions in accordance with law but when later they fired their guns directlty at the demonstrators, they exceeded their authority. Consequently, the Task Force recommended that the individual police and military officers involved be prosecuted criminally and for the government to indemnify the victims and/or their heirs. For the government’s failure to indemnify the victims and their heirs, the latter brought an action for damages against the government. The Solicitor General filed a motion to dismiss invoking State immunity from suit. The plaintiffs opposed the motion contending that the government has waived its immunity from suit based on the acts and pronouncements of the President, as well as the recommendation of the Task Force to indemnify the victims and/or their heirs. Has the government waived its immunity from suit in the Mendiola massacre, and, therefore, should

9

indemnify the heirs and victims of the Mendiola incident? Consequently, is the suit filed against the Republic by petitioners in said case really a suit against the State?

Held: Petitioners x x x advance the argument

that the State has impliedly waived its sovereign immunity from suit. It is their considered view that by the

recommendation made by the Commission for the government to indemnify the heirs and victims of the

Mendiola incident and by the public addresses made by then President Aquino in the aftermath of the killings, the

State has consented to be sued.

X x x This is not a suit against the State with its

consent.

Firstly, the recommendation made by the

Commission regarding indemnification of the heirs of the deceased and the victims of the incident by the

government does not in any way mean that liability automatically attaches to the State. It is important to

note that A.O. 11 expressly states that the purpose of creating the Commission was to have a body that will

conduct an “investigation of the disorder, deaths and

casualties that took place.” In the exercise of its functions, A.O. 11 provides guidelines, and what is

relevant to Our discussion reads:

“1. Its conclusions regarding the existence of

probable cause for the commission of any offense and of the persons probably guilty of the same shall be

sufficient compliance with the rules on preliminary investigation and the charges arising therefrom may

be filed directly with the proper court.”

In effect, whatever may be the findings of the

Commission, the same shall only serve as the cause of action in the event that any party decides to litigate

his/her claim. Therefore, the Commission is merely a preliminary venue. The Commission is not the end in

itself. Whatever recommendation it makes cannot in any

way bind the State immediately, such recommendation not having become final and executory. This is precisely

the essence of it being a fact-finding body.

Secondly, whatever acts or utterances that then

President Aquino may have done or said, the same are not tantamount to the State having waived its immunity

from suit. The President’s act of joining the marchers, days after the incident, does not mean that there was an

admission by the State of any liability. In fact to borrow the words of petitioner x x x, “it was an act of solidarity by

the government with the people.” Moreover, petitioners

rely on President Aquino’s speech promising that the government would address the grievances of the rallyists.

By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it

has consented to the suit.

Although consent to be sued may be given

impliedly, still it cannot be maintained that such consent was given considering the circumstances obtaining in the

instant case.

Thirdly, the case does not qualify as a suit against

the State.

X x x

While the Republic in this case is sued by name,

the ultimate liability does not pertain to the government. Although the military officers and personnel, then party

defendants, were discharging their official functions when the incident occurred, their functions ceased to be official

the moment they exceeded their authority. Based on the

Commission findings, there was lack of justification by the government forces in the use of firearms. Moreover, the

members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 as there

was unnecessary firing by them in dispersing the marchers.

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a

public agent acting under the color of his office when his acts are wholly without authority. Until recently in 1991

(Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this

doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility

and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The military

and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the

safety of the very people that they are duty-bound to

protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the

latter.

While it is true that nothing is better settled than

the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it

has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by

the heirs and victims to demand indemnification from the

government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded

by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any

obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. This Court has made it quite clear that even a “high position in

the government does not confer a license to persecute or recklessly injure another.”

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed

the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the

ruling of this Court in Shauf v. Court of Appeals (191 SCRA 713 [1990]), herein public officials, having been

found to have acted beyond the scope of their authority,

may be held liable for damages. (Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.]) May the Government validly invoke the doctrine of State immunity from suit if its invocation will serve as an instrument for perpetrating an injustice on a citizen?

Held: To our mind, it would be the apex of

injustice and highly inequitable for us to defeat petitioners-contractors’ right to be duly compensated for

actual work performed and services rendered, where both the government and the public have, for years, received

and accepted benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil and

labor.

10

Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the

constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application in the

case before us.

Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and

conveniently hide under the State’s cloak of invincibility against suit, considering that this principle yields to certain settled exceptions. True enough, the rule, in any

case, is not absolute for it does not say that the state may not be sued under any circumstances.

Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from

suit, reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be fidelity to

legal norms on the part of officialdom if the rule of law were to be maintained. (Citations omitted) Although the Amigable and Ministerio cases

generously tackled the issue of the State’s immunity from

suit vis a vis the payment of just compensation for expropriated property, this Court nonetheless finds the

doctrine enunciated in the aforementioned cases applicable to the instant controversy, considering that the

ends of justice would be subverted if we were to uphold,

in this particular instance, the State’s immunity from suit.

To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an

injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity

sternly demand that the State’s cloak of invincibility

against suit be shred in this particular instance, and that petitioners-contractors be duly compensated – on the

basis of quantum meruit – for construction done on the public works housing project. (EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena])

Citizenship

1. What citizenship principle do the Philippines adhere to? Explain, and give illustrative case.

Held: The Philippine law on citizenship adheres

to the principle of jus sanguinis. Thereunder, a child

follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the

doctrine of jus soli which determines nationality or

citizenship on the basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])

2. Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. Is she a Filipino citizen and, therefore, qualified to run for Governor of her province?

Held: Private respondent Rosalind Ybasco Lopez

was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a

Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. Historically, this was a

year before the 1935 Constitution took into effect and at

that time, what served as the Constitution of the Philippines were the principal organic acts by which the

United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy

Act of August 29, 1916, also known as the Jones Law.

Among others, these laws defined who were

deemed to be citizens of the Philippine Islands. x x x

Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899

and resided therein including their children are deemed to

be Philippine citizens. Private respondent’s father, Telesforo Ybasco, was born on January 5, 1879 in Daet,

Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the

Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen. By virtue

of the same laws, which were the laws in force at the time

of her birth, Telesforo’s daughter, herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of

the Philippines.

The signing into law of the 1935 Philippine

Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship x x x.

So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was

subsequently retained under the 1973 and 1987

Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been

born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine

citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim Australian

citizenship resulting to her possession of dual citizenship.

(Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima]) 3. Does a legitimate child born under the 1935

Constitution of a Filipino mother and an alien father who elected Philippine citizenship fourteen (14) years after attaining the age of majority become a Filipino?

Held: Under Article IV, Section 1(3) of the 1935

Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship

of the father, unless, upon reaching the age of majority,

the child elected Philippine citizenship. C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of

the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of

Philippine citizenship. However, the 1935 Constitution

and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship should be

made. The 1935 Charter only provides that the election should be made “upon reaching the age of majority.” The

age of majority then commenced upon reaching twenty-

one (21) years. In the opinions of the Secretary of Justice on cases involving the validity of election of Philippine

citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity

of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn,

based on the pronouncements of the Department of State

11

of the United States Government to the effect that the

election should be made within a “reasonable time” after attaining the age of majority. The phrase “reasonable

time” has been interpreted to mean that the election should be made within three (3) years from reaching the

age of majority.

The span of fourteen (14) years that lapsed from

the time that person reached the age of majority until he finally expressed his intention to elect Philippine

citizenship is clearly way beyond the contemplation of the requirement of electing “upon reaching the age of

majority.”

Philippine citizenship can never be treated like a

commodity that can be claimed when needed and suppressed when convenient. One who is privileged to

elect Philippine citizenship has only an inchoate right to

such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. (Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914, Oct. 1, 1999, En Banc [Kapunan])

4. Is FPJ a natural-born Filipino citizen and, therefore, qualified to run for President?

Held: The term “natural-born citizens,” is defined

to include “those who are citizens of the Philippines from

birth without having to perform any act to acquire or

perfect their Philippine citizenship.” (Section 2, Article IV, 1987 Constitution)

The date, month and year of birth of FPJ

appeared to be 20 August 1939 during the regime of the

1935 Constitution. Through its history, four modes of acquiring citizenship – naturalization, jus soli, res judicata and jus sanguinis – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a

“natural-born” citizen of the Philippines. Jus soli, per Roa v. Collector of Customs (23 Phil. 315 [1912]), did not last

long. With the adoption of the 1935 Constitution and the

reversal of Roa in Tan Chong v. Secretary of Labor (Supra, which held that jus soli was never applied in the

Philippines), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct

ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe.

While the records of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however,

identified him to be a Filipino, a resident of San Carlos,

Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father

of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espanol father, Lorenzo Pou, and a mestiza

Espanol mother, Marta Reyes. Introduced by petitioner

was an “uncertified” copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05

July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on

16 September 1940. In the same certificate, Allan F. Poe

was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years

old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20

August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelley, an American citizen, twenty-

one years old and married.

Considering the reservations made by the parties on the veracity of some of entries on the birth certificate

of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some

degree of certainty from the documents would be that –

1. The parents of FPJ were Allan F. Poe and

Bessie Kelley; 2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe;

and 5. At the time of his death on 11 September

1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient

to establish the fact that FPJ is a natural-born citizen? The marriage certificate of Allan F. Poe and Bessie Kelley,

the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the

custody of a public officer. The documents have been submitted in evidence by both contending parties during

the proceedings before the COMELEC.

X x x

Being public documents, the death certificate of

Lorenzo Pou, the marriage certificate of Allan F. Poe and

Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130,

of the Rules of Court provides:

“Entries in official records. Entries in

official records made in the performance of his duty by a public officer of the Philippines, or by a

person in the performance of a duty specially enjoined by law, are prima facie evidence of the

facts therein stated.”

X x x

The death certificate of Lorenzo Pou would

indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be

assumed that Lorenzo Pou was born sometime in the year

1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the

Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such

fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo

Pou was at any other place during the same period. In

his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of

any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of

residence of a person at the time of his death was also his

residence before death. It would be extremely doubtful if the Records Management and Archives Office would have

had complete records of all residents of the Philippines from 1898 to 1902.

X x x

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child

to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child,

FPJ evidently being an illegitimate son according the

12

petitioner, the mandatory rules under civil law must be

used.

X x x

It should be apparent that the growing trend to

liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the

traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the

greater interest and welfare of the child. The provisions are intended merely to govern the private and personal

affairs of the family. There is little, if any, to indicate that

the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his

relationship to the State. While, indeed, provisions on “citizenship” could be found in the Civil Code, such

provisions must be taken in the context of private

relations, the domain of civil law x x x.

The relevance of “citizenship” or “nationality” to Civil Law is best exemplified in Article 15 of the Civil Code

x x x that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship.

Similarly, citizenship is significant in civil relationships

found in different parts of the Civil Code x x x. In adoption, for instance, an adopted child would be

considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal

fiction extended only to define his rights under civil law

(See Ching Leng v. Galang, L-11931, October 1958, unreported) and not his political status.

Civil law provisions point to an obvious bias

against illegitimacy. This discriminatory attitude may be

traced to the Spanish family and property laws, which, while defining proprietary and successional rights of

members of the family, provided distinctions in the rights of legitimate and illegitimate children. X x x

These distinctions between legitimacy and

illegitimacy were codified in the Spanish Civil Code, and

the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil

Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly

impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of

determining his citizenship status should be deemed independent from and not inextricably tied up with that

prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although

good law, do not have preclusive effects on matters alien

to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the

matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code

provisions.

X x x

Thus, the duly notarized declaration made by

Ruby Kelley Mangahas, sister of Bessie Kelley Poe

submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his

own paternal relationship with FPJ, i.e., living together with Bessie Kelley and his children (including respondent

FPJ) in one house, and as one family x x x.

X x x

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his

citizenship to respondent FPJ, the latter being an illegitimate child. X x x But the documentary evidence

introduced by no less than respondent himself, consisting

of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20

August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16

September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an

illegitimate child, FPJ so followed the citizenship of his

mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano v. Vivo (20 SCRA 562, Paa v. Chan, 21 SCRA 753), citing Chiongbian v. de Leon (82 Phil. 771) and Serra v. Republic (91 Phil. 914, unreported).

On the above score, the disquisition made by

amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states –

“We must analyze these cases and ask

what the lis mota was in each of them. If the

pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a

decision constituting doctrine under the rule of stare decisis. But if the pronouncement was

irrelevant to the lis mota, the pronouncement

would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore

invite the Court to look closely into these cases.

“First, Morano v. Vivo. The case was not

about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who

was the child of a Chinese mother and a Chinese father. The issue was whether the stepson

followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson

did not have the blood of the naturalized father.

“Second, Chiongbian v. de Leon. This

case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a

father who had become Filipino by election to

public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935

Constitution. No one was illegitimate here.

“Third, Serra v. Republic. The case was not about the illegitimate son of a Filipino father.

Serra was an illegitimate child of a Chinese father

and a Filipino mother. The issue was whether one who was already a Filipino because of his

mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis.

“Finally, Paa v. Chan (21 SCRA 753). This is a more complicated case. The case was about

the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his

father, Leoncio, was the illegitimate son of a

Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from

Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in

fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino.

If Leoncio was not Filipino, neither was his son

13

Quintin. Quintin therefore was not only not a

natural-born Filipino but was not even a Filipino.

“The Court should have stopped there. But instead it followed with an obiter dictum. The

Court said obiter that even if Leoncio, Quintin’s

father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement

about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the

case. X x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano v. Vivo.

X x x

“Aside from the fact that such a

pronouncement would have no textual foundation

in the Constitution, it would also violate the equal protection clause of the Constitution not once but

twice. First, it would make an illegitimate distinction between a legitimate child and an

illegitimate child, and second, it would make an illegitimate distinction between the illegitimate

child of a Filipino father and the illegitimate child

of a Filipino mother.

“The doctrine on constitutionally allowable distinctions was established long ago by People v.

Cayat (68 Phil. 12). I would grant that the

distinction between legitimate children and illegitimate children rests on real differences. X x

x But real differences alone do not justify invidious distinction. Real differences may justify

distinction for one purpose but not for another

purpose.

“x x x What is the relevance of legitimacy or illegitimacy to elective public service? What

possible state interest can there be for disqualifying an illegitimate child from becoming a

public officer. It was not the fault of the child

that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no

fault of his own? To disqualify an illegitimate child from holding an important public office is to

punish him for the indiscretion of his parents.

There is neither justice nor rationality in that. And if there is neither justice nor rationality in the

distinction, then the distinction transgresses the equal protection clause and must be reprobated.”

The other amici curiae, Mr. Justice Mendoza (a

former member of this Court), Professor Ruben Balane

and Dean Merlin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately

hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child

as taking after the citizenship of its mother, it did so for the benefit of the child. It was to ensure a Filipino

nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody,

would exercise parental authority and had the duty to

support her illegitimate child. It was to help the child, not to prejudice or discriminate against him.

The fact of the matter – perhaps the most

significant consideration – is that the 1935 Constitution, the fundamental law prevailing on the day, month and

year of birth of respondent FPJ, can never be more

explicit than it is. Providing neither conditions nor

distinctions, the Constitution states that among the citizens of the Philippines are “those whose fathers are

citizens of the Philippines.” There utterly is no cogent justification to prescribe conditions or distinctions where

there clearly are none provided. (Maria Jeanette Tecson, et al. v. COMELEC, G.R. No. 161434, March 3, 2004, En Banc [Vitug]) 5. How may Philippine citizenship be renounced? Is the

application for an alien certificate of registration, and the possession of foreign passport, tantamount to acts of renunciation of Philippine citizenship?

Held: In order that citizenship may be lost by

renunciation, such renunciation must be express. Petitioner’s contention that the application of private

respondent for an alien certificate of registration, and her

Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar v. COMELEC (185 SCRA 703 [1990]) and in the more recent case of Mercado v. Manzano and COMELEC (G.R. No. 135083, 307 SCRA 630, May 26, 1999).

In the case of Aznar, the Court ruled that the

mere fact that he is an American did not mean that he is no longer a Filipino, and that an application for an alien

certificate of registration was not tantamount to renunciation of his Philippine citizenship.

And, in Mercado v. Manzano and COMELEC, it was held that the fact that respondent Manzano was

registered as an American citizen in the Bureau of Immigration and Deportation and was holding an

American passport on April 22, 1997, only a year before

he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the

termination of his American citizenship.

Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian

passport and had an alien certificate of registration are

not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino

citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. As held by

this Court in the aforecited case of Aznar, an application

for an alien certificate of registration does not amount to an express renunciation or repudiation of one’s

citizenship. The application of the herein private respondent for an alien certificate of registration, and her

holding of an Australian passport, as in the case of Mercado v. Manzano, were mere acts of assertion of her

Australian citizenship before she effectively renounced the

same. Thus, at the most, private respondent had dual citizenship – she was an Australian and a Filipino, as well.

Moreover, under Commonwealth Act 63, the fact

that a child of Filipino parent/s was born in another

country has not been included as a ground for losing one’s Philippine citizenship. Since private respondent did not

lose or renounce her Philippine citizenship, petitioner’s claim that respondent must go through the process of

repatriation does not hold water. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])

6. What are the ways of acquiring citizenship? Discuss.

Held: There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These

ways of acquiring citizenship correspond to the two kinds

14

of citizens: the natural-born citizen, and the naturalized

citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.

As defined in the x x x Constitution, natural-born

citizens “are those citizens of the Philippines from birth

without having to perform any act to acquire or perfect his Philippine citizenship.”

On the other hand, naturalized citizens are those

who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise

known as the Revised Naturalization Law, which repealed

the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]) 7. To be naturalized, what must an applicant prove?

When and what are the conditions before the decision granting Philippine citizenship becomes executory?

Held: To be naturalized, an applicant has to

prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino

citizen. The decision granting Philippine citizenship

becomes executory only after two (2) years from its promulgation when the court is satisfied that during the

intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or

profession; (3) has not been convicted of any offense or

violation of government promulgated rules; or (4) committed any act prejudicial to the interest of the nation

or contrary to any government announced policies (Section 1, R.A. 530). (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]) 8. What qualifications must be possessed by an applicant

for naturalization?

Held: Section 2, Act 473 provides the following qualifications:

(a) He must be not less than 21 years of age on the day of the hearing of the petition;

(b) He must have resided in the Philippines for a continuous period of not less than ten years;

(c) He must be of good moral character and

believes in the principles underlying the Philippine Constitution, and must have

conducted himself in a proper and irreproachable manner during the entire

period of his residence in the Philippines in his relation with the constituted government

as well as with the community in which he is

living; (d) He must own real estate in the Philippines

worth not less than five thousand pesos, Philippine currency, or must have some

known lucrative trade, profession, or lawful

occupation; (e) He must be able to speak and write English

or Spanish and any of the principal languages; and

(f) He must have enrolled his minor children of

school age, in any of the public schools or private schools recognized by the Bureau of

Private Schools of the Philippines where Philippine history, government and civic are

taught or prescribed as part of the school curriculum, during the entire period of the

residence in the Philippines required of him

prior to the hearing of his petition for

naturalization as Philippine citizen. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

9. What are the disqualifications under Section 4, Act 473, in an application for naturalization?

Held: Section 4, Act 473, provides the following

disqualifications:

(a) He must not be opposed to organized

government or affiliated with any association

or group of persons who uphold and teach doctrines opposing all organized

governments; (b) He must not be defending or teaching the

necessity or propriety of violence, personal

assault, or assassination for the success and predominance of their ideas;

(c) He must not be a polygamist or believer in the practice of polygamy;

(d) He must not have been convicted of any crime involving moral turpitude;

(e) He must not be suffering from mental

alienation or incurable contagious diseases; (f) He must have, during the period of his

residence in the Philippines (or not less than six months before filing his application),

mingled socially with the Filipinos, or who

have not evinced a sincere desire to learn and embrace the customs, traditions and

ideals of the Filipinos; (g) He must not be a citizen or subject of a

nation with whom the Philippines is at war,

during the period of such war; (h) He must not be a citizen or subject of a

foreign country whose laws do not grant Filipinos the right to become naturalized

citizens or subjects thereof. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]) 10. Distinguish naturalization from repatriation, and

discuss the applicable laws in each.

Held: Naturalization is a mode for both

acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship,

naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode

for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63 (An Act Providing for the Ways in Which Philippine Citizenship May Be Lost or Reacquired [1936]). Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess

certain qualifications and none of the disqualifications mentioned in Section 4 of C.A. 473.

Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship

due to: (1) desertion of the armed forces (Section 4, C.A. No. 63); (2) service in the armed forces of the allied

forces in World War II (Section 1, Republic Act No. 965 [1953]); (3) service in the Armed Forces of the United States at any other time (Sec. 1, Republic Act No. 2630 [1960]); (4) marriage of a Filipino woman to an alien (Sec. 1, Republic Act No. 8171 [1995]); and (5) political

and economic necessity (Ibid).

15

As distinguished from the lengthy process of

naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines

and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided.

X x x

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized

Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand,

if he was originally a natural-born citizen before he lost his

Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

11. How may Filipino citizens who lost their citizenship reacquire the same?

Answer: Filipino citizens who have lost their

citizenship may x x x reacquire the same in the manner provided by law. Commonwealth Act No. 63 enumerates

the three modes by which Philippine citizenship may be

reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. (Frivaldo v. COMELEC, 257 SCRA 727, June 28, 1996, En Banc [Panganiban]; Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

12. Who may validly avail of repatriation under R.A. No. 8171?

Held: R.A. No. 8171, which has lapsed into law on October 23, 1995, is an act providing for the

repatriation (a) of Filipino women who have lost their Philippine citizenship by marriage to aliens and (b) of

natural-born Filipinos who have lost their Philippine citizenship on account of political or economic necessity.

(Gerardo Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug])

13. Before what agency should application for repatriation under R.A 8171 be filed?

Held: Under Section 1 of P.D. No. 725, dated June 5, 1975, amending C.A. No. 63, an application for

repatriation could be filed with the Special Committee on Naturalization chaired by the Solicitor General with the

Undersecretary of Foreign Affairs and the Director of the National Intelligence Coordinating Agency as the other

members. Although the agency was deactivated by virtue

of President Corazon C. Aquino’s Memorandum of March 27, 1987, it was not, however, abrogated. The

Committee was reactivated on June 8, 1995. Hence, the application should be filed with said Agency, not with the

Regional Trial Court. (Gerardo Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug]) 14. May a natural-born Filipino who became an American

citizen still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship and, therefore, qualified to run for Congressman?

Held: Repatriation results in the recovery of the

original nationality. This means that a naturalized Filipino

who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he

was originally a natural-born citizen before he lost his

Philippine citizenship, he will be restored to his former

status as a natural-born Filipino.

In respondent Cruz’s case, he lost his Filipino citizenship when he rendered service in the Armed Forces

of the United States. However, he subsequently

reacquired Philippine citizenship under R.A. No. 2630 x x x.

Having thus taken the required oath of allegiance

to the Republic and having registered the same in the Civil Registry of Mangatarem, Pangasinan in accordance with

the aforecited provision, respondent Cruz is deemed to

have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a

Filipino father. It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship.

Petitioner’s contention that respondent Cruz is no

longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. [T]he term

“natural-born citizen” was first defined in Article III, Section 4 of the 1973 Constitution as follows:

Section 4. A natural-born citizen is one who is a citizen of the Philippines from birth

without having to perform any act to acquire or perfect his Philippine citizenship.

Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen

from birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not

considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973 (the date of effectivity of the 1973 Constitution), of Filipino mothers who, upon reaching the age of majority, elected Philippine

citizenship. Those “naturalized citizens” were not

considered natural-born obviously because they were not Filipinos at birth and had to perform an act to acquire

Philippine citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution were

likewise not considered natural-born because they also

had to perform an act to perfect their Philippine citizenship.

The present Constitution, however, now considers

those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship

upon reaching the majority age as natural-born. After

defining who are natural-born citizens, Section 2 of Article IV adds a sentence: “Those who elect Philippine

citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.”

Consequently, only naturalized Filipinos are considered not

natural-born 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, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily

is a natural-born Filipino. Noteworthy is the absence in the said enumeration of a separate category for persons

who, after losing Philippine citizenship, subsequently reacquire it. The reason therefore is clear: as to such

persons, they would either be natural-born or naturalized

16

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. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

15. Distinguish Dual Citizenship from Dual Allegiance.

Held: Dual citizenship arises when, as a result of the concurrent application of the different laws of two or

more states, a person is simultaneously considered a national by the said states. For instance, such a situation

may arise when a person whose parents are citizens of a

state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such

a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to a

situation in which a person simultaneously owes, by some

positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of

an individual’s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza])

16. What is the main concern of Section 5, Article IV, 1987 Constitution, on citizenship? Consequently, are persons with mere dual citizenship disqualified to run for elective local positions under Section 40(d) of the Local Government Code?

Held: In including Section 5 in Article IV on

citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized

citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase

“dual citizenship” in R.A. No. 7160, Section 40(d) (Local

Government Code) must be understood as referring to “dual allegiance.” Consequently, persons with mere dual

citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must x x x be subject to

strict process with respect to the termination of their

status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy,

they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their

condition is the unavoidable consequence of conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country

of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of

view of the foreign state and of its laws, such an

individual has not effectively renounced his foreign citizenship. That is of no moment. (Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza])

17. Cite instances when a citizen of the Philippines may possess dual citizenship considering the citizenship clause (Article IV) of the Constitution.

Held:

1) Those born of Filipino fathers and/or mothers

in foreign countries which follow the principle of jus soli;

2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of

their father’s country such children are

citizens of that country; 3) Those who marry aliens if by the laws of the

latter’s country the former are considered citizens, unless by their act or omission they

are deemed to have renounced Philippine citizenship.

(Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza])

18. The general rule is that res “judicata does” not apply in cases hinging on the issue of citizenship? What is the exception to this rule? Discuss.

Held: Petitioner maintains further that when

citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is

generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao v. Commissioner of Immigration (41 SCRA 292 [1971]). He insists that the same issue of citizenship may be threshed out anew.

Petitioner is correct insofar as the general rule is

concerned, i.e., the principle of res judicata generally does

not apply in cases hinging on the issue of citizenship. However, in the case of Burca v. Republic (51 SCRA 248 [1973]), an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine

of res judicata may be applied in cases of citizenship, the

following must be present:

1) a person’s citizenship be raised as a material issue in a controversy where said person is a

party; 2) the Solicitor General or his authorized

representative took active part in the

resolution thereof, and 3) the finding on citizenship is affirmed by this

Court.

Although the general rule was set forth in the

case of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on citizenship. It elucidated that

reliance may somehow be placed on these antecedent official findings, though not really binding, to make the

effort easier or simpler. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])

Civilian Supremacy Clause

19. The President issued Letter of Instruction (LOI)

ordering the deployment of members of the Philippine Marines in the metropolis to conduct joint visibility patrols with members of the Philippine National Police in various shopping malls. Will this not violate the civilian supremacy clause under Section 3, Article II of the Constitution? Will this not amount to an "insidious incursion" of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution?

Held: The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The

calling of the marines in this case constitutes permissible

17

use of military assets for civilian law enforcement. x x x.

The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the

metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in

charge of the visibility patrols at all times, the real

authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine

Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on police

patrol procedures. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise,

their duty to provide the necessary equipment to the

Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that

military authority is supreme over civilian authority.

Moreover, the deployment of the Marines to assist

the PNP does not unmake the civilian character of the police force. Neither does it amount to an “insidious

incursion” of the military in the task of law enforcement in violation of Section 5[4], Article XVI of the Constitution.

In this regard, it is not correct to say that General

Angelo Reyes, Chief of Staff of the AFP, by his alleged

involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited

provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian

institution, the PNP, and not with the military. Such being

the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he

does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as

members of the PNP, there can be no appointment to a

civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy

the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in

conducting the patrols. As such, there can be no

“insidious incursion” of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in

the Constitution.

It is worth mentioning that military assistance to

civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is

not averse to requesting the assistance of the military in the implementation and execution of certain traditionally

“civil” functions. x x x [S]ome of the multifarious activities wherein military aid has been rendered, exemplifying the

activities that bring both the civilian and the military

together in a relationship of cooperation, are:

1. Elections; 2. Administration of the Philippine National

Red Cross;

3. Relief and rescue operations during calamities and disasters;

4. Amateur sports promotion and development;

5. Development of the culture and the arts;

6. Conservation of natural resources; 7. Implementation of the agrarian reform

program; 8. Enforcement of customs laws;

9. Composite civilian-military law enforcement activities;

10. Conduct of licensure examinations;

11. Conduct of nationwide tests for

elementary and high school students; 12. Anti-drug enforcement activities;

13. Sanitary inspections; 14. Conduct of census work;

15. Administration of the Civil Aeronautics

Board; 16. Assistance in installation of weather

forecasting devices; 17. Peace and order policy formulation in

local government units.

This unquestionably constitutes a gloss on

executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of

Congress and, yet, never before questioned. What we have here is mutual support and cooperation between the

military and civilian authorities, not derogation of civilian

supremacy. (IBP v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

The Right to a Balanced and Healthful Ecology

20. Is the right to a balanced and healthful ecology any

less important than any of the civil and political rights enumerated in the Bill of Rights? Explain.

Held: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles

and State Policies and not under the Bill of Rights, it does

not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right

belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-

perpetuation, the advancement of which may even be

said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written

in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly

mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a

balanced and healthful ecology and to health are

mandated as state policies by the Constitution itself x x x the day would not be too far when all else would be lost

not only for the present generation, but also for those to come – generations which stand to inherit nothing but

parched earth incapable of sustaining life. (Oposa v. Factoran, Jr., 224 SCRA 792 [1993][Davide])

21. The Province of Palawan and the City of Puerto Princesa enacted ordinances prohibiting the catching and/or exportation of live tropical fishes, and imposing penalties for violations thereof, in order to stop the illegal practice of cyanide fishing which destroys the corals and other marine resources. Several fishermen apprehended for violating the ordinances in question challenged their constitutionality contending that the ordinances violated their preferential right as subsistence and marginal fishermen to the use of our communal marine resources guaranteed by the Constitution, under Section 7, Article XIII. Will you sustain the challenge?

Held: The “preferential right” of subsistence or

marginal fishermen to the use of marine resources is not absolute. In accordance with the Regalian Doctrine,

marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the

Constitution, their “exploration, development and utilization x x x shall be under the full control and

supervision of the State.” Moreover, their mandated

18

protection, development and conservation x x x imply

certain restrictions on whatever right of enjoyment there may be in favor of anyone. What must be borne in mind

is the State policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of

the people to a balanced and healthful ecology in accord

with the rhythm and harmony of nature (Section 16, Article II). The ordinances in question are meant

precisely to protect and conserve our marine resources to the end that their enjoyment may be guaranteed not only

for the present generation, but also for the generations to come. The right to a balanced and healthful ecology

carries with it a correlative duty to refrain from impairing

the environment. (Tano v. Gov. Salvador P. Socrates, G.R. No. 110249, Aug. 21, 1997)

Academic Freedom

22. How should the State’s power to regulate educational institutions be exercised?

Held: Section 4[1], Article XIV of the

Constitution recognizes the State’s power to regulate educational institutions:

The State recognizes the complementary roles of public and private institutions in the

educational system and shall exercise reasonable supervision and regulation of all educational

institutions.

As may be gleaned from the above provision,

such power to regulate is subject to the requirement of reasonableness. Moreover, the Constitution allows merely

the regulation and supervision of educational institutions,

not the deprivation of their rights. (Miriam College Foundation, Inc. v. Court of Appeals, 348 SCRA 265, 288, Dec. 15, 2000, 1st Div. [Kapunan])

23. Define and discuss the academic freedom of institutions of higher learning.

Held: Academic freedom of educational institutions has been defined as the right of the school or

college to decide for itself, its aims and objectives, and how best to attain them - free from outside coercion or

interference save possibly when the overriding public

welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students.

Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be

to frustrate its purpose and nullify its intent.

While it is true that an institution of learning has a

contractual obligation to afford its students a fair opportunity to complete the course they seek to pursue,

since a contract creates reciprocal rights and obligations, the obligation of the school to educate a student would

imply a corresponding obligation on the part of the

student to study and obey the rules and regulations of the school. When a student commits a serious breach of

discipline or failed to maintain the required academic standard, he forfeits his contractual right. In this

connection, this Court recognizes the expertise of

educational institutions in the various fields of learning. Thus, they are afforded ample discretion to formulate

reasonable rules and regulations in the admission of students, including setting of academic standards. Within

the parameters thereof, they are competent to determine who are entitled to admission and re-admission.

(University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 774-775, March 7, 1994 [Nocon])

24. What are the essential freedoms subsumed in the term “academic freedom”?

Held: 1. In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited

with approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in the

term “academic freedom” encompassing not only “the freedom to determine x x x on academic grounds who

may teach, what may be taught (and) how it shall be

taught,” but likewise “who may be admitted to study.” We have thus sanctioned its invocation by a school in

rejecting students who are academically delinquent, or a laywoman seeking admission to a seminary, or students

violating “School Rules on Discipline.” (Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En Banc [Vitug])

2. The essential freedoms subsumed in the term

“academic freedom” encompass the freedom to determine for itself on academic grounds:

(1) Who may teach, (2) What may be taught,

(3) How it shall be taught, and (4) Who may be admitted to study.

The right of the school to discipline its students is at once apparent in the third freedom, i.e., “how it shall

be taught.” A school certainly cannot function in an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution

requires rules and regulations necessary for the maintenance of an orderly educational program

and the creation of an educational environment conducive to learning. Such rules and regulations

are equally necessary for the protection of the

students, faculty, and property (Angeles v. Sison, 112 SCRA 26, 37 [1982]).

Moreover, the school has an interest in teaching

the student discipline, a necessary, if not indispensable,

value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to

discipline the student likewise finds basis in the freedom “what to teach.”

Incidentally, the school not only has the right but

the duty to develop discipline in its students. The

Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love of

humanity, respect for human rights, appreciation

of the role of national heroes in the historical development of the country, teach the rights and

duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative

thinking, broaden scientific and technological knowledge, and promote vocational efficiency

(Section 3[2], Article XIV, Constitution).

In Angeles v. Sison, we also said that discipline was a means for the school to carry out its responsibility to help

19

its students “grow and develop into mature, responsible,

effective and worthy citizens of the community.”

Finally, nowhere in the above formulation is the right to discipline more evident than in “who may be

admitted to study.” If a school has the freedom to

determine whom to admit, logic dictates that it also has the right to determine whom to exclude or expel, as well

as upon whom to impose lesser sanctions such as suspension and the withholding of graduation privileges.

Thus, in Ateneo de Manila v. Capulong (222 SCRA 643 [1993]), the Court upheld the expulsion of students

found guilty of hazing by petitioner therein, holding that:

No one can be so myopic as to doubt that the immediate reinstatement of respondent

students who have been investigated and found

guilty by the Disciplinary Board to have violated petitioner university’s disciplinary rules and

standards will certainly undermine the authority of the administration of the school. This we would

be most loathe to do.

More importantly, it will seriously impair

petitioner university’s academic freedom which has been enshrined in the 1935, 1973 and the

present 1987 Constitution. (Miriam College Foundation, Inc. v. Court of Appeals, 348 SCRA 265, Dec. 15, 2000, 1st Div. [Kapunan])

25. May a university validly revoke a degree or honor it has conferred to a student after the graduation of the latter after finding that such degree or honor was obtained through fraud?

Held: In Garcia v. Faculty Admission Committee, Loyola School of Theology (68 SCRA 277 [1975]), the SC

pointed out that academic freedom of institutions of higher learning is a freedom granted to “institutions of

higher learning” which is thus given a “wide sphere of

authority certainly extending to the choice of students.” If such institution of higher learning can decide who can and

who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its

graduates.

Where it is shown that the conferment of an

honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor

or distinction it has thus conferred. This freedom of a university does not terminate upon the “graduation” of a

student, for it is precisely the “graduation” of such a

student that is in question. (UP Board of Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No. 134625, Aug. 31, 1999, 2nd Div. [Mendoza])

Economic Policy

26. Does the Constitutional policy of a “self-reliant and independent national economy” rule out foreign competition?

Held: The constitutional policy of a “self-reliant

and independent national economy” does not necessarily rule out the entry of foreign investments, goods and

services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.”

Aside from envisioning a trade policy based on

“equality and reciprocity,” the fundamental law encourages industries that are “competitive in both

domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade

environment, but one in favor of the gradual development

of robust industries that can compete with the best in the foreign markets. (Tanada v. Angara, 272 SCRA 18 [1997])

27. Is PHILSECO (Philippine Shipyard and Engineering Corporation), as a shipyard, a public utility and, hence, could be operated only by a corporation at least 60% of whose capital is owned by Filipino citizens in accordance with Article XII, Section 10 of the Constitution?

Held: Petitioner asserts that a shipyard is a

public utility pursuant to Section 13 (b) of Commonwealth Act No. 146. Respondents, on the other hand, contend

that shipyards are no longer public utilities by express provision of Presidential Decree No. 666, which provided

incentives to the shipbuilding and ship repair industry.

Indeed, P.D. No. 666 dated March 5, 1975

explicitly stated that a “shipyard” was not a “public utility.” x x x

However, Section 1 of P.D. No. 666 was expressly

repealed by Section 20 of Batas Pambansa Blg. 391, the

Investment Incentive Policy Act of 1983. Subsequently, Executive Order No. 226, the Omnibus Investments Code

of 1987, was issued and Section 85 thereof expressly repealed B.P. Blg. 391.

The express repeal of B.P. Blg. 391 by E.O. No. 226 did not revive Section 1 of P.D. No. 666, declassifying

the shipbuilding and ship repair industry as a public utility, as said executive order did not provide otherwise. When

a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived unless

expressly so provided (Administrative Code of 1987, Book I, Chapter 5, Section 21). Consequently, when the APT [Asset Privatization Trust] drafted the ASBR [Asset

Specific Bidding Rules] sometime in 1993, P.D. No. 666 no longer existed in our statute books. While it is true that

the repeal of a statute does not operate to impair rights

that have become vested or accrued while the statute was in force, there are no vested rights of the parties that

should be protected in the case at bar. The reason is simple: said decree was already inexistent when the ASBR

was issued.

A shipyard such as PHILSECO being a public utility

as provided by law, the following provision of the Article XII of the Constitution applies:

“Sec. 11. No franchise, certificate, or any

other form of authorization for the operation of a

public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise,

certificate, or authorization be exclusive in character or for a longer period than fifty years.

Neither shall any such franchise or right be granted except under the condition that it shall be

subject to amendment, alteration, or repeal by the Congress when the common good so requires.

The State shall encourage equity participation in

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public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association shall be citizens of the Philippines.”

The progenitor of this constitutional provision, Article XIV, Section 5 of the 1973 Constitution, required

the same proportion of 60%-40% capitalization. The JVA [Joint Venture Agreement] between NIDC [National

Investment and Development Corporation] and Kawasaki

[Kawasaki Heavy Industries, Ltd. of Kobe, Japan] entered into on January 27, 1977 manifests the intention of the

parties to abide by the constitutional mandate on capitalization of public utilities. x x x

A joint venture is an association of persons or companies jointly undertaking some commercial

enterprise with all of them generally contributing assets and sharing risks. x x x. Considered more of a

partnership, a joint venture is governed by the laws on contracts and on partnership. The joint venture created

between NIDC and Kawasaki falls within the purview of an

“association” pursuant to Section 5 of Article XIV of the 1973 Constitution and Section 11 of Article XII of the 1987

Constitution. Consequently, a joint venture that would engage in the business of operating a public utility, such

as a shipyard, must observe the proportion of 60%-40%

Filipino-foreign capitalization. (JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, Nov. 20, 2000, 1st Div. [Ynares-Santiago])

The Rights of Indigenous Cultural

Communities/Indigenous Peoples

28. Enumerate the Constitutional provisions recognizing and protecting the rights and interests of the indigenous peoples.

Held: The framers of the 1987 Constitution,

looking back to the long destitution of our less fortunate brothers, fittingly saw the historic opportunity to actualize

the ideals of people empowerment and social justice, and to reach out particularly to the marginalized sectors of

society, including the indigenous peoples. They

incorporated in the fundamental law several provisions recognizing and protecting the rights and interests of the

indigenous peoples, to wit:

Section 22. The State recognizes and promotes the rights of indigenous peoples within

the framework of national unity and development.

(Article II of the Constitution, entitled State Principles and Policies)

Section 5. The State, subject to the

provisions of the Constitution and national

development policies and programs, shall protect the rights of indigenous cultural communities to

their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property

rights and relations in determining the ownership and extent of ancestral domains. (Article XII of the Constitution, entitled National Economy and Patrimony)

Section 1. The Congress shall give the

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, and remove cultural

inequalities by equitably diffusing wealth and

political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use and disposition of

property and its increments. (Article XIII of the Constitution, entitled Social Justice and Human Rights)

Section 6. The State shall apply the

principles of agrarian reform or stewardship, whenever applicable in accordance with law, in

the disposition and utilization of other natural

resources, including lands of the public domain under lease or concession, subject to prior rights,

homestead rights of small settlers, and the rights of indigenous communities to their ancestral

lands. (Ibid.)

Section 17. The State shall recognize,

respect, and protect the rights of cultural communities to preserve and develop their

cultures, traditions, and institutions. It shall consider these rights in the formulation of

national plans and policies. (Article XIV of the Constitution, entitled Education, Science, Technology, Arts, Culture, and Sports)

Section 12. The Congress may create a

consultative body to advise the President on

policies affecting indigenous cultural communities, the majority of the members of which shall come

from such communities. (Article XVI of the Constitution, entitled General Provisions)

(Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) 29. Discuss the Indigenous Peoples Rights Act (R.A. No.

8371).

Held: Republic Act No. 8371 is entitled "An Act

to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples,

Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating

Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or

the IPRA.

The IPRA recognizes the existence of the

indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It

grants these people the ownership and possession of their

ancestral domains and ancestral lands, and defines the extent of these lands and domains. The ownership given

is the indigenous concept of ownership under customary law which traces its origin to native title.

X x x Within their ancestral domains and ancestral

lands, the ICCs/IPs are given the right to self-governance and empowerment (Sections 13 to 20), social justice and

human rights (Sections 21 to 28), the right to preserve and protect their culture, traditions, institutions and

community intellectual rights, and the right to develop

21

their own sciences and technologies (Sections 29 to 37).

(Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

30. Define "indigenous peoples/indigenous cultural communities."

Held: 1. Drawing inspiration from both our fundamental law and international law, IPRA now employs

the politically-correct conjunctive term “indigenous peoples/indigenous cultural communities” as follows:

Section 3. Definition of Terms. - For purposes of this Act, the following terms shall

mean:

(i) Indigenous peoples/Indigenous cultural communities. -

refer to a group of people or homogenous societies identified by self-ascription and ascription by others,

who have continuously lived as organized community on communally bounded and defined territory, and

who have, under claims of ownership since time immemorial, occupied, possessed and utilized such

territories, sharing common bonds of language,

customs, traditions, and other distinctive cultural traits, or who have, through resistance to political, social and

cultural inroads of colonization, non-indigenous religions and cultures, became historically

differentiated from the majority of Filipinos.

Indigenous peoples shall likewise include peoples who are regarded as indigenous on account of their descent

from the populations which inhabited the country at the time of conquest or colonization, or at the time of

inroads of non-indigenous religions and cultures, or the

establishment of present State boundaries, who retain some or all of their own social, economic, cultural and

political institutions, but who may have been displaced from their traditional domains or who may have

resettled outside their ancestral domains x x x. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

2. The IPRA is a law dealing with a specific group

of people, i.e., the Indigenous Cultural Communities

(ICCs) or the Indigenous Peoples (IPs). The term “ICCs” is used in the 1987 Constitution while that of “IPs” is the

contemporary international language in the International Labor Organization (ILO) Convention 169 and the United

Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory. These groups of people have actually occupied, possessed

and utilized their territories under claim of ownership since time immemorial. They share common bonds of

language, customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and

cultural inroads of colonization, non-indigenous religions

and cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of

ICCs/IPs who inhabited the country at the time of conquest or colonization, who retain some or all of their

own social, economic, cultural and political institutions but who may have been displaced from their traditional

territories or who may have resettled outside their

ancestral domains. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

31. Define “ancestral domains” and “ancestral lands.” Do

they constitute part of the land of the public domain?

Held: Ancestral domains and ancestral lands are

the private property of indigenous peoples and do not constitute part of the land of the public domain.

The IPRA grants to ICCs/IPs a distinct kind of

ownership over ancestral domains and ancestral lands.

Ancestral lands are not the same as ancestral domains. These are defined in Section 3(a) and (b) of the

Indigenous Peoples Rights Act x x x.

Ancestral domains are all areas belonging to

ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their

ancestors, communally or individually since time immemorial, continuously until the present, except when

interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government

projects or any other voluntary dealings with government

and/or private individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas, and

natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands

individually owned whether alienable or not, hunting

grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They also include

lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to

for their subsistence and traditional activities, particularly

the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators (Section 3[a], IPRA).

Ancestral lands are lands held by the ICCs/IPs

under the same conditions as ancestral domains except that these are limited to lands and that these lands are

not merely occupied and possessed but are also utilized

by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not limited

to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots (Section 3[b], IPRA). (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

32. How may ICCs/IPs acquire rights to their ancestral

domains and ancestral lands?

Held: The rights of the ICCs/IPs to their

ancestral domains and ancestral lands may be acquired in two modes: (1) by native title over both ancestral lands

and domains; or (2) by torrens title under the Public Land Act and the Land Registration Act with respect to

ancestral lands only. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

33. What is the concept of “native title?” What is a

Certificate of Ancestral Domain Title (CADT)?

Held: Native title refers to ICCs/IPs preconquest

rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands

are deemed never to have been public lands and are indisputably presumed to have been held that way since

before the Spanish Conquest. The rights of ICCs/IPs to

22

their ancestral domains (which also include ancestral

lands) by virtue of native title shall be recognized and respected (Section 11, IPRA). Formal recognition, when

solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall

recognize the title of the concerned ICCs/IPs over the

territories identified and delineated.

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is

a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA

categorically declares ancestral lands and domains held by

native title as never to have been public land. Domains and lands held under native title are, therefore,

indisputably presumed to have never been public lands and are private.

The concept of native title in the IPRA was taken from the 1909 case of Carino v. Insular Government (41 Phil. 935 [1909], 212 U.S. 449, 53 L. Ed. 594). Carino firmly established a concept of private land title that

existed irrespective of any royal grant from the State. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

34. Distinguish ownership of land under native title and ownership by acquisitive prescription against the State.

Held: Ownership by virtue of native title

presupposes that the land has been held by its possessor and his predecessor-in-interest in the concept of an owner

since time immemorial. The land is not acquired from the

State, that is, Spain or its successor-in-interest, the United States and the Philippine Government. There has been no

transfer of title from the State as the land has been regarded as private in character as far back as memory

goes. In contrast, ownership of land by acquisitive prescription against the State involves a conversion of the

character of the property from alienable public land to

private land, which presupposes a transfer of title from the State to a private person. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc)

35. Discuss the concept of “jura regalia” and how it evolved in the Philippines. Does it negate native title to lands held in private ownership since time immemorial?

Held: Generally, under the concept of jura

regalia, private title to land must be traced to some grant,

express or implied, from the Spanish Crown or its successors, the American Colonial government, and

thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land titles in the

Philippines has persisted because title to land must

emanate from some source for it cannot issue forth from nowhere.

In its broad sense, the term “jura regalia” refers

to royal grants, or those rights which the King has by

virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a

subject has a right of property or propriedad. These were rights enjoyed during feudal times by the king as the

sovereign.

The theory of the feudal system was that title to

all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to

hold them under certain conditions, the King theoretically retained the title. By fiction of law, the King was regarded

as the original proprietor of all lands, and the true and

only source of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a

natural fruit of conquest.

The Regalian theory, however, does not negate native title to lands held in private ownership since time

immemorial. In the landmark case of Carino v. Insular Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594 [1909]), the United States Supreme Court, reversing the

decision of the pre-war Philippine Supreme Court, made the following pronouncement:

x x x Every presumption is and ought to be taken against the Government in a case like the

present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. x x x (Carino v. Insular Government, supra note 75, at 941)

The above ruling institutionalized the recognition

of the existence of native title to land, or ownership of

land by Filipinos by virtue of possession under a claim of ownership since time immemorial and independent of any

grant from the Spanish Crown, as an exception to the theory of jura regalia.

X x x

Carino was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court were

binding as precedent in our jurisdiction (Section 10, Philippine Bill of 1902). We applied the Carino doctrine in

the 1946 case of Oh Cho v. Director of Lands (75 Phil. 890 [1946]), where we stated that “[a]ll lands that were not acquired from the Government either by purchase or by

grant, belong to the public domain, but [a]n exception to the rule would be any land that should have been in the

possession of an occupant and of his predecessors in

interest since time immemorial, for such possession would justify the presumption that the land had never been part

of the public domain or that it had been private property even before the Spanish conquest. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc)

36. Does R.A. 8371, otherwise known as “the Indigenous People’s Rights Act” infringe upon the State’s ownership over the natural resources within the ancestral domains?

Held: Petitioners posit that IPRA deprives the

State of its ownership over mineral lands of the public

domain and other natural resources, as well as the State’s full control and supervision over the exploration,

development and utilization of natural resources.

Specifically, petitioners and the Solicitor General assail Sections 3[a], 5, and 7 of IPRA as violative of Section 2,

Article XII of the Constitution which states, in part, that “[a]ll lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and

fauna, and other natural resources are owned by the

23

State.” (Section 2, Article XII, Constitution) They would

have the Court declare as unconstitutional Section 3[a] of IPRA because the inclusion of natural resources in the

definition of ancestral domains purportedly results in the abdication of State ownership over these resources.

X x x

Section 3[a] merely defines the coverage of ancestral domains, and describes the extent, limit and

composition of ancestral domains by setting forth the standards and guidelines in determining whether a

particular area is to be considered as part of and within

the ancestral domains. In other words, Section 3[a] serves only as a yardstick which points out what

properties are within the ancestral domains. It does not confer or recognize any right of ownership over the

natural resources to the indigenous peoples. Its purpose

is definitional and not declarative of a right or title.

The specification of what areas belong to the ancestral domains is x x x important to ensure that no

unnecessary encroachment on private properties outside the ancestral domains will result during the delineation

process. The mere fact that Section 3[a] defines

ancestral domains to include the natural resources found therein does not ipso facto convert the character of such

natural resources as private property of the indigenous peoples. Similarly, Section 5 in relation to Section 3[a]

cannot be construed as a source of ownership rights of

indigenous peoples over the natural resources simply because it recognizes ancestral domains as their “private

but community property.”

The phrase “private but community property” is

merely descriptive of the indigenous peoples’ concept of ownership as distinguished from that provided in the Civil

Code. x x x. In contrast, the indigenous peoples’ concept of ownership emphasizes the importance of communal or

group ownership. By virtue of the communal character of ownership, the property held in common “cannot be sold,

disposed or destroyed” because it was meant to benefit

the whole indigenous community and not merely the individual member.

That IPRA is not intended to bestow ownership

over natural resources to the indigenous peoples is also

clear from the deliberations of the bicameral conference committee on Section 7 which recites the rights of

indigenous peoples over their ancestral domains x x x.

Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the natural

resources. In fact, Section 7[a] merely recognizes the

“right to claim ownership over lands, bodies of water traditionally and actually occupied by indigenous peoples,

sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the

domains.” Neither does Section 7[b], which enumerates

certain rights of the indigenous peoples over the natural resources found within their ancestral domains, contain

any recognition of ownership vis-à-vis the natural resources.

What is evident is that the IPRA protects the indigenous peoples’ rights and welfare in relation to the

natural resources found within their ancestral domains, including the preservation of the ecological balance

therein and the need to ensure that the indigenous peoples will not be unduly displaced when the State-

approved activities involving the natural resources located

therein are undertaken. (Separate Opinion, Kapunan, J., in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 284-293, Dec. 6, 2000, En Banc [Per Curiam])

37. Has the concept of native title to natural resources, like native title to land, been recognized in the Philippines?

Held: The concept of native title to natural resources, unlike native title to land, has not been recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza (40 Phil. 1017 [1909], 215 US 16, 54 L Ed 72) in support of their thesis that native title to natural resources has been upheld in

this jurisdiction. X x x. However, a judicious examination of Reavies reveals that, contrary to the position of NCIP

and Flavier, et al., the Court did not recognize native title

to natural resources. Rather, it merely upheld the right of the indigenous peoples to claim ownership of minerals

under the Philippine Bill of 1902.

While x x x native title to land or private ownership by Filipinos of land by virtue of time

immemorial possession in the concept of an owner was

acknowledged and recognized as far back during the Spanish colonization of the Philippines, there was no

similar favorable treatment as regards natural resources. (Separate Opinion, Kapunan, J., in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 284-293, Dec. 6, 2000, En Banc [Per Curiam]) 38. What is the underlying reason for the State’s

consistent assertion of ownership and control over natural resources from the Spanish regime up to the present?

Held: The unique value of natural resources has

been acknowledged by the State and is the underlying reason for its consistent assertion of ownership and

control over said natural resources from the Spanish

regime up to the present. Natural resources, especially minerals, were considered by Spain as an abundant

source of revenue to finance its battle in wars against other nations. Hence, Spain, by asserting its ownership

over minerals wherever these may be found, whether in

public or private lands, recognized the separability of title over lands and that over minerals which may be found

therein.

On the other hand, the United States viewed natural resources as a source of wealth for its nationals.

As the owner of natural resources over the Philippines

after the latter’s cession from Spain, the United States saw it fit to allow both Filipino and American citizens to

explore and exploit minerals in public lands, and to grant patents to private mineral lands. x x x. Although the

United States made a distinction between minerals found

in public lands and those found in private lands, title in these minerals was in all cases sourced from the State.

The framers of the 1935 Constitution found it necessary to maintain the State’s ownership over natural resources to

insure their conservation for future generations of

Filipinos, to prevent foreign control of the country through economic domination; and to avoid situations whereby the

Philippines would become a source of international conflicts, thereby posing danger to its internal security

and independence. (Separate Opinion, Kapunan, J., in Cruz v. Secretary of Environment and Natural

24

Resources, 347 SCRA 128, 284-293, Dec. 6, 2000, En Banc [Per Curiam])

39. What was the basis for the early Spanish decrees

embracing the theory of jura regalia? Is this also the basis of the declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned by the State? Consequently, did Spain acquire title over all lands in the Philippines in the 16th century?

Held: Dominium was the basis for the early

Spanish decrees embracing the theory of jura regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned

by the State is likewise founded on dominium. If dominium, not imperium, is the basis of the theory of jura regalia, then the lands which Spain acquired in the 16th

century were limited to non-private lands, because it could only acquire lands which were not yet privately-

owned or occupied by the Filipinos. Hence, Spain acquired title only over lands which were unoccupied and

unclaimed, i.e., public lands. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, See Footnote 86)

The Right of the State to Recover Properties

Unlawfully Acquired by Public Officials or

Employees

40. Does the right of the State to recover properties unlawfully acquired by public officials or employees which may not be barred by prescription, laches, or estoppel under Section 15, Article XI of the Constitution apply to criminal cases for the recovery of ill-gotten wealth?

Held: Section 15, Article XI, 1987 Constitution provides that “[T]he right of the State to recover

properties unlawfully acquired by public officials or

employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or

estoppel.” From the proceedings of the Constitutional Commission of 1986, however, it was clear that this

provision applies only to civil actions for recovery of ill-

gotten wealth, and not to criminal cases. Thus, the prosecution of offenses arising from, relating or incident

to, or involving ill-gotten wealth contemplated in Section 15, Article XI of the Constitution may be barred by

prescription. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, et al. v. Hon. Aniano A. Desierto, et al., G.R. No. 130140, Oct. 25, 1999, En Banc [Davide, C.J.])

STRUCTURE OF GOVERNMENT

The Doctrine of Separation of Powers

41. May the Government, through the PCGG, validly bind itself to cause the dismissal of all cases against the Marcos heirs pending before the Sandiganbayan and other courts in a Compromise Agreement entered into between the former and the latter?

Held: This is a direct encroachment on judicial

power, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed

before a court of competent jurisdiction, the matter of its

dismissal or pursuance lies within the full discretion and

control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of

whom to present as witnesses, may lie within the sound discretion of the government prosecutor; but the court

decides, based on the evidence proffered, in what manner

it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the

justice secretary, to withdraw the information or to dismiss the complaint. The prosecution’s motion to

withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial

court to make its own evaluation of the merits of the case,

because granting such motion is equivalent to effecting a disposition of the case itself.

Thus, the PCGG, as the government prosecutor of

ill-gotten wealth cases, cannot guarantee the dismissal of

all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power

and discretion. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

Delegation of Powers

42. What are the tests of a valid delegation of power?

Held: [I]n every case of permissible delegation,

there must be a showing that the delegation itself is valid.

It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or

implemented by the delegate; and (b) fixes a standard – the limits of which are sufficiently determinate and

determinable – to which the delegate must conform in the

performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out

its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative

command is to be effected. (Santiago v. COMELEC, 270 SCRA 106, March 19, 1997)

The Legislative Department

43. Discuss the nature of the Party-List system. Is it,

without any qualification, open to all?

Held: 1. The party-list system is a social justice

tool designed not only to give more law to the great masses of our people who have less in life, but also to

enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of

laws designed to benefit them. It intends to make the

marginalized and the underrepresented not merely passive recipients of the State’s benevolence, but active

participants in the mainstream of representative democracy. Thus, allowing all individuals and groups,

including those which now dominate district elections, to

have the same opportunity to participate in party-list elections would desecrate this lofty objective and

mongrelize the social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

2. Crucial to the resolution of this case is the fundamental social justice principle that those who have

less in life should have more in law. The party-list system is one such tool intended to benefit those who have less

in life. It gives the great masses of our people genuine

25

hope and genuine power. It is a message to the destitute

and the prejudiced, and even to those in the underground, that change is possible. It is an invitation

for them to come out of their limbo and seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions x x x that the party-list system is, without any

qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and

underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of

generating hope, it would create a mirage. Instead of

enabling the marginalized, it would further weaken them and aggravate their marginalization. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

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

Held: Under the Constitution and RA 7941,

private respondents cannot be disqualified from the party-

list elections, merely on the ground that they are political

parties. Section 5, Article VI of the Constitution, provides that members of the House of Representatives may “be

elected through a party-list system of registered national, regional, and sectoral parties or organizations.

Furthermore, under Sections 7 and 8, Article IX [C] of the Constitution, political parties may be registered

under the party-list system. X x x

During the deliberations in the Constitutional

Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list system may “be a regional

party, a sectoral party, a national party, UNIDO, Magsasaka, or a regional party in Mindanao.” x x x.

X x x

For its part, Section 2 of RA 7941 also provides for “a party-list system of registered national, regional and

sectoral parties or organizations or coalitions thereof, x x x.” Section 3 expressly states that a “party” is “either a

political party or a sectoral party or a coalition of parties.”

More to the point, the law defines “political party” as “an organized group of citizens advocating an ideology or

platform, principles and policies for the general conduct of government and which, as the most immediate means of

securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for

public office.”

Furthermore, Section 11 of RA 7941 leaves no

doubt as to the participation of political parties in the party-list system. X x x

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

That political parties may participate in the party-

list elections does not mean, however, that any political

party – or any organization or group for that matter – may do so. The requisite character of these parties or

organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA

7941. X x x (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

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

Held: While the enumeration of marginalized and

underrepresented sectors is not exclusive, it demonstrates

the clear intent of the law that not all sectors can be

represented under the party-list system. X x x

[W]e stress that the party-list system seeks to enable certain Filipino citizens – specifically those

belonging to marginalized and underrepresented sectors,

organizations and parties – to be elected to the House of Representatives. The assertion x x x that the party-list

system is not exclusive to the marginalized and underrepresented disregards the clear statutory policy.

Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list

system.

Indeed, the law crafted to address the peculiar

disadvantage of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The

interests of these two sectors are manifestly disparate;

hence, the x x x position to treat them similarly defies reason and common sense. X x x

While the business moguls and the mega-rich are,

numerically speaking, a tiny minority, they are neither

marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more

awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size

of one’s constituency; indeed, it is likely to arise more directly from the number and amount of one’s bank

accounts.

It is ironic, therefore, that the marginalized and

underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for

them that the party-list system was enacted – to give

them not only genuine hope, but genuine power; to give them opportunity to be elected and to represent the

specific concerns of their constituencies; and simply to give them a direct vote in Congress and in the larger

affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new

hope for genuine change. Verily, it invites those

marginalized and underrepresented in the past – the farm hands, the fisher folk, the urban poor, even those in the

underground movement – to come out and participate, as indeed many of them came out and participated during

the last elections. The State cannot now disappoint and

frustrate them by disabling the desecrating this social justice vehicle.

Because the marginalized and underrepresented

had not been able to win in the congressional district

elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of

Representatives were set aside for the party-list system. In arguing that even those sectors who normally

controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20

percent, the OSG and the Comelec disregard the

26

fundamental difference between the congressional district

elections and the party-list elections.

As earlier noted, the purpose of the party-list provision was to open up the system, in order to enhance

the chance of sectoral groups and organizations to gain

representation in the House of Representatives through the simplest scheme possible. Logic shows that the

system has been opened to those who have never gotten a foothold within it – those who cannot otherwise win in

regular elections and who therefore need the “simplest scheme possible” to do so. Conversely, it would be

illogical to open the system to those who have long been

within it – those privileged sectors that have long dominated the congressional district elections.

X x x

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the

party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented,

contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the

underprivileged; the law could not have given the same

tool to others, to the prejudice of the intended beneficiaries. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

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

Held: The Constitution simply states that “[t]he

party-list representatives shall constitute twenty per centum of the total number of representatives including

those under the party-list.”

X x x

We rule that a simple reading of Section 5, Article

VI of the Constitution, easily conveys the equally simple

message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list

system of representation. The Constitution explicitly sets down only the percentage of the total membership in the

House of Representatives reserved for party-list representatives.

In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress

declared therein a policy to promote “proportional representation” in the election of party-list representatives

in order to enable Filipinos belonging to the marginalized

and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary

to require parties, organizations and coalitions participating in the system to obtain at least two percent

of the total votes cast for the party-list system in order to

be entitled to a party-list seat. Those garnering more than this percentage could have “additional seats in

proportion to their total number of votes.” Furthermore, no winning party, organization or coalition can have more

than three seats in the House of Representatives. X x x

Considering the foregoing statutory requirements,

it will be shown x x x that Section 5(2), Article VI of the Constitution is not mandatory. It merely provides a

ceiling for party-list seats in Congress. (Veterans Federation Party v. COMELEC, G.R. No. 136781, Oct. 6, 2000, En Banc [Panganiban])

47. What are the inviolable parameters to determine the

winners in a Philippine-style party-list election?

Held: To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act

No. 7941 mandate at least four inviolable parameters.

These are:

First, the twenty percent allocation - the combined number of all party-list congressmen shall not

exceed twenty percent of the total membership of the

House of Representatives, including those elected under the party list.

Second, the two percent threshold - only

those garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to

have a seat in the House of Representatives.

Third, the three seat limit - each qualified

party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is,

one "qualifying" and two additional seats.

Fourth, proportional representation - the

additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of

votes." (Veterans Federation Party v. COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc [Panganiban]) 48. To determine the “total votes cast for the party-list

system,” should the votes tallied for the disqualified candidates be deducted?

Held: The instant Motions for proclamation contend that the disqualification of many party-list

organizations has reduced the “total number of votes cast for the party-list elections.” Because of this reduction,

the two-percent benchmark required by law has now been

allegedly attained by movants. Hence, they now pray for their proclamation as winners in the last party-list

elections.

Recall that under Section 11(b) of RA 7941 (the Party-List Act), only those parties garnering a minimum of

two percent of the total votes cast for the party-list

system are entitled to have a seat in the House of Representatives. The critical question now is this: To

determine the “total votes cast for the party-list system,” should the votes tallied for the disqualified candidates be

deducted? Otherwise stated, does the clause “total votes

cast for the party-list system” include only those ballots cast for qualified party-list candidates?

To answer this question, there is a need to review

related jurisprudence on the matter, especially Labo v. Comelec and Grego v. Comelec, which were mentioned in our February 18, 2003 Resolution.

Labo and Grego Not Applicable In Labo, the Court declared that “the ineligibility

of a candidate receiving majority votes does not entitle

27

the eligible candidate receiving the next highest number

of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.” In

other words, the votes cast for an ineligible or disqualified candidate cannot be considered “stray.”

However, “this rule would be different if the electorate, fully aware in fact and in law of a candidate’s

disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in

favor of the ineligible. In such case, the electorate may be said to have waived the validity and efficacy of their

votes by notoriously misapplying their franchise or

throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may

be deemed elected.” In short, the votes cast for a “notoriously disqualified” candidate may be considered

“stray” and excluded from the canvass.

The foregoing pronouncement was reiterated in

Grego, which held that the exception mentioned in Labo v. Comelec “is predicated on the concurrence of two

assumptions, namely: 1) the one who obtained the highest number of votes is disqualified; and 2) the

electorate is fully aware in fact and in law of a candidate’s

disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes

in favor of the ineligible candidate.”

Note, however, that the foregoing

pronouncements (1) referred to regular elections for local offices and (2) involved the interpretation of Section 6 of

RA 6646. They were not meant to cover party-list elections, which are specifically governed by RA 7941.

Section 10 of this latter law clearly provides that the votes

cast for a party, a sectoral organization or a coalition “not entitled to be voted for shall not be counted”: X x x

The language of the law is clear; hence, there is room, not for interpretation, but merely for application.

Likewise, no recourse to extrinsic aids is warranted when

the language of the law is plain and unambiguous.

Another reason for not applying Labo and Grego is that these cases involve single elective posts, while the

present controversy pertains to the acquisition of a

number of congressional seats depending on the total election results – such that even those garnering second,

third, fourth or lesser places could be proclaimed winners depending on their compliance with other requirements.

RA 7941 is a special statute governing the

election of party-list representatives and is the controlling

law in matters pertaining thereto. Since Labo and Section 6 of RA 6646 came into being prior to the enactment of

RA 7941, the latter is a qualification of the former ruling and law. On the other hand, Grego and other related

cases that came after the enactment of RA 7941 should

be construed as inapplicable to the latter.

Subtracting the votes garnered by these disqualified party-list groups from the total votes cast

under the party-list system will reduce the base figure to

6,523,185. This means that the two-percent threshold can be more easily attained by the qualified marginalized

and under-represented groups. Hence, disregarding the votes of disqualified party-list participants will increase

and broaden the number of representatives from these sectors. Doing so will further concretize and give flesh to

the policy declaration in RA 7941 x x x. (Ang Bagong

Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 25, 2003, En Banc [Panganiban])

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

Held: In this light, the Court finds it appropriate

to lay down the following guidelines, culled from the law

and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized and

underrepresented groups identified in Section 5 of RA

7941. In other words, it must show – through its constitution, articles of incorporation, bylaws, history,

platform of government and track record – that it represents and seeks to uplift marginalized and

underrepresented sectors. Verily, majority of its

membership should belong to the marginalized and underrepresented. And it must demonstrate that in a

conflict of interest, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are

expressly allowed by RA 7941 and the Constitution to

participate in the party-list system, they must comply with the declared statutory policy of enabling “Filipino citizens

belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives.” In

other words, while they are not disqualified merely on the

ground that they are political parties, they must show, however, that they represent the interests of the

marginalized and underrepresented. X x x

Third, in view of the objections directed against

the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express

constitutional provision that the religious sector may not be represented in the party-list system. x x x

Furthermore, the Constitution provides that

“religious denominations and sects shall not be

registered.” (Sec. 2 [5], Article IX [C]) The prohibition was explained by a member of the Constitutional

Commission in this wise: “[T]he prohibition is on any religious organization registering as a political party. I do

not see any prohibition here against a priest running as a

candidate. That is not prohibited here; it is the registration of a religious sect as a political party.”

Fourth, a party or an organization must not be

disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows:

1) It is a religious sect or denomination,

organization or association organized for

religious purposes; 2) It advocates violence or unlawful means to

seek its goal;

3) It is a foreign party or organization; 4) It is receiving support from any foreign

government, foreign political party, foundation, organization, whether directly or

through any of its officers or members or

indirectly through third parties for partisan election purposes;

5) It violates or fails to comply with laws, rules or regulations relating to elections;

6) It declares untruthful statements in its petition;

28

7) It has ceased to exist for at least one (1)

year; or 8) It fails to participate in the last two (2)

preceding elections or fails to obtain at least two per centum (2%) of the votes cast under

the party-list system in the two (2) preceding

elections for the constituency in which it had registered.”

Note should be taken of paragraph 5, which

disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws

include Section 2 of RA 7941, which states that the party-

list system seeks to “enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations

and parties x x x to become members of the House of Representatives.” A party or organization, therefore, that

does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an

adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the

party-list system, the party or organization must be a group of citizens, organized by citizens and operated by

citizens. It must be independent of the government. The

participation of the government or its officials in the affairs of a party-list candidate is not only illegal and

unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to

marginalized and underrepresented sectors and

organization to be elected to the House of Representatives.

Sixth, the party must not only comply with the

requirements of the law; its nominees must likewise do

so. x x x

Seventh, not only the candidate party or organization must represent marginalized and

underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must

be Filipino citizens “who belong to marginalized and

underrepresented sectors, organizations and parties.” Surely, the interests of the youth cannot be fully

represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow

otherwise is to betray the State policy to give genuine

representation to the marginalized and underrepresented.

Eighth, x x x while lacking a well-defined political constituency, the nominee must likewise be able to

contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a

whole. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban]) 50. Discuss the history of the constitutional provision

granting immunity from arrest or detention of Members of Congress, and how should it be construed?

Held: The immunity from arrest or detention of

Senators and members of the House of Representatives x

x x arises from a provision of the Constitution. The history of the provision shows that the privilege has

always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be

extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or

equitable considerations.

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

Sec. 15. The Senators and Members of

the House of Representatives shall in all cases

except treason, felony, and breach of the peace, be privileged from arrest during their attendance

at the sessions of Congress, and in going to and returning from the same; x x x.

Because of the broad coverage of felony and

breach of the peace, the exemption applied only to civil

arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code

could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all

persons still to be tried or whose convictions were

pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Article VIII, Sec. 9. A Member of the

Batasang Pambansa shall, in all offenses

punishable by not more than six years imprisonment, be privileged from arrest during his

attendance at its sessions and in going to and returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The

restrictive interpretation of immunity and the intent to confine it within carefully defined parameters is illustrated

by the concluding portion of the provision, to wit:

X x x but the Batasang Pambansa shall

surrender the member involved to the custody of the law within twenty four hours after its

adjournment for a recess or for its next session, otherwise such privilege shall cease upon its

failure to do so.

The present Constitution adheres to the same

restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the

law. The requirement that he should be attending

sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is

in session. (People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago]) 51. Accused-appellant Congressman Romeo G. Jalosjos

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

Held: The accused-appellant argues that a

member of Congress’ function to attend sessions is underscored by Section 16(2), Article VI of the

Constitution which states that –

(2) A majority of each House shall constitute a quorum to do business, but a smaller

number may adjourn from day to day and may

29

compel the attendance of absent Members in such

manner, and under such penalties, as such House may provide.

However, the accused-appellant has not given any

reason why he should be exempted from the operation of

Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend

sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime

punishable by imprisonment of more than six years is not merely authorized by law, it has constitutional

foundations.

Accused-appellant’s reliance on the ruling in

Aguinaldo v. Santos (212 SCRA 768, at 773 [1992]), which states, inter alia, that –

The Court should never remove a public officer for acts done prior to his present term of

office. To do otherwise would be to deprive the people of their right to elect their officers. When

the people have elected a man to office, it must be assumed that they did this with the knowledge

of his life and character, and that they

disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court,

by reason of such fault or misconduct, to practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen x x x that the Aguinaldo case involves the

administrative removal of a public officer for acts done prior to his present term of office. It does not apply to

imprisonment arising from the enforcement of criminal

law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is

not removal. He remains a Congressman unless expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether

pending appeal or after final conviction, is public self-

defense. Society must protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody

for purposes of the administration of justice. As stated in

United States v. Gustilo (19 Phil. 208, 212), it is the injury to the public which State action in criminal law seeks to

redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be

denied bail and thus subjected to incarceration if there is risk of his absconding.

The accused-appellant states that the plea of the electorate which voted him into office cannot be

supplanted by unfounded fears that he might escape eventual punishment if permitted to perform

congressional duties outside his regular place of

confinement.

It will be recalled that when a warrant for accused-appellant’s arrest was issued, he fled and evaded

capture despite a call from his colleagues in the House of

Representatives for him to attend the sessions ands to surrender voluntarily to the authorities. Ironically, it is

now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion.

This can not be countenanced because x x x aside from its being contrary to well-defined Constitutional restraint, it

would be a mockery of the aims of the State’s penal

system.

Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted

several motions to temporarily leave his cell at the Makati

City Jail, for official or medical reasons x x x.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City,

when he was likewise allowed/permitted to leave the prison premises x x x.

There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency

or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities

or upon court orders.

What the accused-appellant seeks is not of an

emergency nature. Allowing accused-appellant to attend congressional sessions and committee meetings for five

(5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position.

Such an aberrant situation not only elevates accused-

appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system. X

x x

The accused-appellant avers that his constituents

in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his

mandate. He also claims that the concept of temporary

detention does not necessarily curtail his duty to discharge his mandate and that he has always complied

with the conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded.

X x x

When the voters of his district elected the accused-appellant to Congress, they did so with full

awareness of the limitations on his freedom of action.

They did so with the knowledge that he could achieve only such legislative results which he could accomplish

within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge

that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full

term in office. (People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago])

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

Held: The “allocation of constitutional

boundaries” is a task that this Court must perform under

the Constitution. Moreover, as held in a recent case (Neptali A. Gonzales, et al. v. Hon. Catalino Macaraig, Jr., et al., G.R. No. 87636, 19 November 1990, 191 SCRA 452, 463), “[t]he political question doctrine neither interposes

an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has

been given to this Court. It cannot abdicate that

30

obligation mandated by the 1987 Constitution, although

said provision by no means does away with the applicability of the principle in appropriate cases.”

(Section 1, Article VIII of the 1987 Constitution)

The Court is thus of the considered view that it

has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power

of the Senate Blue Ribbon Committee to conduct inquires into private affairs in purported aid of legislation.

(Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

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

Held: The 1987 Constitution expressly

recognizes the power of both houses of Congress to

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

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or

unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided

therein, the investigation must be “in aid of legislation in

accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by

such inquiries shall be respected.” It follows then that the rights of persons under the Bill of Rights must be

respected, including the right to due process and the right

not to be compelled to testify against one’s self.

The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the

Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the

implementation or re-examination of any law or in

connection with any proposed legislation or the formulation of future legislation. They may also extend to

any and all matters vested by the Constitution in Congress and/or in the Senate alone.

As held in Jean L. Arnault v. Leon Nazareno, et al, (No. L-3820, July 18, 1950, 87 Phil. 29), the inquiry, to be

within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power

in it vested by the Constitution, such as to legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any

speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of

legislation. In order therefore to ascertain the character

or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to

be made. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla]) 54. On 13 September 1988, the Senate Minority Floor

Leader, Hon. Juan Ponce Enrile delivered a speech “on a matter of personal privilege” before the Senate on the alleged “take-over of SOLOIL Incorporated, the flagship on the First Manila Management of Companies (FMMC) by Ricardo Lopa” and called upon

“the Senate to look into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.”

On motion of Senator Orlando Mercado, the

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

At the hearing held on 23 May 1989, Ricardo Lopa

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

The Senate Blue Ribbon Committee, thereupon,

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

Claiming that the Senate Blue Ribbon Committee

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

Held: A perusal of the speech of Senator Enrile

reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September

1988 accusing Mr. Ricardo “Baby” Lopa of “having taken over the FMMC Group of Companies.” X x x

Verily, the speech of Senator Enrile contained no

suggestion of contemplated legislation; he merely called

upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as “The Anti-Graft and

Corrupt Practices Act.” In other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon

Committee was to find out whether or not the relatives of

President Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the alleged sale of the

36 or 39 corporations belonging to Benjamin “Kokoy” Romualdez to the Lopa Group. There appears to be,

therefore, no intended legislation involved.

X x x

It appears, therefore, that the contemplated

inquiry by respondent Committee is not really “in aid of legislation” because it is not related to a purpose within

the jurisdiction of Congress, since the aim of the

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investigation is to find out whether or not the relatives of

the President or Mr. Ricardo Lopa had violated Section 5 of RA No. 3019, the “Anti-Graft and Corrupt Practices

Act”, a matter that appears more within the province of the courts rather than of the legislature. Besides, the

Court may take judicial notice that Mr. Ricardo Lopa died

during the pendency of this case. In John T. Watkins v. United States, it was held:

“x x x. The power of Congress to conduct

inquiries in aid of legislation is inherent in the legislative process. That power is broad. It

encompasses inquiries concerning the

administration of existing laws as well as proposed or possibly needed statutes. It includes

surveys of defects in our social, economic, or political system for the purpose of enabling

Congress to remedy them. It comprehends

probes into departments of the Federal Government to expose corruption, inefficiency or

waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. This was freely conceded by the Solicitor General in his arguments in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legislative task of Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” (italics supplied)

It cannot be overlooked that when respondent Committee decided to conduct its investigation of the

petitioners, the complaint in Civil Case No. 0035 had already been filed with the Sandiganbayan. A perusal of

that complaint shows that one of its principal causes of action against herein petitioners, as defendants therein, is

the alleged sale of the 36 (or 39) corporations belonging

to Benjamin “Kokoy” Romualdez. Since the issues in said complaint had long been joined by the filing of petitioners’

respective answers thereto, the issue sought to be investigated by the respondent Committee is one over

which jurisdiction had been acquired by the

Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to

conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of

conflicting judgments between a legislative committee and a judicial tribunal, but if the Committee’s judgment were

to be reached before that of the Sandiganbayan, the

possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be

discounted.

In fine, for the respondent Committee to probe

and inquire into the same justiciable controversy already before the Sandiganbayan, would be an encroachment

into the exclusive domain of judicial jurisdiction that had much earlier set in. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

55. Petitioners’ contention is that Republic Act No. 7716 (The Expanded-VAT Law) did not “originate exclusively” in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution, because it is in fact the result of the consolidation of

two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, Sec. 24 was adopted from the American Federal Constitution, it is notable in two respects: the verb “shall originate” is qualified in the Philippine Constitution by the word “exclusively” and the phrase “as on other bills” in the American version is omitted. This means, according to them, that to be considered as having originated in the House, Republic Act No. 7716 must retain the essence of H. No. 11197.

Held: This argument will not bear analysis. To

begin with, it is not the law - but the revenue bill - which

is required by the Constitution to “originate exclusively” in the House of Representatives. It is important to

emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that

the result may be a rewriting of the whole. The possibility

of a third version by the conference committee will be discussed later. At this point, what is important to note is

that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute - and not only

the bill which initiated the legislative process culminating in the enactment of the law - must substantially be the

same as the House bill would be to deny the Senate's

power not only to “concur with amendments” but also to “propose amendments.” It would be to violate the

coequality of legislative power of the two houses of Congress and in fact make the House superior to the

Senate.

The contention that the constitutional design is to

limit the Senate's power in respect of revenue bills in order to compensate for the grant to the Senate of the

treaty-ratifying power and thereby equalize its powers and

those of the House overlooks the fact that the powers being compared are different. We are dealing here with

the legislative power which under the Constitution is vested not only in any particular chamber but in the

Congress of the Philippines, consisting of “a Senate and a House of Representatives.” The exercise of the treaty-

ratifying power is not the exercise of legislative power. It

is the exercise of a check on the executive power. There is, therefore, no justification for comparing the legislative

powers of the House and of the Senate on the basis of the possession of a similar non-legislative power by the

Senate. The possession of a similar power by the U.S.

Senate has never been thought of as giving it more legislative powers than the House of Representatives.

X x x Given, then, the power of the Senate to

propose amendments, the Senate can propose its own version even with respect to bills which are required by

the Constitution to originate in the House.

It is insisted, however, that S. No. 1630 was

passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the

Senate did was merely to “take (H. No. 11197) into

consideration” in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197

up to the enacting clause and then writing its own version following the enacting clause (which, it would seem,

petitioners admit is an amendment by substitution), and,

on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are

two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills

authorizing an increase of the public debt, private bills and

32

bills of local application must come from the House of

Representatives on the theory that, elected as they are from the districts, the members of the House can be

expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are

elected at large, are expected to approach the same

problems from the national perspective. Both views are thereby made to bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the

Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as

a body is withheld pending receipt of the House bill. The

Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before

the House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the

Senate ever considered it. It was only after the Senate

had received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with the

referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the Committee on

February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority in the time of filing of

bills, the fact is that it was in the House that a bill (H. No.

253) to amend the VAT law was first filed on July 22, 1992. Several other bills had been filed in the House

before S. No. 1129 was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills.

(Tolentino v. Secretary of Finance, 235 SCRA 630, 661-663, Aug. 25, 1994, En Banc [Mendoza])

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

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

1) To prevent hodge-podge or log-rolling

legislation;

2) To prevent surprise or fraud upon the legislature by means of provisions in bills of

which the titles gave no information, and which might therefore be overlooked and

carelessly and unintentionally adopted; and

3) To fairly apprise the people, through such publication of legislative proceedings as is

usually made, of the subjects of legislation that are being considered, in order that they

may have opportunity of being heard thereon by petition or otherwise if they shall so desire.

Section 26(1) of Article VI of the 1987 Constitution is sufficiently complied with where x x x the title is

comprehensive enough to embrace the general objective it seeks to achieve, and if all the parts of the statute are

related and germane to the subject matter embodied in

the title or so long as the same are not inconsistent with or foreign to the general subject and title. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, en Banc [Purisima])

57. Section 44 of R.A. No. 8189 (The Voter's Registration Act of 1996) which provides for automatic transfer to a new station of any Election Officer who has already served for more than four years in a particular city or municipality was assailed for being violative of Section 26(1) of Article VI of the Constitution allegedly because it has an isolated and different subject from

that of RA 8189 and that the same is not expressed in the title of the law. Should the challenge be sustained?

Held: Section 44 of RA 8189 is not isolated

considering that it is related and germane to the subject

matter stated in the title of the law. The title of RA 8189 is "The Voter's Registration Act of 1996" with a subject

matter enunciated in the explanatory note as "AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS,

ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING THE PROCEDURES THEREOF AND

AUTHORIZING THE APPROPRIATION OF FUNDS

THEREFOR." Section 44, which provides for the reassignment of election officers, is relevant to the subject

matter of registration as it seeks to ensure the integrity of the registration process by providing guideline for the

COMELEC to follow in the reassignment of election

officers. It is not an alien provision but one which is related to the conduct and procedure of continuing

registration of voters. In this regard, it bears stressing that the Constitution does not require Congress to employ

in the title of an enactment, language of such precision as to mirror, fully index or catalogue, all the contents and the

minute details therein. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

58. Do courts have the power to inquire into allegations

that, in enacting a law, a House of Congress failed to comply with its own rules?

Held: The cases, both here and abroad, in varying forms of expression, all deny to the courts the

power to inquire into allegations that, in enacting a law, a

House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a

constitutional provision or the right of private individuals. In Osmena v. Pendatun, it was held: “At any rate, courts

have declared that ‘the rules adopted by deliberative bodies are subject to revocation, modification or waiver at

the pleasure of the body adopting them.’ And it has been

said that ‘Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They

may be waived or disregarded by the legislative body.’ Consequently, ‘mere failure to conform to parliamentary

usage will not invalidate that action (taken by a

deliberative body) when the requisite number of members have agreed to a particular measure.’”

It must be realized that each of the three

departments of our government has its separate sphere which the others may not invade without upsetting the

delicate balance on which our constitutional order rests.

Due regard for the working of our system of government, more than mere comity, compels reluctance on the part of

the courts to enter upon an inquiry into an alleged violation of the rules of the House. Courts must

accordingly decline the invitation to exercise their power.

(Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza]) 59. What is the Bicameral Conference Committee?

Discuss the nature of its function and its jurisdiction.

Held: While it is true that a conference

committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its

jurisdiction to this question. Its broader function is described thus:

33

A conference committee may deal generally with

the subject matter or it may be limited to resolving the precise differences between the two houses. Even where

the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom

with which new subject matter can be inserted into the

conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate.

These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is

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

60. Discuss the Enrolled Bill Doctrine.

Held: Under the enrolled bill doctrine, the

signing of H. Bill No. 7189 by the Speaker of the House

and the President of the Senate and the certification by the secretaries of both Houses of Congress that it was

passed on November 21, 1996 are conclusive of its due enactment. x x x To be sure, there is no claim either

here or in the decision in the EVAT cases (Tolentino v. Secretary of Finance) that the enrolled bill embodies a

conclusive presumption. In one case (Astorga v. Villegas) we “went behind” an enrolled bill and consulted the Journal to determine whether certain provisions of a

statute had been approved by the Senate.

But, where as here there is no evidence to the

contrary, this Court will respect the certification of the presiding officers of both Houses that a bill has been duly

passed. Under this rule, this Court has refused to determine claims that the three-fourths vote needed to

pass a proposed amendment to the Constitution had not

been obtained, because “a duly authenticated bill or resolution imports absolute verity and is binding on the

courts.” x x x

This Court has refused to even look into allegations that the enrolled bill sent to the President

contained provisions which had been “surreptitiously”

inserted in the conference committee x x x. (Tolentino v. Secretary of Finance)

It has refused to look into charges that an

amendment was made upon the last reading of a bill in

violation of Art. VI, Sec. 26(2) of the Constitution that “upon the last reading of a bill, no amendment shall be

allowed.” (Philippine Judges Ass’n v. Prado)

In other cases, this Court has denied claims that the tenor of a bill was otherwise than as certified by the

presiding officers of both Houses of Congress.

The enrolled bill doctrine, as a rule of evidence, is

well-established. It is cited with approval by text writers here and abroad. The enrolled bill rule rests on the

following considerations:

X x x As the President has no authority to

approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and

having the official attestations of the Speaker of

the House of Representatives, of the President of the Senate, and of the President of the United

States, carries, on its face, a solemn assurance by the legislative and executive departments of the

government, charged, respectively, with the duty of enacting and executing the laws, that it was

passed by Congress. The respect due to coequal

and independent departments requires the judicial

department to act upon that assurance, and to accept, as having passed Congress, all bills

authenticated in the manner stated; leaving the court to determine, when the question properly

arises, whether the Act, so authenticated, is in

conformity with the Constitution. (Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 36 L. Ed. 294, 303 [1891])

To overrule the doctrine now, x x x is to repudiate the massive teaching of our cases and overthrow an

established rule of evidence. (Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza]) 61. When should the Legislative Journal be regarded as

conclusive upon the courts, and why?

Held: The Journal is regarded as conclusive with respect to matters that are required by the Constitution to

be recorded therein. With respect to other matters, in the absence of evidence to the contrary, the Journals have

also been accorded conclusive effects. Thus, in United States v. Pons, this Court spoke of the imperatives of

public policy for regarding the Journals as “public

memorials of the most permanent character,” thus: “They should be public, because all are required to conform to

them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law

shall not be destroyed tomorrow, or at some remote

period of time, by facts resting only in the memory of individuals.” (Arroyo v. De Venecia, 277 SCRA 268, 298-299, Aug. 14, 1997 [Mendoza])

62. What matters are required to be entered on the Journal?

Held:

1) The yeas and nays on the third and final reading of a bill (Art. VI, Sec. 26[2]);

2) The yeas and nays on any question, at the request of one-fifth of the members present

(Id., Sec. 16[4]); 3) The yeas and nays upon repassing a bill over

the President’s veto (Id., Sec. 27[1]); and

4) The President’s objection to a bill he had vetoed (Id.).

(Arroyo v. De Venecia, 277 SCRA 268, 298, Aug. 14, 1997 [Mendoza])

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

Held: The act of the Executive in vetoing the

particular provisions is an exercise of a constitutionally

vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The

veto power is not absolute.

X x x

The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He

or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes.

In the exercise of the veto power, it is generally all or

nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money

to run the machinery of government and it can not veto the entire bill even if it may contain objectionable

features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable

parts. It is for this reason that the Constitution has wisely

34

provided the “item veto power” to avoid inexpedient riders

being attached to an indispensable appropriation or revenue measure.

The Constitution provides that only a particular

item or items may be vetoed. The power to disapprove

any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the

remaining portion of the same item. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc [Gutierrez])

64. Distinguish an “item” from a “provision” in relation to the veto power of the President.

Held: The terms item and provision in budgetary legislation and practice are concededly different. An item

in a bill refers to the particulars, the details, the distinct

and severable parts x x x of the bill. It is an indivisible sum of money dedicated to a stated purpose. The United

States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312) declared “that an item” of an appropriation bill obviously means an item which in itself is a specific appropriation of

money, not some general provision of law, which happens

to be put into an appropriation bill. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc [Gutierrez])

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

Held: We need no lengthy justifications or

citations of authorities to declare that no President may

veto the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither may the

President set aside or reverse a final and executory judgment of this Court through the exercise of the veto

power. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc [Gutierrez])

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

Held: 1. [P]etitioner vigorously contends that

after the May 8, 1995 elections, the COMELEC lost its

jurisdiction over the question of petitioner’s qualifications to run for member of the House of Representatives. He

claims that jurisdiction over the petition for disqualification

is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet-unresolved

question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in

directing the suspension of his proclamation as the

winning candidate in the Second Congressional District of Makati City. We disagree.

Petitioner conveniently confuses the distinction

between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining

the highest number of votes in an election does not

automatically vest the position in the winning candidate.

Section 17 of Article VI of the 1987 Constitution reads:

The Senate and the House of Representatives shall have an Electoral Tribunal

which shall be the sole judge of all contests

relating to the election, returns and qualifications of their respective Members.

Under the above-stated provision, the electoral

tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of

candidates for either the Senate or the House only when

the latter become members of either the Senate or the House of Representatives. A candidate who has not been

proclaimed and who has not taken his oath of office cannot be said to be a member of the House of

Representatives subject to Section 17 of Article VI of the

Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. Blg. 881 in

conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein.

Thus, petitioner’s contention that “after the conduct of the election and (petitioner) has been established the winner

of the electoral exercise from the moment of election, the

COMELEC is automatically divested of authority to pass upon the question of qualification” finds no basis in law,

because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A.

6646 to continue to hear and decide questions relating to

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

2. As to the House of Representatives Electoral

Tribunal’s supposed assumption of jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995

elections, suffice it to say that HRET’s jurisdiction as the sole judge of all contests relating to the elections, returns

and qualifications of members of Congress begins only after a candidate has become a member of the House of

Representatives (Art. VI, Sec. 17, 1987 Constitution). Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point

has no jurisdiction over the question. (Romualdez-Marcos v. COMELEC, 248 SCRA 300, 340-341, Sept. 18, 1995, En Banc [Kapunan, J.])

67. Will the rule be the same if that candidate wins and

was proclaimed winner and already assumed office as Congressman?

Held: While the COMELEC is vested with the

power to declare valid or invalid a certificate of candidacy,

its refusal to exercise that power following the proclamation and assumption of the position by Farinas is

a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral Tribunal of the House of

Representatives (HRET). Under Article VI, Section 17 of

the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the election,

returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has

been proclaimed, taken his oath, and assumed office as a

member of the House of Representatives, COMELEC’s jurisdiction over election contests relating to his election,

returns, and qualifications ends, and the HRET’s own jurisdiction begins. Thus, the COMELEC’s decision to

discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET’s own jurisdiction and

35

functions. (Guerrero v. COMELEC, 336 SCRA 458, July 26, 2000, En Banc [Quisumbing])

68. Petitioner further argues that the HRET assumes jurisdiction only if there is a valid proclamation of the

winning candidate. He contends that if a candidate

fails to satisfy the statutory requirements to qualify him as a candidate, his subsequent proclamation is

void ab initio. Where the proclamation is null and void, there is no proclamation at all and the mere

assumption of office by the proclaimed candidate does not deprive the COMELEC at all of its power to declare

such nullity, according to petitioner.

Held: But x x x in an electoral contest where the

validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as

congressman is raised, that issue is best addressed to the

HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction

between constitutional bodies, with due regard to the people’s mandate. (Guerrero v. COMELEC, 336 SCRA 458, July 26, 2000, En Banc [Quisumbing])

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

Held: The Constitution mandates that the House

of Representatives Electoral Tribunal and the Senate

Electoral Tribunal shall each, respectively, be the sole judge of all contests relating to the election, returns and

qualifications of their respective members.

The Court has stressed that “x x x so long as the

Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and

qualifications of members of the House of Representatives, any final action taken by the HRET on a

matter within its jurisdiction shall, as a rule, not be reviewed by this Court. The power granted to the

Electoral Tribunal x x x excludes the exercise of any

authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same.”

The Court did recognize, of course, its power of

judicial review in exceptional cases. In Robles v. HRET, the Court has explained that while the judgments of the Tribunal are beyond judicial interference, the Court may

do so, however, but only “in the exercise of this Court’s so-called extraordinary jurisdiction x x x upon a

determination that the Tribunal’s decision or resolution was rendered without or in excess of its jurisdiction, or

with grave abuse of discretion or paraphrasing Morrero v. Bocar (66 Phil. 429), upon a clear showing of such arbitrary and improvident use by the Tribunal of its power

as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error,

manifestly constituting such grave abuse of discretion that

there has to be a remedy for such abuse.”

The Court does not x x x venture into the perilous area of correcting perceived errors of independent

branches of the Government; it comes in only when it has

to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the

Constitution itself calls for remedial action. (Libanan v. HRET, 283 SCRA 520, Dec. 22, 1997 [Vitug])

The Executive Department

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

Held: Resignation x x x is a factual question and

its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not

governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be

implied. As long as the resignation is clear, it must be

given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he

evacuated Malacanang Palace in the afternoon of January

20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to

be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

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

X x x

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his

leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with

reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the

sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people

for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the

people as President; (4) he assured that he will not shirk from any future challenge that may come ahead on the

same service of our country. Petitioner’s reference is to a

future challenge after occupying the office of the president which he has given up; and (5) he called on his

supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The

press release was petitioner’s valedictory, his final act of

farewell. His presidency is now in the past tense. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]) 71. Discuss our legal history on executive immunity.

Held: The doctrine of executive immunity in this

jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. v. Chuoco Tiaco and Crossfield, the

respondent Tiaco, a Chinese citizen, sued petitioner W.

Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police

and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to

deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

36

“The principle of nonliability x x x does

not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover

of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that

tyranny, under the guise of the execution of the law,

could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts

or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable

under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the

Governor-General, like the judges of the courts and the

members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act

executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is

properly presented to it and the occasion justly warrants

it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person

who has been deprived his liberty or his property by such act. This remedy is assured to every person, however

humble or of whatever country, when his personal or property rights have been invaded, even by the highest

authority of the state. The thing which the judiciary can

not do is mulct the Governor-General personally in damages which result from the performance of his official

duty, any more than it can a member of the Philippine Commission or the Philippine Assembly. Public policy

forbids it.

Neither does this principle of nonliability

mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform

as such official. On the contrary, it clearly appears from

the discussion heretofore had, particularly that portion which touched the liability of judges and drew an

analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so

plainly outside of his power and authority that he can not be said to have exercised discretion in determining

whether or not he had the right to act. What is held

here is that he will be protected from personal liability for damages not only when he acts within his authority, but

also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty,

in determining whether he had authority to act or not.

In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is

still protected provided the question of his authority was one over which two men, reasonably qualified for that

position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men

could not honestly differ over its determination. In such

case, he acts, not as Governor-General but as a private individual, and, as such, must answer for the

consequences of his act.”

Mr. Justice Johnson underscored the consequences if the

Chief Executive was not granted immunity from suit, viz: “x x x. Action upon important matters of state delayed;

the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person

of one of the highest officials of the State and for the

office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of

government itself.”

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the

late President Ferdinand E. Marcos and the 1973

Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section

17, Article VII stated:

“The President shall be immune from suit

during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others

pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in

Article XVII of this Constitution.”

In his second Vicente G. Sinco Professorial Chair Lecture

entitled, “Presidential Immunity And All The King’s Men: The Law Of Privilege As A Defense To Actions For

Damages,” (62 Phil. L.J. 113 [1987]) petitioner’s learned

counsel, former Dean of the UP College of Law, Atty. Pacifico Agabin, brightened the modifications effected by

this constitutional amendment on the existing law on executive privilege. To quote his disquisition:

“In the Philippines though, we sought to

do the American one better by enlarging and fortifying the

absolute immunity concept. First, we extended it to shield the President not only from civil claims but also from

criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President

outside the scope of official duties. And third, we

broadened its coverage so as to include not only the President but also other persons, be they government

officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us

were suffering from AIDS (or absolute immunity defense

syndrome).”

The Opposition in the then Batasang Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance,

Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He

denounced the immunity as a return to the anachronism “the king can do no wrong.” The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People

Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive

immunity provision of the 1973 Constitution. x x x (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

72. Can former President Estrada still be prosecuted

criminally considering that he was not convicted in the impeachment proceedings against him?

Held: We reject his argument that he cannot be

prosecuted for the reason that he must first be convicted

in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the

prosecutors and by the events that led to his loss of the

presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 “Recognizing that the

Impeachment Court is Functus Officio.” Since the Impeachment Court is now functus officio, it is untenable

for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The

plea if granted, would put a perpetual bar against his

37

prosecution. Such a submission has nothing to commend

itself for it will place him in a better situation than a non-sitting President who has not been subjected to

impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the

Constitutional Commission make it clear that when

impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil

cases may already be filed against him x x x.

This is in accord with our ruling in In Re: Saturnino Bermudez that “incumbent Presidents are

immune from suit or from being brought to court during

the period of their incumbency and tenure” but not beyond. Considering the peculiar circumstance that the

impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner

Estrada cannot demand as a condition sine qua non to his

criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. (Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, En Banc [Puno]) 73. Is Section 18.5 of R.A. No. 9189 in relation to Section

4 of the same Act in contravention of Section 4, Article VII of the Constitution?

Held: Section 4 of R.A. No. 9189 provides that

the overseas absentee voter may vote for president, vice-

president, senators and party-list representatives.

X x x

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the

proclamation of winning candidates insofar as it affects

the canvass of votes and proclamation of winning candidates for president and vice-president, is

unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the

Constitution x x x which gives to Congress the duty to canvass the votes and proclaim the winning candidates for

president and vice-president.

X x x

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too

sweeping that it necessarily includes the proclamation of

the winning candidates for the presidency and the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be

repugnant to Section 4, Article VIII of the Constitution only insofar as said Section totally disregarded the

authority given to Congress by the Constitution to

proclaim the winning candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of

the law x x x clashes with paragraph 4, Section 4, Article

VII of the Constitution which provides that the returns of every election for President and Vice-President shall be

certified by the board of canvassers to Congress.

Congress should not have allowed the COMELEC

to usurp a power that constitutionally belongs to it or x x x to encroach “on the power of Congress to canvass the

votes for president and vice-president and the power to proclaim the winners for the said positions.” The

provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes

and the proclamation of the winning candidates for

president and vice-president for the entire nation must remain in the hands of Congress. (Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc [Austria-Martinez]) 74. Discuss the jurisdiction of the Supreme Court to hear

and decide cases involving the election, returns and qualifications of the President and Vice-President.

Held: Petitioners Tecson, et al. x x x and Velez x

x x invoke the provisions of Article VII, Section 4,

paragraph 7, of the 1987 Constitution in assailing the

jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to

instead take on the petitions they directly instituted before it. X x x

X x x

Ordinary usage would characterize a “contest” in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct remedies, would

have one objective in view, i.e., to dislodge the winning

candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the “Rules of the Presidential Electoral Tribunal,” promulgated by the Supreme Court en banc on 18 April 1992, would support

this premise x x x.

The rules categorically speak of the jurisdiction of

the tribunal over contests relating to the election, returns and qualifications of the “President” or “Vice-President” of

the Philippines, and not of “candidates” for President or

Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps,

intrudes into, or unlawfully holds or exercises a public office. In such context, the election contest can only

contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the

second or third highest number of votes could file an

election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the

Supreme Court, defined by Section 4, paragraph 7, of the

1987 Constitution, would not include cases directly brought before it questioning the qualifications of a

candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G.R. No. 161434 x x x and G.R. No.

161634 x x x would have to be dismissed for want of

jurisdiction. (Maria Jeanette Tecson, et al. v. COMELEC, G.R. No. 161434, March 3, 2004, En Banc [Vitug])

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

Held: The aforecited provision (Section 16,

Article VII) of the Constitution has been the subject of

several cases on the issue of the restrictive function of the Commission on Appointments with respect to the

appointing power of the President. This Court touched upon the historical antecedent of the said provision in the

case of Sarmiento III v. Mison in which it was ratiocinated upon that Section 16 of Article VII of the 1987

Constitution requiring confirmation by the Commission on

38

Appointments of certain appointments issued by the

President contemplates a system of checks and balances between the executive and legislative branches of

government. Experience showed that when almost all presidential appointments required the consent of the

Commission on Appointments, as was the case under the

1935 Constitution, the commission became a venue of “horse trading” and similar malpractices. On the other

hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as

what happened under the 1973 Constitution, leads to abuse of such power. Thus was perceived the need to

establish a “middle ground” between the 1935 and 1973

Constitutions. The framers of the 1987 Constitution deemed it imperative to subject certain high positions in

the government to the power of confirmation of the Commission on Appointments and to allow other positions

within the exclusive appointing power of the President. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

76. Who are the officers to be appointed by the President

under Section 16, Article VII of the 1987 Constitution whose appointments shall require confirmation by the Commission on Appointments, and those whose appointments shall no longer require such confirmation?

Held: Conformably, as consistently interpreted

and ruled in the leading case of Sarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers of the

government to be appointed by the President:

First, the heads of the executive departments,

ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval

captain, and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided

for by law;

Third, those whom the President may be

authorized by law to appoint;

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

the President alone.

It is well-settled that only presidential appointees

belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima]) 77. Under Republic Act 6975 (the DILG Act of 1990), the

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

Held: It is well-settled that only presidential

appointees belonging to the first group (enumerated

under the first sentence of Section 16, Article VII of the 1987 Constitution) require the confirmation by the

Commission on Appointments. The appointments of

respondent officers who are not within the first category, need not be confirmed by the Commission on

Appointments. As held in the case of Tarrosa v. Singson, Congress cannot by law expand the power of confirmation

of the Commission on Appointments and require confirmation of appointments of other government

officials not mentioned in the first sentence of Section 16

of Article VII of the 1987 Constitution.

Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the

Commission on Appointments to confirm the

appointments of public officials whose appointments are not required by the Constitution to be confirmed.

(Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima]) 78. Will it be correct to argue that since the Philippine

National Police is akin to the Armed Forces of the Philippines, therefore, the appointments of police officers whose rank is equal to that of colonel or naval captain will require confirmation by the Commission on Appointments?

Held: This contention is x x x untenable. The Philippine National Police is separate and distinct from the

Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4 of Article

XVI of the 1987 Constitution,

“The Armed Forces of the Philippines

shall be composed of a citizen armed force which shall undergo military training and

service, as may be provided by law. It shall keep a regular force necessary for the

security of the State.”

On the other hand, Section 6 of the same Article

of the Constitution ordains that:

“The State shall establish and

maintain one police force, which shall be national in scope and civilian in character to

be administered and controlled by a national police commission. The authority of local

executives over the police units in their jurisdiction shall be provided by law.”

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

Thereunder, the police force is different from and

independent of the armed forces and the ranks in the

military are not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the

PNP x x x do not fall under the first category of presidential appointees requiring confirmation by the

Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima]) 79. Discuss the nature of an ad-interim appointment. Is it

temporary and, therefore, can be withdrawn or revoked by the President at her pleasure?

39

Held: An ad interim appointment is a permanent

appointment because it takes effect immediately and can no longer be withdrawn by the President once the

appointee has qualified into office. The fact that it is subject to confirmation by the Commission on

Appointments does not alter its permanent character.

The Constitution itself makes an ad interim appointment permanent in character by making it effective until

disapproved by the Commission on Appointments or until the next adjournment of Congress. The second

paragraph of Section 16, Article VII of the Constitution provides as follows:

“The President shall have the power to make appointments during the recess of the Congress,

whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments

or until the next adjournment of the Congress.”

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it

can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any

time and for any reason an ad interim appointment is

utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is

permanent in character. In Summers v. Ozaeta, decided

on October 25, 1948, we held that:

“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the

Constitution, which provides that the ‘President shall have

the power to make appointments during the recess of the Congress, but such appointments shall be effective only

until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An

ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired.

Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good

until another permanent appointment is issued.”

The Constitution imposes no condition on the

effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The

appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In

Pacete v. Secretary of the Commission on Appointments,

this Court elaborated on the nature of an ad interim appointment as follows:

“A distinction is thus made between the exercise

of such presidential prerogative requiring confirmation by

the Commission on Appointments when Congress is in session and when it is in recess. In the former, the

President nominates, and only upon the consent of the Commission on Appointments may the person thus named

assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective

‘until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’”

Petitioner cites Black’s Law Dictionary which

defines the term “ad interim” to mean “in the meantime” or “for the time being.” Hence, petitioner argues that an

ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered

by this Court in Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, where we explained that:

“x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding

the situation. Private respondent had been extended several ‘ad interim’ appointments which petitioner

mistakenly understands as appointments temporary in

nature. Perhaps, it is the literal translation of the word ‘ad interim’ which creates such belief. The term is

defined by Black to mean ‘in the meantime’ or ‘for the time being’. Thus, an officer ad interim is one appointed

to fill a vacancy, or to discharge the duties of the office

during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to

Dr. Esteban’s appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. X x x.”

Thus, the term “ad interim appointment”, as used

in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a

temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of

the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again

occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar v. Court of Appeals, where the Court stated:

“We have already mentioned that an ad interim

appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the

appointment is temporary or in an acting capacity,

rather it denotes the manner in which the appointment was made. In the instant case, the appointment

extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as

to tenure. The permanent status of private respondent’s appointment as Executive Assistant II was

recognized and attested to by the Civil Service

Commission Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent appointment but their terms are only until the Board disapproves them.”

An ad interim appointee who has qualified and

assumed office becomes at that moment a government

employee and therefore part of the civil service. He enjoys the constitutional protection that “[n]o officer or

employee in the civil service shall be removed or suspended except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete and irrevocable once the

appointee has qualified into office. The withdrawal or

40

revocation of an ad interim appointment is possible only if

it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter

is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which

is protected not only by statute but also by the

Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of

due process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) 80. How is an ad interim appointment terminated?

Held: An ad interim appointment can be terminated for two causes specified in the Constitution.

The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The

second cause is the adjournment of Congress without the

Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly

imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in

effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is

the Constitution itself that places the Sword of Damocles

over the heads of the ad interim appointees. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

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

Held: While an ad interim appointment is

permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting

capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee

does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

82. Benipayo, Tuason and Borra were appointed

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

Held: In the instant case, the President did in

fact appoint permanent Commissioners to fill the

vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra

and Tuason were extended permanent appointments during the recess of Congress. They were not appointed

or designated in a temporary or acting capacity, unlike

Commissioner Haydee Yorac in Brillantes v. Yorac and Solicitor General Felix Bautista in Nacionalista Party v. Bautista. The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution

which authorizes the President, during the recess of

Congress, to make appointments that take effect immediately.

While the Constitution mandates that the

COMELEC “shall be independent,” this provision should be harmonized with the President’s power to extend ad interim appointments. To hold that the independence of

the COMELEC requires the Commission on Appointments

to first confirm ad interim appointees before the appointees can assume office will negate the President’s

power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and

effect to every provision of the law. It will also run

counter to the clear intent of the framers of the Constitution.

X x x

The President’s power to extend ad interim appointments may indeed briefly put the appointee at the

mercy of both the appointing and confirming powers.

This situation, however, in only for a short period – from the time of issuance of the ad interim appointment until

the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation,

as a trade-off against the evil of disruptions in vital

government services. This is also part of the check-and-balance under the separation of powers, as a trade-off

against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely

subjected the President’s appointing power to the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body.

The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed

appointments, and no one President will appoint all the

COMELEC members. x x x The special constitutional safeguards that insure the independence of the COMELEC

remain in place (See Sections, 3, 4, 5 and 6, Article IX-A of the Constitution).

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason,

as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments

prohibited by Section 1 (2), Article IX-C of the Constitution. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

83. Discuss the reason why the framers of the 1987

Constitution thought it wise to reinstate the 1935 Constitution provision on ad interim appointments of the President.

Held: The original draft of Section 16, Article VII

of the Constitution – on the nomination of officers subject to confirmation by the Commission on Appointments – did

not provide for ad interim appointments. The original intention of the framers of the Constitution was to do

away with ad interim appointments because the plan was

for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However,

because of the need to avoid disruptions in essential government services, the framers of the Constitution

thought it wise to reinstate the provisions of the 1935

Constitution on ad interim appointments. X x x

X x x Clearly, the reinstatement in the present

Constitution of the ad interim appointing power of the

President was for the purpose of avoiding interruptions in vital government services that otherwise would result

from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring

opinion in Guevarra v. Inocentes, decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained

41

the rationale behind ad interim appointments in this

manner:

“Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before

the session of Congress, the evil sought to be avoided – interruption in the discharge of essential functions – may take place. Because the same evil would result if the

appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other

hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of

other ad interim appointments or reappointments.”

(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

84. The ad interim appointments of Benipayo, Borra and

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

Held: There is no dispute that an ad interim appointee disapproved by the Commission on

Appointments can no longer be extended a new appointment. The disapproval is a final decision of the

Commission on Appointments in the exercise of its

checking power on the appointing authority of the President. The disapproval is a decision on the merits,

being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of

the appointee. Since the Constitution does not provide for

any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing

power. In this instance, the President can no longer renew the appointment not because of the constitutional

prohibition on appointment, but because of a final decision by the Commission on Appointments to withhold

its consent to the appointment.

An ad interim appointment that is by-passed

because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed

appointment is one that has not been finally acted upon

on the merits by the Commission on Appointments at the close of the session of Congress. There is no final

decision by the Commission on Appointments to give or withhold its consent to the appointment as required by

the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed

appointee. This is recognized in Section 17 of the Rules

of the Commission on Appointments x x x. Hence, under the Rules of the Commission on Appointments, a by-

passed appointment can be considered again if the President renews the appointment.

It is well-settled in this jurisdiction that the President can renew the ad interim appointments of by-

passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevarra v. Inocentes why by-passed ad interim appointees could be

extended new appointments, thus:

“In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because

the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also,

upon “the next adjournment of the Congress”, simply

because the President may then issue new appointments

– not because of implied disapproval of the Commission deduced from its intention during the session of Congress,

for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never

by omission. If the adjournment of Congress were an

implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those

so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that

the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly

inferred from said omission of the Commission, but the

circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments.”

Guevarra was decided under the 1935 Constitution from

where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was

lifted verbatim. The jurisprudence under the 1935 Constitution governing ad interim appointments by the

President is doubtless applicable to the present Constitution. The established practice under the present

Constitution is that the President can renew the

appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under the

1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on

Appointments but vested sole appointing power in the

President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to

disapproved nor by-passed ad interim appointments. A

disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval

is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under

Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment cannot be revived by a

new ad interim appointment because there is no final

disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in

the appointee serving beyond the fixed term of seven years.

X x x The framers of the Constitution made it quite

clear that any person who has served any term of office as COMELEC member – whether for a full term of seven

years, a truncated term of five or three years, or even an unexpired term for any length of time – can no longer be

reappointed to the COMELEC. X x x

X x x

In Visarra v. Miraflor, Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista v. De Vera that a

[r]eappointment is not prohibited when a Commissioner

has held, office only for, say, three or six years, provided his term will not exceed nine years in all.” This was the

interpretation despite the express provision in the 1935 Constitution that a COMELEC member “shall hold office for

a term of nine years and may not be reappointed.”

To foreclose this interpretation, the phrase

“without reappointment” appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase

prohibits reappointment of any person previously appointed for a term of seven years. The second phrase

prohibits reappointment of any person previously

42

appointed for a term of five or three years pursuant to the

first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed

completes his term of office for the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments

does not constitute a term of office. The period from the time the ad interim appointment is made to the time it

lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his

unilateral action could start and complete the running of a

term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders

inutile the confirming power of the Commission on Appointments.

The phrase “without reappointment” applies only to one who has been appointed by the President and

confirmed by the Commission on Appointments, whether or not such person completes his term of office. There

must be a confirmation by the Commission on Appointments of the previous appointment before the

prohibition on reappointment can apply. To hold

otherwise will lead to absurdities and negate the President’s power to make ad interim appointments.

In the great majority of cases, the Commission on

Appointments usually fails to act, for lack of time, on the

ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed,

the President will certainly hesitate to make ad interim appointments because most of her appointees will

effectively be disapproved by mere inaction of the

Commission on Appointments. This will nullify the constitutional power of the President to make ad interim

appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to

a proposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the

present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for

those who have been previously appointed and confirmed

even if they served for less than seven years. The second is to insure that the members of the three constitutional

commissions do not serve beyond the fixed term of seven years. x x x.

X x x

Plainly, the prohibition on reappointment is intended to

insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting

appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an

appointee’s total term of office exceeding seven years.

The evils sought to be avoided by the twin prohibitions are very specific – reappointment of any kind and

exceeding one’s term in office beyond the maximum period of seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened

even further the screws on those who might wish to extend their terms of office. Thus, the word “designated”

was inserted to plug any loophole that might be exploited by violators of the Constitution x x x.

The ad interim appointments and subsequent

renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because

there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment

presupposes a previous confirmed appointment. The

same ad interim appointments and renewal of appointments will also not breach the seven-year term

limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of their

terms of office. Consequently, there is no danger

whatsoever that the renewal of the ad interim appointments of these three respondents will result in any

of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal

of the ad interim appointment of these three respondents,

for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments

in Section 1 (2), Article IX-C of the Constitution. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

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

Held: Section 1 (2), Article IX-C of the

Constitution provides that “[t]he Chairman and the

Commissioners shall be appointed x x x for a term of seven years without reappointment.” There are four

situations where this provision will apply. The first

situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on

Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether

as a member or as a chairman, because he will then be actually serving more than seven years. The second

situation is where the appointee, after confirmation,

serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be

reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment

will result in the appointee also serving more than seven

years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who

died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed,

whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the

appointee also serving more than seven years.

The fourth situation is where the appointee has

previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will

not result in his serving more than seven years, a

reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to

those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers

to the first appointees under the Constitution whose terms

of office are less than seven years, but are barred from ever being reappointed under any situation. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) 86. To what types of appointments is Section 15, Article

VII of the 1987 Constitution (prohibiting the President

43

from making appointments two months before the next presidential elections and up to the end of his term) directed against?

Held: Section 15, Article VII is directed against

two types of appointments: (1) those made for buying

votes and (2) those made for partisan considerations. The first refers to those appointments made within two

months preceding the Presidential election and are similar to those which are declared election offenses in the

Omnibus Election Code; while the second consists of the so-called “midnight” appointments. The SC in In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, (298 SCRA 408, Nov. 9, 1998, En Banc [Narvasa C.J.]) clarified this when it held:

“Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably

be deemed to contemplate not only “midnight”

appointments – those made obviously for partisan reasons as shown by their number and the time of their

making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential

election.”

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

Held: The records reveal that when the

petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents

before the CSC, the only reason he cited to justify his action was that these were “midnight appointments” that

are forbidden under Article VII, Section 15 of the

Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential

appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments

during the last days of his or her tenure. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago]) 88. Distinguish the President’s power of general

supervision over local governments from his control power.

Held: On many occasions in the past, this Court has had the opportunity to distinguish the power of

supervision from the power of control. In Taule v. Santos, we held that the Chief Executive wielded no more

authority than that of checking whether a local

government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere

with local governments provided that the same or its officers act within the scope of their authority.

Supervisory power, when contrasted with control, is the

power of mere oversight over an inferior body; it does not include any restraining authority over such body. Officers

in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to

order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not

cover such authority. Supervising officers merely see to it

that the rules are followed, but he himself does not lay

down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he

may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for

the doing of the act. (Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

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

Held: This question would x x x pivot on the

proper understanding of the provision of the Revised Administrative Code of 1987 (Book IV, Title III, Chapter II, Section 9) to the effect that –

“All provincial and city prosecutors and

their assistants shall be appointed by the President upon the recommendation of the

Secretary.”

Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior recommendation

of the Secretary of Justice endorsing the intended

appointment x x x.

When the Constitution or the law clothes the President with the power to appoint a subordinate officer,

such conferment must be understood as necessarily

carrying with it an ample discretion of whom to appoint. It should be here pertinent to state that the President is

the head of government whose authority includes the power of control over all “executive departments, bureaus

and offices.” Control means the authority of an

empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the

performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it

to be appropriate. Expressed in another way, the President has the power to assume directly the functions

of an executive department, bureau and office. It can

accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him

or altogether ignore their recommendations.

It is the considered view of the Court x x x that

the phrase “upon recommendation of the Secretary,” found in Section 9, Chapter II, Title III, Book IV, of the

Revised Administrative Code, should be interpreted x x x to be a mere advise, exhortation or indorsement, which is

essentially persuasive in character and not binding or obligatory upon the party to whom it is made. The

recommendation is here nothing really more than advisory

in nature. The President, being the head of the Executive Department, could very well disregard or do away with

the action of the departments, bureaus or offices even in the exercise of discretionary authority, and in so opting,

he cannot be said as having acted beyond the scope of his

authority. (Bermudez v. Executive Secretary Ruben Torres, G.R. No. 131429, Aug. 4, 1999, 3rd Div. [Vitug])

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

44

Held: There is a clear textual commitment under

the Constitution to bestow on the President full discretionary power to call out the armed forces and to

determine the necessity for the exercise of such power. Section 18, Article VII of the Constitution, which embodies

the powers of the President as Commander-in-Chief,

provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and

whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless

violence, invasion or rebellion. In case of invasion

or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days,

suspend the privilege of the writ of habeas corpus, or place the Philippines or any part

thereof under martial law.

The full discretionary power of the President to

determine the factual basis for the exercise of the calling out power is also implied and further reinforced in

the rest of Section 18, Article VII x x x.

Under the foregoing provisions, Congress may

revoke such proclamations (of martial law) or suspension (of the privilege of the writ of habeas corpus) and the

Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision

dealing with the revocation or review of the President's

action to call out the armed forces. The distinction places the calling out power in a different category from the

power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the

framers of the Constitution would have simply lumped

together the three powers and provided for their revocation and review without any qualification. Expressio unios est exclusio alterius. X x x That the intent of the Constitution is exactly what its letter says, i.e., that the

power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission

x x x.

The reason for the difference in the treatment of

the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in

using the power to call out because it is considered as the

lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the

power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights

and individual freedoms, and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the

privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an

actual invasion or rebellion and, (2) public safety must

require it. These conditions are not required in the case of the power to call out the armed forces. The only

criterion is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or

suppress lawless violence, invasion or rebellion.” The

implication is that the President is given full discretion and wide latitude in the exercise of the power to call as

compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual

basis, then this Court cannot undertake an independent

investigation beyond the pleadings. The factual necessity

of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters

considered for satisfying the same is a combination of several factors which are not always accessible to the

courts. Besides the absence of textual standards that the

court may use to judge necessity, information necessary to arrive at such judgment might also prove

unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly

unavailable to the courts. In many instances, the evidence upon which the President might decide that

there is a need to call out the armed forces may be of a

nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather

information, some of which may be classified as highly

confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may

be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of

property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly

and decisively if it were to have any effect at all. Such a

scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem

could spill over the other parts of the country. The determination of the necessity for the calling out power if

subjected to unfettered judicial scrutiny could be a

veritable prescription for disaster as such power may be unduly straitjacketed by an injunction or a temporary

restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution

to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when

in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless

the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of

judgment deserves to be accorded respect from this

Court. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

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

Held: Section 19, Article VII of the 1987

Constitution is simply the source of power of the President to grant reprieves, commutations, and pardons and remit

fines and forfeitures after conviction by final judgment. This provision, however, cannot be interpreted as denying

the power of courts to control the enforcement of their

decisions after the finality. In truth, an accused who has been convicted by final judgment still possesses collateral

rights and these rights can be claimed in the appropriate courts. For instance, a death convict who becomes insane

after his final conviction cannot be executed while in a

state of insanity (See Article 79 of the Revised Penal Code). The suspension of such a death sentence is

undisputably an exercise of judicial power. It is not usurpation of the presidential power of reprieve though its

effect is the same – the temporary suspension of the execution of the death convict. In the same vein, it

cannot be denied that Congress can at any time amend

45

R.A. No. 7659 by reducing the penalty of death to life

imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the

imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the

President’s power to commute final sentences of

conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. (Echegaray v. Secretary of Justice, 301 SCRA 96, Jan. 19, 1999, En Banc [Puno])

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

Held: A conditional pardon is in the nature of a

contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the

former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he

will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the

pardonee’s consent to the terms stipulated in this

contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who

is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Section

64(i) of the Revised Administrative Code, the Chief

Executive is authorized to order “the arrest and re-incarceration of any such person who, in his judgment,

shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence.” It is now a

well-entrenched rule in this jurisdiction that this exercise

of presidential judgment is beyond judicial scrutiny. The determination of the violation of the conditional pardon

rests exclusively in the sound judgment of the Chief Executive, and the pardonee, having consented to place

his liberty on conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the

courts, however erroneous the findings may be upon

which his recommitment was ordered.

X x x Ultimately, solely vested in the Chief Executive,

who in the first place was the exclusive author of the

conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his own

judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants the same.

Courts have no authority to interfere with the grant by the President of a pardon to a convicted criminal. It has been

our fortified ruling that a final judicial pronouncement as

to the guilt of a pardonee is not a requirement for the President to determine whether or not there has been a

breach of the terms of a conditional pardon. There is likewise nil a basis for the courts to effectuate the

reinstatement of a conditional pardon revoked by the

President in the exercise of powers undisputably solely and absolutely in his office. (In Re: Wilfredo Sumulong Torres, 251 SCRA 709, Dec. 29, 1995 [Hermosisima])

93. Who has the power to ratify a treaty?

Held: In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in

the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the

ratification. (BAYAN [Bagong Alyansang

Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 94. Which provision of the Constitution applies with

regard to the exercise by the Senate of its constitutional power to concur with the Visiting Forces Agreement (VFA)?

Held: The 1987 Philippine Constitution contains

two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article

VII x x x reads:

“No treaty or international agreement

shall be valid and effective unless concurred in by at least two-thirds of all the Members of the

Senate.”

Section 25, Article XVIII, provides:

“After the expiration in 1991 of the

Agreement between the Republic of the Philippines and the United States of America concerning Military Bases,

foreign military bases, troops, or facilities shall not be

allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so

requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose,

and recognized as a treaty by the other contracting

State.”

Section 21, Article VII deals with treaties or international agreements in general, in which case, the

concurrence of at least two-thirds (2/3) of all the

Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on

the part of the Philippines. This provision lays down the general rule on treaties or international agreements and

applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax

treaties or those economic in nature. All treaties or

international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular

designation or appellation, requires the concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the

presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of

the Senate is only one of the requisites to render compliance with the constitutional requirements and to

consider the agreement binding on the Philippines.

Section 25, Article XVIII further requires that “foreign military bases, troops, or facilities” may be allowed in the

Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a

national referendum held for that purpose if so required

by Congress, and recognized as such by the other contracting State.

It is our considered view that both constitutional

provisions, far from contradicting each other, actually

share some common ground. These constitutional provisions both embody phrases in the negative and thus,

are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause “No treaty x x

x,” and Section 25 contains the phrase “shall not be allowed.” Additionally, in both instances, the concurrence

46

of the Senate is indispensable to render the treaty or

international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and

that the Senate extended its concurrence under the same

provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the

fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict

constitutional requirements.

On the whole, the VFA is an agreement which

defines the treatment of United States troops and personnel visiting the Philippines. It provides for the

guidelines to govern such visits of military personnel, and further defines the rights of the United States and the

Philippine government in the matter of criminal

jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which

specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant

case. To a certain extent and in a limited sense, however,

the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole

purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a

general one. Lex specialis derogat generali. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena]) 95. Should the contention that since the VFA merely

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

Held: It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements

for the reason that there is no permanent placing of

structure for the establishment of a military base. On this score, the Constitution makes no distinction between

“transient” and “permanent”. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not

distinguish - Ubi lex non distinguit nec nos distinguire debemos. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena]) 96. Will it be correct to argue that since no foreign

military bases, but merely troops and facilities, are involved in the VFA, therefore, Section 25, Article XVIII of the Constitution is not controlling?

Held: In like manner, we do not subscribe to the

argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops

and facilities, are involved in the VFA. Notably, a perusal

of said constitutional provision reveals that the

proscription covers “foreign military bases, troops, or facilities.” Stated differently, this prohibition is not limited

to the entry of troops and facilities without any foreign bases being established. The clause does not refer to

“foreign military bases, troops, or facilities” collectively

but treats them as separate and independent subjects. The use of comma and disjunctive word "or" clearly

signifies disassociation and independence of one thing from the others included in the enumeration, such that,

the provision contemplates three different situations - a military treaty the subject of which could be either (a)

foreign bases (b) foreign troops, or (c) foreign facilities -

any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the

Charter x x x is consistent with this interpretation x x x.

Moreover, military bases established within the

territory of another state is no longer viable because of the alternatives offered by new means and weapons of

warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even

for months and years without returning to their home

country. These military warships are actually used as substitutes for a land-home base not only of military

aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based

military headquarters. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])

97. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with when the Senate gave its concurrence to the VFA?

Held: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless

the following conditions are sufficiently met, viz: (a) it

must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by

Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first

two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in

accordance with the provisions of the Constitution, whether under the general requirement in Section 21,

Article VII, or the specific mandate mentioned in Section

25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a

national referendum being unnecessary since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international

agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply

provides that the treaty be “duly concurred in by the Senate.”

Applying the foregoing constitutional provisions, a

two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law

may be validly obtained and deemed present. While it is

47

true that Section 25, Article XVIII requires, among other

things, that the treaty - the VFA, in the instant case - be “duly concurred in by the Senate,” it is very true however

that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII,

which in more specific terms, requires that the

concurrence of a treaty, or international agreement, be made by a two-thirds vote of all the members of the

Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to Section 21, Article VII.

As noted, the “concurrence requirement” under

Section 25, Article XVIII must be construed in relation to

the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate

contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate

favorably vote to concur with the treaty - the VFA in the

instant case.

x x x

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we

shall now pass upon and delve on the requirement that

the VFA should be recognized as a treaty by the United States of America.

x x x

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting

party accepts or acknowledges the agreement as a treaty. To require the other contracting state, The United States

of America in this case, to submit the VFA to the United

States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words

used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in

which case the significance thus attached to them

prevails. Its language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United

States treats the VFA only as an executive agreement

because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA

possesses the elements of an agreement under international law, the said agreement is to be taken

equally as a treaty.

x x x

The records reveal that the United States

Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully

committed to living up to the terms of the VFA. For as

long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further

to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the

Constitution.

Worth stressing too, is that the ratification, by the

President, of the VFA and the concurrence of the Senate should be taken as a clear and unequivocal expression of

our nation's consent to be bound by said treaty, with the concomitant duty to uphold the obligations and

responsibilities embodied thereunder.

x x x

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. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena]) 98. Are the “Balikatan” exercises covered by the Visiting

Forces Agreement?

Held: The holding of “Balikatan 02-1” must be

studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the

Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the “core” of the defense relationship

between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and

technological capabilities of our armed forces through

joint training with its American counterparts; the “Balikatan” is the largest such training exercise directly

supporting the MDT’s objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it

seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement

in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was

replaced by the Visiting Forces Agreement. It should be

recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA (BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA provides the “regulatory mechanism” by which “United

States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities

approved by the Philippine Government.” It contains

provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal

jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration

of the agreement and its termination. It is the VFA which

gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of

optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is

whether “Balikatan 02-1” is covered by the Visiting Forces

Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom,

unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States

personnel to engage, on an impermanent basis, in

“activities,” the exact meaning of which was left undefined. The expression is ambiguous, permitting a

wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed

on its definition is couched in the negative, in that United

States personnel must “abstain from any activity inconsistent with the spirit of this agreement, and in

particular, from any political activity.” All other activities, in other words, are fair game.

We are not completely unaided, however. The

Vienna Convention on the Law of Treaties, which contains

48

provisos governing interpretations of international

agreements, state x x x.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text,

which is presumed to verbalize the parties’ intentions.

The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as

the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. X

x x

The Terms of Reference rightly fall within the

context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word

“activities” arose from accident. In our view, it was

deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces

may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include

training on new techniques of patrol and surveillance to protect the nation’s marine resources, sea search-and-

destroy operations to assist vessels in distress, disaster

relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and

the like.

Under these auspices, the VFA gives legitimacy to

the current Balikatan exercises. It is only logical to assume that “Balikatan 02-1,” a “mutual anti-terrorism

advising, assisting and training exercise,” falls under the umbrella of sanctioned or allowable activities in the

context of the agreement. Both the history and intent of

the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities – as opposed to

combat itself – such as the one subject of the instant petition, are indeed authorized. (Arthur D. Lim and Paulino R. Ersando v. Honorable Executive Secretary, G.R. No. 151445, April 11, 2002, En Banc [De Leon]) 99. What is the power of impoundment of the President?

What are its principal sources?

Held: Impoundment refers to the refusal of the

President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or

obligate budget authority of any type.

Proponents of impoundment have invoked at least three principal sources of the authority of the President.

Foremost is the authority to impound given to him either

expressly or impliedly by Congress. Second is the executive power drawn from the President’s role as

Commander-in-Chief. Third is the Faithful Execution Clause.

The proponents insist that a faithful execution of the laws requires that the President desist from

implementing the law if doing so would prejudice public interest. An example given is when through efficient and

prudent management of a project, substantial savings are

made. In such a case, it is sheer folly to expect the President to spend the entire amount budgeted in the law.

(PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason])

The Judicial Department

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

Held: 1. The time-tested standards for the

exercise of judicial review are: (1) the existence of an

appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the

plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional

question be passed upon in order to decide the case (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

2. When questions of constitutional significance are raised, the Court can exercise its power of judicial

review only if the following requisites are complied with,

namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party

raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and

(4) the constitutional question is the lis mota of the case. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

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

Held: Respondents assert that the petition fails to satisfy all the four requisites before this Court may

exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive

department, which is co-equal with this Court,

respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by

the President to Benipayo, Borra and Tuason unless all the four requisites are present. X x x

Respondents argue that the second, third and

fourth requisites are absent in this case. Respondents

maintain that petitioner does not have a personal and substantial interest in the case because she has not

sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their

assumption of office. Respondents point out that

petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason.

Neither does petitioner claim to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to

question the constitutionality of the ad interim

appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that

the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001.

Moreover, the petition was filed after the third time that

these three respondents were issued ad interim appointments.

Respondents insist that the real issue in this case

is the legality of petitioner’s reassignment from the EID to

the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this

case.

We are not persuaded.

49

Benipayo reassigned petitioner from the EID,

where she was Acting Director, to the Law Department, where she was placed on detail. Respondents claim that

the reassignment was “pursuant to x x x Benipayo’s authority as Chairman of the Commission on Elections, and as the Commission’s Chief Executive Officer.” Evidently, respondents’ anchor the legality of petitioner’s reassignment on Benipayo’s authority as Chairman of the

COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if

petitioner is only an Acting director of the EID, her reassignment is without legal basis if Benipayo is not the

lawful COMELEC Chairman, an office created by the

Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in

accordance with the Constitution, then petitioner’s

reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil

Service Law. Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of

Benipayo’s assumption of office. Petitioner’s personal and substantial injury, if Benipayo is not the lawful COMELEC

Chairman, clothes her with the requisite locus standi to

raise the constitutional issue in this petition.

Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim

appointments of Benipayo, Borra and Tuason. Petitioner

filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as

March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional

issue was raised at the earliest opportunity. The earliest

opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve

the same, such that, “if it is not raised in the pleadings, it cannot be considered on appeal.” Petitioner questioned

the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition

before this Court, which is the earliest opportunity for

pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of

sound discretion, the time when a constitutional issue may be passed upon. There is no doubt petitioner raised the

constitutional issue on time.

Moreover, the legality of petitioner’s reassignment

hinges on the constitutionality of Benipayo’s ad interim appointment and assumption of office. Unless the

constitutionality of Benipayo’s ad interim appointment and assumption of office is resolved, the legality of petitioner’s

reassignment from the EID to the Law Department cannot

be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of

paramount importance to the public. The legality of the

directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be

put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Court’s duty to

determine whether other agencies of government have

remained within the limits of the Constitution and have not abused the discretion given them, this Court may

even brush aside technicalities of procedure and resolve any constitutional issue raised. Here the petitioner has

complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional

issue raised by petitioner. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

102. What is an “actual case or controversy”?

Held: An “actual case or controversy” means an

existing case or controversy which is both ripe for resolution and susceptible of judicial determination, and

that which is not conjectural or anticipatory, or that which seeks to resolve hypothetical or feigned constitutional

problems. A petition raising a constitutional question does not present an “actual controversy,” unless it alleges a

legal right or power. Moreover, it must show that a

conflict of rights exists, for inherent in the term “controversy” is the presence of opposing views or

contentions. Otherwise, the Court will be forced to resolve issues which remain unfocused because they lack

such concreteness provided when a question emerges

precisely framed from a clash of adversary arguments exploring every aspect of a multi-faceted situation

embracing conflicting and demanding interests. The controversy must also be justiciable; that is, it must be

susceptible of judicial determination. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

103. Petitioners Isagani Cruz and Cesar Europa

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

Held: Courts can only decide actual

controversies, not hypothetical questions or cases. The threshold issue, therefore, is whether an “appropriate

case” exists for the exercise of judicial review in the present case.

X x x

In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been enacted,

and the Implementing Rules and Regulations approved.

Money has been appropriated and the government agencies concerned have been directed to implement the

statute. It cannot be successfully maintained that we should await the adverse consequences of the law in

order to consider the controversy actual and ripe for judicial resolution. It is precisely the contention of the

petitioners that the law, on its face, constitutes an

unconstitutional abdication of State ownership over lands of the public domain and other natural resources.

Moreover, when the State machinery is set into motion to implement an alleged unconstitutional statute, this Court

possesses sufficient authority to resolve and prevent

imminent injury and violation of the constitutional process. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

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

Held: 1. It is alleged by respondent that, with

respect to the PCCR [Preparatory Commission on

50

Constitutional Reform], this case has become moot and

academic. We agree.

An action is considered “moot” when it no longer presents a justiciable controversy because the issues

involved have become academic or dead. Under E.O. No.

43, the PCCR was instructed to complete its task on or before June 30, 1999. However, on February 19, 1999,

the President issued Executive Order No. 70 (E.O. No. 70), which extended the time frame for the completion of

the commission’s work x x x. The PCCR submitted its recommendations to the President on December 20, 1999

and was dissolved by the President on the same day. It

had likewise spent the funds allocated to it. Thus, the PCCR has ceased to exist, having lost its raison d’ être.

Subsequent events have overtaken the petition and the Court has nothing left to resolve.

The staleness of the issue before us is made more manifest by the impossibility of granting the relief prayed

for by petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as such. Clearly, prohibition

is an inappropriate remedy since the body sought to be enjoined no longer exists. It is well-established that

prohibition is a preventive remedy and does not lie to

restrain an act that is already fait accompli. At this point, any ruling regarding the PCCR would simply be in the

nature of an advisory opinion, which is definitely beyond the permissible scope of judicial power. (Gonzales v. Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc [Gonzaga-Reyes])

2. The petition which was filed by private respondents before the trial court sought the issuance of

a writ of mandamus, to command petitioners to admit

them for enrolment. Taking into account the admission of private respondents that they have finished their Nursing

course at the Lanting College of Nursing even before the promulgation of the questioned decision, this case has

clearly been overtaken by events and should therefore be dismissed. However, the case of Eastern Broadcasting Corporation (DYRE) v. Dans is the authority for the view

that “even if a case were moot and academic, a statement of the governing principle is appropriate in the resolution

of dismissal for the guidance not only of the parties but of others similarly situated.” We shall adhere to this view

and proceed to dwell on the merits of this petition.

(University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 770, March 7, 1994 [Nocon])

105. Should the Court still resolve the case despite that

the issue has already become moot and academic? Exception.

Held: Neither do we agree that merely because

a plebiscite had already been held in the case of the

proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and academic.

The issue raised by the Municipality of Cainta in its

petition before the COMELEC against the holding of the plebiscite for the creation of Barangay Napico are still

pending determination before the Antipolo Regional Trial Court.

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

“Considering that the legality of the

plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such

plebiscite had been held and a new province

proclaimed and its officials appointed, the case

before Us cannot truly be viewed as already moot and academic. Continuation of the existence of

this newly proclaimed province which petitioners strongly profess to have been illegally born,

deserves to be inquired into by this Tribunal so

that, if indeed, illegality attaches to its creation, the commission of that error should not provide

the very excuse for perpetration of such wrong. For this Court to yield to the respondents’ urging

that, as there has been fait accompli, then this Court should passively accept and accede to the

prevailing situation is an unacceptable suggestion.

Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief.

Respondents’ submission will create a dangerous precedent. Should this Court decline now to

perform its duty of interpreting and indicating

what the law is and should be, this might tempt again those who strut about in the corridors of

power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries

of political subdivisions, either brazenly or stealthily, confident that this Court will abstain

from entertaining future challenges to their acts if

they manage to bring about a fait accompli.” (City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])

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

Held: All the foregoing petitions assail the declaration of state of rebellion by President Gloria

Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact

and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of

a “state of rebellion” in Metro Manila. Accordingly, the

instant petitions have been rendered moot and academic. As to petitioners’ claim that the proclamation of a “state of

rebellion” is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it

has issued a particular order to arrest specific persons in

connection with the “rebellion.” He states that what is extant are general instructions to law enforcement officers

and military agencies to implement Proclamation No. 38. x x x. With this declaration, petitioners’ apprehensions as

to warrantless arrests should be laid to rest. (Lacson v. Perez, 357 SCRA 756, May 10, 2001, En Banc [Melo]) 107. In connection with the May 11, 1998 elections,

the COMELEC issued a resolution prohibiting the conduct of exit polls on the ground, among others, that it might cause disorder and confusion considering

51

the randomness of selecting interviewees, which further makes the exit polls unreliable. The constitutionality of this resolution was challenged by ABS-CBN Broadcasting Corporation as violative of freedom of expression. The Solicitor General contends that the petition has been rendered moot and academic because the May 11, 1998 election has already been held and done with and, therefore, there is no longer any actual controversy to be resolved. Resolve.

Held: While the assailed Resolution referred

specifically to the May 11, 1998 election, its implications

on the people’s fundamental freedom of expression transcend the past election. The holding of periodic

elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections.

To set aside the resolution of the issue now will only

postpone a task that could well crop up again in future elections.

In any event, in Salonga v. Cruz Pano, the Court

had occasion to reiterate that it “also has the duty to formulate guiding and controlling constitutional principles,

precepts, doctrines, or rules. It has the symbolic function

of educating bench and bar on the extent of protection given by constitutional guarantees.” Since the

fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the

guidance of posterity, whether they likewise protect the

holding of exit polls and the dissemination of data derived therefrom. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban])

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

Held: 1. “Legal standing” or locus standi has

been defined as a personal and substantial interest in the case such that the party has sustained or will sustain

direct injury as a result of the governmental act that is

being challenged. The term “interest” means a material interest, an interest in issue affected by the decree, as

distinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of

standing is whether a party alleges “such personal stake

in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of

issues upon which the court depends for illumination of difficult constitutional questions.” (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000)

2. In addition to the existence of an actual case or controversy, a person who assails the validity of a

statute must have a personal and substantial interest in the case, such that, he has sustained, or will sustain, a

direct injury as a result of its enforcement. Evidently, the

rights asserted by petitioners as citizens and taxpayers are held in common by all the citizens, the violation of which

may result only in a “generalized grievance”. Yet, in a sense, all citizen's and taxpayer's suits are efforts to air

generalized grievances about the conduct of government

and the allocation of power. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) 109. Asserting itself as the official organization of

Filipino lawyers tasked with the bounden duty to

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

Held: In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold

the rule of law and the Constitution. Apart from this

declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the

IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it

with standing in this case. This is too general an interest

which is shared by other groups and the whole citizenry. Based on the standards above-stated, the IBP has failed

to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which,

under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to

improve the administration of justice is alien to, and

cannot be affected by the deployment of the Marines. x x x Moreover, the IBP x x x has not shown any specific

injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its

members x x x has sustained any form of injury as a

result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been

arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects as

injurious is the supposed “militarization” of law

enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the

long run. Not only is the presumed “injury” not personal in character, it is likewise too vague, highly speculative

and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct

and personal injury as a consequence of the questioned

act, it does not possess the personality to assail the validity of the deployment of the Marines. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

110. Considering the lack of requisite standing of the

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

Held: Having stated the foregoing, it must be

emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the

requirement of legal standing when paramount interest is

involved. In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where

the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues raised

are of paramount importance to the public, the Court may

brush aside technicalities of procedure. In this case, a reading of the petition shows that the IBP has advanced

constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as

precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in

increasing tempo, undoubtedly aggravated by the

52

Mindanao insurgency problem, the legal controversy

raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the

Court to relax the rules on standing and to resolve the issue now, rather than later. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000)

111. Discuss the nature of a taxpayer’s suit. When may it be allowed?

Held: 1. Petitioner and respondents agree that

to constitute a taxpayer's suit, two requisites must be

met, namely, that public funds are disbursed by a political subdivision or instrumentality and in doing so, a law is

violated or some irregularity is committed, and that the petitioner is directly affected by the alleged ultra vires act. The same pronouncement was made in Kilosbayan, Inc. v. Guingona, Jr., where the Court also reiterated its liberal stance in entertaining so-called taxpayer's suits, especially

when important issues are involved. A closer examination of the facts of this case would readily demonstrate that

petitioner's standing should not even be made an issue here, “since standing is a concept in constitutional law and

here no constitutional question is actually involved.”

In the case at bar, disbursement of public funds

was only made in 1975 when the Province bought the lands from Ortigas at P110.00 per square meter in line

with the objectives of P.D. 674. Petitioner never referred

to such purchase as an illegal disbursement of public funds but focused on the alleged fraudulent reconveyance

of said property to Ortigas because the price paid was lower than the prevailing market value of neighboring lots.

The first requirement, therefore, which would make this

petition a taxpayer's suit is absent. The only remaining justification for petitioner to be allowed to pursue this

action is whether it is, or would be, directly affected by the act complained of. As we stated in Kilosbayan, Inc. v. Morato,

“Standing is a special concern in

constitutional law because in some cases suits are brought not by parties who have been personally

injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers

or voters who actually sue in the public interest.

Hence the question in standing is whether such parties have 'alleged such a personal stake in the

outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of difficult

constitutional questions.' (Citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633 [1962])”

Undeniably, as a taxpayer, petitioner would somehow be adversely affected by an illegal use of public money.

When, however, no such unlawful spending has been

shown x x x, petitioner, even as a taxpayer, cannot question the transaction validly executed by and between

the Province and Ortigas for the simple reason that it is not privy to said contract. In other words, petitioner has

absolutely no cause of action, and consequently no locus standi, in the instant case. (The Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 250, 253-255, Aug. 1, 1996, En Banc [Romero])

2. A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that

public funds have been disbursed in alleged contravention

of the law or the Constitution. Thus, a taxpayer’s action is

properly brought only when there is an exercise by Congress of its taxing or spending power. This was our

ruling in a recent case wherein petitioners Telecommunications and Broadcast Attorneys of the

Philippines (TELEBAP) and GMA Network, Inc. questioned

the validity of Section 92 of B.P. Blg. 881 (otherwise known as the “Omnibus Election Code”) requiring radio

and television stations to give free air time to the Commission on Elections during the campaign period

(Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, 289 SCRA 337 [1998]). The Court held that petitioner TELEBAP did

not have any interest as a taxpayer since the assailed law did not involve the taxing or spending power of Congress.

Many other rulings have premised the grant or

denial of standing to taxpayers upon whether or not the

case involved a disbursement of public funds by the legislature. In Sanidad v. Commission on Elections, the

petitioners therein were allowed to bring a taxpayer’s suit to question several presidential decrees promulgated by

then President Marcos in his legislative capacity calling for a national referendum, with the Court explaining that –

X x x [i]t is now an ancient rule that the valid source of a statute – Presidential Decrees

are of such nature – may be contested by one who will sustain a direct injury as a result of its

enforcement. At the instance of taxpayers, laws

providing for the disbursement of public funds may be enjoined, upon the theory that the

expenditure of public funds by an officer of the State for the purpose of executing an

unconstitutional act constitutes a misapplication of

such funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five Million

Pesos for the effective implementation of its purposes. Presidential Decree No. 1031

appropriates the sum of Eight Million Pesos to carry out its provisions. The interest of the

aforenamed petitioners as taxpayers in the lawful

expenditure of these amounts of public money sufficiently clothes them with that personality to

litigate the validity of the Decrees appropriating said funds x x x.

In still another case, the Court held that petitioners – the Philippine Constitution Association, Inc., a non-profit civic

organization – had standing as taxpayers to question the constitutionality of Republic Act No. 3836 insofar as it

provides for retirement gratuity and commutation of vacation and sick leaves to Senators and Representatives

and to the elective officials of both houses of Congress

(Philippine Constitution Association, Inc. v. Gimenez). And in Pascual v. Secretary of Public Works, the Court

allowed petitioner to maintain a taxpayer’s suit assailing the constitutional soundness of Republic Act No. 920

appropriating P85,000 for the construction, repair and

improvement of feeder roads within private property. All these cases involved the disbursement of public funds by

means of a law.

Meanwhile, in Bugnay Construction and Development Corporation v. Laron, the Court declared that the trial court was wrong in allowing respondent

Ravanzo to bring an action for injunction in his capacity as a taxpayer in order to question the legality of the contract

of lease covering the public market entered into between the City of Dagupan and petitioner. The Court declared

that Ravanzo did not possess the requisite standing to

53

bring such taxpayer’s suit since “[o]n its face, and there is

no evidence to the contrary, the lease contract entered into between petitioner and the City shows that no public

funds have been or will be used in the construction of the market building.”

Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its

taxing or spending power. The PCCR was created by the President by virtue of E.O. No. 43, as amended by E.O.

No. 70. Under Section 7 of E.O. No. 43, the amount of P3 million is “appropriated” for its operational expenses “to

be sourced from the funds of the Office of the President.”

x x x The appropriations for the PCCR were authorized by the President, not by Congress. In fact, there was no

appropriation at all. “In a strict sense, appropriation has been defied ‘as nothing more than the legislative

authorization prescribed by the Constitution that money

may be paid out of the Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting

apart or assigning to a particular use a certain sum to be used in the payment of debt or dues from the State to its

creditors.’” The funds used for the PCCR were taken from funds intended for the Office of the President, in the

exercise of the Chief Executive’s power to transfer funds

pursuant to Section 25 (5) of Article VI of the Constitution.

In the final analysis, it must be stressed that the

Court retains the power to decide whether or not it will

entertain a taxpayer’s suit. In the case at bar, there being no exercise by Congress of its taxing or spending power,

petitioner cannot be allowed to question the creation of the PCCR in his capacity as a taxpayer, but rather, he

must establish that he has a “personal and substantial

interest in the case and that he has sustained or will sustain direct injury as a result of its enforcement.” In

other words, petitioner must show that he is a real party in interest – that he will stand to be benefited or injured

by the judgment or that he will be entitled to the avails of the suit. Nowhere in his pleadings does petitioner

presume to make such a representation. (Gonzales v. Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc [Gonzaga-Reyes]) 112. What is the meaning of “justiciable controversy”

as requisite for the proper exercise of the power of judicial review? Illustrative case.

Held: From a reading of the records it appears to us that the petition was prematurely filed. Under the

undisputed facts there is as yet no justiciable controversy for the court to resolve and the petition should have been

dismissed by the appellate court on this ground.

We gather from the allegations of the petition and

that of the petitioner’s memorandum that the alleged application for certificate of ancestral land claim (CALC)

filed by the heirs of Carantes under the assailed DENR

special orders has not been granted nor the CALC applied for, issued. The DENR is still processing the application of

the heirs of Carantes for a certificate of ancestral land claim, which the DENR may or may not grant. It is

evident that the adverse legal interests involved in this

case are the competing claims of the petitioners and that of the heirs of Carantes to possess a common portion of a

piece of land. As the undisputed facts stand there is no justiciable controversy between the petitioners and the

respondents as there is no actual or imminent violation of the petitioners’ asserted right to possess the land by

reason of the implementation of the questioned

administrative issuance.

A justiciable controversy has been defined as, “a definite and concrete dispute touching on the legal

relations of parties having adverse legal interests” which

may be resolved by a court of law through the application of a law. Courts have no judicial power to review cases

involving political questions and as a rule, will desist from taking cognizance of speculative or hypothetical cases,

advisory opinions and in cases that has become moot. Subject to certain well-defined exceptions courts will not

touch an issue involving the validity of a law unless there

has been a governmental act accomplished or performed that has a direct adverse effect on the legal right of the

person contesting its validity. In the case of PACU v. Secretary of Education the petition contesting the validity

of a regulation issued by the Secretary of Education

requiring private schools to secure a permit to operate was dismissed on the ground that all the petitioners have

permits and are actually operating under the same. The petitioners questioned the regulation because of the

possibility that the permit might be denied them in the future. This Court held that there was no justiciable

controversy because the petitioners suffered no wrong by

the implementation of the questioned regulation and therefore, they are not entitled to relief. A mere

apprehension that the Secretary of Education will withdraw the permit does not amount to justiciable

controversy. The questioned regulation in the PACU case

may be questioned by a private school whose permit to operate has been revoked or one whose application

therefore has been denied.

This Court cannot rule on the basis of petitioners’

speculation that the DENR will approve the application of the heirs of Carantes. There must be an actual

governmental act which directly causes or will imminently cause injury to the alleged legal right of the petitioner to

possess the land before the jurisdiction of this Court may be invoked. There is no showing that the petitioners were

being evicted from the land by the heirs of Carantes under

orders from the DENR. The petitioners’ allegation that certain documents from the DENR were shown to them by

the heirs of Carantes to justify eviction is vague, and it would appear that the petitioners did not verify if indeed

the respondent DENR or its officers authorized the

attempted eviction. Suffice it to say that by the petitioners’ own admission that the respondents are still

processing and have not approved the application of the heirs of Carantes, the petitioners alleged right to possess

the land is not violated nor is in imminent danger of being violated, as the DENR may or may not approve Carantes’

application. Until such time, the petitioners are simply

speculating that they might be evicted from the premises at some future time. Borrowing from the

pronouncements of this Court in the PACU case, “They (the petitioners) have suffered no wrong under the terms

of the law – and, naturally need no relief in the form they

now seek to obtain.” If indeed the heirs of Carantes are trying to enter the land and disturbing the petitioners’

possession thereof even without prior approval by the DENR of the claim of the heirs of Carantes, the case is

simply one of forcible entry. (Cutaran v. DENR, 350 SCRA 697, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

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

Held: As a general proposition, a controversy is

justiciable if it refers to a matter which is appropriate for

54

court review. It pertains to issues which are inherently

susceptible of being decided on grounds recognized by law. Nevertheless, the Court does not automatically

assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for

resolution. One class of cases wherein the Court hesitates

to rule on are “political questions.” The reason is that political questions are concerned with issues dependent

upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question

being a function of the separation of powers, the courts will not normally interfere with the workings of another

co-equal branch unless the case shows a clear need for

the courts to step in to uphold the law and the Constitution.

As Tanada v. Angara puts it, political questions

refer “to those questions which, under the Constitution,

are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority

has been delegated to the legislative or executive branch of government.” Thus, if an issue is clearly identified by

the text of the Constitution as matters for discretionary action by a particular branch of government or to the

people themselves then it is held to be a political

question. In the classic formulation of Justice Brennan in Baker v. Carr, “[p]rominent on the surface of any case

held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially

discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent

resolution without expressing lack of the respect due

coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already

made; or the potentiality of embarrassment from multifarious pronouncements by various departments on

the one question.”

The 1987 Constitution expands the concept of

judicial review by providing that “[T]he Judicial power shall be vested in one Supreme Court and in such lower

courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally

demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Article VIII, Sec. 1 of the 1987 Constitution) Under this definition, the Court cannot agree x x x that the issue

involved is a political question beyond the jurisdiction of

this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of

whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the

problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court. When political

questions are involved, the Constitution limits the determination as to whether or not there has been a

grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of the official whose action is being questioned.

By grave abuse of discretion is meant simply

capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a

virtual refusal to perform a duty enjoined by law, or to act

at all in contemplation of law, as where the power is

exercised in an arbitrary and despotic manner by reason of passion or hostility. Under this definition, a court is

without power to directly decide matters over which full discretionary authority has been delegated. But while this

Court has no power to substitute its judgment for that of

Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse

of discretion. A showing that plenary power is granted either department of government may not be an obstacle

to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) 114. Is the legitimacy of the assumption to the

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

Held: Respondents rely on the case of Lawyers

League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. and related cases to

support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo,

they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In

the cited cases, we held that the government of former

President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less

than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the

power of the Filipino people “in defiance of the provisions

of the 1973 Constitution, as amended.” It is familiar learning that the legitimacy of a government sired by a

successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of

the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in

character. The oath that she took at the EDSA Shrine is

the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987

Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the

authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People

Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution

which overthrows the whole government. EDSA II is an exercise of people power of freedom of speech and

freedom of assembly to petition the government for

redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the

legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is

intra constitutional and the resignation of the sitting

President that it caused and the succession of the Vice President as President are subject to judicial review.

EDSA I presented a political question; EDSA II involves legal questions. X x x

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution

require the proper interpretation of certain provisions in the 1987 Constitution, notably Section 1 of Article II, and

Section 8 of Article VII, and the allocation of governmental powers under Section 11 of Article VII. The

issues likewise call for a ruling on the scope of presidential

55

immunity from suit. They also involve the correct

calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison, the doctrine has been laid down that “it is emphatically the province and duty of the judicial department to say what the law is x x x.” Thus,

respondent’s invocation of the doctrine of political question is but a foray in the dark. (Joseph E. Estrada v. Aniano Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]) 115. Is the President’s power to call out the armed

forces as their Commander-in-Chief in order to prevent or suppress lawless violence, invasion or rebellion subject to judicial review, or is it a political question? Clarify.

Held: When the President calls the armed forces

to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power

solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself.

The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own. However, this

does not prevent an examination of whether such power

was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave

abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine

the necessity of calling out the armed forces, it is

incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The

present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there

exists no justification for calling out the armed forces.

There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to

call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the

military. In the performance of this Court's duty of “purposeful hesitation” before declaring an act of another

branch as unconstitutional, only where such grave abuse

of discretion is clearly shown shall the Court interfere with the President's judgment. To doubt is to sustain.

(Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

116. Do lower courts have jurisdiction to consider the

constitutionality of a law? If so, how should they act in the exercise of this jurisdiction?

Held: We stress at the outset that the lower

court had jurisdiction to consider the constitutionality of

Section 187, this authority being embraced in the general definition of the judicial power to determine what are the

valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the

regional trial courts jurisdiction over all civil cases in which

the subject of the litigation is incapable of pecuniary estimation, even as the accused in a criminal action has

the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings

taken against him, particularly as they contravene the Bill

of Rights. Moreover, Article VIII, Section 5(2), of the Constitution vests in the Supreme Court appellate

jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity

of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,

ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection,

bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than

on the doctrine of separation of powers. As the

questioned act is usually the handiwork of the legislative or the executive departments, or both, it will be prudent

for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the

consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and

with the concurrence of the majority of those who

participated in its discussion. (Drilon v. Lim, 235 SCRA 135, 139-140, Aug. 4, 1994, En Banc [Cruz])

117. What cases are to be heard by the Supreme Court

en banc?

Held: Under Supreme Court Circular No. 2-89,

dated February 7, 1989, as amended by the Resolution of November 18, 1993:

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

cases:

1) Cases in which the constitutionality or validity

of any treaty, international or executive agreement, law, executive order, or

presidential decree, proclamation, order,

instruction, ordinance, or regulation is in question;

2) Criminal cases in which the appealed decision imposes the death penalty;

3) Cases raising novel questions of law;

4) Cases affecting ambassadors, other public ministers and consuls;

5) Cases involving decisions, resolutions or orders of the Civil Service Commission,

Commission on Elections, and Commission on Audit;

6) Cases where the penalty to be imposed is the

dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or

either the suspension of any of them for a period of more than one (1) year or a fine

exceeding P10,000.00 or both;

7) Cases where a doctrine or principle laid down by the court en banc or in division may be

modified or reversed; 8) Cases assigned to a division which in the

opinion of at least three (3) members thereof merit the attention of the court en banc and

are acceptable to a majority of the actual

membership of the court en banc; and 9) All other cases as the court en banc by a

majority of its actual membership may deem of sufficient importance to merit its attention.

(Firestone Ceramics, Inc. v. Court of Appeals, 334 SCRA 465, 471-472, June 28, 2000, En Banc [Purisima]) 118. What is fiscal autonomy? The fiscal autonomy

clause?

Held: As envisioned in the Constitution, the fiscal

autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission

on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and

utilize their resources with the wisdom and dispatch that

56

their needs require. It recognizes the power and authority

to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for

compensation and pay plans of the government and allocate and disburse such sums as may be provided by

law or prescribed by them in the course of the discharge

of their functions.

Fiscal autonomy means freedom from outside control. The Judiciary, the Constitutional Commissions,

and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional

duties. The imposition of restrictions and constraints on

the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is

anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as

regards the Supreme Court, of the independence and

separation of powers upon which the entire fabric of our constitutional system is based. (Bengzon v. Drilon, 208 SCRA 133, April 15, 1992, En Banc [Gutierrez])

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

Held: Petitioner criticizes the jurisprudence (Maceda v. Vasquez, 221 SCRA 464 [1993] and Dolalas v. Office of the Ombudsman-Mindanao, 265 SCRA 818 [1996]) cited by the Office of the Ombudsman as erroneous and not applicable to his complaint. He insists

that since his complaint involved a criminal charge against a judge, it was within the authority of the Ombudsman

not the Supreme Court to resolve whether a crime was

committed and the judge prosecuted therefor.

The petition cannot succeed.

X x x

We agree with the Solicitor General that the

Ombudsman committed no grave abuse of discretion warranting the writs prayed for. The issues have been

settled in the case of In Re: Joaquin Borromeo. There, we laid down the rule that before a civil or criminal action

against a judge for a violation of Arts. 204 and 205

(knowingly rendering an unjust judgment or order) can be entertained, there must first be “a final and authoritative

judicial declaration” that the decision or order in question is indeed “unjust.” The pronouncement may result from

either:

(a) an action of certiorari or prohibition in a

higher court impugning the validity of the judgment; or

(b) an administrative proceeding in the Supreme Court against the judge precisely for

promulgating an unjust judgment or order.

Likewise, the determination of whether a judge

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

“To repeat, no other entity or official of

the government, not the prosecution or investigation service of any other branch, not any

functionary thereof, has competence to review a judicial order or decision – whether final and

executory or not – and pronounce it erroneous so

as to lay the basis for a criminal or administrative

complaint for rendering an unjust judgment or order. That prerogative belongs to the courts alone.

This having been said, we find that the

Ombudsman acted in accordance with law and jurisprudence when he referred the cases against Judge

Pelayo to the Supreme Court for appropriate action. (De Vera v. Pelayo, 335 SCRA 281, July 6, 2000, 1st Div. [Pardo]) 120. What is a Memorandum Decision?

Held: A Memorandum Decision is a “specie of

succinctly written decisions by appellate courts in accordance with the provisions of Section 40, B.P. Blg.

129 on the grounds of expediency, practicality,

convenience and docket status of our courts.” (Francisco v. Permskul, 173 SCRA 324, 333 [1989])

121. Discuss the validity of “Memorandum Decisions.”

Held: 1. The constitutional mandate that no

decision shall be rendered by any court without

expressing therein clearly and distinctly the facts and the law on which it is based does not preclude the validity of

“memorandum decisions” which adopt by reference the findings of fact and conclusions of law contained in the

decisions of inferior tribunals. X x x

Hence, even in this jurisdiction, incorporation by

reference is allowed if only to avoid the cumbersome reproduction of the decision of the lower courts, or

portions thereof, in the decisions of the higher court. This

is particularly true when the decision sought to be incorporated is a lengthy and thorough discussion of the

facts and conclusions arrived at x x x. (Oil and Natural Gas Commission v. Court of Appeals, 293 SCRA 26, July 23, 1998 [Martinez])

2. We have sustained decisions of lower courts as

having substantially or sufficiently complied with the constitutional injunction notwithstanding the laconic and

terse manner in which they were written and even if “there [was left] much to be desired in terms of [their]

clarity, coherence and comprehensibility” provided that

they eventually set out the facts and the law on which they were based, as when they stated the legal

qualifications of the offense constituted by the facts proved, the modifying circumstances, the participation of

the accused, the penalty imposed and the civil liability; or discussed the facts comprising the elements of the offense

that was charged in the information, and accordingly

rendered a verdict and imposed the corresponding penalty; or quoted the facts narrated in the prosecution’s

memorandum but made their own findings and assessment of evidence, before finally agreeing with the

prosecution’s evaluation of the case.

We have also sanctioned the use of memorandum

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

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

thus:

The memorandum decision, to be valid, cannot incorporate the findings of fact and the

conclusions of law of the lower court only by

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remote reference, which is to say that the

challenged decision is not easily and immediately available to the person reading the memorandum

decision. For the incorporation by reference to be allowed, it must provide for direct access to the

facts and the law being adopted, which must be

contained in a statement attached to the said decision. In other words, the memorandum

decision authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact

and conclusions of law of the lower court in an annex attached to and made an indispensable

part of the decision.

It is expected that this requirement will

allay the suspicion that no study was made of the decision of the lower court and that its decision

was merely affirmed without a prior examination

of the facts and the law on which it is based. The proximity at least of the annexed statement

should suggest that such examination has been undertaken. It is, of course, also understood that

the decision being adopted should, to begin with, comply with Article VIII, Section 14 as no amount

of incorporation or adoption will rectify its

violation.

The Court finds necessary to emphasize that the memorandum decision should be

sparingly used lest it become an additive excuse

for judicial sloth. It is an additional condition for the validity of this kind of decision may be

resorted to only in cases where the facts are in the main accepted by both parties and easily

determinable by the judge and there are no

doctrinal complications involved that will require an extended discussion of the laws involved. The

memorandum decision may be employed in simple litigations only, such as ordinary collection

cases, where the appeal is obviously groundless and deserves no more than the time needed to

dismiss it.

X x x

Henceforth, all memorandum decisions

shall comply with the requirements herein set

forth as to the form prescribed and the occasions when they may be rendered. Any deviation will

summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the

flawed judgment as a lawless disobedience.

Tested against these standards, we find that the

RTC decision at bar miserably failed to meet them and, therefore, fell short of the constitutional injunction. The

RTC decision is brief indeed, but it is starkly hallow, otiosely written, vacuous in its content and trite in its

form. It achieved nothing and attempted at nothing, not

even at a simple summation of facts which could easily be done. Its inadequacy speaks for itself.

We cannot even consider or affirm said RTC

decision as a memorandum decision because it failed to

comply with the measures of validity laid down in Francisco v. Permskul. It merely affirmed in toto the

MeTC decision without saying more. A decision or resolution, especially one resolving an appeal, should

directly meet the issues for resolution; otherwise, the appeal would be pointless

We therefore reiterate our admonition in Nicos Industrial Corporation v. Court of Appeals, in that while we conceded that brevity in the writing of decisions is an

admirable trait, it should not and cannot be substituted for substance; and again in Francisco v. Permskul, where we

cautioned that expediency alone, no matter how

compelling, cannot excuse non-compliance with the constitutional requirements.

This is not to discourage the lower courts to write

abbreviated and concise decisions, but never at the expense of scholarly analysis, and more significantly, of

justice and fair play, lest the fears expressed by Justice

Feria as the ponente in Romero v. Court of Appeals come true, i.e., if an appellate court failed to provide the appeal

the attention it rightfully deserved, said court deprived the appellant of due process since he was accorded a fair

opportunity to be heard by a fair and responsible

magistrate. This situation becomes more ominous in criminal cases, as in this case, where not only property

rights are at stake but also the liberty if not the life of a human being.

Faithful adherence to the requirements of Section

14, Article VIII of the Constitution is indisputably a

paramount component of due process and fair play. It is likewise demanded by the due process clause of the

Constitution. The parties to a litigation should be informed of how it was decided, with an explanation of

the factual and legal reasons that led to the conclusions of

the court. The court cannot simply say that judgment is rendered in favor of X and against Y and just leave it at

that without any justification whatsoever for its action. The losing party is entitled to know why he lost, so he

may appeal to the higher court, if permitted, should he

believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the

law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the

losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. More than

that, the requirement is an assurance to the parties that,

in reaching judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard

against the impetuosity of the judge, preventing him from deciding ipse dixit. Vouchsafed neither the sword nor the

purse by the Constitution but nonetheless vested with the

sovereign prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must

ultimately depend on the power of reason for sustained public confidence in the justness of his decision.

Thus the Court has struck down as void, decisions

of lower courts and even of the Court of Appeals whose

careless disregard of the constitutional behest exposed their sometimes cavalier attitude not only to their

magisterial responsibilities but likewise to their avowed fealty to the Constitution.

Thus, we nullified or deemed to have failed to comply with Section 14, Article VIII of the Constitution, a

decision, resolution or order which: contained no analysis of the evidence of the parties nor reference to any legal

basis in reaching its conclusions; contained nothing more

than a summary of the testimonies of the witnesses of both parties; convicted the accused of libel but failed to

cite any legal authority or principle to support conclusions that the letter in question was libelous; consisted merely

of one (1) paragraph with mostly sweeping generalizations and failed to support its conclusion of

parricide; consisted of five (5) pages, three (3) pages of

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which were quotations from the labor arbiter’s decision

including the dispositive portion and barely a page (two [2] short paragraphs of two [2] sentences each) of its

own discussion or reasonings; was merely based on the findings of another court sans transcript of stenographic

notes, or failed to explain the factual and legal bases for

the award of moral damages.

In the same vein do we strike down as a nullity the RTC decision in question. (Yao v. Court of Appeals, 344 SCRA 202, Oct. 24, 2000, 1st Div. [Davide]) 122. What are the distinctive features and purpose of a

memorandum decision?

Held: In Francisco v. Permskul (173 SCRA 324, 333 [1989], the Court described “[t]he distinctive features

of a memorandum decision are, first, it is rendered by an

appellate court, second, it incorporates by reference the findings of fact or the conclusions of law contained in the

decision, order, or ruling under review. Most likely, the purpose is to affirm the decision, although it is not

impossible that the approval of the findings of facts by the lower court may lead to a different conclusion of law by

the higher court. At any rate, the reason for allowing the

incorporation by reference is evidently to avoid the cumbersome reproduction of the decision of the lower

court, or portions thereof, in the decision of the higher court. The idea is to avoid having to repeat in the body of

the latter decision the findings or conclusions of the lower

court since they are being approved or adopted anyway. (Yao v. Court of Appeals, 344 SCRA 202, Oct. 24, 2000, 1st Div. [Davide]) 123. Does the period for decision making under Section

15, Article VIII, 1987 Constitution, apply to the Sandiganbayan? Explain.

Held: The above provision does not apply to the

Sandiganbayan. The provision refers to regular courts of lower collegiate level that in the present hierarchy applies

only to the Court of Appeals. The Sandiganbayan is a special court of the same

level as the Court of Appeals and possessing all the inherent powers of a court of justice, with functions of a

trial court.

Thus, the Sandiganbayan is not a regular court

but a special one. (Re: Problem of Delays in Cases Before the Sandiganbayan, A.M. No. 00-8-05-SC, Nov. 28, 2001, En Banc [Pardo])

The Constitutional Commissions

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

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

This is the kind of appointment that the Constitution prohibits the President from making to the

three independent constitutional commissions, including the COMELEC. Thus, in Brillantes v. Yorac, this Court

struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner

Haydee Yorac as Acting Chairperson of the COMELEC.

This Court ruled that:

“A designation as Acting Chairman is by its very terms essentially temporary and therefore

revocable at will. No cause need be established

to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman

of the Commission on Elections may be withdrawn by the President of the Philippines at any time and

for whatever reason she sees fit. It is doubtful if the respondent, having accepted such

designation, will not be estopped from challenging

its withdrawal.

The Constitution provides for many safeguards to the independence of the Commission on Elections,

foremost among which is the security of tenure of

its members. That guarantee is not available to the respondent as Acting Chairman of the

Commission on Elections by designation of the President of the Philippines.”

Earlier, in Nacionalista Party v. Bautista, a case

decided under the 1935 Constitution, which did not have a

provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared

unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the

designation of an acting Commissioner would undermine

the independence of the COMELEC and hence violate the Constitution. We declared then: “It would be more in

keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner

than to designate one to act temporarily.” (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) 125. Is the constitutional power of the COA to examine

and audit government banks and agencies exclusive? Does it preclude a concurrent audit by a private external auditor?

Held: The resolution of the primordial issue of

whether or not the COA has the sole and exclusive power to examine and audit government banks involves an

interpretation of Section 2, Article IX-D of the 1987

Constitution. This Section provides as follows:

“Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures

or uses of funds and property, owned and held in

trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities,

including government-owned or controlled corporations with original charters, x x x.

“(2) The Commission shall have the exclusive authority, subject to the limitations in

this Article, to define the scope of its audit and examination, establish the techniques and

methods required therefore, and promulgate

accounting and auditing rules and regulations, including those for the prevention and

disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or

uses of government funds and properties.” (Emphasis supplied)

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The COA vigorously asserts that under the first

paragraph of Section 2, the COA enjoys the sole and exclusive power to examine and audit all government

agencies, including the DBP. The COA contends this is similar to its sole and exclusive authority, under the same

paragraph of the same section, to define the scope of its

audit, promulgate auditing rules and regulations, including rules on the disallowance of unnecessary expenditures of

government agencies. The bare language of Section 2, however, shows that the COA’s power under the first

paragraph is not declared exclusive, while its authority under the second paragraph is expressly declared

“exclusive.” There is a significant reason for this marked

difference in language.

During the deliberations of the Constitutional Commission, Commissioner Serafin Guingona proposed

the addition of the word “exclusive” in the first paragraph

of Section 2, thereby granting the COA the sole and exclusive power to examine and audit all government

agencies. However, the Constitutional Commission rejected the addition of the word “exclusive” in the first

paragraph of Section 2 and Guingona was forced to withdraw his proposal. X x x

X x x

In sharp contrast, the Constitutional Commission placed the word “exclusive” to qualify the authority of the

COA under the second paragraph of the same Section 2.

This word “exclusive” did not appear in the counterpart provisions of Section 2 in the 1935 and 1973

Constitutions. There is no dispute that the COA’s authority under the second paragraph of Section 2 is

exclusive as the language of the Constitution admits of no

other meaning. Thus, the COA has the exclusive authority to decide on disallowances of unnecessary government

expenditures. Other government agencies and their officials, as well as private auditors engaged by them,

cannot in any way intrude into this exclusive function of the COA.

The qualifying word “exclusive” in the second paragraph of Section 2 cannot be applied to the first

paragraph which is another sub-section of Section 2. A qualifying word is intended to refer only to the phrase to

which it is immediately associated, and not to a phrase

distantly located in another paragraph or sub-section. Thus, the first paragraph of Section 2 must be read the

way it appears, without the word “exclusive,” signifying that non-COA auditors can also examine and audit

government agencies. Besides, the framers of the Constitution intentionally omitted the word “exclusive” in

the first paragraph of Section 2 precisely to allow

concurrent audit by private external auditors.

The clear and unmistakable conclusion from a reading of the entire Section 2 is that the COA’s power to

examine and audit is non-exclusive. On the other hand,

the COA’s authority to define the scope of its audit, promulgate auditing rules and regulations, and disallow

unnecessary expenditures is exclusive. X x x

Manifestly, the express language of the

Constitution, and the clear intent of its framers, point to only one indubitable conclusion – the COA does not have

the exclusive power to examine and audit government agencies. The framers of the Constitution were fully

aware of the need to allow independent private audit of

certain government agencies in addition to the COA audit,

as when there is a private investment in a government-controlled corporation, or when a government corporation

is privatized or publicly listed, or as in the case at bar when the government borrows money from abroad.

In these instances the government enters the marketplace and competes with the rest of the world in

attracting investments or loans. To succeed, the government must abide with the reasonable business

practices of the marketplace. Otherwise no investor or creditor will do business with the government, frustrating

government efforts to attract investments or secure loans

that may be critical to stimulate moribund industries or resuscitate a badly shattered national economy as in the

case at bar. By design the Constitution is flexible enough to meet these exigencies. Any attempt to nullify this

flexibility in the instances mentioned, or in similar

instances, will be ultra vires, in the absence of a statute limiting or removing such flexibility.

The deliberations of the Constitutional

Commission reveal eloquently the intent of Section 2, Article IX-D of the Constitution. As this Court has ruled

repeatedly, the intent of the law is the controlling factor in

the interpretation of the law. If a law needs interpretation, the most dominant influence is the intent

of the law. The intent of the law is that which is expressed in the words of the law, which should be

discovered within its four corners aided, if necessary, by

its legislative history. In the case of Section 2, Article IX-D of the Constitution, the intent of the framers of the

Constitution is evident from the bare language of Section 2 itself. The deliberations of the Constitutional

Commission confirm expressly and even elucidate further

this intent beyond any doubt whatsoever.

There is another constitutional barrier to the COA’s insistence of exclusive power to examine and audit

all government agencies. The COA’s claim clashes directly with the Central Bank’s constitutional power of

“supervision” over banks under Section 20, Article XII of

the Constitution. X x x

Historically, the Central Bank has been conducting periodic and special examination and audit of banks to

determine the soundness of their operations and the

safety of the deposits of the public. Undeniably, the Central Bank’s power of “supervision” includes the power

to examine and audit banks, as the banking laws have always recognized this power of the Central Bank. Hence,

the COA’s power to examine and audit government banks must be reconciled with the Central Bank’s power to

supervise the same banks. The inevitable conclusion is

that the COA and the Central Bank have concurrent jurisdiction, under the Constitution, to examine and audit

government banks.

However, despite the Central Bank’s concurrent

jurisdiction over government banks, the COA’s audit still prevails over that of the Central Bank since the COA is the

constitutionally mandated auditor of government banks. And in matters falling under the second paragraph of

Section 2, Article IX-D of the Constitution, the COA’s

jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allow or disallow expenditures of

government banks since this function belongs exclusively to the COA. (Development Bank of the Philippines v. Commission on Audit, 373 SCRA 356, January 16, 2002, En Banc [Carpio])

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126. Between the COA’s findings and conclusions and that of private auditors, which should prevail?

Held: Moreover, as the constitutionally-mandated auditor of all government agencies, the COA’s

findings and conclusions necessarily prevail over those of

private auditors, at least insofar as government agencies and officials are concerned. The superiority or

preponderance of the COA audit over private audit can be gleaned from the records of the Constitutional

Commission x x x. The findings and conclusions of the private auditor may guide private investors or creditors

who require such private audit. Government agencies and

officials, however, remain bound by the findings and conclusions of the COA, whether the matter falls under

the first or second paragraph of Section 2, unless of course such findings and conclusions are modified or

reversed by the courts.

127. May the power of the COA to examine and audit

government agencies be validly taken away from it?

Held: The power of the COA to examine and audit government agencies, while non-exclusive, cannot

be taken away from the COA. Section 3, Article IX-C of

the Constitution mandates that:

“Sec. 3. No law shall be passed exempting any entity of the Government or its

subsidiary in any guise whatsoever, or any

investment of public funds, from the jurisdiction of the Commission on Audit.”

The mere fact that private auditors may audit government

agencies does not divest the COA of its power to examine

and audit the same government agencies. (Development Bank of the Philippines v. Commission on Audit, 373 SCRA 356, January 16, 2002, En Banc [Carpio])

B. CONSTITUTIONAL LAW

128. What is the effect of declaration of

unconstitutionality of a law? Illustrative case.

Held: Respondents are seeking a reconsideration

of the Court’s 25 January 2000 decision, wherein we declared Section 8 of Republic Act No. 8551 (RA 8551) to

be violative of petitioners’ constitutionally mandated right to security of tenure. As a consequence of our ruling, we

held that petitioners’ removal as commissioners of the National Police Commission (NAPOLCOM) and the

appointment of new Commissioners in their stead were

nullities and ordered the reinstatement of petitioners and the payment of full backwages to be computed from the

date they were removed from office.

X x x

An unconstitutional act is not a law; it confers no

rights, imposes no duties, and affords no protection. Therefore, the unavoidable consequence of the Court’s

declaration that Section 8 of RA 8551 violates the

fundamental law is that all acts done pursuant to such provision shall be null and void, including the removal of

petitioners and Adiong from their positions in the NAPOLCOM and the appointment of new commissioners in

their stead. When a regular government employee is illegally dismissed, his position does not become vacant

and the new appointment made in order to replace him is

null and void ab initio. Rudimentary is the precept that

there can be no valid appointment to a non-vacant position. Accordingly, Adiong’s appointment on 11 March

1998 for a term of two years, pursuant to Section 8 of RA 8551, is null and void. X x x. Therefore, based on our

foregoing disquisition, there should no longer be any

doubt as to the proper execution of our 25 January 2000 decision – all the Commissioners appointed under RA

8551 should be removed from office, in order to give way to the reinstatement of petitioners and respondent

Adiong. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

THE INHERENT POWERS OF THE STATE

Police Power

129. Define Police Power and clarify its scope.

Held: 1. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by

the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws,

statutes and ordinances, either with penalties or without,

not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and

for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying

measures for public health, public safety, public morals,

and the general welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be

exercised by any group or body of individuals not

possessing legislative power. The National Legislature, however, may delegate this power to the President and

administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once

delegated, the agents can exercise only such legislative powers as are conferred on them by the national

lawmaking body. (Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., 328 SCRA 836, 843-844, March 27, 2000, 1st Div. [Puno])

2. Police power as an inherent attribute of

sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order

or safety and general welfare of the people (Binay v. Domingo, 201 SCRA 508). The State, through the

legislature, has delegated the exercise of police power to local government units, as agencies of the State, in order

to effectively accomplish and carry out the declared

objects of their creation (Tatel v. Muncipality of Virac, 207 SCRA 157). This delegation of police power is embodies

in the general welfare clause of the Local Government Code x x x.

The scope of police power has been held to be so comprehensive as to encompass almost all matters

affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is

essentially regulatory in nature and the power to issue

licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the

ambit of this power (Procter and Gamble Phils. v. The Muncicipality of Jagna, 94 SCRA 894). (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA 314, 325-326, March 31, 2000, En Banc [Purisima])

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

Held: Lest the idea gets lost in the shoals of our subconsciousness, let us not forget that PAGCOR is

engaged in business affected with public interest. The

phrase “affected with public interest” means that an industry is subject to control for the public good; it has

been considered as the equivalent of “subject to the exercise of the police power.” Perforce, a legislative franchise to operate jai-alai is imbued with public interest and involves an exercise of police power. The familiar rule is that laws which grant the right to exercise a part of the police power of the state are to be construed strictly and any doubt must be resolved against the grant. The legislature is regarded as the guardian of society, and therefore is not presumed to disable itself or abandon the discharge of its duty. Thus, courts do not assume that the legislature intended to part away with its power to regulate public morals. The presumption is influenced by

constitutional considerations. Constitutions are widely understood to withhold from legislatures any authority to

bargain away their police power for the power to protect the public interest is beyond abnegation.

It is stressed that the case at bar does not involve a franchise to operate a public utility (such as water,

transportation, communication or electricity) – the operation of which undoubtedly redounds to the benefit of

the general public. What is claimed is an alleged

legislative grant of a gambling franchise – a franchise to operate jai-alai. A statute which legalizes a gambling

activity or business should be strictly construed and every reasonable doubt must be resolved to limit the powers

and rights claimed under its authority. (Del Mar v. PAGCOR, 346 SCRA 485, Nov. 29, 2000, En Banc [Puno]) 131. Discuss why rates to be charged by public utilities

like MERALCO are subject to State regulation.

Held: The regulation of rates to be charged by

public utilities is founded upon the police power of the State and statutes prescribing rules for the control and

regulations of public utilities are a valid exercise thereof. When private property is used for a public purpose and is

affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation

may be withdrawn by the owner by discontinuing use; but as long as the use of the property is continued, the same

is subject to public regulation.

In regulating rates charged by public utilities, the

State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of

services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which

are so low as to deprive the public utility of a reasonable

return on investment. Thus, the rates prescribed by the State must be one that yields a fair return on

the public utility upon the value of the property performing the service and one that is reasonable

to the public for the service rendered. The fixing of

just and reasonable rates involves a balancing of the investor and the consumer interests. (Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, Nov. 15, 2002, 3rd Div. [Puno])

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

Held: [T]he issuance of business licenses and

permits by a municipality or city is essentially regulatory in

nature. The authority, which devolved upon local government units to issue or grant such licenses or

permits, is essentially in the exercise of the police power of the State within the contemplation of the general

welfare clause of the Local Government Code. (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA 314, 335, March 31, 2000, En Banc [Purisima])

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

Held: Said article does not interfere with the workers’ right to strike but merely regulates it, when in

the exercise of such right, national interests will be

affected. The rights granted by the Constitution are not absolute. They are still subject to control and limitation to

ensure that they are not exercised arbitrarily. The interests of both the employers and the employees are

intended to be protected and not one of them is given

undue preference.

The Labor Code vests upon the Secretary of Labor the discretion to determine what industries are

indispensable to national interest. Thus, upon the

determination of the Secretary of Labor that such industry is indispensable to the national interest, it will assume

jurisdiction over the labor dispute of said industry. The assumption of jurisdiction is in the nature of police power

measure. This is done for the promotion of the common good considering that a prolonged strike or lockout can be

inimical to the national economy. The Secretary of Labor

acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the

workers’ right to strike but to obtain a speedy settlement of the dispute. (Philtread Workers Union [PTWU] v. Confesor, 269 SCRA 393, March 12, 1997) 134. May solicitation for religious purposes be subject

to proper regulation by the State in the exercise of police power?

Held: Whence, even the exercise of religion may

be regulated, at some slight inconvenience, in order that

the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent

solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any

purpose, to establish his identity and his authority to act

for the cause which he purports to represent. The State is likewise free to regulate the time and manner of

solicitation generally, in the interest of public safety, peace, comfort, or convenience.

It does not follow, therefore, from the

constitutional guarantees of the free exercise of religion

that everything which may be so called can be tolerated. It has been said that a law advancing a legitimate

governmental interest is not necessarily invalid as one interfering with the “free exercise” of religion merely

because it also incidentally has a detrimental effect on the

62

adherents of one or more religion. Thus, the general

regulation, in the public interest, of solicitation, which does not involve any religious test and does not

unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the

collection be for a religious purpose. Such regulation

would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible

obstacle to its exercise.

Even with numerous regulative laws in existence, it is surprising how many operations are carried on by

persons and associations who, secreting their activities

under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact

amazing how profitable the fraudulent schemes and practices are to people who manipulate them. The State

has authority under the exercise of its police power to

determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes

or for fraudulent purposes. That solicitation of contributions under the guise of charitable and benevolent

purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in

good faith for worthy purposes should not be denied, but

somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. The objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which naturally

suffer when the confidence of the public in campaigns for

the raising of money for charity is lessened or destroyed. Some regulation of public solicitation is, therefore, in the

public interest.

To conclude, solicitation for religious purposes

may be subject to proper regulation by the State in the exercise of police power. (Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado]) 135. Does a corporation or individual not himself

licensed, have a right to hire and employ licensed optometrists? Will the employment of a qualified optometrist by a corporation go against public policy?

Held: From the foregoing, it is thus evident that

Congress has not adopted a unanimous position on the

matter of prohibition of indirect practice of optometry by

corporations, specifically on the hiring and employment of licensed optometrists by optical corporations. It is clear

that Congress left the resolution of such issue for judicial determination, and it is therefore proper for this Court to

resolve the issue.

Even in the United States, jurisprudence varies

and there is a conflict of opinions among the federal courts as to the right of a corporation or individual not

himself licensed, to hire and employ licensed optometrists (128 ALR 586).

Courts have distinguished between optometry as a learned profession in the category of law and medicine,

and optometry as a mechanical art. And, insofar as the courts regartd optometry as merely a mechanical art, they

have tended to find nothing objectionable in the making

and selling of eyeglasses, spectacles and lenses by corporations so long as the patient is actually examined

and prescribed for by qualified practitioners (House of $8.50 Eyeglasses, Inc. v. State Board of Optometry, 288 Ala 349, 261 So 2d 27; State ex. Rel. Board of Optometry v. Sears Roebuck and Co., 102 Ariz 175, 427 Pd 126).

The primary purpose of the statute regulating the

practice of optometry is to insure that optometrical services are to be rendered by competent and licensed

persons in order to protect the health and physical welfare of the people from the dangers engendered by unlicensed

practice. Such purpose may be fully accomplished

although the person rendering the service is employed by a corporation (Silver v. Lansburgh and Brother, 72 App DC 77, 11 F2d 518, 128 ALR 582; 61 Am Jur 2d 289).

Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against

public policy (Georgia State Examiners v. Friedman’s Jewelers, 183 Ga 669, 189 SE 238). Unless prohibited by statutes, a corporation has all the contractual rights that

an individual has (State ex rel. McKittrick v. Gate City Optical Co., 339 Mo 427, 97 SW 2d 89) and it does not

become the practice of medicine or optometry because of

the presence of a physician or optometrist (Dickson v. Flynn, 246 App Div 341, 286 NYS 225). The

manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do

not constitute the practice of optometry (State ex rel. Brother v. Beck Jewelry Enterprises, Inc. 220 Ind. 276, 41 NE 2d 622, 141 ALR 876 [61 Am Jur 187]; Kindy Opticians, Inc. v. State Board of Examiners in Optometry, 1939, 291 Mich 152, 289 NW 112, 113; New Jersey State Bd. Of Optometrists v. S.S. Kresge Co., 113 NJL 287, 174 A 353).

X x x

To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell

eyeglasses, spectacles, and lenses unless a duly licensed

physician or a duly qualified optometrist is in charge of, and in personal attendance at the place where such

articles are sold (Roschen v. Ward, 279 US 337, 73 L Ed 722, 49 S Ct 336). In such a case, the patient’s primary

and essential safeguard lies in the optometrist’s control of the “treatment” by means of prescription and preliminary

and final examination (Small and Maine Board of Registration and Examination in Optometry, 293 A 2d 786).

In analogy, it is noteworthy that private hospitals

are maintained by corporations incorporated for the

purpose of furnishing medical and surgical treatment. In the course of providing such treatments, these

corporations employ physicians, surgeons and medical practitioners, in the same way that in the course of

manufacturing and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to

examine, prescribe and dispense ophthalmic lenses. No

one has ever charged that these corporations are engaged in the practice of medicine. There is indeed no valid basis

for treating corporations engaged in the business of running optical shops differently. (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA 314, 331-333, March 31, 2000, En Banc [Purisima])

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

Held: The implementation of the CARL is an

exercise of the State’s police power and the power of eminent domain. To the extent that the CARL prescribes

retention limits to the landowners, there is an exercise of police power for the regulation of private property in

accordance with the Constitution. But where, to carry out

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such regulation, the owners are deprived of lands they

own in excess of the maximum area allowed, there is also a taking under the power of eminent domain. The taking

contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and

physical possession of the said excess and all beneficial

rights accruing to the owner in favor of the farmer beneficiary. The Bill of Rights provides that “[n]o person

shall be deprived of life, liberty or property without due process of law.” The CARL was not intended to take away

property without due process of law. The exercise of the power of eminent domain requires that due process be

observed in the taking of private property. (Roxas & Co., Inc. v. Court of Appeals, 321 SCRA 106, Dec. 17, 1999, En Banc [Puno])

The Power of Eminent Domain

137. What is Eminent Domain?

Held: 1. Eminent domain is the right or power

of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an

indispensable attribute of sovereignty; a power grounded

in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of

eminent domain appertains to every independent government without the necessity for constitutional

recognition. The provisions found in modern constitutions

of civilized countries relating to the taking of property for the public use do not by implication grant the power to

the government, but limit a power which would otherwise be without limit. Thus, our own Constitution provides that

“[p]rivate property shall not be taken for public use

without just compensation.” Furthermore, the due process and equal protection clauses act as additional

safeguards against the arbitrary exercise of this governmental power.

Since the exercise of the power of eminent

domain affects an individual’s right to private property, a

constitutionally-protected right necessary for the preservation and enhancement of personal dignity and

intimately connected with the rights to life and liberty, the need for its circumspect operation cannot be

overemphasized. In City of Manila v. Chinese Community of Manila we said:

The exercise of the right of eminent domain, whether directly by the State, or by its

authorized agents, is necessarily in derogation of private rights, and the rule in that case is that the

authority must be strictly construed. No species

of property is held by individuals with greater tenacity, and none is guarded by the Constitution

and the laws more sedulously, than the right to the freehold of inhabitants. When the legislature

interferes with that right, and, for greater public

purposes, appropriates the land of ah individual without his consent, the plain meaning of the law

should not be enlarged by doubt[ful] interpretation. (Bensley v. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576])

The statutory power of taking property from the owner without his consent is one of the most delicate

exercise of governmental authority. It is to be watched with jealous scrutiny. Important as the power may be to

the government, the inviolable sanctity which all free

constitutions attach to the right of property of the citizens,

constrains the strict observance of the substantial provisions of the law which are prescribed as modes of

the exercise of the power, and to protect it from abuse x x x.

The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that

such power may be validly delegated to local government units, other public entities and public utilities, although

the scope of this delegated legislative power is necessarily narrower than that of the delegating authority and may

only be exercised in strict compliance with the terms of

the delegating law. (Heirs of Alberto Suguitan v. City of Mandaluyong, 328 SCRA 137, 144-146, March 14, 2000, 3rd Div. [Gonzaga-Reyes])

2. Eminent domain is a fundamental State power

that is inseparable from sovereignty. It is government’s right to appropriate, in the nature of a compulsory sale to

the State, private property for public use or purpose. Inherently possessed by the national legislature, the

power of eminent domain may be validly delegated to local governments, other public entities and public

utilities. For the taking of private property by the

government to be valid, the taking must be for public purpose and there must be just compensation. (Moday v. Court of Appeals, 268 SCRA 586, February 20, 1997)

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

Held: The right of eminent domain is usually

understood to be an ultimate right of the sovereign power

to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the

independent existence of a State, it requires no recognition by the Constitution, whose provisions are

taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the

power. In the hands of the legislature, the power is

inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every

form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in

property are held under a tacit agreement or implied

reservation vesting upon the sovereign the right to resume the possession of the property whenever the

public interest so requires it.

The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings.

Expropriation proceedings are not adversarial in the

conventional sense, for the condemning authority is not required to assert any conflicting interest in the property.

Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the

property, and the defendant asserts title or interest in the

property, not to prove a right to possession, but to prove a right to compensation for the taking.

Obviously, however, the power is not without its

limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property. These twin proscriptions have

their origin in the recognition of the necessity for achieving balance between the State interests, on the one

hand, and private rights, upon the other hand, by effectively restraining the former and affording protection

to the latter. In determining “public use,” two approaches

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are utilized – the first is public employment or the actual

use by the public, and the second is public advantage or benefit. It is also useful to view the matter as being

subject to constant growth, which is to say that as society advances, its demands upon the individual so increases,

and each demand is a new use to which the resources of

the individual may be devoted. (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

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

Held: The limitations on the power of eminent

domain are that the use must be public, compensation

must be made and due process of law must be observed. The Supreme Court, taking cognizance of such issues as

the adequacy of compensation, necessity of the taking

and the public use character or the purpose of the taking, has ruled that the necessity of exercising eminent domain

must be genuine and of a public character. Government may not capriciously choose what private property should

be taken. (Moday v. Court of Appeals, 268 SCRA 586, February 20, 1997)

140. Discuss the expanded notion of “public use” in eminent domain proceedings.

Held: The City of Manila, acting through its

legislative branch, has the express power to acquire

private lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants

thereof, and to laborers and low-salaried employees of the city.

That only a few could actually benefit from the expropriation of the property does not diminish its public

character. It is simply not possible to provide all at once land and shelter for all who need them.

Corollary to the expanded notion of public use,

expropriation is not anymore confined to vast tracts of

land and landed estates. It is therefore of no moment that the land sought to be expropriated in this case is less

than half a hectare only.

Through the years, the public use requirement in

eminent domain has evolved into a flexible concept, influenced by changing conditions. Public use now

includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and

housing. (Filstream International Incorporated v. CA, 284 SCRA 716, Jan. 23, 1998 [Francisco])

141. What is the meaning of “public use” in eminent domain proceedings? Illustrative case.

Held: This Court holds that respondent

(Philippine Export Processing Zone) has the legal authority

to expropriate the subject Lot 1406-B and that the same was for a valid public purpose. In Sumulong v. Guerrero,

this Court has ruled that,

The “public use” requirement for a valid

exercise of the power of eminent domain is a flexible and evolving concept influenced by

changing conditions. In this jurisdiction, the statutory and judicial trend has been summarized

as follows:

This Court has ruled that the

taking to be valid must be for public use. There was a time when it was felt that a

literal meaning should be attached to such a requirement. Whatever project is

undertaken must be for the public to

enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable.

It is not anymore. As long as the purpose of the taking is public, then the power of

eminent domain comes into play . . . It is accurate to state then that at present

whatever may be beneficially employed

for the general welfare satisfies the requirement of public use. (Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 [1983] at 234-235 quoting E. Fernando, the Constitution of the Philippines 523-4 [2nd Ed. 1977])

The term “public use” has acquired a more comprehensive coverage. To the literal

import of the term signifying strict use or employment by the public has been added the

broader notion of indirect public benefit or

advantage.

In Manosca v. Court of Appeals, this Court has also held that what ultimately emerged is a concept of

public use which is just as broad as “public welfare.”

Respondent PEZA expropriated the subject parcel

of land pursuant to Proclamation No. 1980 x x x issued by former President Ferdinand Marcos. Meanwhile, the

power of eminent domain of respondent is contained in its

original charter, Presidential Decree No. 66 x x x.

Accordingly, subject Lot 1406-B was expropriated “for the construction . . . of terminal facilities, structures

and approaches thereto.” The authority is broad enough to give the respondent substantial leeway in deciding for

what public use the expropriated property would be

utilized. Pursuant to this broad authority, respondent leased a portion of the lot to commercial banks while the

rest was made a transportation terminal. Said public purposes were even reaffirmed by Republic Act No. 7916,

a law amending respondent PEZA’s original charter x x x.

In Manila Railroad Co. v. Mitchel, this Court has

ruled that in the exercise of eminent domain, only as much land can be taken as is necessary for the legitimate

purpose of the condemnation. The term “necessary,” in this connection, does not mean absolutely indispensable

but requires only a reasonable necessity of the taking for

the stated purpose, growth and future needs of the enterprise. The respondent cannot attain a self-sustaining

and viable ECOZONE if inevitable needs in the expansion in the surrounding areas are hampered by the mere

refusal of the private landowners to part with their

properties. The purpose of creating an ECOZONE and other facilities is better served if respondent directly owns

the areas subject of the expansion program.

X x x The expropriation of Lot 1406-B for the

purpose of being leased to banks and for the construction of a terminal has the purpose of making banking and

transportation facilities easily accessible to the persons working at the industries located in PEZA. The

expropriation of adjacent areas therefore comes as a matter of necessity to bring life to the purpose of the law.

In such a manner, PEZA’s goal of being a major force in

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the economic development of the country would be

realized. Furthermore, this Court has already ruled that:

X x x [T]he Legislature may directly determine the necessity for appropriating private

property for a particular improvement for public

use, and it may select the exact location of the improvement. In such a case, it is well-settled

that the utility of the proposed improvement, the existence of the public necessity for its

construction, the expediency of constructing it, the suitableness of the location selected, are all

questions exclusively for the legislature to

determine, and the courts have no power to interfere or to substitute their own views for those

of the representatives of the people.

In the absence of some constitutional or

statutory provisions to the contrary, the necessity and expediency of exercising the right of eminent

domain are questions essentially political and not judicial in their character. (City of Manila v. Chinese Community of Manila, 40 Phil. 349 [1919])

Inasmuch as both Presidential Decree No. 66 and Republic Act No. 7916, bestow respondent with authority to

develop terminal facilities and banking centers, this Court will not question the respondent’s lease of certain portions

of the expropriated lot to banks, as well as the

construction of terminal facilities.

Petitioner contends that respondent is bound by the representations of its Chief Civil Engineer when the

latter testified before the trial court that the lot was to be

devoted for the construction of government offices. Anent this issue, suffice it to say that PEZA can vary the

purpose for which a condemned lot will be devoted to, provided that the same is for public use. Petitioner

cannot impose or dictate on the respondent what facilities to establish for as long as the same are for public

purpose. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon])

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

Held: 1. The constitutional limitation of “just compensation” is considered to be the sum equivalent to

the market value of the property, broadly described to be the price fixed by the seller in open market in the usual

and ordinary course of legal action and competition or the

fair value of the property as between one who receives, and one who desires to sell it, fixed at the time of the

actual taking by the government. Thus, if property is taken for public use before compensation is deposited

with the court having jurisdiction over the case, the final

compensation must include interests on its just value to be computed from the time the property is taken to the

time when compensation is actually paid or deposited with the court. In fine, between the taking of the property and

the actual payment, legal interests accrue in order to

place the owner in a position as good as (but not better than) the position he was in before the taking occurred. (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

2. We have ruled that the concept of just

compensation embraces not only the correct determination of the amount to be paid to the owners of

the land, but also the payment of the land within a reasonable time from its taking. Without prompt

payment, compensation cannot be considered “just”

inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land

while being made to wait for a decade or more before actually receiving the amount necessary to cope with his

loss. Payment of just compensation should follow as a matter of right immediately after the order of

expropriation is issued. Any delay in payment must be

counted from said order. However, the delay to constitute a violation of due process must be

unreasonable and inexcusable; it must be deliberately done by a party in order to defeat the ends of justice. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon])

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

Held: All broadcasting, whether by radio or by

television stations, is licensed by the government. Airwave frequencies have to be allocated as there are

more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege

subject, among other things, to amendment by Congress

in accordance with the constitutional provision that “any such franchise or right granted x x x shall be subject to

amendment, alteration or repeal by the Congress when the common good so requires.” (Art. XII, Sec. 11)

Indeed, provisions for Comelec Time have been made by amendment of the franchises of radio and

television broadcast stations and such provisions have not been thought of as taking property without just

compensation. Art. XII, Sec. 11 of the Constitution authorizes the amendment of franchises for “the common

good.” What better measure can be conceived for the

common good than one for free airtime for the benefit not only of candidates but even more of the public,

particularly the voters, so that they will be fully informed of the issues in an election? “[I]t is the right of the

viewers and listeners, not the right of the broadcasters,

which is paramount.”

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give

free airtime. Even in the United States, there are

responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to

ensure diversity of views and attention to public affairs to further the system of free expression. For this purpose,

broadcast stations may be required to give free airtime to candidates in an election.

66

In truth, radio and television broadcasting

companies, which are given franchises, do not own the airwaves and frequencies through which they transmit

broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a

mere privilege, the exercise of the privilege may

reasonably be burdened with the performance by the grantee of some form of public service.

In the granting of the privilege to operate

broadcast stations and thereafter supervising radio and television stations, the State spends considerable public

funds in licensing and supervising such stations. It would

be strange if it cannot even require the licensees to render public service by giving free airtime.

The claim that petitioner would be losing

P52,380,000.00 in unrealized revenue from advertising is

based on the assumption that airtime is “finished product” which, it is said, become the property of the company, like

oil produced from refining or similar natural resources after undergoing a process for their production. As held

in Red Lion Broadcasting Co. v. F.C.C., which upheld the right of a party personally attacked to reply, “licenses to

broadcast do not confer ownership of designated

frequencies, but only the temporary privilege of using them.” Consequently, “a license permits broadcasting,

but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency

to the exclusion of his fellow citizens. There is nothing in

the First Amendment which prevents the government from requiring a licensee to share his frequency with

others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are

representative of his community and which would

otherwise, by necessity, be barred from the airwaves.” As radio and television broadcast stations do not own the

airwaves, no private property is taken by the requirement that they provide airtime to the Comelec. (TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza])

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

Held: The principle of res judicata, which finds

application in generally all cases and proceedings, cannot

bar the right of the State or its agents to expropriate private property. The very nature of eminent domain, as

an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a

prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can “reach every

form of property which the State might need for public

use.” All separate interests of individuals in property are held of the government under this tacit agreement or

implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most

exact idea of property, remains in the government, or in

the aggregate body of the people in their sovereign capacity; and they have the right to resume the

possession of the property whenever the public interest requires it.” Thus, the State or its authorized agent

cannot be forever barred from exercising said right by

reason alone of previous non-compliance with any legal requirement.

While the principle of res judicata does not

denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a

previous case. For example, a final judgment dismissing

an expropriation suit on the ground that there was no

prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from

thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent

domain over the same property. (Municipality of Paranaque v. V.M. Realty Corporation, 292 SCRA 678, July 20, 1998 [Panganiban])

145. Discuss how expropriation may be initiated, and

the two stages in expropriation.

Held: Expropriation may be initiated by court

action or by legislation. In both instances, just compensation is determined by the courts.

The expropriation of lands consists of two stages.

As explained in Municipality of Binan v. Garcia, reiterated in National Power Corp. v. Jocson:

The first is concerned with the determination of the authority of the plaintiff to

exercise the power of eminent domain and the propriety of its exercise in the context of the facts

involved in the suit. It ends with an order, if not

dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to

take the property sought to be condemned, for the public use or purpose declared in the

complaint, upon the payment of just

compensation to be determined as of the date of the filing of the complaint" x x x.

The second phase of the eminent domain

action is concerned with the determination by the

court of “the just compensation for the property sought to be taken.” This is done by the court

with the assistance of not more than three (3) commissioners x x x.

It is only upon the completion of these two stages

that expropriation is said to have been completed.

(Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza]) 146. May the owner of the property expropriated still

dispose of that property before the payment of just compensation? When does title over the property expropriated pass to the expropriator?

Held: 1. [I]t is only upon payment of just

compensation that title over the property passes to the

government. Therefore, until the action for expropriation

has been completed and terminated, ownership over the property being expropriated remains with the registered

owner. Consequently, the latter can exercise all rights pertaining to an owner, including the right to dispose of

his property, subject to the power of the State ultimately

to acquire it through expropriation. (Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza])

2. The De la Ramas make much of the fact that

ownership of the land was transferred to the government because the equitable and the beneficial title was already

acquired by it in 1983, leaving them with only the naked title. However, as this Court held in Association of Small Landowners in the Phil., Inc. v. Secretary of Agrarian Reform:

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The recognized rule, indeed, is that title

to the property expropriated shall pass from the owner to the expropriator only upon full payment

of the just compensation. Jurisprudence on this settled principle is consistent both here and in

other democratic jurisdictions. X x x

(Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza])

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

Held: We see no point in distinguishing between

judicial and legislative expropriation as far as the two

stages mentioned above are concerned. Both involve these stages and in both the process is not completed

until payment of just compensation is made. (Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza])

148. Is prior unsuccessful negotiation a condition

precedent for the exercise of eminent domain?

Held: Citing Iron and Steel Authority v. Court of Appeals, petitioner insists that before eminent domain may be exercised by the state, there must be a showing

of prior unsuccessful negotiation with the owner of the property to be expropriated.

This contention is not correct. As pointed out by the Solicitor General the current effective law on

delegated authority to exercise the power of eminent domain is found in Section 12, Book III of the Revised

Administrative Code, which provides:

“SEC. 12. Power of Eminent Domain –

The President shall determine when it is necessary or advantageous to exercise the power

of eminent domain in behalf of the National Government, and direct the Solicitor General,

whenever he deems the action advisable, to

institute expropriation proceedings in the proper court.”

The foregoing provision does not require prior

unsuccessful negotiation as a condition precedent for the

exercise of eminent domain. In Iron and Steel Authority v. Court of Appeals, the President chose to prescribe this

condition as an additional requirement instead. In the instant case, however, no such voluntary restriction was

imposed. (SMI Development Corporation v. Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div. [Panganiban]) 149. When may the property owner be entitled to the

return of the expropriated property in eminent domain cases?

Held: 1. In insisting on the return of the expropriated property, respondents would exhort on the

pronouncement in Provincial Government of Sorsogon v. Vda. De Villaroya where the unpaid landowners were

allowed the alternative remedy of recovery of the property

there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which

the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the

power of eminent domain to local governments under Republic Act No. 7160 cannot be understood as being the

pervasive and all-encompassing power vested in the

legislative branch of government. For local governments

to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then,

this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain

or only as broad or confined as the real authority would

want it to be.

Thus, in Valdehueza v. Republic where the private landowners had remained unpaid ten years after the

termination of the expropriation proceedings, this Court ruled –

“The points in dispute are whether such payment can still be made and, if so, in what

amount. Said lots have been the subject of expropriation proceedings. By final and executory

judgment in said proceedings, they were

condemned for public use, as part of an airport, and ordered sold to the government. x x x It

follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the

annotations upon their title certificates, plaintiffs are not entitled to recover possession of their

expropriated lots – which are still devoted to the

public use for which they were expropriated – but only to demand the fair market value of the same.

Said relief may be granted under

plaintiffs’ prayer for: ‘such other remedies, which

may be deemed just and equitable under the premises’.”

The Court proceeded to reiterate its pronouncement in

Alfonso v. Pasay City where the recovery of possession of

property taken for public use prayed for by the unpaid landowner was denied even while no requisite

expropriation proceedings were first instituted. The landowner was merely given the relief of recovering

compensation for his property computed at its market value at the time it was taken and appropriated by the

State.

The judgment rendered by the Bulacan RTC in

1979 on the expropriation proceedings provides not only for the payment of just compensation to herein

respondents but likewise adjudges the property

condemned in favor of petitioner over which parties, as well as their privies, are bound. Petitioner has occupied,

utilized and, for all intents and purposes, exercised dominion over the property pursuant to the judgment.

The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or

satisfaction of the 1979 judgment, thereby preempting

any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on

the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is far from

that of an unpaid seller in ordinary sales, to which the

remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property. After

condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all

claimants to a disputed title, condemnation proceedings

provide a judicial process for securing better title against all the world than may be obtained by voluntary

conveyance. (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

68

2. Though the respondent has committed a

misdeed to petitioner, we cannot, however, grant the petitioner’s prayer for the return of the expropriated Lot

No. 1406-B. The Order of expropriation dated July 11, 1991, has long become final and executory. Petitioner

cited Provincial Government of Sorsogon v. Rosa E. Vda. De Villaroya to support its contention that it is entitled to a return of the lot where this Court ruled that “under

ordinary circumstances, immediate return to the owners of the unpaid property is the obvious remedy.” However,

the said statement was not the ruling in that case. As in other cases where there was no prompt payment by the

government, this Court declared in Sorsogon that “the

Provincial Government of Sorsogon is expected to immediately pay as directed. Should any further delay be

encountered, the trial court is directed to seize any patrimonial property or cash savings of the province in the

amount necessary to implement this decision.” However,

this Court also stressed and declared in that case that “in cases where land is taken for public use, public interest,

however, must be considered.” (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon])

The Power of Taxation

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

Held: Taxes cannot be subject to compensation for the simple reason that the government and the

taxpayer are not creditors and debtors of each other. There is a material distinction between a tax and debt.

Debts are due to the Government in its corporate

capacity, while taxes are due to the Government in its sovereign capacity. It must be noted that a distinguishing

feature of a tax is that it is compulsory rather than a matter of bargain. Hence, a tax does not depend upon

the consent of the taxpayer. If any taxpayer can defer the payment of taxes by raising the defense that it still

has a pending claim for refund or credit, this would

adversely affect the government revenue system. A taxpayer cannot refuse to pay his taxes when they fall due

simply because he has a claim against the government or that the collection of a tax is contingent on the result of

the lawsuit it filed against the government. (Philex Mining Corporation v. Commissioner of Internal Revenue, 294 SCRA 687, Aug. 28, 1998 [Romero])

151. Under Article VI, Section 28, paragraph 3 of the

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

Held: The debates, interpellations and expressions of opinion of the framers of the Constitution

reveal their intent that which, in turn, may have guided

the people in ratifying the Charter. Such intent must be effectuated.

Accordingly, Justice Hilario G. Davide, Jr., a

former constitutional commissioner, who is now a member of this Court, stressed during the Concom debates that "x

x x what is exempted is not the institution itself x x x;

those exempted from real estate taxes are lands, buildings

and improvements actually, directly and exclusively used for religious, charitable or educational purposes. Father

Joaquin G. Bernas, an eminent authority on the Constitution and also a member of the Concom, adhered

to the same view that the exemption created by said

provision pertained only to property taxes.

In his treatise on taxation, Mr. Justice Jose C. Vitug concurs, stating that "[t]he tax exemption covers

property taxes only." (Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

152. Under Article XIV, Section 4, paragraph 3 of the

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

Held: We reiterate that private respondent is

exempt from the payment of property tax, but not income tax on the rentals from its property. The bare allegation

alone that it is a non-stock, non-profit educational institution is insufficient to justify its exemption from the

payment of income tax.

[L]aws allowing tax exemption are construed

strictissimi juris. Hence, for the YMCA to be granted the exemption it claims under the abovecited provision, it

must prove with substantial evidence that (1) it falls under

the classification non-stock, non-profit educational institution; and (2) the income it seeks to be exempted

from taxation is used actually, directly, and exclusively for educational purposes. However, the Court notes that not

a scintilla of evidence was submitted by private respondent to prove that it met the said requisites.

(Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

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

Held: We rule that it is not. The term

“educational institution” or “institution of learning” has acquired a well-known technical meaning, of which the

members of the Constitutional Commission are deemed cognizant. Under the Education Act of 1982, such term

refers to schools. The school system is synonymous with

formal education, which “refers to the hierarchically structured and chronologically graded learnings organized

and provided by the formal school system and for which certification is required in order for the learner to progress

through the grades or move to the higher levels.” The

Court has examined the “Amended Articles of Incorporation” and “By-Laws” of the YMCA, but found

nothing in them that even hints that it is a school or an educational institution.

Furthermore, under the Education Act of 1982, even non-formal education is understood to be school-

based and “private auspices such as foundations and civic-spirited organizations” are ruled out. It is settled

that the term “educational institution,” when used in laws granting tax exemptions, refers to a “x x x school

seminary, college or educational establishment x x x.” (84

69

CJS 566) Therefore, the private respondent cannot be

deemed one of the educational institutions covered by the constitutional provision under consideration.

(Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

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

Held: The power to tax and to grant exemptions

is vested in the Congress and, to a certain extent, in the

local legislative bodies. Section 28(4), Article VI of the Constitution, specifically provides: “No law granting any

tax exemption shall be passed without the concurrence of a majority of all the members of the Congress.” The

PCGG has absolutely no power to grant tax exemptions,

even under the cover of its authority to compromise ill-gotten wealth cases.

Even granting that Congress enacts a law

exempting the Marcoses from paying taxes on their properties, such law will definitely not pass the test of the

equal protection clause under the Bill of Rights. Any

special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate

the constitutional rule that “taxation shall be uniform and equitable.” (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban]) 155. Discuss the purpose of tax treaties?

Held: The RP-US Tax Treaty is just one of a

number of bilateral treaties which the Philippines has

entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile

the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in

two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the

elimination of international juridical double taxation x x x.

(Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 101-102, June 25, 1999, 3rd Div. [Gonzaga-Reyes])

156. What is “international juridical double taxation”?

Held: It is defined as the imposition of

comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for

identical periods. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 102, June 25, 1999) 157. What is the rationale for doing away with

international juridical double taxation? What are the methods resorted to by tax treaties to eliminate double taxation?

Held: The apparent rationale for doing away

with double taxation is to encourage the free flow of goods and services and the movement of capital,

technology and persons between countries, conditions

deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable

and reasonable international investment climate and the protection against double taxation is crucial in creating

such a climate.

Double taxation usually takes place when a

person is resident of a contracting state and derives income from, or owns capital in, the other contracting

state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty

resorts to several methods. First, it sets out the

respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of

income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states;

however, for other items of income or capital, both states are given the right to tax, although the amount of tax that

may be imposed by the state of source is limited.

The second method for the elimination of double

taxation applies whenever the state of source is given a full or limited right to tax together with the state of

residence. In this case, the treaties make it incumbent

upon the state of residence to allow relief in order to avoid double taxation. There are two methods of relief -

the exemption method and the credit method. In the exemption method, the income or capital which is taxable

in the state of source or situs is exempted in the state of residence, although in some instances it may be taken

into account in determining the rate of tax applicable to

the taxpayer's remaining income or capital. On the other hand, in the credit method, although the income or capital

which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited

against the tax levied in the latter. The basic difference

between the two methods is that in the exemption method, the focus is on the income or capital itself,

whereas the credit method focuses upon the tax. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 102-103, June 25, 1999)

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

Held: In negotiating tax treaties, the underlying

rationale for reducing the tax rate is that the Philippines

will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by

the other country. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 103, June 25, 1999)

THE BILL OF RIGHTS

The Due Process Clause

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

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

Constitution.

In order to fall within the aegis of this provision,

two conditions must concur, namely, that there is a deprivation and that such deprivation is done without

proper observance of due process. When one speaks of

due process of law, however, a distinction must be made between matters of procedure and matters of substance.

In essence, procedural due process “refers to the method or manner by which the law is enforced,” while

substantive due process “requires that the law itself, not merely the procedures by which the law would be

enforced, is fair, reasonable, and just.” (Corona v.

70

United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])

160. Respondents United Harbor Pilots Association of the Philippines argue that due process was not observed in the adoption of PPA-AO No. 04-92 which provides that: “(a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only,” and “(a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Philippine Ports Authority after conduct of a rigid evaluation of performance,” allegedly because no hearing was conducted whereby “relevant government agencies” and the harbor pilots themselves could ventilate their views. They also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots has become vested and can only be “withdrawn or shortened” by observing the constitutional mandate of due process of law.

Held: They are obviously referring to the

procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a

stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, where it declared that “(a)s long as a party

was given the opportunity to defend his interests in due

course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very

essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an

opportunity to seek reconsideration of the action or ruling

complained of.”

In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times before the matter

was finally elevated to this Tribunal. Their arguments on this score, however, failed to persuade. X x x

Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the

administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural

due process, are essential only when an administrative

body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such

as issuing rules and regulations, an administrative body need not comply with the requirements of notice and

hearing.

Upon the other hand, it is also contended that the

sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said

right has become vested and can only be “withdrawn or shortened” by observing the constitutional mandate of

due process of law. Their argument has thus shifted from

the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the

organic law.

Pilotage, just like other professions, may be

practiced only by duly licensed individuals. Licensure is “the granting of license especially to practice a

profession.” It is also “the system of granting licenses (as for professional practice) in accordance with established

standards.” A license is a right or permission granted by some competent authority to carry on a business or do an

act which, without such license, would be illegal.

Before harbor pilots can earn a license to practice their profession, they literally have to pass through the

proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and

practice. X x x

Their license is granted in the form of an

appointment which allows them to engage in pilotage until they retire at the age of 70 years. This is a vested right.

Under the terms of PPA-AO No. 04-92, “[a]ll existing regular appointments which have been previously issued

by the Bureau of Customs or the PPA shall remain valid up

to 31 December 1992 only,” and “(a)ll appointments to harbor pilot positions in all pilotage districts shall,

henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the

Authority after conduct of a rigid evaluation of

performance.”

It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their

profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that

after passing five examinations and undergoing years of

on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by

the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual

cancellation of their license which can be temporary or

permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes

alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of

their license is now dependent on a “rigid evaluation of

performance” which is conducted only after the license has already been cancelled. Hence, the use of the term

“renewal.” It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and

constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, December 12, 1997 [Romero])

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

Held: The right to counsel, which cannot be

waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused

during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal

proceeding and, with more reason, in an administrative

inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent

and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings

below. The investigation conducted by the committee x x

x was for the sole purpose of determining if he could be held administratively liable under the law for the

complaints filed against him. x x x As such, the hearing conducted by the investigating committee was not part of

a criminal prosecution. X x x

While investigations conducted by an

administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a

party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the

charges and of the respondent's capacity to represent

71

himself, and no duty rests on such a body to furnish the

person being investigated with counsel. In an administrative proceeding x x x a respondent x x x has the

option of engaging the services of counsel or not. x x x Thus, the right to counsel is not imperative in

administrative investigations because such inquiries are

conducted merely to determine whether there are facts that merit disciplinary measures against erring public

officers and employees, with the purpose of maintaining the dignity of government service.

The right to counsel is not indispensable to due

process unless required by the Constitution or the law.

Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997 [Romero])

162. Discuss the “Void for Vagueness” Doctrine, and

why is it repugnant to the Constitution. Distinguish a “perfectly vague act” from “legislation couched in imprecise language.”

Held: 1. Due process requires that the terms of

a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will

render them liable to its penalties. A criminal statute that

“fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the

statute,” or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” is void for vagueness. The constitutional vice in a vague or indefinite statute is

the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning. We reiterated these principles in People v. Nazario:

As a rule, a statute or act may be said to

be vague when it lacks comprehensible standards that men “of common intelligence must

necessarily guess at its meaning and differ as to its application.” It is repugnant to the

Constitution in two respects: (1) it violates due

process for failure to accord persons, especially the parties targeted by it, fair notice of the

conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions

and become an arbitrary flexing of the

Government muscle.

We added, however, that:

X x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either

a saving clause or by construction. Thus, in

Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it

illegal for “three or more persons to assemble on any sidewalk and there conduct themselves in a

manner annoying to persons passing by.” Clearly,

the ordinance imposed no standard at all “because one may never know in advance what

annoys some people but does not annoy others.”

Coates highlights what has been referred

to as a “perfectly vague” act whose obscurity is evident on its face. It is to be distinguished,

however, from legislation coached in imprecise language – but which nonetheless specifies a

standard though defectively phrased – in which case, it may be “saved” by proper construction. X

x x (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan])

2. The doctrine has been formulated in various ways, but is commonly stated to the effect that a statute

establishing a criminal offense must define the offense

with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by

the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which

cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common

intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is

repugnant to the Constitution in two (2) respects – it

violated due process for failure to accord persons, especially the parties targeted by it, fair notice of what

conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an

arbitrary flexing of the Government muscle. But the doctrine does not apply as against legislations that are

merely couched in imprecise language but which

nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet

fairly applicable to certain types of activities. The first may be “saved” by proper construction, while no

challenge may be mounted as against the second

whenever directed against such activities. With more reason, the doctrine cannot be invoked where the assailed

statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute

is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct

when measured by common understanding and practice. It must be stressed, however, that the “vagueness”

doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or

mathematical exactitude, as petitioner seems to suggest.

Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly

delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or

detailed in its provisions, especially where, because of the

nature of the act, it would be impossible to provide all the details in advance as in all other statutes. (Joseph Ejercito Estrada v. Sandiganbayan [Third Division], G.R. No. 148560, Nov. 19, 2001, En Banc [Bellosillo])

163. Does Article 13 (b) of the Labor Code defining “recruitment and placement” violate the due process clause?

Held: In support of her submission that Article

13 (b) is void for vagueness, appellant invokes People v. Panis, where this Court x x x “criticized” the definition of “recruitment and placement” x x x.

Appellant further argues that the acts that

constitute “recruitment and placement” suffer from

overbreadth since by merely “referring” a person for employment, a person may be convicted of illegal

recruitment.

These contentions cannot be sustained.

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Appellant’s reliance on People v. Panis is

misplaced. The issue in Panis was whether, under the proviso of Article 13(b), the crime of illegal recruitment

could be committed only “whenever two or more persons are in any manner promised or offered any employment

for a fee.” The Court held in the negative x x x.

X x x The Court, in Panis, merely bemoaned the

lack of records that would help shed light on the meaning of the proviso. The absence of such records

notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso by applying

principles in criminal law and drawing from the language

and intent of the law itself. Section 13(b), therefore, is not a “perfectly vague act” whose obscurity is evident on

its face. If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper

construction. It is not void for vagueness.

X x x

That Section 13(b) encompasses what appellant

apparently considers as customary and harmless acts such as “labor or employment referral” (“referring” an

applicant, for employment to a prospective employer)

does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth.

A statute may be said to be overbroad where it

operates to inhibit the exercise of individual freedoms

affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded

statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague to

the extent that it fails to give adequate warning of the

boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute.

In Blo Umpar Adiong v. Commission on Elections, for instance, we struck down as void for overbreadth provisions prohibiting the posting of election propaganda

in any place – including private vehicles – other than in

the common poster areas sanctioned by the COMELEC. We held that the challenged provisions not only deprived

the owner of the vehicle the use of his property but also deprived the citizen of his right to free speech and

information. The prohibition in Adiong, therefore, was so

broad that it covered even constitutionally guaranteed rights and, hence, void for overbreadth. In the present

case, however, appellant did not even specify what constitutionally protected freedoms are embraced by the

definition of “recruitment and placement” that would render the same constitutionally overbroad. (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan])

164. Is the Plunder Law unconstitutional for being vague?

Held: As it is written, the Plunder Law contains ascertainable standards and well-defined parameters

which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its

description of the acts, conduct and conditions required or

forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. X x x

As long as the law affords some comprehensible

guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its

validity would be sustained. It must sufficiently guide the

judge in its application; the counsel, in defending one

charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed

conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a

public officer in amassing or accumulating ill-gotten

wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the

Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable

certainty the various elements of the offense which

petitioner is alleged to have committed x x x.

We discern nothing in the foregoing that is vague or ambiguous – as there is obviously none – that will

confuse petitioner in his defense. Although subject to

proof, these factual assertions clearly show that the elements of the crime are easily understood and provide

adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions,

petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent

defense.

Petitioner, however, bewails the failure of the law

to provide for the statutory definition of the terms “combination” and “series” in the key phrase “a

combination or series of overt or criminal acts” found in

Sec. 1, par. (d), and Sec. 2, and the word “pattern” in Sec. 4. These omissions, according to petitioner, render

the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be

informed of the nature and cause of the accusation

against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure

sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or

because of the employment of terms without defining

them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory

command requiring the legislature to define each and every word in an enactment. Congress is not restricted in

the form of expression of its will, and its inability to so

define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as

the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the

Plunder Law.

Moreover, it is a well-settled principle of legal

hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and

signification, unless it is evident that the legislature intended a technical or special legal meaning to those

words. The intention of the lawmakers – who are,

ordinarily, untrained philologists and lexicographers – to use statutory phraseology in such a manner is always

presumed. Thus, Webster’s New Collegiate Dictionary contains the following commonly accepted definition of

the words “combination” and “series.”

Combination – the result or product of

combining; the act or process of combining. To combine is to bring into such close relationship as

to obscure individual characters.

73

Series – a number of things or events of

the same class coming one after another in spatial and temporal succession.

That Congress intended the words “combination”

and “series” to be understood in their popular meanings is

pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law

x x x.

X x x

Thus when the Plunder Law speaks of

“combination,” it is referring to at least two (2) acts falling under different categories or enumeration provided in Sec.

1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets

belonging to the National Government under Sec. 1, par.

(d), subpar. (3).

On the other hand, to constitute a “series” there must be two (2) or more overt or criminal acts falling

under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on

the public treasury, all of which fall under Sec. 1, par. (d),

subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for “combination” and

“series,” it would have taken greater pains in specifically providing for it in the law.

As for “pattern,” we agree with the observations of the Sandiganbayan that this term is sufficiently defined

in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 –

x x x under Sec. 1 (d) of the law, a ‘pattern’ consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an ‘overall unlawful scheme’ or ‘conspiracy’ to achieve said common goal. As commonly understood, the term ‘overall unlawful scheme’ indicates a ‘general plan of action or method’ which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

X x x

Hence, it cannot plausibly be contended that the

law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances,

petitioner’s reliance on the “void-for-vagueness” doctrine is manifestly misplaced.

X x x

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the

deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial

review of its validity –

The void-for-vagueness doctrine states that “a statute which either forbids or requires the

doing of an act in terms so vague that men of common intelligence must necessarily guess at its

meaning and differ as to its application violates

the first essential of due process of law.” (Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926] cited in Ermita-Malate Hotel and Motel Operators Ass’n. v. City Mayor, 20 SCRA 849, 867 [1967]) The overbreadth doctrine, on the other hand, decrees that “a

governmental purpose may not be achieved by

means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

(NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 [1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960])

A facial challenge is allowed to be made

to a vague statute and to one which is overbroad because of possible “chilling effect” upon

protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no

readily apparent construction suggests itself as a

vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society

of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes

with no requirement that the person making the

attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow

specificity.” (Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 [1972] [internal quotation marks omitted]) The possible harm to

society in permitting some unprotected speed to go unpunished is outweighed by the possibility

that the protected speech of others may be deterred and perceived grievances left to fester

because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for

this reason alone, the State may well be

prevented from enacting laws against socially harmful conduct. In the area of criminal law, the

law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrine

then have special application only to free speech

cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it,

in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside

the limited context of the First Amendment.” In

Broadwick v. Oklahoma (413 U.S. 601, 612-613, 37 L Ed. 2d 830, 840-841 [1973]), the Court ruled

that “claims of facial overbreadth have been entertained in cases involving statutes which, by

their terms, seek to regulate only spoken words”

and, again, that “overbreadth claims, if entertained at all, have been curtailed when

invoked against ordinary criminal laws that are sought to be applied to protected conduct.” For

this reason, it has been held that “a facial challenge to a legislative act is the most difficult

challenge to mount successfully, since the

74

challenger must establish that no set of

circumstances exists under which the Act would be valid.” (United States v. Salerno, supra.) As

for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is

vague in all its possible applications. “A plaintiff

who engages in some conduct that is clearly proscribed cannot complain of the vagueness of

the law as applied to the conduct of others.” (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362, 369 [1982])

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools

developed for testing “on their faces” statutes in free speech cases or, as they are called in

American law, First Amendment cases. They

cannot be made to do service when what is involved is a criminal statute. With respect to

such statute, the established rule is that “one to whom application of a statute is constitutional will

not be heard to attack the statute on the ground that impliedly it might also be taken as applying

to other persons or other situations in which its

application might be unconstitutional.” (United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 [1960]. The paradigmatic case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 l. Ed. 193 [1912]) As has been

pointed out, “vagueness challenges in the First Amendment context, like overbreadth challenges

typically produce facial invalidation, while statutes found to be vague as a matter of due process

typically are invalidated [only] ‘as applied’ to a

particular defendant.” (G. Gunther & K. Sullivan, Constitutional Law 1299 [2001]) Consequently,

there is no basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and

in its entirety.

Indeed, “on its face” invalidation of

statutes results in striking them down entirely on the ground that they might be applied to parties

not before the Court whose activities are constitutionally protected (Id. at 1328). It

constitutes a departure from the case and

controversy requirement of the Constitution and permits decisions to be made without concrete

factual settings and in sterile abstract contexts (Constitution, Art. VIII, Sections 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 [1936]). But, as the U.S. Supreme

Court pointed out in Younger v. Harris (401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 [1971]; others omitted.)

[T]he task of analyzing a

proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before the statute is

put into effect, is rarely if ever an appropriate task for the judiciary. The

combination of the relative remoteness of

the controversy, the impact on the legislative process of the relief sought,

and above all the speculative and amorphous nature of the required line-by-

line analysis of detailed statutes, x x x ordinarily results in a kind of case that is

wholly unsatisfactory for deciding

constitutional questions, whichever way

they might be decided.

For these reasons, “on its face” invalidation of statutes has been described as “manifestly strong

medicine,” to be employed “sparingly and only as

a last resort,” (Broadwick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the Arts v. Finley, 524 U.S. 569, 580 [1998]) and is generally disfavored (FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 [1990]; Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 [Mendoza, J., Separate Opinion]). In determining the constitutionality of a statute, therefore, its

provisions which are alleged to have been violated in a case must be examined in the light of the

conduct with which the defendant is charged

(United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 [1963])

In light of the foregoing disquisition, it is evident

that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is

more imagined than real. Ambiguity, where none exists,

cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want

of scientific precision in the law. Every provision of the law should be construed in relation and with reference to

every other part. To be sure, it will take more than

nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A

fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who

voted for its passage, petitioner must be aware that the

law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even

registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage.

(Joseph Ejercito Estrada v. Sandiganbayan [Third Division], G.R. No. 148560, Nov. 19, 2001, En Banc [Bellosillo]) 165. Does an extraditee have the right to notice and

hearing during the evaluation stage of an extradition proceeding?

Held: Considering that in the case at bar, the

extradition proceeding is only at its evaluation stage, the

nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he

will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the

petitioner Secretary of Justice. X x x

In tilting the balance in favor of the interests of

the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extradition proceedings. Procedural due process requires a determination of what process is due, when it is due, and

the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss." We have explained

why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As

aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the

75

petition is filed in court. The time for the extraditee to

know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for

extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition

process to accommodate the more compelling interest of

the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis

of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be

more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed

by our Constitution with greater power over matters

involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance

which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to

the execution stage depending on factors that will come

into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a

soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to

resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

166. Will Mark Jimenez’s detention prior to the

conclusion of the extradition proceedings not amount to a violation of his right to due process?

Held: Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does

not amount to a violation of his right to due process. We

iterate the familiar doctrine that the essence of due process is the opportunity to be heard but, at the same

time, point out that the doctrine does not always call for a prior opportunity to be heard. Where the circumstances –

such as those present in an extradition case – call for it, a subsequent opportunity to be heard is enough. In the

present case, respondent will be given full opportunity to

be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of

his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no

arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and

detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with its supporting

documents after a determination that the extradition request meets the requirements of the law and the

relevant treaty; (2) the extradition judge’s independent

prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his

arrest; and (3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the

no-initial-bail rule.

It is also worth noting that before the US

government requested the extradition of respondent, proceedings had already been conducted in that country.

But because he left the jurisdiction of the requesting state

before those proceedings could be completed, it was hindered from continuing with the due processes

prescribed under its laws. His invocation of due process now had thus become hollow. He already had that

opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the

government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his

personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate

deprivation of liberty without due process that he had

previously shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations and in

cooperating with the world community in the suppression of crime. Indeed, “[c]onstitutional liberties do not exist in

a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable

government interest.” Too, we cannot allow our country to be a haven

for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run

and hide. Hence, it would not be good policy to increase

the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons

sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision – in

the Constitution, the law or the treaty – expressly guaranteeing the right to bail in extradition proceedings,

adopting the practice of not granting them bail, as a

general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their

prosecutors.

The denial of bail as a matter of course in

extradition cases falls into place with and gives life to Article 14 (It states: “If the person sought consents in

writing to surrender to the Requesting State, the Requested State may surrender the person as

expeditiously as possible without further proceedings.”) of

the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to

cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would

fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for

their speedy disposition. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

The Equal Protection Clause

167. Explain and discuss the equal protection of the

law clause.

Held: 1. The equal protection of the law is embraced in the concept of due process, as every unfair

discrimination offends the requirements of justice and fair

play. It has nonetheless been embodied in a separate clause in Article III, Sec. 1, of the Constitution to provide

for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness

in general may be challenged on the basis of the due

process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper

weapon to cut it down is the equal protection clause.

According to a long line of decisions, equal

protection simply requires that all persons or things similarly situated should be treated alike, both as to rights

conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to

give undue favor to some and unjustly discriminate against others.

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The equal protection clause does not require the

universal application of the laws on all persons or things without distinction. This might in fact sometimes result in

unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age,

would benefit the morals of the youth but violate the

liberty of adults. What the clause requires is equality among equals as determined according to a valid

classification. By classification is meant the grouping of persons or things similar to each other in certain

particulars and different from all others in these same particulars. (Philippine Judges Association v. Prado, 227 SCRA 703, 711-712, Nov. 11, 1993, En Banc [Cruz])

2. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate

discrimination and oppression based on inequality.

Recognizing the existence of real difference among men, the equal protection clause does not demand absolute

equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions

both as to the privileges conferred and liabilities enforced. Thus, the equal protection clause does not absolutely

forbid classifications x x x. If the classification is based on

real and substantial differences; is germane to the purpose of the law; applies to all members of the same

class; and applies to current as well as future conditions, the classification may not be impugned as violating the

Constitution's equal protection guarantee. A distinction

based on real and reasonable considerations related to a proper legislative purpose x x x is neither unreasonable,

capricious nor unfounded. (Himagan v. People, 237 SCRA 538, Oct. 7, 1994, En Banc [Kapunan])

168. Congress enacted R.A. No. 8189 which provides, in Section 44 thereof, that "No Election Officer shall hold office in a particular city or municipality for more than four (4) years. Any election officer who, either at the time of the approval of this Act or subsequent thereto, has served for at least four (4) years in a particular city or municipality shall automatically be reassigned by the Commission to a new station outside the original congressional district." Petitioners, who are City and Municipal Election Officers, theorize that Section 44 of RA 8189 is violative of the "equal protection clause" of the 1987 Constitution because it singles out the City and Municipal Election Officers of the COMELEC as prohibited from holding office in the same city or municipality for more than four (4) years. They maintain that there is no substantial distinction between them and other COMELEC officials, and therefore, there is no valid classification to justify the objective of the provision of law under attack. Resolve.

Held: The Court is not persuaded by petitioners'

arguments. The "equal protection clause" of the 1987

Constitution permits a valid classification under the following conditions:

1) The classification must rest on substantial

distinction;

2) The classification must be germane to the purpose of the law;

3) The classification must not be limited to existing conditions only; and

4) The classification must apply equally to all members of the same class.

After a careful study, the ineluctable conclusion is

that the classification under Section 44 of RA 8189 satisfies the aforestated requirements.

The singling out of election officers in order to

"ensure the impartiality of election officials by preventing

them from developing familiarity with the people of their place of assignment" does not violate the equal protection

clause of the Constitution.

In Lutz v. Araneta, it was held that "the legislature is not required by the Constitution to adhere to

a policy of 'all or none'". This is so for underinclusiveness

is not an argument against a valid classification. It may be true that all other officers of COMELEC referred to by

petitioners are exposed to the same evils sought to be addressed by the statute. However, in this case, it can be

discerned that the legislature thought the noble purpose

of the law would be sufficiently served by breaking an important link in the chain of corruption than by breaking

up each and every link thereof. Verily, under Section 3(n) of RA 8189, election officers are the highest officials or

authorized representatives of the COMELEC in a city or municipality. It is safe to say that without the complicity

of such officials, large-scale anomalies in the registration

of voters can hardly be carried out. (Agripino A. De Guzman, Jr., et al. v. COMELEC (G.R. No. 129118, July 19, 2000, en Banc [Purisima])

169. Are there substantial distinctions between print media and broadcast media to justify the requirement for the latter to give free airtime to be used by the Comelec to inform the public of qualifications and program of government of candidates and political parties during the campaign period? Discuss.

Held: There are important differences in the

characteristics of the two media which justify their differential treatment for free speech purposes. Because

of the physical limitations of the broadcast spectrum, the government must, of necessity, allocate broadcast

frequencies to those wishing to use them. There is no

similar justification for government allocation and regulation of the print media.

In the allocation of limited resources, relevant

conditions may validly be imposed on the grantees or

licensees. The reason for this is that the government spends public funds for the allocation and regulation of

the broadcast industry, which it does not do in the case of print media. To require radio and television broadcast

industry to provide free airtime for the Comelec Time is a fair exchange for what the industry gets.

From another point of view, the SC has also held that because of the unique and pervasive influence of the

broadcast media, “[n]ecessarily x x x the freedom of television and radio broadcasting is somewhat lesser in

scope than the freedom accorded to newspaper and print

media.” (TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza])

170. Does the death penalty law (R.A. No. 7659)

violate the equal protection clause considering that, in effect, it punishes only people who are poor, uneducated, and jobless?

Held: R.A. No. 7659 specifically provides that

“[T]he death penalty shall be imposed if the crime of rape is committed x x x when the victim is a religious or a child

below seven (7) years old.” Apparently, the death penalty

77

law makes no distinction. It applies to all persons and to

all classes of persons – rich or poor, educated or uneducated, religious or non-religious. No particular

person or classes of persons are identified by the law against whom the death penalty shall be exclusively

imposed. The law punishes with death a person who shall

commit rape against a child below seven years of age. Thus, the perpetration of rape against a 5-year old girl

does not absolve or exempt an accused from the imposition of the death penalty by the fact that he is poor,

uneducated, jobless, and lacks catechetical instruction. To hold otherwise will not eliminate but promote

inequalities.

In Cecilleville Realty and Service Corporation v.

CA, the SC clarified that compassion for the poor is an imperative of every humane society but only when the

recipient is not a rascal claiming an undeserved privilege.

(People v. Jimmy Mijano y Tamora, G.R. No. 129112, July 23, 1999, En Banc [Per Curiam]) 171. The International School Alliance of Educators

(ISAE) questioned the point-of-hire classification employed by International School, Inc. to justify distinction in salary rates between foreign-hires and local-hires, i.e., salary rates of foreign-hires are higher by 25% than their local counterparts, as discriminatory and, therefore, violates the equal protection clause. The International School contended that this is necessary in order to entice foreign-hires to leave their domicile and work here. Resolve.

Held: That public policy abhors inequality and

discrimination is beyond contention. Our Constitution and

laws reflect the policy against these evils. X x x

International law, which springs from general principles of law, likewise proscribes discrimination x x x.

The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural

Rights, the International Convention on the Elimination of

All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111)

Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against

discrimination, the very antithesis of fairness and justice.

The Philippines, through its Constitution, has incorporated this principle as part of its national laws.

[I]t would be an affront to both the spirit and

letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal

employment opportunities, closes its eyes to unequal and

discriminatory terms and conditions of employment x x x.

Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for

example, prohibits and penalizes the payment of lesser

compensation to a female employee as against a male employee for work of equal value. Article 248 declares it

an unfair labor practice for an employer to discriminate in regards to wages in order to encourage or discourage

membership in any labor organization. X x x

The foregoing provisions impregnably

institutionalize in this jurisdiction the long honored legal truism of “Equal pay for equal work.” Persons who work

with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid

similar salaries. This rule applies to the School

(International School, Inc.), its "international character"

notwithstanding.

The School contends that petitioner has not adduced evidence that local-hires perform work equal to

that of foreign-hires. The Court finds this argument a

little cavalier. If an employer accords employees the same position and rank, the presumption is that these

employees perform equal work. This presumption is borne by logic and human experience. If the employer

pays one employee less than the rest, it is not for that employee to explain why he receives less or why the

others receive more. That would be adding insult to

injury. The employer has discriminated against that employee; it is for the employer to explain why the

employee is treated unfairly.

The employer in this case failed to discharge this

burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-

hires. Both groups have similar functions and responsibilities, which they perform under similar working

conditions.

The School cannot invoke the need to entice

foreign-hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of

equal work for equal pay.

X x x

While we recognize the need of the School to

attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires

perform the same services as foreign-hires and they ought

to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires'

limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and

limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are

not enjoyed by local-hires, such as housing,

transportation, shipping costs, taxes and home leave travel allowances.

The Constitution enjoins the State to “protect the

rights of workers and promote their welfare”, “to afford

labor full protection.” The State, therefore, has the right and duty to regulate the relations between labor and

capital. These relations are not merely contractual but are so impressed with public interest that labor contracts,

collective bargaining agreements included, must yield to the common good. Should such contracts contain

stipulations that are contrary to public policy, courts will

not hesitate to strike down these stipulations.

In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in

the salary rates of foreign-hires and local-hires to be an

invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-

hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and,

certainly, does not deserve the sympathy of this Court.

(International School Alliance of Educators (ISAE) v. Hon. Leonardo A. Quisumbing, G.R. No. 128845, June 1, 2000, 1st Div. [Kapunan])

172. Accused-appellant Romeo G. Jalosjos filed a motion before the Court asking that he be allowed to fully discharge the duties of a Congressman, including

78

attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law?

Held: In the ultimate analysis, the issue before

us boils down to a question of constitutional equal protection.

X x x

The performance of legitimate and even essential duties by public officers has never been an excuse to free

a person validly in prison. The duties imposed by the

“mandate of the people” are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in

the hierarchy of government. The accused-appellant is only one of 250 members of the House of

Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress

continues to function well in the physical absence of one

or a few of its members. Depending on the exigency of Government that has to be addressed, the President or

the Supreme Court can also be deemed the highest for that particular duty. The importance of a function

depends on the need for its exercise. The duty of a

mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to

save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A

police officer must maintain peace and order. Never had

the call of a particular duty lifted a prisoner into a different classification from those others who are validly

restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made

in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality.

The necessities imposed by public welfare may justify exercise of government authority to regulate even if

thereby certain groups may plausibly assert that their

interests are disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal

law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the

class of prisoners interrupted in their freedom and

restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and

apply to all those belonging to the same class.

X x x

It can be seen from the foregoing that

incarceration, by its nature, changes an individual’s status in society. Prison officials have the difficult and often

thankless job of preserving the security in a potentially

explosive setting, as well as of attempting to provide rehabilitation that prepare inmates for re-entry into the

social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.

Premises considered, we are constrained to rule

against the accused-appellant’s claim that re-election to

public office gives priority to any other right or interest,

including the police power of the State. (People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago])

173. Appellant, who was charged with Illegal Recruitment in the RTC of Zamboanga City, invokes the equal protection clause in her defense. She points out that although the evidence purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modesto’s payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free. From this, appellant concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a Cebuana while Alejandro is a Zamboanguena, and the alleged crime took place in Zamboanga City.

Held: The argument has no merit.

The prosecution of one guilty while others equally guilty are not prosecuted, however, is not, by itself, a

denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory

classification, an erroneous or mistaken performance of

the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the

laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those

who are entitled to be treated alike, is not a denial of

equal protection, unless there is shown to be present in it an element of intentional or purposeful discrimination.

This may appear on the face of the action taken with respect to a particular class or person, or it may only be

shown by extrinsic evidence showing a discriminatory

design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed,

there must be a showing of “clear and intentional discrimination.” Appellant has failed to show that, in

charging appellant in court, that there was a “clear and intentional discrimination” on the part of the prosecuting

officials.

The discretion of who to prosecute depends on

the prosecution’s sound assessment whether the evidence before it can justify a reasonable belief that a person has

committed an offense. The presumption is that the

prosecuting officers regularly performed their duties, and this presumption can be overcome only by proof to the

contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this

presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime,

while a Zamboanguena, the guilty party in appellant’s

eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection

of the laws.

There is also common sense practicality in

sustaining appellant’s prosecution.

While all persons accused of crime are to be treated on a basis of equality before the law, it

does not follow that they are to be protected in

the commission of crime. It would be unconscionable, for instance, to excuse a

defendant guilty of murder because others have murdered with impunity. The remedy for unequal

enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense

of society x x x. Protection of the law will be

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extended to all persons equally in the pursuit of

their lawful occupations, but no person has the right to demand protection of the law in the

commission of a crime (People v. Montgomery, 117 P.2d 437 [1941]).

Likewise,

[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be

converted into a defense for others charged with crime, the result would be that the trial of the

district attorney for nonfeasance would become

an issue in the trial of many persons charged with heinous crimes and the enforcement of law would

suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]).

(People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan])

The Right against Unreasonable Searches and

Seizures

174. Discuss the constitutional requirement that a judge, in issuing a warrant of arrest, must determine probable cause “personally.” Distinguish determination of probable cause by the prosecutor and determination of probable cause by the judge.

Held: It must be stressed that the 1987

Constitution requires the judge to determine probable

cause “personally,” a requirement which does not appear in the corresponding provisions of our previous

constitutions. This emphasis evinces the intent of the

framers to place a greater degree of responsibility upon trial judges than that imposed under previous

Constitutions.

In Soliven v. Makasiar, this Court pronounced:

“What the Constitution underscores is the

exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of

probable cause. In satisfying himself of the existence of probable cause for the issuance of a

warrant of arrest, the judge is not required to

personally examine the complainant and his witnesses. Following established doctrine and

procedure, he shall: (1) personally evaluate the report and the supporting documents submitted

by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant

of arrest; or (2) if in the basis thereof he finds no

probable cause, he may disregard the fiscal’s report and require the submission of supporting

affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.”

Ho v. People (Ibid.) summarizes existing jurisprudence on the matter as follows:

“Lest we be too repetitive, we only wish

to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different

from that which is to be made by the judge. Whether there is reasonable ground to believe

that the accused is guilty of the offense charged and should be held for trial is what the prosecutor

passes upon. The judge, on the other hand,

determines whether a warrant of arrest should be

issued against the accused, i.e., whether there is a necessity for placing him under immediate

custody in order not to frustrate the ends of justice. Thus, even if both should base their

findings on one and the same proceeding or

evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are

different, the judge cannot rely solely on the report of the prosecutor in finding probable cause

to justify the issuance of a warrant of arrest.

Obviously and understandably, the contents of the prosecutor’s report will support his own

conclusion that there is reason to charge the accused for an offense and hold him for trial.

However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor’s bare report, upon which to

legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an

arrest order. This responsibility of determining personally and independently the existence or

nonexistence of probable cause is lodged in him

by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the

burden of the judge and speed up the litigation process by forwarding to the latter not only the

information and his bare resolution finding

probable cause, but also so much of the records and the evidence on hand as to enable the His

Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the

preliminary investigation be submitted to and examined by the judge. We do not intend to

unduly burden trial courts by obliging them to examine the complete records of every case all

the time simply for the purpose of ordering the

arrest of an accused. What is required, rather, is that the judge must have sufficient supporting

documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses

or transcript of stenographic notes, if any) upon

which to make his independent judgment or, at the very least, upon which to verify the findings of

the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and

entirely on the prosecutor’s recommendation, as Respondent Court did in this case. Although the

prosecutor enjoys the legal presumption of

regularity in the performance of his official duties and functions, which in turn gives his report the

presumption of accuracy, the Constitution, we repeat, commands the judge to personally

determine probable cause in the issuance of

warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he

relies merely on the certification or the report of the investigating officer.” (Citations omitted)

In the case at bench, respondent admits that he issued the questioned warrant as there was “no reason for

(him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was

conducted and that probable cause was found to exist as against those charged in the information filed.” The

statement is an admission that respondent relied solely

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and completely on the certification made by the fiscal that

probable cause exists as against those charged in the information and issued the challenged warrant of arrest

on the sole basis of the prosecutor’s findings and recommendations. He adopted the judgment of the

prosecutor regarding the existence of probable cause as

his own. (Abdula v. Guiani, 326 SCRA 1, Feb. 18, 2000, 3rd Div. [Gonzaga-Reyes]) 175. In an application for search warrant, the

application was accompanied by a sketch of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City, indicating the 2-storey residential house of private respondent with a large “X” enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. The search warrant issued, however, merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. Did this satisfy the constitutional requirement under Section 2, Article III that the place to be searched must be particularly described?

Held: This Court has held that the applicant

should particularly describe the place to be searched and

the person or things to be seized, wherever and whenever it is feasible. In the present case, it must be noted that

the application for a search warrant was accompanied by a sketch of the compound at 516 San Jose de la Montana

St., Mabolo, Cebu City. The sketch indicated the 2-storey

residential house of private respondent with a large "X" enclosed in a square. Within the same compound are

residences of other people, workshops, offices, factories and warehouse. With this sketch as the guide, it could

have been very easy to describe the residential house of

private respondent with sufficient particularity so as to segregate it from the other buildings or structures inside the same compound. But the search warrant merely indicated the address of the compound which is 516 San

Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is too general and

does not pinpoint the specific house of private

respondent. Thus, the inadequacy of the description of the residence of private respondent sought to be searched

has characterized the questioned search warrant as a general warrant, which is violative of the constitutional

requirement. (People v. Estrada, 296 SCRA 383, 400, [Martinez])

176. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduce in support of their application for the warrant?

Held: Such a change is proscribed by the

Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as

the persons or things to be seized. It would concede to

police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant.

It would open wide the door to abuse of the search process, and grant to officers executing a search warrant

that discretion which the Constitution has precisely

removed from them. The particularization of the description of the place to be searched may properly be

done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers

conducting the search.

It is neither fair nor licit to allow police officers to

search a place different from that stated in the warrant on the claim that the place actually searched – although not

that specified in the warrant – is exactly what they had in view when they applied for the warrant and had

demarcated in their supporting evidence. What is

material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in

their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. Court of Appeals, 291 SCRA 400, June 26, 1998 [Narvasa]) 177. Is a respondent in an Extradition Proceeding

entitled to notice and hearing before the issuance of a warrant of arrest?

Held: Both parties cite Section 6 of PD 1069 in

support of their arguments. X x x

Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the

issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069,

our Extradition Law, uses the word “immediate” to qualify the arrest of the accused. This qualification would be

rendered nugatory by setting for hearing the issuance of

the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from

them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can

no longer be considered “immediate.” The law could not

have intended the word as a mere superfluity but, on the whole, as a means of impairing a sense of urgency and

swiftness in the determination of whether a warrant of arrest should be issued.

By using the phrase “if it appears,” the law further

conveys that accuracy is not as important as speed at

such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and

actual situation, immediately upon the filing of the petition. From the knowledge and the material then

available to it, the court is expected merely to get a good

first impression – a prima facie finding – sufficient to make a speedy initial determination as regards the arrest

and detention of the accused.

X x x

We stress that the prima facie existence of

probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the

Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his

discretion when he set the matter for hearing upon motion of Jimenez.

Moreover, the law specifies that the court sets a

hearing upon receipt of the answer or upon failure of the

accused to answer after receiving the summons. In connection with the matter of immediate arrest, however,

the word “hearing” is notably absent from the provision. Evidently, had the holding of a hearing at that stage been

intended, the law could have easily so provided. It also bears emphasizing at this point that extradition

proceedings are summary (See Sec. 9, PD 1069) in

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nature. Hence, the silence of the Law and the Treaty

leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step

in the entire proceedings.

X x x

Verily x x x sending to persons sought to be

extradited a notice of the request for their arrest and setting it for hearing at some future date would give them

ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that

consequence, for the very purpose of both would have

been defeated by the escape of the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution x x x does not require a notice or a hearing before the

issuance of a warrant of arrest. X x x

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the

examination – under oath or affirmation – of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the

issuance of warrants of arrest.

In Ho v. People and in all the cases cited therein,

never was a judge required to go to the extent of conducting a hearing just for the purpose of personally

determining probable cause for the issuance of a warrant of arrest. All we required was that the “judge must have

sufficient supporting documents upon which to make his

independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of

probable cause.”

In Webb v. De Leon, the Court categorically stated that a judge was not supposed to conduct a

hearing before issuing a warrant of arrest x x x.

At most, in cases of clear insufficiency of evidence

on record, judges merely further examine complainants and their witnesses. In the present case, validating the

act of respondent judge and instituting the practice of

hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire

system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora

of defenses at this stage – if he so desires – in his effort

to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-

blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also

anathema to the summary nature of extraditions.

(Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 178. What is “search incidental to a lawful arrest”?

Discuss.

Held: While a contemporaneous search of a person arrested may be effected to discover dangerous

weapons or proofs or implements used in the commission of the crime and which search may extend to the area

within his immediate control where he might gain

possession of a weapon or evidence he can destroy, a

valid arrest must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest,

as the precedent arrest determines the validity of

the incidental search, the legality of the arrest is questioned in a large majority of these cases,

e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance,

the law requires that there be first a lawful arrest before a search can be made – the process

cannot be reversed. (Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997])

(People v. Chua Ho San, 308 SCRA 432, June 17, 1999, En Banc [Davide, Jr., C.J.])

179. What is the “plain view” doctrine? What are its requisites? Discuss.

Held: 1. Objects falling in plain view of an

officer who has a right to be in the position to have that

view are subject to seizure even without a search warrant and may be introduced in evidence. The “plain view”

doctrine applies when the following requisites concur: (a)

the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from

which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is

immediately apparent to the officer that the item he

observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer

must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In

the course of such lawful intrusion, he came inadvertently

across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery

inadvertent.

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty

arises when the object is inside a closed container.

Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be

seized without a warrant. However, if the package proclaims its contents, whether by its distinctive

configuration, its transparency, or if its contents are

obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is

such that an experienced observer could infer from its appearance that it contains the prohibited article, then the

article is deemed in plain view. It must be immediately apparent to the police that the items that they observe

may be evidence of a crime, contraband or otherwise

subject to seizure. (People v. Doria, 301 SCRA 668, Jan. 22, 1999, En Banc [Puno, J.])

2. For the doctrine to apply, the following

elements must be present:

a) a prior valid intrusion based on the valid

warrantless arrest in which the police are legally present in the pursuit of their official

duties;

b) the evidence was inadvertently discovered by the police who have the right to be where

they are; and c) the evidence must be immediately apparent;

and d) plain view justified mere seizure of evidence

without further search.

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In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before

appellant was arrested without a warrant. Hence, there was no valid warrantless arrest which preceded the search

of appellant’s premises. Note further that the police team

was dispatched to appellant’s kaingin precisely to search for and uproot the prohibited flora. The seizure of

evidence in “plain view” applies only where the police officer is not searching for evidence against the accused,

but inadvertently comes across an incriminating object. Clearly, their discovery of the cannabis plants was not

inadvertent. We also note the testimony of SPO2 Tipay

that upon arriving at the area, they first had to “look around the area” before they could spot the illegal plants.

Patently, the seized marijuana plants were not “immediately apparent” and “further search” was needed.

In sum, the marijuana plants in question were not in

“plain view” or “open to eye and hand.” The “plain view” doctrine, thus, cannot be made to apply.

Nor can we sustain the trial court’s conclusion

that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection

afforded by the Charter against unreasonable searches by

agents of the State. The right against unreasonable searches and seizures is the immunity of one’s person,

which includes his residence, his papers, and other possessions. The guarantee refers to “the right of

personal security” of the individual. X x x, what is sought

to be protected against the State’s unlawful intrusion are persons, not places. To conclude otherwise would not

only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune

against unreasonable searches and seizures, he must be

in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in

the street as to the individual in the sanctuary of his bedroom. (People v. Abe Valdez, G.R. No. 129296, Sept. 25, 2000, En Banc [Quisumbing])

3. Considering its factual milieu, this case falls

squarely under the plain view doctrine.

When Spencer wrenched himself free from the grasp of PO2 Gaviola, he instinctively ran towards the

house of appellant. The members of the buy-bust team

were justified in running after him and entering the house without a search warrant for they were hot in the heels of

a fleeing criminal. Once inside the house, the police officers cornered Spencer and recovered the buy-bust

money from him. They also caught appellant in flagrante delicto repacking the marijuana bricks which were in full

view on top of a table. x x x.

Hence, appellant’s subsequent arrest was likewise

lawful, coming as it is within the purview of Section 5(a) of Rule 113 of the 1985 Rules on Criminal Procedure x x

x.

Section 5(a) is commonly referred to as the rule

on in flagrante delicto arrests. Here two elements must concur: (1) the person to be arrested must execute an

overt act indicating that he has just committed, is actually

committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Thus, when appellant was seen repacking the marijuana, the police officers were not only

authorized but also duty-bound to arrest him even without a warrant. (People v. Elamparo, 329 SCRA 404, 414-415, March 31, 2000, 2nd Div. [Quisumbing])

180. What is a “stop-and-frisk” search?

Held: 1. In the landmark case of Terry v. Ohio, a stop-and-frisk was defined as the vernacular designation

of the right of a police officer to stop a citizen on the

street, interrogate him, and pat him for weapon(s):

“x x x (W)here a police officer observes an unusual conduct which leads him reasonably to

conclude in light of his experience that criminal activity may be afoot and that the persons with

whom he is dealing may be armed and presently

dangerous, where in the course of investigating this behavior he identified himself as a policeman

and make reasonable inquiries, and where nothing in the initial stages of the encounter

serves to dispel his reasonable fear for his own or

others’ safety, he is entitled for the protection of himself or others in the area to conduct a

carefully limited search of the outer clothing of such persons in an attempt to discover weapons

which might be used to assault him. Such a search is a reasonable search under the Fourth

Amendment, and any weapon seized may

properly be introduced in evidence against the person from whom they were taken.” (Herrera, A Handbook on Arrest, Search and Seizure and Custodial Investigation, 1995 ed., p. 185; and Terry v. Ohio, supra, p. 911)

In allowing such a search, the United States

Supreme Court held that the interest of effective crime prevention and detection allows a police officer to

approach a person, in appropriate circumstances and

manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause

to make an actual arrest.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what

justified the limited search was the more immediate

interest of the police officer in taking steps to assure himself that the person with whom he was dealing was

not armed with a weapon that could unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial

approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.

(Manalili v. CA, 280 SCRA 400, Oct. 9, 1997 [Panganiban])

2. We now proceed to the justification for and allowable scope of a “stop-and-frisk” as a “limited

protective search of outer clothing for weapons,” as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him

reasonably to conclude in light of his experience that criminal activity may be afoot and that the

persons with whom he is dealing may be armed

and presently dangerous, where in the course of investigating this behavior he identifies himself as

a policeman and makes reasonable inquiries, and where nothing in the initial stages of the

encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the

protection of himself and others in the area to

83

conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used to assault him.

Such a search is a reasonable search under the Fourth Amendment (Terry, at 911. In fact, the Court noted that the ‘sole justification’ for a stop-and-frisk was the ‘protection of the police officer and others nearby’; while the scope of the search conducted in the case was limited to patting down the outer clothing of petitioner and his companions, the police officer did not place his hands in their pockets nor under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. This did not constitute a general exploratory search, Id.)

Other notable points of Terry are that while

probable cause is not required to conduct a “stop-and-frisk,” it nevertheless holds that mere suspicion or a

hunch will not validate a “stop-and-frisk.” A genuine reason must exist, in light of the police officer’s

experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed

about him. Finally, a “stop-and-frisk” serves a two-fold

interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition

that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for

purposes of investigating possible criminal behavior even

without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the

police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly

weapon that could unexpectedly and fatally be used

against the police officer. (Malacat v. Court of Appeals, 283 SCRA 159, Dec. 12, 1997 [Davide])

181. Are searches at checkpoints valid? Discuss. Held: This Court has ruled that not all

checkpoints are illegal. Those which are warranted by the

exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly,

routine checkpoints do intrude, to a certain extent, on motorists’ right to “free passage without interruption,” but

it cannot be denied that, as a rule, it involves only a brief

detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as

long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the

vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right

against unreasonable search. In fact, these routine

checks, when conducted in a fixed area, are even less intrusive. (People v. Usana, 323 SCRA 754, Jan. 28, 2000, 1st Div. [Davide, CJ]) 182. Illustrative case of valid search at checkpoint

conducted to implement the gun ban law during election. Is it still necessary that checkpoints be pre-announced?

Held: Accused-appellants assail the manner by

which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the

Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and

discriminatory manner.

We take judicial notice of the existence of the

COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation

to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in

1995 were held on 8 May, the second Monday of the

month. The incident, which happened on 5 April 1995, was well within the election period.

X x x

The checkpoint herein conducted was in

pursuance of the gun ban enforced by the COMELEC. The

COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of

pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun

during said period would know that they only need a car

to be able to easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused

against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed

suspicious, such as those whose windows are heavily

tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights

inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search.

There is nothing discriminatory in this as this is what the

situation demands.

We see no need for checkpoints to be announced x x x. Not only would it be impractical, it would also

forewarn those who intend to violate the ban. Even so,

badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in

which they are operated. (People v. Usana, 323 SCRA 754, Jan. 28, 2000, 1st Div. [Davide, CJ]) 183. Do the ordinary rights against unreasonable

searches and seizures apply to searches conducted at the airport pursuant to routine airport security procedures?

Held: Persons may lose the protection of the

search and seizure clause by exposure of their persons or

property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation

society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With

increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports.

Passengers attempting to board an aircraft routinely pass

through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans.

Should these procedures suggest the presence of suspicious objects, physical searches are conducted to

determine what the objects are. There is little question

that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved,

and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through

airport public address systems, signs, and notices in their

airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would

be subject to seizure. These announcements place passengers on notice that ordinary constitutional

protections against warrantless searches and seizures do not apply to routine airport procedures. (People v. Leila

84

Johnson, G.R. No. 138881, Dec. 18, 2000, 2nd Div. [Mendoza])

184. May the constitutional protection against

unreasonable searches and seizures be extended to acts committed by private individuals?

Held: As held in People v. Marti, the

constitutional protection against unreasonable searches and seizures refers to the immunity of one's person from

interference by government and it cannot be extended to acts committed by private individuals so as to bring it

within the ambit of alleged unlawful intrusion. (People v. Mendoza, 301 SCRA 66, Jan. 18, 1999, 1st Div. [Melo])

185. Should the seized drugs (which are

pharmaceutically correct but not properly documented) subject of an illegal search (because the applicant “failed to allege in the application for search warrant that the subject drugs for which she was applying for search warrant were either fake, misbranded, adulterated, or unregistered,”) be returned to the owner?

Ans.: No. Instead, they should be promptly

disposed of in the manner provided by law in order to

insure that the same do not fall into the wrong hands who might use the drugs underground. As clarified in People v. Judge Estrella T. Estrada (G.R No. 124461, June 26, 2000, Spcl. 2nd Div. [Ynares-Santiago]):

“With the State's obligation to protect and promote the right to health of the people and

instill health consciousness among them (Article II, Section 15, 1987 Constitution), in order to develop a healthy and alert citizenry (Article XIV, Section 19[1]), it became mandatory for the government to supervise and control the

proliferation of drugs in the market. The constitutional mandate that "the State shall adopt

an integrated and comprehensive approach to

health development which shall endeavor to make essential goods, health and other social services

available to all people at affordable cost" (Article XIII, Section 11) cannot be neglected. This is

why "the State shall establish and maintain an

effective food and drug regulatory system." (Article XIII, Section 12) The BFAD is the

government agency vested by law to make a mandatory and authoritative determination of the

true therapeutic effect of drugs because it involves technical skill which is within its special

competence. The health of the citizenry should

never be compromised. To the layman, medicine is a cure that may lead to better health.

If the seized 52 boxes of drugs are

pharmaceutically correct but not properly

documented, they should be promptly disposed of in the manner provided by law in order to ensure

that the same do not fall into the wrong hands who might use the drugs underground. X x x.

The policy of the law enunciated in R.A. No. 8203

is to protect the consumers as well as the licensed businessmen. Foremost among these consumers

is the government itself which procures medicines and distributes them to the local communities

through direct assistance to the local health centers or through outreach and charity

programs. Only with the proper government

sanctions can medicines and drugs circulate the

market. We cannot afford to take any risk, for the life and health of the citizenry are as precious

as the existence of the State.”

186. Do Regional Trial Courts have competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings?

Held: In Jao v. Court of Appeals, this Court,

reiterating its rulings x x x said:

There is no question that Regional Trial

Courts are devoid of any competence to pass upon the validity or regularity of seizure and

forfeiture proceedings conducted by the Bureau of

Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs

sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all

questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are

precluded from assuming cognizance over such

matters even through petitions of certiorari, prohibition or mandamus.

It is likewise well-settled that the

provisions of the Tariff and Customs Code and

that of Republic Act No. 1125, as amended, otherwise known as “An Act Creating the Court of

Tax Appeals,” specify the proper fora and procedure for the ventilation of any legal

objections or issues raised concerning these

proceedings. Thus, actions of the Collector of Customs are appealable to the Commissioner of

Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax

Appeals and from there to the Court of Appeals.

The rule that Regional Trial Courts have

no review powers over such proceedings is anchored upon the policy of placing no

unnecessary hindrance on the government’s drive, not only to prevent smuggling and other frauds

upon Customs, but more importantly, to render

effective and efficient the collection of import and export duties due the State, which enables the

government to carry out the functions it has been instituted to perform.

Even if the seizure by the Collector of

Customs were illegal, x x x we have said that such

act does not deprive the Bureau of Customs of jurisdiction thereon.

(Bureau of Customs v. Ogario, 329 SCRA 289, 296-298, March 30, 2000, 2nd Div. [Mendoza])

187. Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal.

Held: In the cases at bar, the police saw the gun tucked in appellant’s waist when he stood up. The gun

was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license

for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in

the presence of the police officers. No warrant of arrest

85

was necessary in such a situation, it being one of the

recognized exceptions under the Rules.

As a consequence of appellant’s valid warrantless arrest, he may be lawfully searched for dangerous

weapons or anything which may be used as proof of the

commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search

incidental to a lawful arrest. The subsequent discovery in his car of drug paraphernalia and the crystalline

substance, which, was later identified as shabu, though in a distant place from where the illegal possession of

firearm was committed, cannot be said to have been

made during an illegal search. As such, the seized items do not fall within the exclusionary clause x x x. Hence,

not being fruits of the poisonous tree x x x the objects found at the scene of the crime, such as the firearm, the

shabu and the drug paraphernalia, can be used as

evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is

admissible in evidence. (Citations omitted.) (People v. Go, 354 SCRA 338, Mar. 14, 2001, 1st Div. [Ynares-Santiago])

188. Discuss the nature of an “in flagrante delicto” warrantless arrest. Illustrative case.

Held: In the case at bar, the court a quo anchored its judgment of conviction on a finding that the

warrantless arrest of accused-appellants, and the

subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs. This brings us to the issue of whether or not the warrantless arrest,

search and seizure in the present case fall within the

recognized exceptions to the warrant requirement.

In People v. Chua Ho San, the Court held that in cases of in flagrante delicto arrests, a peace officer or a

private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to

commit an offense. The arresting office, therefore, must have personal knowledge of such fact or, as a recent case

law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of

probable cause. As discussed in People v. Doria, probable

cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when,

in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty

of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in

themselves to create the probable cause of guilt of the

person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good

faith on the part of the peace officers making the arrest.

As applied to in flagrante delicto arrests, it is

settled that “reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and

within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin, it

was held that “the accused-appellant was not, at the moment of his arrest, committing a crime nor was it

shown that he was about to do so or that he had just done so. What he was doing was descending the

gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances,

he was like any of the other passengers innocently

disembarking from the vessel. It was only when the

informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to

apprehension.”

Likewise, in People v. Mengote, the Court did not

consider “eyes x x x darting from side to side x x x [while] holding x x x [one’s] abdomen,” in a crowded street at

11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable

cause. According to the Court, “[b]y no stretch of the imagination could it have been inferred from these acts

that an offense had just been committed, or was actually

being committed, or was at least being attempted in [the arresting officers’] presence.” So also, in People v. Encinada, the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding

two plastic baby chairs.

Then, too, in Malacat v. Court of Appeals, the trial

court concluded that petitioner was attempting to commit a crime as he was “’standing at the corner of Plaza

Miranda and Quezon Boulevard’ with his eyes ‘moving very fast’ and ‘looking at every person that come (sic)

nearer (sic) to them.’” In declaring the warrantless arrest

therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto … arrest preceding the search in

light of the lack of personal knowledge on the

part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating

that a crime had just been committed, was being committed or was going to be committed.

It went on to state that –

Second, there was nothing in petitioner’s behavior or conduct which could have reasonably

elicited even mere suspicion other than that his eyes were “moving very fast” – an observation

which leaves us incredulous since Yu and his

teammates were nowhere near petitioner and it was already 6:60 p.m., thus presumably dusk.

Petitioner and his companions were merely standing at the corner and were not creating any

commotion or trouble x x x.

Third, there was at all no ground,

probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was

visible to Yu, for as he admitted, the alleged grenade was “discovered” “inside the front

waistline” of petitioner, and from all indications as

to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed

hiding a grenade, could not have been visible to Yu.

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be

arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to

commit a crime; and (2) such overt act is done in the

presence or within the view of the arresting officer.

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In

holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit

or have committed a crime. It matters not that accused-

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appellant Molina responded “Boss, if possible we will settle

this” to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the “suspicion”

of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which

standing alone will not constitute probable cause to effect

an in flagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the

arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be

subject of any suspicion, reasonable or otherwise.

While SPO1 Paguidopon claimed that he and his

informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only

learned Mula’s name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed

recognized accused-appellant Mula. It is worthy to note

that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they

were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at

accused-appellant Mula, considering that the latter was then driving a motorcycle when SPO1 Paguidopon caught

a glimpse of him. With respect to accused-appellant

Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest.

This belies the claim of SPO1 Pamplona that he

knew the name of accused-appellants even before the

arrest x x x.

The aforesaid testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1 Pamplona could not

have learned the name of accused-appellants from SPO1

Paguidopon because Paguidopon himself, who allegedly conducted the surveillance, was not even aware of

accused-appellants’ name and address prior to the arrest.

Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting

officers themselves, could not have been certain of

accused-appellants’ identity, and were, from all indications, merely fishing for evidence at the time of the

arrest.

Compared to People v. Encinada, the arresting

officer in the said case knew appellant Encinada even before the arrest because of the latter’s illegal gambling

activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless,

the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that

“[t]he prosecution’s evidence did not show any suspicious

behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating

a felonious enterprise could be ascribed to appellant under such bare circumstances.” (People v. Encinada, supra.)

Moreover, it could not be said that accused-

appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the

search, if there was any, could not have been more than

mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent

at all within the purview of the constitutional guarantee. Withal, the Court holds that the arrest of accused-

appellants does not fall under the exceptions allowed by

the rules. Hence, the search conducted on their person

was likewise illegal. Consequently, the marijuana seized

by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left

with no choice but to find in favor of accused-appellants. (People v. Molina, 352 SCRA 174, Feb. 19, 2001, En Banc [Ynares-Santiago])

The Right to Privacy of Communications and Correspondence

189. What is the Anti-Wire Tapping Act (R.A. 4200)?

Ans.: R.A. 4200 is a special law prohibiting and penalizing wire-tapping. Section 1 thereof provides:

Sec. 1. It shall be unlawful for any

person, not being authorized by all the parties to

any private communication or spoken word, to tap any wire or cable, or by using any other device or

arrangement, to secretly overhear, intercept, or record such communication or spoken word by

using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or

tape-recorder, or however otherwise described:

It shall also be unlawful for any person,

be he a participant or not in the act or acts penalized in the next preceding sentence, to

knowingly possess any tape record, wire record,

disc record, or any other such record, or copies thereof, of any communication or spoken word

secured either before or after the effective date of this Act in the manner prohibited by this law; or

to replay the same for any other person or

persons; or to communicate the contents thereof, either verbally or in writing, or to furnish

transcriptions thereof, whether complete or partial, to any other person: Provided, That the

use of such record or any copies thereof as evidence in any civil, criminal investigation or trial

of offenses mentioned in section 3 hereof, shall

not be covered by this prohibition.

Section 4 thereof also provides:

Sec. 4. Any communication or spoken

word, or the existence, contents, substance, purport, effect, or meaning of the same or any

part thereof, or any information therein contained obtained or secured by any person in violation of

the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-

judicial, legislative or administrative hearing or

investigation.

190. Private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage with damages against his wife, herein petitioner, Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. The trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his

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home telephone. Did the trial court act properly when it admitted in evidence said tape recordings?

Held: Republic Act No. 4200 entitled “An Act to

Prohibit and Penalize Wire Tapping and Other Related

Violations of the Privacy of Communication, and For Other

Purposes” expressly makes such tape recordings inadmissible in evidence. x x x.

Clearly, respondent trial court and Court of

Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in

question. Absent a clear showing that both parties to the

telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory

under Rep. Act No. 4200.

Additionally, it should be mentioned that the

above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6)

months and up to six (6) years for violation of said Act. (Salcedo-Ortanez v. Court of Appeals, 235 SCRA 111, Aug. 4, 1994 [Padilla])

191. Two local media men in Lucena City went to the police station to report alleged indecent show in one night establishment in the City. At the station, there was a heated argument between police officer Navarro and Lingan, one of the two media men, which led to fisticuffs. Lingan fell and his head hit the pavement which caused his death. During the trial, Jalbuena, the other media man, testified. Presented in evidence to confirm his testimony was a voice recording he had made of the heated discussion at the police station between accused police officer Navarro and the deceased, Lingan, which was taken without the knowledge of the two. Is the voice recording admissible in evidence in view of R.A. 4200, which prohibits wire-tapping?

Held: [J]albuena’s testimony is confirmed by the

voice recording he had made. It may be asked whether

the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. x

x x.

[T]he law prohibits the overhearing, intercepting,

or recording of private communications (Ramirez v. Court of Appeals, 248 SCRA 590 [1995]). Since the exchange

between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. (Felipe Navarro v. Court of Appeals, G.R. No. 121087, Aug. 26, 1999, 2nd Div. [Mendoza])

The Right to Privacy

192. Is there a constitutional right to privacy?

Held: The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v. Connecticut (381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the right of

privacy when it ruled that the right has a constitutional

foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third,

Fourth, Fifth and Ninth Amendments x x x. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445), we

adopted the Griswold ruling that there is a constitutional right to privacy x x x.

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]). It is expressly

recognized in Section 3(1) of the Bill of Rights x x x.

Other facets of the right to privacy are protected in various provisions of the Bill of Rights (viz: Secs. 1, 2, 6,

8, and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

193. What are the zones of privacy recognized and

protected in our laws?

Held: The Civil Code provides that “[e]very

person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and

punishes as actionable torts several acts by a person of

meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual

liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of

letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an

officer, the revelation of trade and industrial secrets, and

trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200),

the Secrecy of Bank Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged communication likewise recognize the

privacy of certain information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

194. Discuss why Administrative Order No. 308 (issued by the President prescribing for a National ID system for all citizens to facilitate business transactions with government agencies engaged in the delivery of basic services and social security provisions) should be declared unconstitutional.

Held: We prescind from the premise that the

right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to

show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308

is predicated on two considerations: (1) the need to

provide our citizens and foreigners with the facility to conveniently transact business with basic service and

social security providers and other government instrumentalities and (2) the need to reduce, if not totally

eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable

whether these interests are compelling enough to warrant

the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people’s right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN)

as a “common reference number to establish a linkage among concerned agencies” through the use of

“Biometrics Technology” and “computer application

designs.”

It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquet of options available to the implementors of A.O. No. 308, the fear

88

that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. x x x. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed x x x. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.

It is plain and we hold that A.O. No. 308 falls

short of assuring that personal information which will be

gathered about our people will only be processed for unequivocally specified purposes. The lack of proper

safeguards in this regard of A.O. No. 308 may interfere with the individual’s liberty of abode and travel by

enabling authorities to track down his movement; it may

also enable unscrupulous persons to access confidential information and circumvent the right against self-

incrimination; it may pave the way for “fishing expeditions” by government authorities and evade the

right against unreasonable searches and seizures. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.

The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an

individual and transmit it over a national network is one of the most graphic threats of the computer revolution. The

computer is capable of producing a comprehensive dossier

on individuals out of information given at different times and for varied purposes. x x x. Retrieval of stored data is

simple. When information of a privileged character finds its way into the computer, it can be extracted together

with other data on the subject. Once extracted, the information is putty in the hands of any person. The end

of privacy begins.

[T]he Court will not be true to its role as the

ultimate guardian of the people’s liberty if it would not immediately smother the sparks that endanger their rights

but would rather wait for the fire that could consume

them.

[A]nd we now hold that when the integrity of a fundamental right is at stake, this Court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state

interest and that the law, rule, or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to

protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the

stance that will not put in danger the rights protected by

the Constitution.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats

emanate from various sources – governments, journalists, employers, social scientists, etc. In the case at bar, the

threat comes from the executive branch of government

which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about

themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. x x x [W]e close with the statement that the right to privacy was not engraved in our Constitution for

flattery. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

195. Should in camera inspection of bank accounts be allowed? If in the affirmative, under what circumstances should it be allowed?

Held: The issue is whether petitioner may be

cited for indirect contempt for her failure to produce the documents requested by the Ombudsman. And whether

the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an

exception to the law on secrecy of bank deposits (R.A. No.

1405).

An examination of the secrecy of bank deposits law (R.A. No. 1405) would reveal the following

exceptions:

1) Where the depositor consents in writing;

2) Impeachment cases; 3) By court order in bribery or dereliction of duty

cases against public officials; 4) Deposit is subject of litigation;

5) Sec. 8, R.A. No. 3019, in cases of unexplained

wealth as held in the case of PNB v. Gancayco (122 Phil. 503, 508 [1965]).

The order of the Ombudsman to produce for in

camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a

pending investigation at the Office of the Ombudsman

against Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture

Agreement between the Public Estates Authority and AMARI.

We rule that before an in camera inspection may be allowed, there must be a pending case before a court

of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject

matter of the pending case before the court of competent

jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and

such inspection may cover only the account identified in the pending case.

In Union Bank of the Philippines v. Court of

Appeals, we held that “Section 2 of the Law on Secrecy of

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Bank Deposits, as amended, declares bank deposits to be

‘absolutely confidential’ except:

1) In an examination made in the course of a special or general examination of a bank that

is specifically authorized by the Monetary

Board after being satisfied that there is reasonable ground to believe that a bank

fraud or serious irregularity has been or is being committed and that it is necessary to

look into the deposit to establish such fraud or irregularity,

2) In an examination made by an independent

auditor hired by the bank to conduct its regular audit provided that the examination is

for audit purposes only and the results thereof shall be for the exclusive use of the

bank,

3) Upon written permission of the depositor, 4) In cases of impeachment,

5) Upon order of a competent court in cases of bribery or dereliction of duty of public

officials, or 6) In cases where the money deposited or

invested is the subject matter of the

litigation”.

In the case at bar, there is yet no pending litigation before any court of competent authority. What

is existing is an investigation by the Office of the

Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional

evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending

case in court which would warrant the opening of the

bank account for inspection. (Lourdes T. Marquez v. Hon. Aniano A. Desierto, G.R. No. 135882, June 27, 2001, En Banc [Pardo])

Freedom of Expression

196. Distinguish “content-based restrictions” on free speech from “content-neutral restrictions,” and give example of each.

Held: Content-based restrictions are imposed

because of the content of the speech and are, therefore, subject to the clear-and-present danger test. For

example, a rule such as that involved in Sanidad v. Comelec, prohibiting columnists, commentators, and

announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to

support it, or it will not pass muster under strict scrutiny.

These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition,

they will be tested for possible overbreadth and vagueness.

Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale

or donation of print space and air time to political candidates during the campaign period, are not concerned

with the content of the speech. These regulations need

only a substantial governmental interest to support them. A deferential standard of review will suffice to test their

validity. The clear-and-present danger rule is inappropriate as a test for determining the constitutional

validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not concerned with the content of political ads but

only with their incidents. To apply the clear-and-present

danger test to such regulatory measures would be like

using a sledgehammer to drive a nail when a regular hammer is all that is needed.

The test for this difference in the level of

justification for the restriction of speech is that content-

based restrictions distort public debate, have improper motivation, and are usually imposed because of fear of

how people will react to a particular speech. No such reasons underlie content-neutral regulations, like

regulation of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of

1985. (Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza]) 197. What is the most influential test for distinguishing

content-based from content-neutral regulations?

Held: The United States Supreme Court x x x held in United States v. O’ Brien: [A] a governmental regulation is sufficiently

justified (1) if it is within the constitutional power of the government; (2) if it furthers an important

or substantial governmental interest; (3) if the

governmental interest is unrelated to the suppression of free expression; and (4) if the

incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no

greater than is essential to the furtherance of that

intesrst (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added]) This is so far the most influential test for

distinguishing content-based from content-neutral

regulations and is said to have “become canonical in the review of such laws.” (G. Gunther & K. Sullivan, Constitutional Law 1217 [13th ed. 1997]). It is noteworthy that the O’ Brien test has been applied by this Court in at

least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.).

Under this test, even if a law furthers an important or substantial governmental interest, it should

be invalidated if such governmental interest is “not unrelated to the suppression of free expression.”

Moreover, even if the purpose is unrelated to the

suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression

is greater than is necessary to achieve the governmental purpose in question. (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc [Mendoza])

198. Does the conduct of exit poll by ABS CBN present a clear and present danger of destroying the credibility and integrity of the electoral process as it has the tendency to sow confusion considering the randomness of selecting interviewees, which further makes the exit poll highly unreliable, to justify the promulgation of a Comelec resolution prohibiting the same?

Held: Such arguments are purely speculative and

clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random,

so that the results will as much as possible be representative or reflective of the general sentiment or

view of the community or group polled. Second, the survey result is not meant to replace or be at par with the

official Comelec count. It consists merely of the opinion

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of the polling group as to who the electorate in general

has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake are

the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit

polls. The holding and the reporting of the results of exit

polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of

one can only be indicative of the other.

The COMELEC’s concern with the possible noncommunicative effect of exit polls – disorder and

confusion in the voting centers – does not justify a total

ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without

qualification as to whether the polling is disruptive or not. There is no showing, however, that exit polls or the

means to interview voters cause chaos in voting centers.

Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct

tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose.

The valuable information and ideas that could be derived

from them, based on the voters’ answers to the survey questions will forever remain unknown and unexplored.

Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be

deprived of studies on the impact of current events and of

election-day and other factors on voters’ choices.

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any

alternative channel of communication to gather the type

of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and

means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought

about by exit surveys.

With foregoing premises, it is concluded that the

interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally

guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls –

properly conducted and publicized – can be vital tools for

the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud

and other electoral ills. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban]) 199. Section 5.4 of R.A. No. 9006 (Fair Election Act)

which provides: “Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.” The Social Weather Stations, Inc. (SWS), a private non-stock, non-profit social research institution conducting surveys in various fields; and Kamahalan Publishing Corporation, publisher of the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys, challenged the constitutionality of aforesaid provision as it constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. Should the challenge be sustained?

Held: For reason hereunder given, we hold that

Section 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech,

expression, and the press.

To be sure, Section 5.4 lays a prior restraint on

freedom of speech, expression, and the press by prohibiting the publication of election survey results

affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national

election and seven (7) days before a local election. Because of the preferred status of the constitutional rights

of speech, expression, and the press, such a measure is

vitiated by a weighty presumption of invalidity. Indeed, “any system of prior restraints of expression comes to this

Court bearing a heavy presumption against its constitutional validity x x x. The Government ‘thus carries

a heavy burden of showing justification for the

enforcement of such restraint.’” There is thus a reversal of the normal presumption of validity that inheres in every

legislation.

Nor may it be argued that because of Art. IX-C, Sec. 4 of the Constitution, which gives the Comelec

supervisory power to regulate the enjoyment or utilization

of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like

Sec. 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power

to the Comelec under Art. IX-C, Sec. 4 is limited to

ensuring “equal opportunity, time, space, and the right to reply” as well as uniform and reasonable rates of charges

for the use of such media facilities for “public information campaigns and forums among candidates.”

X x x

Nor can the ban on election surveys be justified on the ground that there are other countries x x x which

similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is

noteworthy that in the United States no restriction on the

publication of election survey results exists. It cannot be argued that this is because the United States is a mature

democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other

countries. x x x.

What test should then be employed to determine

the constitutional validity of Section 5.4? The United States Supreme Court x x x held in United States v. O’ Brien:

[A] government regulation is sufficiently justified

(1) if it is within the constitutional power of the government; (2) if it furthers an important or

substantial governmental interest; (3) if the governmental interest is unrelated to the

suppression of free expression; and (4) if the

incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no

greater than is essential to the furtherance of that interest (391 U.S. 367, 20 L. Ed. 2d 692, 680 [1968] [bracketed numbers added]).

This is so far the most influential test for

distinguishing content-based from content-neutral regulations and is said to have “become canonical in the

review of such laws.” It is noteworthy that the O’ Brien test has been applied by this Court in at least two cases

(Adiong v. Comelec; Osmena v. Comelec).

91

Under this test, even if a law furthers an important or substantial governmental interest, it should

be invalidated if such governmental interest is “not unrelated to the suppression of free expression.”

Moreover, even if the purpose is unrelated to the

suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression

is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two

considerations as applied to Sec. 5.4.

First. Sec. 5.4 fails to meet criterion (3) of the O’

Brien test because the causal connection of expression to the asserted governmental interest makes such interest

“not unrelated to the suppression of free expression.” By

prohibiting the publication of election survey results because of the possibility that such publication might

undermine the integrity of the election, Sec. 5.4 actually suppresses a whole class of expression, while allowing the

expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators,

armchair theorists, and other opinion makers. In effect,

Sec. 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical

results. The constitutional guarantee of freedom of expression means that “the government has no power to

restrict expression because of its message, its ideas, its

subject matter, or its contents.” The inhibition of speech should be upheld only if the expression falls within one of

the few unprotected categories dealt with in Chaplinsky v. New Hampshire, thus:

There are certain well-defined and narrowly limited classes of speech, the prevention

and punishment of which have never been thought to raise any Constitutional problem.

These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words –

those which by their very utterance inflict injury

or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of

any exposition of ideas, and are of such slight social value as a step to truth that any benefit

that may be derived from them is clearly

outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint

which Sec. 5.4 lays on protected speech. In Near v. Minnesota, it was held:

[T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has

been recognized only in exceptional cases x x x. No one would question but that a government

might prevent actual obstruction to its recruiting

service or the publication of the sailing dates of transports or the number and location of troops.

On similar grounds, the primary requirements of decency may be enforced against obscene

publications. The security of the community life

may be protected against incitements to acts of violence and the overthrow by force of orderly

government x x x.

Thus, x x x the prohibition imposed by Sec. 5.4 cannot be justified on the ground that it is only for a

limited period and is only incidental. The prohibition may

be for a limited time, but the curtailment of the right of

expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech

and is not made less so because it is only for a period of fifteen (15) days immediately before a national election

and seven (7) days immediately before a local election.

This sufficiently distinguishes Sec. 5.4 from R.A.

No. 6646, Sec. 11(b), which this Court found to be valid in National Press Club v. Comelec, and Osmena v. Comelec. For the ban imposed by R.A. No. 6646, Sec. 11(b) is not only authorized by a specific constitutional provision (Art. IX-C, Sec. 4), but it also provided an alternative so that,

as this Court pointed out in Osmena, there was actually no ban but only a substitution of media advertisements by

the Comelec space, and Comelec hour.

Second. Even if the governmental interest sought

to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only

incidental, Sec. 5.4 nonetheless fails to meet criterion (4) of the O’ Brien test, namely, that the restriction be not

greater than is necessary to further the governmental interest. As already stated, Sec. 5.4. aims at the

prevention of last-minute pressure on voters, the creation

of bandwagon effect, “junking” of weak or “losing” candidates, and resort to the form of election cheating

called “dagdag-bawas.” Praiseworthy as these aims of the regulation might be, they cannot be attained at the

sacrifice of the fundamental right of expression, when

such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of

apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987 (Bk. V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is given

the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,

misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in Sec. 5.4. Pursuant to this power

of the Comelec, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their

own surveys conducted. No right of reply can be invoked

by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for

the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this

natural-enough tendency of some voters. Some voters want to be identified with the “winners.” Some are

susceptible to the herd mentality. Can these be

legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has

been held that “[mere] legislative preferences or beliefs respecting matters of public convenience may well

support regulation directed at other personal activities,

but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of

democratic institutions.”

To summarize then, we hold that Sec. 5.4. is

invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total

suppression of a category of expression even though such suppression is only for a limited period, and (3) the

governmental interest sought to be promoted can be achieved by means other than the suppression of freedom

of expression. (Social Weather Stations, Inc., v.

92

COMELEC, G.R. No. 147571, May 5, 2001, En Banc [Mendoza])

200. The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. The Regional Trial Court of Manila x x x found petitioner guilty x x x on the ground that petitioner failed to prove the truth of the charges and that he was “motivated by vengeance in uttering the defamatory statement.”

Held: The decision appealed from should be

reversed.

In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo

Foreshore Area were not only acting in their self-interest

but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by

those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is

inconsistent with any requirement placing on him the burden of proving that he acted with good motives and

for justifiable ends.

For that matter, even if the defamatory statement

is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that

the statement was made with actual malice – that is, with

knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling

in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own

decisions. This is the rule of “actual malice.” In this case,

the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner

made them with knowledge of their falsity or with reckless disregard of whether they were false or not.

A rule placing on the accused the burden of

showing the truth of allegations of official misconduct

and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the

Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such

a rule would deter citizens from performing their duties as

members of a self-governing community. Without free speech and assembly, discussions of our most abiding

concerns as a nation would be stifled. As Justice Brandies has said, “public discussion is a political duty” and the

“greatest menace to freedom is an inert people.” (Whitney v. California) (Vasquez v. Court of Appeals, 314 SCRA 460, Sept. 15, 1999, En Banc [Mendoza])

201. Discuss the "doctrine of fair comment" as a valid

defense in an action for libel or slander.

Held: Fair commentaries on matters of public

interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment

means that while in general every discreditable imputation publicly made is deemed false, because every man is

presumed innocent until his guilt is judicially proved, and

every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a

public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to

a public official may be actionable, it must either be a false allegation of fact or a comment based on a false

supposition. If the comment is an expression of opinion,

based on established facts, then it is immaterial that the

opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

202. What is the “raison d’etre” for the New York Times v. Sullivan (376 US 254) holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments?

Held: The guarantees of freedom of speech and

press prohibit a public official or public figure from

recovering damages for a defamatory falsehood relating

to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it

was false or with reckless disregard of whether it was false or not.

The raison d’etre for the New York Times doctrine was that to require critics of official conduct to guarantee

the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be

critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true,

because of doubt whether it could be proved or because

of fear of the expense of having to prove it. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

203. Columnist Art Borjal of The Philippine Star wrote

in his column that petitioner (private respondent), the Executive Director and Spokesman of the FNCLT (First National Conference on Land Transportation), a joint project of the government and the private sector to raise funds to improve the state of land transportation in the country, engaged in shady and anomalous deals. He was sued for damages arising from libel by petitioner (private respondent) and subsequently found liable by the trial court and made to pay damages. On appeal, the SC reversed applying the doctrine of fair comment.

Held: [W]e deem private respondent a public

figure within the purview of the New York Times ruling. X x x

The FNCLT (First National Conference on Land

Transportation) was an undertaking infused with public

interest. It was promoted as a joint project of the government and the private sector, and organized by top

government officials and prominent businessmen. For this reason, it attracted media mileage and drew public

attention not only to the conference itself but to the personalities behind as well. As its Executive Director and

spokesman, private respondent consequently assumed the

status of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in

the FNCLT, would not qualify as a public figure, it does

not necessarily follow that he could not validly be the subject of a public comment even if he was not a public

official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a

subject of public or general interest, it cannot suddenly

become less so merely because a private individual is involved or because in some sense the individual did not

voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the

conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior

93

anonymity or notoriety. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 204. Who is a “public figure,” and therefore subject to

public comment?

Held: At any rate, we have also defined “public figure” in Ayers Production Pty., Ltd. v. Capulong as –

X x x a person who, by his accomplishments,

fame, mode of living, or by adopting a profession or calling which gives the public a legitimate

interest in his doings, his affairs and his character,

has become a ‘public personage.’ He is, in other words, a celebrity. Obviously, to be included in

this category are those who have achieved some degree of reputation by appearing before the

public, as in the case of an actor, a professional

baseball player, a pugilist, or any other entertainer. The list is, however, broader than

this. It includes public officers, famous inventors and explorers, war heroes and even ordinary

soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It

includes, in short, anyone who has arrived at a

position where the public attention is focused upon him as a person. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

205. What are the types of privileged communications?

Held: A privileged communication may be either

absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not

actionable even if the author acted in bad faith. An

example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from

liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly

privileged communications containing defamatory imputations are not actionable unless found to have been

made without good intention or justifiable motive. To this

genre belong “private communications” and “fair and true report without any comments or remarks.” (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 206. Is the enumeration of qualifiedly privileged

communications under Article 354 of the Revised Penal Code exclusive?

Held: Indisputably, petitioner Borjal’s questioned

writings are not within the exceptions of Art. 354 of The Revised Penal Code for x x x they are neither private communications nor fair and true report without any comments or remarks. However, this does not necessarily mean that they are not privileged. To be sure, the

enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise

privileged. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

207. Discuss the origin of the rule on privileged

communication. Did it originate in the nation’s penal laws, or in the Bill of Rights guaranteeing freedom of speech and of the press?

Held: The rule on privileged communications had

its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech

and of the press. As early as 1918, in United States v.

Canete (38 Phil. 253, 265 [1918]), this Court ruled that

publications which are privileged for reasons of public policy are protected by the constitutional guaranty of

freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it

express recognition in the statute punishing libel. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 208. The Office of the Mayor of Las Pinas refused to

issue permit to petitioners to hold rally a rally in front of the Justice Hall of Las Pinas on the ground that it was prohibited under Supreme Court En Banc Resolution dated July 7,1998 in A.M. No. 98-7-02-SC, entitled, "Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts." Petitioners thus initiated the instant proceedings. They submit that the Supreme Court gravely abused its discretion and/or acted without or in excess of jurisdiction in promulgating those guidelines.

Held: We shall first dwell on the critical

argument made by petitioners that the rules constitute an

abridgment of the people's aggregate rights of free speech, free expression, peaceful assembly and

petitioning government for redress of grievances citing Sec. 4, Article III of the 1987 Constitution that “no law

shall be passed abridging” them.

It is true that the safeguarding of the people's

freedom of expression to the end that individuals may speak as they think on matters vital to them and that

falsehoods may be exposed through the processes of

education and discussion, is essential to free government. But freedom of speech and expression despite its

indispensability has its limitations. It has never been understood as the absolute right to speak whenever,

however, and wherever one pleases, for the manner, place, and time of public discussion can be constitutionally

controlled. [T]he better policy is not liberty untamed but

liberty regulated by law where every freedom is exercised in accordance with law and with due regard for the rights

of others.

Conventional wisdom tells us that the realities of

life in a complex society preclude an absolutist interpretation of freedom of expression where it does not

involve pure speech but speech plus physical actions like picketing. There are other significant societal values that

must be accommodated and when they clash, they must all be weighed with the promotion of the general welfare

of the people as the ultimate objective. In balancing

these values, this Court has accorded freedom of expression a preferred position in light of its more

comparative importance. Hence, our rulings now musty in years hold that only the narrowest time, place and

manner regulations that are specifically tailored to serve

an important governmental interest may justify the application of the balancing of interests test in derogation

of the people's right of free speech and expression. Where said regulations do not aim particularly at the evils

within the allowable areas of state control but, on the

contrary, sweep within their ambit other activities as to operate as an overhanging threat to free discussion, or

where upon their face they are so vague, indefinite, or inexact as to permit punishment of the fair use of the

right of free speech, such regulations are void.

94

Prescinding from this premise, the Court reiterates

that judicial independence and the fair and orderly administration of justice constitute paramount

governmental interests that can justify the regulation of the public's right of free speech and peaceful assembly in

the vicinity of courthouses. In the case of In Re: Emil P. Jurado, the Court pronounced in no uncertain terms that:

“x x x freedom of expression needs on occasion to be adjusted to and accommodated

with the requirements of equally important public interests. One of these fundamental public

interests is the maintenance of the integrity and

orderly functioning of the administration of justice. There is no antinomy between free

expression and the integrity of the system of administering justice. For the protection and

maintenance of freedom of expression itself can

be secured only within the context of a functioning and orderly system of dispensing

justice, within the context, in other words, of viable independent institutions for delivery of

justice which are accepted by the general community. x x x” (In Re: Emil P. Jurado, 243 SCRA 299, 323-324 [1995])

It is sadly observed that judicial independence

and the orderly administration of justice have been threatened not only by contemptuous acts inside, but also

by irascible demonstrations outside, the courthouses.

They wittingly or unwittingly, spoil the ideal of sober, non-partisan proceedings before a cold and neutral judge.

Even in the United States, a prohibition against picketing and demonstrating in or near courthouses, has been ruled

as valid and constitutional notwithstanding its limiting

effect on the exercise by the public of their liberties. X x x

The administration of justice must not only be fair but must also appear to be fair and it is the duty of this

Court to eliminate everything that will diminish if not destroy this judicial desideratum. To be sure, there will

be grievances against our justice system for there can be

no perfect system of justice but these grievances must be ventilated through appropriate petitions, motions or other

pleadings. Such a mode is in keeping with the respect due to the courts as vessels of justice and is necessary if

judges are to dispose their business in a fair fashion. It is

the traditional conviction of every civilized society that courts must be insulated from every extraneous influence

in their decisions. The facts of a case should be determined upon evidence produced in court, and should

be uninfluenced by bias, prejudice or sympathies. (In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29, 1998)

209. Did the Supreme Court commit an act of judicial

legislation in promulgating En Banc Resolution A.M. 98-7-02-SC, entitled, “Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts?”

Held: Petitioners also claim that this Court

committed an act of judicial legislation in promulgating

the assailed resolution. They charge that this Court amended provisions of Batas Pambansa (B.P.) Blg. 880,

otherwise known as “the Public Assembly Act,” by converting the sidewalks and streets within a radius of

two hundred (200) meters from every courthouse from a

public forum place into a “no rally” zone. Thus, they

accuse this Court of x x x violating the principle of separation of powers.

We reject these low watts arguments. Public

places historically associated with the free exercise of

expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public fora. In

other words, it is not any law that can imbue such places with the public nature inherent in them. But even in such

public fora, it is settled jurisprudence that the government may restrict speech plus activities and enforce reasonable

time, place, and manner regulations as long as the

restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open

ample alternative channels of communication.

Contrary therefore to petitioners’ impression, B.P.

Blg. 880 did not establish streets and sidewalks, among other places, as public fora. A close look at the law will

reveal that it in fact prescribes reasonable time, place, and manner regulations. Thus, it requires a written

permit for the holding of public assemblies in public places subject, even, to the right of the mayor to modify the

place and time of the public assembly, to impose a

rerouting of the parade or street march, to limit the volume of loud speakers or sound system and to prescribe

other appropriate restrictions on the conduct of the public assembly.

The existence of B.P. Blg. 880, however, does not preclude this Court from promulgating rules regulating

conduct of demonstrations in the vicinity of courts to assure our people of an impartial and orderly

administration of justice as mandated by the Constitution.

To insulate the judiciary from mob pressure, friendly or otherwise, and isolate it from public hysteria, this Court

merely moved away the situs of mass actions within a 200-meter radius from every courthouse. In fine, B.P.

Blg. 880 imposes general restrictions to the time, place and manner of conducting concerted actions. On the

other hand, the resolution of this Court regulating

demonstrations adds specific restrictions as they involve judicial independence and the orderly administration of

justice. There is thus no discrepancy between the two sets of regulatory measures. Simply put, B.P. Blg. 880

and the assailed resolution complement each other. We

so hold following the rule in legal hermeneutics that an apparent conflict between a court rule and a statutory

provision should be harmonized and both should be given effect if possible. (In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29, 1998)

210. Should live media coverage of court proceedings be allowed?

Held: The propriety of granting or denying

permission to the media to broadcast, record, or

photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the

right of the public to information and the right to public

trial, on the one hand, and on the other hand, the due process rights of the defendant and the inherent and

constitutional power of the courts to control their proceedings in order to permit the fair and impartial

administration of justice. Collaterally, it also raises issues on the nature of the media, particularly television and its

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role in society, and of the impact of new technologies on

law.

X x x

Courts do not discriminate against radio and

television media by forbidding the broadcasting or televising of a trial while permitting the newspaper

reporter access to the courtroom, since a television or news reporter has the same privilege, as the news

reporter is not permitted to bring his typewriter or printing press into the courtroom.

In Estes v. Texas, the United States Supreme Court held that television coverage of judicial proceedings

involves an inherent denial of due process rights of a criminal defendant. Voting 5-4, the Court through Mr.

Justice Clark, identified four (4) areas of potential

prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the

defendant. The decision in part pertinently stated:

“Experience likewise has established the prejudicial effect of telecasting on witnesses.

Witnesses might be frightened, play to the

camera, or become nervous. They are subject to extraordinary out-of-court influences which might

affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid

actual prejudice to the defendant; it may as well

affect his own performance. Judges are human beings also and are subject to the same

psychological reactions as laymen. For the defendant, telecasting is a form of mental

harassment and subjects him to excessive public

exposure and distracts him from the effective presentation of his defense.

“The television camera is a powerful

weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the

public.”

Representatives of the press have no special

standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the

courtroom a reporter's constitutional rights are no greater

than those of any other member of the public. Massive intrusion of representatives of the news media into the

trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the

requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a

criminal proceeding should not be forced to run a gauntlet

of reporters and photographers each time he enters or leaves the courtroom.

Considering the prejudice it poses to the

defendant's right to due process as well as to the fair and

orderly administration of justice, and considering further that the freedom of the press and the right of the people

to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio

and television coverage of court proceedings shall not be

allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the

courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official

proceedings. No video shots or photographs shall be permitted during the trial proper. (Supreme Court En Banc Resolution Re: Live TV and Radio Coverage of

the Hearing of President Corazon C. Aquino's Libel Case, dated Oct. 22, 1991)

211. Should the Court allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order “to assure the public of full transparency in the proceedings of an unprecedented case in our history” as requested by the Kapisanan ng mga Brodkaster ng Pilipinas?

Held: The propriety of granting or denying the

instant petition involve the weighing out of the

constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the

fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control

its proceedings in ensuring a fair and impartial trial.

When these rights race against one another,

jurisprudence tells us that the right of the accused must be preferred to win.

With the possibility of losing not only the precious

liberty but also the very life of an accused, it behooves all

to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate

judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased

witnesses unswayed by any kind of pressure, whether

open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret

veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind, unbridled by

running emotions or passions.

Due process guarantees the accused a

presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor

made an object of public’s attention and where the conclusions reached are induced not by any outside force

or influence but only by evidence and argument given in

open court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and

women of fortitude, able to thrive in hardy climate, with

every reason to presume firmness of mind and resolute endurance, but it must also be conceded that “television

can work profound changes in the behavior of the people it focuses on.” Even while it may be difficult to quantify

the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it

is a fact, nonetheless, that, indeed, it does so in so many

ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the

testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all

unlikely for a vote of guilt or innocence to yield to it. It might be farcical to build around them an impregnable armor against the influence of the most powerful media of

public opinion.

To say that actual prejudice should first be

present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to

the calm and deliberate dispensation of justice can create. The effect of television may escape the ordinary means of

proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now.

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An accused has a right to a public trial but it is a

right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public

trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not

compromised in secret conclaves of long ago. A public

trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to

come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the

constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe

the proceedings, not too small as to render the openness

negligible and not too large as to distract the trial participants from their proper functions, who shall then be

totally free to report what they have observed during the proceedings.

The courts recognize the constitutionally embodied freedom of the press and the right to public

information. It also approves of media’s exalted power to provide the most accurate and comprehensive means of

conveying the proceedings to the public and in acquainting the public with the judicial process in action;

nevertheless, within the courthouse, the overriding

consideration is still the paramount right of the accused to due process which must never be allowed to suffer

diminution in its constitutional proportions. Justice Clark thusly pronounced, “while a maximum freedom must be

allowed the press in carrying out the important function of

informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of

absolute fairness in the judicial process.”

X x x

The Integrated Bar of the Philippines x x x

expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to

paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings

intended to assure a fair trial; at stake in the criminal trial

is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and

live television and radio coverage of the trial could allow the “hooting throng” to arrogate unto themselves the task

of judging the guilt of the accused, such that the verdict

of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve

the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.

X x x

Unlike other government offices, courts do not express the popular will of the people in any sense which,

instead, are tasked to only adjudicate controversies on the basis of what alone is submitted before them. A trial is

not a free trade of ideas. Nor is a competing market of

thoughts the known test of truth in a courtroom. (Re: Request Radio-TV coverage of the Trial in the Sandiganbayan of the Plunder Cases against the former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, En Banc [Vitug])

Freedom of Religion

212. Discuss the two aspects of freedom of religion.

Held: 1. The right to religious profession and

worship has a two-fold aspect, viz., freedom to believe and freedom to act on one's belief. The first is absolute

as long as the belief is confined within the realm of thought. The second is subject to regulation where the

belief is translated into external acts that affect the public

welfare. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno])

2. The constitutional inhibition of legislation on

the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of

any creed or the practice of any form of worship.

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual

may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form

of religion. Thus, the Constitution embraces two

concepts, that is, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the

second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must

have appropriate definitions to preserve the enforcement of that protection. In every case, the power to regulate

must be so exercised, in attaining a permissible end, as

not to unduly infringe on the protected freedom.

Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the

State may protect its citizens from injury. X x x

It does not follow, therefore, from the

constitutional guarantees of the free exercise of religion that everything which may be so called can be tolerated. It has been said that a law advancing a legitimate

governmental interest is not necessarily invalid as one interfering with the “free exercise” of religion merely

because it also incidentally has a detrimental effect on the adherents of one or more religion. (Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado])

213. Discuss why the Gerona ruling (justifying the expulsion from public schools of children of Jehovah’s Witnesses who refuse to salute the flag and sing the national anthem during flag ceremony as prescribed by the Flag Salute Law) should be abandoned.

Held: Our task here is extremely difficult, for the

30-year old decision of this court in Gerona upholding the flag salute law and approving the expulsion of students

who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the

Gerona ruling had received legislative cachet by its incorporation in the Administrative Code of 1987, the

present Court believes that the time has come to reexamine it. The idea that one may be compelled to

salute the flag, sing the national anthem, and recite the

patriotic pledge, during a flag ceremony on pain of being dismissed from one’s job or of being expelled from school,

is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which

guarantees their rights to free speech (The flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.) and the free exercise

of religious profession and worship.

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection

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among human rights, for it involves the relationship of

man to his Creator.

X x x

Petitioners stress x x x that while they do not take

part in the compulsory flag ceremony, they do not engage in “external acts” or behavior that would offend their

countrymen who believe in expressing their love of country through the observance of the flag ceremony.

They quietly stand at attention during the flag ceremony to show their respect for the rights of those who choose

to participate in the solemn proceedings. Since they do

not engage in disruptive behavior, there is no warrant for their expulsion.

“The sole justification for a prior restraint

or limitation on the exercise of religious freedom

(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both

grave and imminent, of a serious evil to public safety, public morals, public health or any other

legitimate public interest, that the State has a

right (and duty) to prevent.” Absent such a threat to public safety, the expulsion of the

petitioners from the schools is not justified.

The situation that the Court directly predicted in

Gerona that:

“[T]he flag ceremony will become a thing of the past or perhaps conducted with very few

participants, and the time will come when we

would have citizens untaught and uninculcated in and not imbued with reverence for the flag and

love of country, admiration for national heroes, and patriotism – a pathetic, even tragic situation,

and all because a small portion of the school population imposed its will, demanded and was

granted an exemption.” has not come to pass. We are not persuaded that by

exempting the Jehovah’s Witnesses from saluting the flag, singing the national anthem and reciting the patriotic

pledge, this religious group which admittedly comprises a

“small portion of the school population” will shake up our part of the globe and suddenly produce a nation

“untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and

admiration for national heroes. After all, what the petitioners seek only is exemption from the flag

ceremony, not exclusion from the public schools where

they may study the Constitution, the democratic way of life and form of government, and learn not only the arts,

sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the

virtues of “patriotism, respect for human rights,

appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will

bring about the very situation that this Court had feared in

Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates

their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.

X x x

Moreover, the expulsion of members of Jehovah’s

Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987

Constitution, to receive free education, for it is the duty of the State to “protect and promote the right of all citizens

to quality education x x x and to make such education

accessible to all” (Sec. 1, Art. XIV).

In Victoriano v. Elizalde Rope Workers’ Union, we upheld the exemption of members of the Iglesia Ni Cristo,

from the coverage of a closed shop agreement between their employer and a union because it would violate the

teaching of their church not to join any labor group x x x.

X x x

We hold that a similar exemption may be

accorded to the Jehovah’s Witnesses with regard to the

observance of the flag ceremony out of respect for their religious beliefs, however “bizarre” those beliefs may

seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a

right to disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non v. Dames II, while the

highest regard must be afforded their right to the free

exercise of their religion, “this should not be taken to mean that school authorities are powerless to discipline

them” if they should commit breaches of the peace by actions that offend the sensibilities, both religious and

patriotic, of other persons. If they quietly stand at

attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and

recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose “a grave

and present danger of a serious evil to public safety,

public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent.” (Ebralinag v. The Division Superintendent of Schools of Cebu, 219 SCRA 256, 269-273, March 1, 1993, En Banc [Grino-Aquino])

214. A pre-taped TV program of the Iglesia Ni Cristo (INC) was submitted to the MTRCB for review. The latter classified it as “rated X” because it was shown to be attacking another religion. The INC protested by claiming that its religious freedom is per se beyond review by the MTRCB. Should this contention be upheld?

Held: The Iglesia Ni Cristo's postulate that its religious freedom is per se beyond review by the MTRCB

should be rejected. Its public broadcast on TV of its religious programs brings it out of the bosom of internal

belief. Television is a medium that reaches even the eyes

and ears of children. The exercise of religious freedom can be regulated by the State when it will bring about the

clear and present danger of a substantive evil which the State is duty-bound to prevent, i.e., serious detriment to

the more overriding interest of public health, public

morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind

but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in

our society today. “For sure, we shall continue to subject

any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational

exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not

stand still.” (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno])

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215. Did the MTRCB act correctly when it rated “X” the Iglesia Ni Cristo's pre-taped TV program simply because it was found to be “attacking” another religion?

Held: The MTRCB may disagree with the

criticisms of other religions by the Iglesia Ni Cristo but that gives it no excuse to interdict such criticisms,

however unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion

by protecting it against an attack by another religion. Religious dogma and beliefs are often at war and to

preserve peace among their followers, especially the

fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-à-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable

stance. In fine, the MTRCB cannot squelch the speech of

the INC simply because it attacks another religion. In a State where there ought to be no difference between the

appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The

bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of

dueling ideas. When the luxury of time permits, the

marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the

heat of colliding ideas, that can fan the embers of truth. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno]) 216. Is solicitation for the construction of a church

covered by P.D. No. 1564 and, therefore, punishable if done without the necessary permit for solicitation from the DSWD?

Held: First. Solicitation of contributions for the

construction of a church is not solicitation for “charitable or public welfare purpose” but for a religious purpose, and

a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or

repair of a church is not like fund drives for needy families

or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to

religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls

upon the virtue of faith, not of charity, save as those

solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage

the philanthropic as much as the religious fervor of the person who is solicited for contribution.

Second. The purpose of the Decree is to protect

the public against fraud in view of the proliferation of fund

campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually

conducted among those belonging to the same religion, the need for public protection against fraudulent

solicitations does not exist in as great a degree as does

the need for protection with respect to solicitations for charity or civic projects as to justify state regulation.

Third. To require a government permit before

solicitation for religious purpose may be allowed is to lay a

prior restraint on the free exercise of religion. Such restraint, if allowed, may well justify requiring a permit

before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila, we

precisely held that an ordinance requiring payment of a license fee before one may engage in business could not

be applied to the appellant's sale of bibles because that

would impose a condition on the exercise of a

constitutional right. It is for the same reason that religious rallies are exempted from the requirement of

prior permit for public assemblies and other uses of public parks and streets (B.P. Blg. 880, Sec. 3[a]). To read the

Decree, therefore, as including within its reach

solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion

Clause of the Constitution x x x. (Concurring Opinion, Mendoza, V.V., J., in Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994)

217. What is a purely ecclesiastical affair to which the State can not meddle?

Held: An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the

church, or the adoption and enforcement within a

religious association of needful laws and regulations for the government of the membership, and the power of

excluding from such associations those deemed not worthy of membership.” Based on this definition, an

ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith,

religious doctrines, worship and governance of the

congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are

proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other

activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan]) 218. Petitioner is a religious minister of the Seventh

Day Adventist (SDA). He was dismissed because of alleged misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties and commission of an offense against the person of his employer’s duly authorized representative. He filed an illegal termination case against the SDA before the labor arbiter. The SDA filed a motion to dismiss invoking the doctrine of separation of Church and State. Should the motion be granted?

Held: Where what is involved is the relationship

of the church as an employer and the minister as an

employee and has no relation whatsoever with the practice of faith, worship or doctrines of the church, i.e., the minister was not excommunicated or expelled from the membership of the congregation but was terminated

from employment, it is a purely secular affair. Consequently, the suit may not be dismissed invoking the

doctrine of separation of church and the state. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan])

The Right of the People to Information on Matters

of Public Concern

219. Discuss the scope of the right to information on matters of public concern.

Held: In Valmonte v. Belmonte, Jr., the Court

emphasized that the information sought must be “matters

of public concern,” access to which may be limited by law. Similarly, the state policy of full public disclosure extends

only to “transactions involving public interest” and may also be “subject to reasonable conditions prescribed by

law.” As to the meanings of the terms “public interest”

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and “public concern,” the Court, in Legaspi v. Civil Service Commission, elucidated:

“In determining whether or not a particular information is of public concern there is

no rigid test which can be applied. ‘Public

concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad

spectrum of subjects which the public may want to know, either because these directly affect their

lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the

final analysis, it is for the courts to determine on a

case by case basis whether the matter at issue is of interest or importance, as it relates to or affects

the public.”

Considered a public concern in the above-

mentioned case was the “legitimate concern of citizens to ensure that government positions requiring civil service

eligibility are occupied only by persons who are eligibles.” So was the need to give the general public adequate

notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tanada. Likewise did the “public nature of the loanable funds of

the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa)”

qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-Sarmiento v. Morato, the Court also held that official acts of public

officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official

acts and decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to “provide information on their

policies and procedures in clear and understandable language, [and] ensure openness of information, public

consultations and hearing whenever appropriate x x x,” except when “otherwise provided by law or when required

by the public interest.” In particular, the law mandates

free public access, at reasonable hours, to the annual performance reports of offices and agencies of

government and government-owned or controlled corporations; and the statements of assets, liabilities and

financial disclosures of all public officials and employees.

In general, writings coming into the hands of

public officers in connection with their official functions must be accessible to the public, consistent with the policy

of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine

whether those to whom they have entrusted the affairs of

the government are honestly, faithfully and competently performing their functions as public servants. Undeniably,

the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-informed so that the

public would gain a better perspective of vital issues

confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a

responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange

of ideas among a well-informed public that a government

remains responsive to the changes desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban])

220. What are some of the recognized restrictions to the right of the people to information on matters of public concern?

Held: In Chavez v. PCGG (299 SCRA 744,

Dec. 9, 1998 [Panganiban]), the SC enumerated the

recognized restrictions to the right of the people to information on matters of public concern, as follows:

1) National security matters and intelligence information. This jurisdiction recognizes the

common law holding that there is a governmental privilege against public

disclosure with respect to state secrets regarding military, diplomatic and other

national security matters. Likewise,

information on inter-government exchanges prior to the conclusion of treaties and

executive agreements may be subject to reasonable safeguards for the sake of national

interest;

2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293,

approved on June 6, 1997] and other related laws) and banking transactions (pursuant to

the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]);

3) Criminal matters, such as those relating to the

apprehension, the prosecution and the detention of criminals, which courts may not

inquire into prior to such arrest, detention and prosecution;

4) Other confidential information. The Ethical

Standards Act (R.A. No. 6713, enacted on February 20, 1989) further prohibits public

officials and employees from using or divulging “confidential or classified

information officially known to them by

reason of their office and not made available to the public.” (Sec. 7[c], ibid.) Other

acknowledged limitations to information access include diplomatic correspondence,

closed door Cabinet meetings and executive sessions of either house of Congress, as well

as the internal deliberations of the Supreme

Court.

221. Is the recovery of the alleged ill-gotten wealth of the Marcoses a matter of public concern subject to this right?

Held: With such pronouncements of our

government x x x there is no doubt that the recovery of the Marcoses’ alleged ill-gotten wealth is a matter of

public concern and imbued with public interest. We may also add that “ill-gotten wealth” refers to assets and

properties purportedly acquired, directly or indirectly, by

former President Marcos, his immediate family, relatives and close associates through or as a result of their

improper or illegal use of government funds or properties; or their having taken undue advantage of their public

office; or their use of powers, influences or relationships,

“resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the

Republic of the Philippines.” Clearly, the assets and properties referred to supposedly originated from the

government itself. To all intents and purposes, therefore,

they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only

to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared

overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic

recovery.

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We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents'

disclosure of any agreement that may be arrived at concerning the Marcoses’ purported ill-gotten wealth.

(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

Freedom of Association

222. Does the right of civil servants to organize include

their right to strike? Clarify.

Held: Specifically, the right of civil servants to

organize themselves was positively recognized in Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja. But, as in the exercise of the rights of free

expression and of assembly, there are standards for allowable limitations such as the legitimacy of the

purposes of the association, the overriding considerations of national security and the preservation of democratic

institutions.

As regards the right to strike, the Constitution

itself qualifies its exercise with the proviso “in accordance with law.” This is a clear manifestation that the state

may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order No. 180 which

provides guidelines for the exercise of the right of

government workers to organize, for instance, implicitly endorsed an earlier CSC circular which “enjoins under pain

of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass

leaves, walkouts and other forms of mass action which

will result in temporary stoppage or disruption of public service” (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service law and rules governing concerted activities and strikes in the

government service shall be observed.

It is also settled in jurisprudence that, in general,

workers in the public sector do not enjoy the right to strike. Alliance of Concerned Government Workers v. Minister of Labor and Employment rationalized the proscription thus:

“The general rule in the past and up to the present is that the ‘terms and conditions of

employment in the Government, including any political subdivision or instrumentality thereof are

governed by law.’ x x x. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same

weapons employed by the workers in the private sector to secure concessions from their

employers. The principle behind labor unionism in private industry is that industrial peace cannot be

secured through compulsion by law. Relations

between private employers and their employees rest on an essentially voluntary basis. Subject to

the minimum requirements of wage laws and other labor and welfare legislation, the terms and

conditions of employment in the unionized private

sector are settled through the process of collective bargaining. In government

employment, however, it is the legislature and, where properly given delegated power, the

administrative heads of government which fix the terms and conditions of employment. And this is

effected through statutes or administrative

circulars, rules, and regulations, not through

collective bargaining agreements.”

After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) v. Court of Appeals and explained:

“Government employees may, therefore, through their unions or associations, either

petition the Congress for the betterment of the terms and conditions of employment which are

within the ambit of legislation or negotiate with

the appropriate government agencies for the improvement of those which are not fixed by law.

If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-

Management Council for appropriate action. But

employees in the civil service may not resort to strikes, walkouts and other temporary work

stoppages, like workers in the private sector, to pressure the Government to accede to their

demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the

Exercise of the Right of Government Employees to

Self-Organization, which took effect after the instant dispute arose, ‘[t]he terms and conditions

of employment in the government, including any political subdivision or instrumentality thereof and

government-owned and controlled corporations

with original charters are governed by law and employees therein shall not strike for the purpose

of securing changes [thereto].’” (Jacinto v. Court of Appeals, 281 SCRA 657,

Nov. 14, 1997, En Banc [Panganiban]) 223. Petitioners public school teachers walked out of

their classes and engaged in mass actions during certain dates in September 1990 protesting the alleged unlawful withholding of their salaries and other economic benefits. They also raised national issues, such as the removal of US bases and the repudiation of foreign debts, in their mass actions. They refused to return to work despite orders to do so and subsequently were found guilty of conduct prejudicial to the best interests of the service for having absented themselves without proper authority, from their schools during regular school days, and penalized. They denied that they engaged in “strike” but claimed that they merely exercised a constitutionally guaranteed right – the right to peaceably assemble and petition the government for redress of grievances - and, therefore, should not have been penalized. Should their contention be upheld?

Held: Petitioners, who are public schoolteachers

and thus government employees, do not seek to establish

that they have a right to strike. Rather, they tenaciously

insist that their absences during certain dates in September 1990 were a valid exercise of their

constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They

claim that their gathering was not a strike, therefore, their

participation therein did not constitute any offense. MPSTA v. Laguio and ACT v. Carino, in which this Court

declared that “these ‘mass actions’ were to all intents and purposes a strike; they constituted a concerted and

unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for

essentially economic reasons,” should not principally

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resolve the present case, as the underlying facts are

allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work done by the concerted action of

employees as a result of an industrial or labor dispute. A

labor dispute includes any controversy or matter concerning terms and conditions of employment; or the

association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and

conditions of employment, regardless of whether the disputants stand in the proximate relation of employers

and employees. With these premises, we now evaluate

the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-

holding of classes in several public schools during the

corresponding period. Petitioners do not dispute that the grievances for which they sought redress concerned the

alleged failure of public authorities - essentially, their “employers” - to fully and justly implement certain laws

and measures intended to benefit them materially x x x. And probably to clothe their action with permissible

character, they also raised national issues such as the

removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of Appeals, however, this

Court said that the fact that the conventional term “strike” was not used by the participants to describe their

common course of action was insignificant, since the

substance of the situation, and not its appearance, was deemed controlling.

Moreover, the petitioners here x x x were not

penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time - recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or even this Court - could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by their nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable. (Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban])

The Non-Impairment Clause

224. Is the constitutional prohibition against impairing

contractual obligations absolute?

Held: 1. Nor is there merit in the claim that the

resolution and memorandum circular violate the contract clause of the Bill of Rights.

The executive order creating the POEA was

enacted to further implement the social justice provisions

of the 1973 Constitution, which have been greatly

enhanced and expanded in the 1987 Constitution by placing them under a separate Article (Article XIII). The

Article on Social Justice was aptly described as the “heart of the new Charter” by the President of the 1986

Constitutional Commission, retired Justice Cecilia Munoz

Palma. Social justice is identified with the broad scope of the police power of the state and requires the extensive

use of such power. x x x.

The constitutional prohibition against impairing contractual obligations is not absolute and is not to be

read with literal exactness. It is restricted to contracts

with respect to property or some object of value and which confer rights that may be asserted in a court of

justice; it has no application to statutes relating to public subjects within the domain of the general legislative

powers of the State and involving the public rights and

public welfare of the entire community affected by it. It does not prevent a proper exercise by the State of its

police power by enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or general

welfare of the community, even though contracts may thereby be affected, for such matters cannot be placed by

contract beyond the power of the State to regulate and

control them.

Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of

the State and not only may regulations which affect them

be established by the State, but all such regulations must be subject to change from time to time, as the general

well-being of the community may require, or as the circumstances may change, or as experience may

demonstrate the necessity. And under the Civil Code,

contracts of labor are explicitly subject to the police power of the State because they are not ordinary contracts but

are impressed with public interest. Article 1700 thereof expressly provides:

Art. 1700. The relations between capital

and labor are not merely contractual. They are so

impressed with public interest that labor contracts must yield to the common good. Therefore, such

contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts,

closed shop, wages, working conditions, hours of

labor and similar subjects.

The challenged resolution and memorandum circular being valid implementations of E.O. No. 797

(Creating the POEA), which was enacted under the police power of the State, they cannot be struck down on the

ground that they violate the contract clause. To hold

otherwise is to alter long-established constitutional doctrine and to subordinate the police power to the

contract clause. (The Conference of Maritime Manning Agencies, Inc. v. POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])

2. Petitioners pray that the present action should

be barred, because private respondents have voluntarily executed quitclaims and releases and received their

separation pay. Petitioners claim that the present suit is a

“grave derogation of the fundamental principle that obligations arising from a valid contract have the force of

law between the parties and must be complied with in good faith.”

The Court disagrees. Jurisprudence holds that

the constitutional guarantee of non-impairment of

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contract is subject to the police power of the state and to

reasonable legislative regulations promoting health, morals, safety and welfare. Not all quitclaims are per se

invalid or against public policy, except (1) where there is clear proof that the waiver was wangled from an

unsuspecting or gullible person, or (2) where the terms of

settlement are unconscionable on their face. In these cases, the law will step in to annul the questionable

transactions. Such quitclaim and release agreements are regarded as ineffective to bar the workers from claiming

the full measure of their legal rights.

In the case at bar, the private respondents agreed

to the quitclaim and release in consideration of their separation pay. Since they were dismissed allegedly for

business losses, they are entitled to separation pay under Article 283 of the Labor Code. And since there was thus

no extra consideration for the private respondents to give

up their employment, such undertakings cannot be allowed to bar the action for illegal dismissal. (Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, 296 SCRA 108, 124, [Panganiban])

3. Only slightly less abstract but nonetheless

hypothetical is the contention of CREBA that the

imposition of the VAT on the sales and leases of real estate by virtue of contracts entered prior to the

effectivity of the law would violate the constitutional provision that “No law impairing the obligation of

contracts shall be passed.” It is enough to say that the

parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing

power of the State. For not only are existing laws read into contracts in order to fix obligations as between

parties, but the reservation of essential attributes of

sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting

contracts against impairment presupposes the maintenance of a government which retains adequate

authority to secure the peace and good order of society.

In truth, the Contract Clause has never been

thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has

been granted for a valid consideration. x x x. (Tolentino v. Secretary of Finance, 235 SCRA 630, 685-686, Aug. 25, 1994, En Banc [Mendoza])

4. Since timber licenses are not contracts, the

non-impairment clause x x x cannot be invoked.

X x x, even if it is to be assumed that the same are contracts, the instant case does not involve a law or

even an executive issuance declaring the cancellation or

modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.

Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the

same cannot still be stigmatized as a violation of the non-

impairment clause. This is because by its very nature and purpose, such a law could have only been passed in the

exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and

healthful ecology, promoting their health and enhancing

their general welfare. x x x.

In short, the non-impairment clause must yield to the police power of the state.

Finally, it is difficult to imagine x x x how the non-

impairment clause could apply with respect to the prayer

to enjoin the respondent Secretary from receiving,

accepting, processing, renewing or approving new timber license for, save in cases of renewal, no contract would

have as yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a

matter of right. (Oposa v. Factoran, Jr., 224 SCRA 792 [1993])

5. Anent petitioners’ contention that the forcible refund of incentive benefits is an unconstitutional

impairment of a contractual obligation, suffice it to state that “[n]ot all contracts entered into by the government

will operate as a waiver of its non-suability; distinction

must be made between its sovereign and proprietary acts. The acts involved in this case are governmental. Besides,

the Court is in agreement with the Solicitor General that the incentive pay or benefit is in the nature of a bonus

which is not a demandable or enforceable obligation.

(Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11, 1998, En Banc [Purisima])

The In-Custodial Investigation Rights of an Accused Person

225. State the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation.

Held: Lastly, considering the heavy penalty of

death and in order to ensure that the evidence against an accused were obtained through lawful means, the

Court, as guardian of the rights of the people lays down

the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his

companions must do and observe at the time of making an arrest and again at and during the time of the custodial

interrogation in accordance with the Constitution, jurisprudence and Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining, and Investigating Officers and Providing Penalties for Violations Thereof). It is high-time to educate our law-enforcement agencies who neglect

either by ignorance or indifference the so-called Miranda

rights which had become insufficient and which the Court must update in the light of new legal developments:

1) The person arrested, detained, invited or

under custodial investigation must be informed in a language known to and

understood by him of the reason for the

arrest and he must be shown the warrant of arrest, if any. Every other warnings,

information or communication must be in a language known to and understood by said

person;

2) He must be warned that he has a right to remain silent and that any statement he

makes may be used as evidence against him; 3) He must be informed that he has the right to

be assisted at all times and have the

presence of an independent and competent lawyer, preferably of his own choice;

4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one

will be provided for him; and that a lawyer may also be engaged by any person in his

behalf, or may be appointed by the court

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upon petition of the person arrested or one

acting on his behalf; 5) That whether or not the person arrested has

a lawyer, he must be informed that no custodial investigation in any form shall be

conducted except in the presence of his

counsel of after a valid waiver has been made;

6) The person arrested must be informed that, at any time, he has the right to communicate

or confer by the most expedient means - telephone, radio, letter or messenger - with

his lawyer (either retained or appointed), any

member of his immediate family, or any medical doctor, priest or minister chosen by

him or by any one from his immediate family or by his counsel, or be visited by/confer with

duly accredited national or international non-

government organization. It shall be the responsibility of the officer to ensure that this

is accomplished; 7) He must be informed that he has the right to

waive any of said rights provided it is made voluntarily, knowingly and intelligently and

ensure that he understood the same;

8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it

must be done in writing and in the presence of counsel, otherwise, he must be warned

that the waiver is void even if he insist on his

waiver and chooses to speak; 9) That the person arrested must be informed

that he may indicate in any manner at any time or stage of the process that he does not

wish to be questioned with warning that once

he makes such indication, the police may not interrogate him if the same had not yet

commenced, or the interrogation must cease if it has already begun;

10) The person arrested must be informed that his initial waiver of his right to remain silent,

the right to counsel or any of his rights does

not bar him from invoking it at any time during the process, regardless of whether he

may have answered some questions or volunteered some statements;

11) He must also be informed that any statement

or evidence, as the case may be, obtained in violation of any of the foregoing, whether

inculpatory or exculpatory, in whole or in part, shall be admissible in evidence.

(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam])

226. Explain the kind of information that is required to be given by law enforcement officers to suspect during custodial investigation.

Held: [I]t is settled that one’s right to be

informed of the right to remain silent and to counsel contemplates the transmission of meaningful information

rather just the ceremonial and perfunctory recitation of an abstract constitutional principle. It is not enough for the

interrogator to merely repeat to the person under

investigation the provisions of Section 12, Article III of the 1987 Constitution; the former must also explain the

effects of such provision in practical terms – e.g., what the person under investigation may or may not do – and

in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the

part of the police investigator to explain, and

contemplates effective communication which results in the

subject’s understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree

of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal

circumstances of the person undergoing investigation. In

further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be

asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one

could be provided him at his request. If he decides not to retain a counsel of his choice or avail of one to be

provided for him and, therefore, chooses to waive his

right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel, who,

under prevailing jurisprudence, must be a lawyer. (People v. Canoy, 328 SCRA 385, March 17, 2000, 1st Div. [Davide, CJ]) 227. What is the meaning of “competent counsel”

under Section 12 of the Bill of Rights?

Held: The meaning of “competent counsel” was explained in People v. Deniega as follows:

“x x x [T]he lawyer called to be present during such investigation should be as far as

reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one

furnished in the accused’s behalf, it is important

that he should be competent and independent, i.e., that he is willing to fully safeguard the

constitutional rights of the accused, as distinguished from one who would merely be

giving a routine, peremptory and meaningless

recital of the individual’s rights. In People v. Basay (219 SCRA 404, 418), this Court stressed

that an accused’s right to be informed of the right to remain silent and to counsel ‘contemplates the

transmission of meaningful information rather than just the ceremonial and perfunctory

recitation of an abstract constitutional principle.’

“Ideally therefore, a lawyer engaged for

an individual facing custodial investigation (if the latter could not afford one) ‘should be engaged by

the accused (himself), or by the latter’s relative or

person authorized by him to engage an attorney or by the court, upon proper petition of the

accused or person authorized by the accused to file such petition.’ Lawyers engaged by the

police, whatever testimonials are given as proof of their probity and supposed independence, are

generally suspect, as in many areas, the

relationship between lawyers and law enforcement authorities can be symbiotic.

“x x x The competent or independent

lawyer so engaged should be present from the

beginning to end, i.e., at all stages of the interview, counseling or advising caution

reasonably at every turn of the investigation, and stopping the interrogation once in a while either

to give advice to the accused that he may either

continue, choose to remain silent or terminate the interview.”

(People v. Espiritu, 302 SCRA 533, Feb. 2, 1999, 3rd Div. [Panganiban])

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228. Can a PAO lawyer be considered an independent counsel within the contemplation of Section 12, Article III, 1987 Constitution?

Held: In People v. Oracoy and People v.

Bandula, the SC has held that a PAO lawyer can be

considered an independent counsel within the contemplation of the Constitution considering that he is

not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is

admittedly adverse to that of the accused-appellant. Thus, the assistance of a PAO lawyer satisfies the

constitutional requirement of a competent and

independent counsel for the accused. (People v. Bacor, 306 SCRA 522, April 30, 1999, 2nd Div. [Mendoza]) 229. Is the confession of an accused given

spontaneously, freely and voluntarily to the Mayor admissible in evidence, considering that the Mayor has “operational supervision and control” over the local police and may arguably be deemed a law enforcement officer?

Held: While it is true that a municipal mayor has

“operational supervision and control” over the local police

and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article

III of the Constitution, however, appellant’s confession to the mayor was not made in response to any interrogation

by the latter. In fact, the mayor did not question the

appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who

spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant

was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial

investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but

given in an ordinary manner whereby appellant orally

admitted having committed the crime. What the Constitution bars is the compulsory disclosure of

incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of

coercion by the State as would lead the accused to admit

something false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan, 269 SCRA 95, March 3, 1997)

230. Are confessions made in response to questions by news reporters admissible in evidence?

Answer: Yes. Confessions made in response to questions by news reporters, not by the police or any

other investigating officer, are admissible. In People v. Vizcarra, where the accused, under custody, gave

spontaneous answers to a televised interview by several

press reporters in the office of the chief of the CIS, it was held that statements spontaneously made by a suspect to

news reporters on a televised interview are deemed voluntary and are admissible in evidence. In People v. Andan, 269 SCRA 95, March 3, 1997, it was held that

appellant’s confessions to the news reporters were given free from any undue influence from the police authorities.

The news reporters acted as news reporters when they interviewed appellant. They were not acting under the

direction and control of the police. They did not force appellant to grant them an interview and reenact the

commission of the crime. In fact, they asked his

permission before interviewing him. The Supreme Court

further ruled that appellant’s verbal confessions to the newsmen are not covered by Section 12(1) and (3) of

Article III of the Constitution and, therefore, admissible in evidence.

231. Discuss why lower court’s should act with extreme caution in admitting in evidence accused’s videotaped media confessions.

Held: Apropos the court a quo’s admission of accused-appellant’s videotaped confession, we find such

admission proper. The interview was recorded on video

and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen.

Such confession does not form part of custodial investigation as it was not given to police officers but to

media men in an attempt to elicit sympathy and

forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought

succor from the newsmen who, in all likelihood, would have been sympathetic with him. X x x

X x x However, because of the inherent danger in

the use of television as a medium for admitting one’s

guilt, and the recurrence of this phenomenon in several cases, it is prudent that trial courts are reminded that

extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the

connivance of unscrupulous media practitioners, may

attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an

accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the

accused and thus imperil our criminal justice system.

We do not suggest that videotaped confessions

given before media men by an accused with the knowledge of and in the presence of police officers are

impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to

draw, particularly in cases such as this where it is

essential to make sharp judgments in determining whether a confession was given under coercive physical or

psychological atmosphere.

A word of caution then to lower courts: we should

never presume that all media confessions described as voluntary have been freely given. This type of confession

always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of

coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and

determination in separating polluted confessions from

untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution.

(People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div. [Bellosillo])

232. Discuss the two kinds of involuntary or coerced confessions under Section 12, Article III of the 1987 Constitution. Illustrate how the Court should appreciate said involuntary or coerced confessions.

Held: There are two kinds of involuntary or

coerced confessions treated in this constitutional

provision: (1) those which are the product of third degree methods such as torture, force, violence, threat,

intimidation, which are dealt with in paragraph 2 of Section 12, and (2) those which are given without the

105

benefit of Miranda warnings, which are the subject of

paragraph 1 of the same Section 12.

Accused-appellant claims that his confession was obtained by force and threat. Aside from this bare

assertion, he has shown no proof of the use of force and

violence on him. He did not seek medical treatment nor even a physical examination. His allegation that the fact

that he was made to sign the confession five times is proof that he refused to sign it.

X x x

We discern no sign that the confession was involuntarily executed from the fact that it was signed by

accused-appellant five times.

X x x

Extrajudicial confessions are presumed voluntary,

and, in the absence of conclusive evidence showing the declarant’s consent in executing the same has been

vitiated, such confession will be sustained.

Moreover, the confession contains details that

only the perpetrator of the crime could have given. x x x. It has been held that voluntariness of a confession may be

inferred from its being replete with details which could possibly be supplied only by the accused, reflecting

spontaneity and coherence which cannot be said of a

mind on which violence and torture have been applied. When the details narrated in an extrajudicial confession

are such that they could not have been concocted by one who did not take part in the acts narrated, where the

claim of maltreatment in the extraction of the confession

is unsubstantiated and where abundant evidence exists showing that the statement was voluntarily executed, the

confession is admissible against the declarant. There is greater reason for finding a confession to be voluntary

where it is corroborated by evidence aliunde which dovetails with the essential facts contained in such

confession.

But what renders the confession of accused-

appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under

the Constitution, an uncounseled statement, such as it is

called in the United States from which Article III, Section 12(1) was derived, is presumed to be psychologically

coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the

atmosphere of police interrogation, the suspect really needs the guiding hand of counsel.

Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation must

be given the following warnings: (1) he must be informed of his right to remain silent; (2) he must be warned that

anything he says can and will be used against him; and

(3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will be appointed to

represent him.

X x x

There was thus only a perfunctory reading of the

Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel

and, if so, whether he had his own counsel or he wanted the police to appoint one for him. This kind of giving of

warnings, in several decisions of this Court, has been

found to be merely ceremonial and inadequate to transmit

meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the

police investigator that accused-appellant was specifically asked these questions considering that he only finished

the fourth grade of the elementary school. x x x

Moreover, Article III, Section 12(1) requires that

counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant

was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an

“independent counsel” as contemplated by the law for the

reason that he was station commander of the WPD at the time he assisted accused-appellant. x x x.

This is error. As observed in People v. Bandula,

the independent counsel required by Article III, Section

12(1) cannot be special counsel, public or private prosecutor, municipal attorney, or counsel of the police

whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station

Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously

assisted accused-appellant in the investigation. To allow

such a happenstance would render illusory the protection given to the suspect during custodial investigation. (People v. Obrero, 332 SCRA 190, 220 – 208, May 17, 2000, 2nd Div. [Mendoza])

233. What are the requirements for an extra-judicial confession of an accused to be admissible in evidence?

Held: 1. In jurisprudence, no confession can be

admitted in evidence unless it is given:

1) Freely and voluntarily, without compulsion, inducement or trickery;

2) Knowingly based on an effective communication to the individual under

custodial investigation of his constitutional

rights; and 3) Intelligently with full appreciation of its

importance and comprehension of its consequences.

Once admitted, the confession must inspire credibility or be one which the normal experience of

mankind can accept as being within the realm of probability.

A confession meeting all the foregoing requisites

constitutes evidence of a high order since it is supported

by the strong presumption that no person of normal mind will knowingly, freely and deliberately confess that he is

the perpetrator of a crime unless prompted by truth and conscience. When all these requirements are met and the

confession is admitted in evidence, the burden of proof

that it was obtained by undue pressure, threat or intimidation rests upon the accused. (People v. Fabro, 277 SCRA 19, Aug. 11, 1997 [Panganiban])

2. Numerous decisions of this Court rule that for

an extrajudicial confession to be admissible, it must be: 1) voluntary; 2) made with the assistance of competent and

independent counsel; 3) express; and 4) in writing.

The mantle of protection afforded by the above-quoted constitutional provision covers the period from the

time a person is taken into custody for the investigation of

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his possible participation in the commission of a crime or

from the time he is singled out as a suspect in the commission of the offense although not yet in custody. The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere

running through menacing police interrogation procedures

where the potentiality for compulsion, physical or psychological is forcefully apparent.

However, the rule is not intended as a deterrent

to the accused from confessing guilt if he voluntarily and intelligently so desires but to protect the accused from

admitting what he is coerced to admit although untrue. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st Div. [Ynares-Santiago])

234. Is the choice of a lawyer by a person under

custodial investigation who cannot afford the services of a counsel exclusive as to preclude other equally competent and independent attorneys from handling his defense?

Held: It must be remembered in this regard that

while the right to counsel is immutable, the option to

secure the services of counsel de parte is not absolute. Indeed –

The phrase “competent and independent” and “preferably of his own choice” were explicit

details which were added upon the persistence of

human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during

the martial law period, the lawyers made available to the detainee would be one appointed by the

military and therefore beholden to the military.

(Citing I Record of the Constitutional Commission 731-734; I Bernas, The Constitution of the Republic of the Philippines, 1987 1st ed., p. 347)

X x x x x x x x x

Withal, the word “preferably” under

Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a

lawyer by a person under investigation is exclusive as to preclude other equally competent

and independent attorneys from handling his

defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in

the hands of the accused who can impede, nay, obstruct the progress of the interrogation by

simply selecting a lawyer who for one reason or another, is not available to protect his interest.

This absurd scenario could not have been

contemplated by the framers of the charter.

While the initial choice in cases where a person under custodial investigation cannot afford the services of

a lawyer is naturally lodged in the police investigators, the

accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer

provided by the investigators is deemed engaged by the accused where he never raised any objection against the

former’s appointment during the course of the

investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer.

Verily, to be an effective counsel “[a] lawyer need

not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop

an accused from saying anything which might incriminate

him but, rather, it was adopted in our Constitution to

preclude the slightest coercion as would lead the accused to admit something false. The counsel, however, should never prevent an accused from freely and voluntarily telling the truth.” (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st Div. [Ynares-Santiago])

235. Should courts be allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule?

Held: The exclusionary rule sprang from a

recognition that police interrogatory procedures lay fertile grounds for coercion, physical and psychological, of the

suspect to admit responsibility for the crime under investigation. It was not intended as a deterrent to the

accused from confessing guilt, if he voluntarily and

intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. Law enforcement agencies are required to effectively communicate the rights of a person under investigation

and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such

right. Courts are not allowed to distinguish between

preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or

admission given by a person while in custody which may appear harmless or innocuous at the time without the

competent assistance of an independent counsel should

be struck down as inadmissible. It has been held, however, that an admission made to news reporters or to

a confidant of the accused is not covered by the exclusionary rule.

The admission allegedly made by the appellant is not in the form of a written extra-judicial confession; the

admission was allegedly made to the arresting officer during an “informal talk” at the police station after his

arrest as a prime suspect in the rape and killing of x x x. The arresting policeman testified that the appellant

admitted that he was with the victim on the evening of

January 12, 1994, the probable time of the commission of the crime and that he carried her on his shoulder but that

he was too drunk to remember what subsequently happened. The arresting policeman admitted that he did

not inform the appellant of his constitutional rights to

remain silent and to counsel. We note that the alleged admission is incriminating because it places the accused in

the company of the victim at the time the crime was probably committed.

The exclusionary rule applies.

The accused was under arrest for the rape and killing of x x x and any statement allegedly made by him

pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible

in evidence. The policeman’s apparent attempt to

circumvent the rule by insisting that the admission was made during an “informal talk” prior to custodial

investigation prior is not tenable. The appellant was not invited to the police station as part of a general inquiry for

any possible lead to the perpetrators of the crime under

investigation. At the time the alleged admission was made the appellant was in custody and had been arrested

as the prime suspect in the rape and killing of x x x. The exclusionary rule presumes that the alleged admission

was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a

written extra-judicial confession to that effect and the

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appellant’s denial in court of the alleged oral admission.

The alleged admission should be struck down as inadmissible. (People v. Bravo, 318 SCRA 812, Nov. 22, 1999, En Banc [Gonzaga-Reyes])

236. Explain the procedure for out-of-court identification of suspects and the test to determine the admissibility of such identification.

Held: 1. In People v. Teehankee, Jr., the Court

x x x explained the procedure for out-of-court identification and the test to determine the admissibility of

such identification. It listed the following ways of

identifying the suspects during custodial investigation: show-up, mug shots and line-ups. The Court there ruled:

“x x x. Out-of-court identification is

conducted by the police in various ways. It is

done thru show-ups where the suspect alone is brought face to face with the witness for

identification. It is done thru mug shots where photographs are shown to the witness to identify

the suspect. It is also done thru line ups where a witness identifies the suspect from a group of

persons lined up for the purpose. Since

corruption of out-of-court identification contaminates the integrity of in court identification during the trial of the case, courts have fashioned out rules to assure its fairness and

its compliance with the requirements of

constitutional due process. In resolving the admissibility of and relying on out-of- court

identification of suspects, courts have adopted the totality of circumstances test where they consider

the following factors, viz: (1) the witness’

opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that

time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty

demonstrated by the witness at the identification; (5) the length of time between the crime and the

identification; and (6) the suggestiveness of the

identification procedure.” (People v. Timon, 281 SCRA 577, Nov. 12, 1997 [Panganiban])

2. x x x. The totality test has been fashioned

precisely to assure fairness as well as compliance with

constitutional requirements of due process in regard to out-of-court identification. These cited factors must be

considered to prevent contamination of the integrity of in-court identifications better. (People v. Gamer, 326 SCRA 660, Feb. 29, 2000, 2nd Div. [Quisumbing])

237. Does the prohibition for custodial investigation conducted without the assistance of counsel extend to a person in a police line-up? Consequently, is the identification by private complainant of accused who was not assisted by counsel during police line-up admissible in evidence?

Held: The prohibition x x x does not extend to a

person in a police line-up because that stage of an investigation is not yet a part of custodial investigation. It has been repeatedly held that custodial investigation

commences when a person is taken into custody and is singled out as a suspect in the commission of the crime

under investigation and the police officers begin to ask questions on the suspect’s participation therein and which

tend to elicit an admission. The stage of an investigation wherein a person is asked to stand in a police line-up has

been held to be outside the mantle of protection of the

right to counsel because it involves a general inquiry into

an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled identification at

the police line-up does not preclude the admissibility of an in-court identification. The identification made by the

private complainant in the police line-up pointing to

Pavillare as one of his abductors is admissible in evidence although the accused-appellant was not assisted by

counsel. x x x (People v. Pavillare, 329 SCRA 684, 694-695, April 5, 2000, En Banc [Per Curiam]) 238. Petitioner in a case “x x x posits the theory that

since he had no counsel during the custodial investigation when his urine sample was taken and chemically examined, Exhibits “L” and “M,” x x x are also inadmissible in evidence since his urine sample was derived in effect from an uncounselled extra-judicial confession. Petitioner claims that the taking of his urine sample allegedly violates Article III, Section 2 of the Constitution x x x.” Should his contentions be upheld?

Held: We are not persuaded. The right to

counsel begins from the time a person is taken into

custody and placed under investigation for the

commission of a crime, i.e., when the investigating officer starts to ask questions to elicit information and/or

confession or admissions from the accused. Such right is guaranteed by the Constitution and cannot be waived

except in writing and in the presence of counsel.

However, what the Constitution prohibits is the use of physical or moral compulsion to extort communication

from the accused, but not an inclusion of his body in evidence, when it may be material. In fact, an accused

may validly be compelled to be photographed or

measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be

done, without running afoul of the proscription against testimonial compulsion. The situation in the case at bar

falls within the exemption under the freedom from testimonial compulsion since what was sought to be

examined came from the body of the accused. This was a

mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts but to

ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and

his co-accused were not compelled to give samples of

their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.

(Gutang v. People, 335 SCRA 479, July 11, 2000, 2nd Div. [De Leon])

The Right to Bail

239. In bail application where the accused is charged

with a capital offense, will it be proper for the judge to grant bail without conducting hearing if the prosecutor interposes no objection to such application? Why?

Held: Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail

applications, in which the accused stands charged with a

capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such

cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of

familiarity with the case. “Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial

discretion to determine whether the guilt of the accused is

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strong. Judicial discretion is the domain of the judge

before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has

never been reposed upon the prosecutor.”

Imposed in Baylon v. Sison was this mandatory

duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application

to grant and fix bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban])

240. What are the duties of the judge in cases of bail applications where the accused is charged with capital offense?

Held: Basco v. Rapatalo enunciated the following

duties of the trial judge in such petition for bail:

1) Notify the prosecutor of the hearing of the

application for bail or require him to submit his recommendation;

2) Conduct a hearing of the application for bail regardless of whether or not the prosecution

refuses to present evidence to show that the

guilt of the accused is strong for the purpose of enabling the court to exercise its sound

discretion; 3) Decide whether the evidence of guilt of the

accused is strong based on the summary of

evidence of the prosecution; 4) If the guilt of the accused is not strong,

discharge the accused upon the approval of the bailbond. Otherwise, petition should be

denied.

The Court added: “The above-enumerated

procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So

basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that

it would amount to judicial apostasy for any member of

the judiciary to disclaim knowledge or awareness thereof.”

Additionally, the court's grant or refusal of bail must contain a summary of the evidence for the

prosecution, on the basis of which should be formulated

the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The

summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its

absence will invalidate the grant or the denial of the application for bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban])

241. Should the accused who remained at large after their conviction be allowed provisional liberty? Can the bail bond that the accused previously posted be used during the entire period of appeal?

Held: Despite an order of arrest from the trial court and two warnings from the Court of Appeals,

petitioners had remained at large. It is axiomatic that for

one to be entitled to bail, he should be in the custody of the law, or otherwise, deprived of liberty. The purpose of

bail is to secure one’s release and it would be incongruous to grant bail to one who is free. Petitioners’ Compliance

and Motion x x x came short of an unconditional submission to respondent court’s lawful order and to its

jurisdiction.

The trial court correctly denied petitioners’ motion that they be allowed provisional liberty after their

conviction, under their respective bail bonds. Apart from the fact that they were at large, Section 5, Rule 114 of the

Rules of Court, as amended by Supreme Court

Administrative Circular 12-94, provides that:

X x x

The Court, in its discretion, may allow the accused to continue on provisional liberty under the same bail

bond during the period to appeal subject to the consent of

the bondsman.

The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule

122) and not during the entire period of appeal. This is

consistent with Section 2(a) of Rule 114 which provides that the bail “shall be effective upon approval and remain

in force at all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it.” This amendment, introduced by

SC Administrative Circular 12-94 is a departure from the

old rules which then provided that bail shall be effective and remain in force at all stages of the case until its full

determination, and thus even during the period of appeal. Moreover, under the present rule, for the accused to

continue his provisional liberty on the same bail bond

during the period to appeal, consent of the bondsman is necessary. From the record, it appears that the

bondsman x x x filed a motion in the trial court x x x for the cancellation of petitioners’ bail bond for the latter’s

failure to renew the same upon its expiration. Obtaining

the consent of the bondsman was, thus, foreclosed. (Maguddatu v. Court of Appeals, 326 SCRA 362, Feb. 23, 2000, 1st Div. [Kapunan])

242. Is a condition in an application for bail that accused be first arraigned before he could be granted bail valid?

Held: In requiring that petitioner be first

arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he

could, by being absent, prevent his early arraignment and

thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence

at the arraignment, approval of petitioner’s bail bonds should be deferred until he could be arraigned. After that,

even if petitioner does not appear, trial can proceed as long as he is notified of the date of the hearing and his

failure to appear is unjustified, since under Art. III, Sec.

14(2) of the Constitution, trial in absencia is authorized. This seems to be the theory of the trial court in its x x x

order conditioning the grant of bail to petitioner on his arraignment.

This theory is mistaken. In the first place x x x in cases where it is authorized, bail should be granted before

arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is

quashed and the case is dismissed, there would then be

no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of

petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the

proceedings, such as arraignment. Under Rule 114, Sec. 2(b) of the Rules on Criminal Procedure, one of the

conditions of bail is that “the accused shall appear before

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the proper court whenever so required by the court or

these Rules,” while under Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required.

On the other hand, to condition the grant of bail

to an accused on his arraignment would be to place him in

a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail

because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing

of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios

certainly undermine the accused’s constitutional right not

to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his

right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza])

243. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding?

Held: We agree with petitioner. As suggested by

the use of the word “conviction,” the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of

the Rules of Court, applies only when a person has been

arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,

because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail “flows from the presumption of innocence in favor of every

accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal,

unless his guilt be proved beyond reasonable doubt.” It

follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of

innocence is not an issue.

The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege

of the writ of habeas corpus is suspended” does not

detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted

that the suspension of the privilege of the writ of habeas corpus finds application “only to persons judicially charged

for rebellion or offenses inherent in or directly connected

with invasion.” (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constitutional provision on bail

merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot

be taken to mean that the right is available even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an

argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the

trial for the offenses for which he is charged. He should

apply for bail before the courts trying the criminal cases against him, not before the extradition court.

(Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 244. What is the exception to the “No Bail” Rule in

Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the judiciary has the

constitutional duty to curb grave abuse of discretion and

tyranny, as well as the power to promulgate rules to

protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough

to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the “life,

liberty or property” of every person. It is “dynamic and

resilient, adaptable to every situation calling for its application.” Accordingly and to best serve the ends of justice,

we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law,

bail may be applied for and granted as an exception, only

upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a

danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as

a matter of reciprocity, those cited by the highest court in

the requesting state when it grants provisional liberty in extradition cases therein.

Since this exception has no express or specific

statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant

bears the burden of proving the above two-tiered

requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is

basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations.

In its barest concept, it partakes of the nature of police

assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the

exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our

country will not be unreasonably impeded or

compromised. In short, while this Court is ever protective of “the sporting idea of fair play,” it also recognizes the

limits of its own prerogatives and the need to fulfill international obligations. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

245. Are there special circumstances compelling enough for the Court to grant Mark Jimenez’s request for provisional release on bail?

Held: Along this line, Jimenez contends that

there are special circumstances that are compelling enough for the Court to grant his request for provisional

release on bail. We have carefully examined these circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of

Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000

residents. We are not persuaded. In People v. Jalosjos, the Court has already debunked the disenfranchisement argument x x x.

It must be noted that even before private

respondent ran for and won a congressional seat in

Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his

constituents were or should have been prepared for the consequences of the extradition case against their

representative, including his detention pending the final resolution of the case. Premises considered and in line

with Jalosjos, we are constrained to rule against his claim

110

that his election to public office is by itself a compelling

reason to grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that

because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case.

Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are

resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty,

not to determine his guilt or innocence. Neither is it, as a

rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal

action.

We are not overruling the possibility that

petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here.

Thus, any further discussion of this point would be merely anticipatory and academic.

However, if the delay is due to maneuverings of

respondent, with all the more reason would the grant of

bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of

bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to

stretch out and unreasonably delay the extradition

proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk.

To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the

country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet,

this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears

the footsteps of the requesting government inching closer

and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground

and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for

Extradition.

In any event, it is settled that bail may be applied

for and granted by the trial court at anytime after the applicant has been taken into custody and prior to

judgment, even after bail has been previously denied. In the present case, the extradition court may continue

hearing evidence on the application for bail, which may be

granted in accordance with the guidelines in this Decision. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

The Right to be Informed of the Nature and Cause of Accusation against the Accused

246. What are the objectives of the right to be

informed of the nature and cause of accusations against the accused?

Held: Instructive in this regard is Section 6, Rule

110 of the Rules of Court x x x.

The purpose of the above-quoted rule is to inform

the accused of the nature and cause of the accusation

against him, a right guaranteed by no less than the

fundamental law of the land (Article III, Section 14[2], 1987 Constitution). Elaborating on the defendant’s right

to be informed, the Court held in Pecho v. People that the objectives of this right are:

1) To furnish the accused with such a description of the charge against him as will enable him

to make the defense; 2) To avail himself of his conviction or acquittal

for protection against a further prosecution for the same cause; and

3) To inform the court of the facts alleged, so

that it may decide whether they are sufficient in law to support a conviction, if one should

be had.

It is thus imperative that the Information filed

with the trial court be complete – to the end that the accused may suitably prepare for his defense. Corollary

to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is

the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused.

X x x

In the case under scrutiny, the information does not allege the minority of the victim x x x although the

same was proven during the trial x x x. The omission is

not merely formal in nature since doctrinally, an accused cannot be held liable for more than what he is indicted

for. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be

convicted of any offense, not charged in the Complaint or

Information on which he is tried or therein necessarily included. He has a right to be informed of the nature of

the offense with which he is charged before he is put on trial. To convict an accused of an offense higher than

that charged in the Complaint or Information on which he is tried would constitute unauthorized denial of that right. (People v. Bayya, 327 SCRA 771, March 10, 2000, En Banc [Purisima])

The Right to a Fair Trial

247. What is the purpose of the rule barring trial or sentence of an insane person? What are the reasons underlying it?

Held: The rule barring trial or sentence of an

insane person is for the protection of the accused, rather

than of the public. It has been held that it is inhuman to

require an accused disabled by God to make a just defense for his life or liberty. To put a legally

incompetent person on trial or to convict and sentence him is a violation of the constitutional rights to a fair trial;

and this has several reasons underlying it. For one, the

accuracy of the proceedings may not be assured, as an incompetent defendant who cannot comprehend the

proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, he is

not in a position to exercise many of the rights afforded a

defendant in a criminal case, e.g., the right to effectively consult with counsel, the right to testify in his own behalf,

and the right to confront opposing witnesses, which rights are safeguards for the accuracy of the trial result.

Second, the fairness of the proceedings may be questioned, as there are certain basic decisions in the

course of a criminal proceeding which a defendant is

111

expected to make for himself, and one of these is his plea.

Third, the dignity of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself

in the courtroom in a manner which may destroy the decorum of the court. Even if the defendant remains

passive, his lack of comprehension fundamentally impairs

the functioning of the trial process. A criminal proceeding is essentially an adversarial proceeding. If the defendant

is not a conscious and intelligent participant, the adjudication loses its character as a reasoned interaction

between an individual and his community and becomes an invective against an insensible object. Fourth, it is

important that the defendant knows why he is being

punished, a comprehension which is greatly dependent upon his understanding of what occurs at trial. An

incompetent defendant may not realize the moral reprehensibility of his conduct. The societal goal of

institutionalized retribution may be frustrated when the

force of the state is brought to bear against one who cannot comprehend its significance. (People v. Estrada, 333 SCRA 699, 718-719, June 19, 2000, En Banc [Puno])

The Right to an Impartial Trial

248. What are the two principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases?

Held: There are two (2) principal legal and

philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and

trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice

a jury. Thus, English courts readily stay and stop criminal

trials when the right of an accused to fair trial suffers a threat. The American approach is different. US courts

assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair

trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of

irreparable harm, strong likelihood, clear and present

danger, etc. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno])

249. Should the Ombudsman be stopped from conducting the investigation of the cases filed against petitioner (former President) Estrada due to the barrage of prejudicial publicity on his guilt?

Held: Petitioner x x x contends that the

respondent Ombudsman should be stopped from

conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He

submits that the respondent Ombudsman has developed

bias and is all set to file the criminal cases in violation of his right to due process.

X x x

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or

annul convictions in high profile criminal cases. In People v. Teehankee, Jr., later reiterated in the case of Larranaga v. Court of Appeals, et al., we laid down the doctrine that:

“We cannot sustain appellant’s claim that

he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and

broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake

criminal trials. Then and now, we rule that the

right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused’s right

to a fair trial for, as well pointed out, a responsible press has always been regarded as

the handmaiden of effective judicial

administration, especially in the criminal field x x x. The press does not simply publish information

about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and

judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere

fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of

the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members

of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state

of the art of our communication system brings news as they happen straight to our breakfast

tables and right to our bedrooms. These news

form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and

impartial judge is not that of a hermit who is out of touch with the world. We have not installed

the jury system whose members are overly

protected from publicity lest they lose their impartiality. x x x. Our judges are learned in the

law and trained to disregard off-court evidence and on-camera performances of parties to a

litigation. Their mere exposure to publications

and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure

possibility of prejudice on the part of the trial judge due to the barrage of publicity that

characterized the investigation and trial of the

case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice

and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial

publicity, there must be allegation and proof that

the judges have been unduly influenced, not simply that they might be, by the barrage of

publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial

of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity

which is incapable of change even by evidence presented during the trial. Appellant has the

burden to prove this actual bias and he has not

discharged the burden.”

We expounded further on this doctrine in the subsequent case of Webb v. Hon. Raul de Leon, etc. and

its companion cases, viz.:

“Again, petitioners raise the effect of

prejudicial publicity on their right to due process while undergoing preliminary investigation. We

find no procedural impediment to its early invocation considering the substantial risk to their

112

liberty whole undergoing a preliminary

investigation.

X x x

The democratic settings, media coverage

of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been

aggravated by kinetic developments in the telecommunications industry. For sure, few cases

can match the high volume and high velocity of publicity that attended the preliminary

investigation of the case at bar. Our daily diet of

facts and fiction about the case continues unabated even today. Commentators still

bombard the public with views not too many of which are sober and sublime. Indeed, even the

principal actors in the case – the NBI, the

respondents, their lawyers and their sympathizers – have participated in this media blitz. The

possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be

completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:

‘x x x

(a) The historical evidence of the

evolution of the criminal trial in Anglo-American

justice demonstrates conclusively that at the time this Nation’s organic laws were adopted,

criminal trials both here and in England had long been presumptively open, thus giving assurance

that the proceedings were conducted fairly to all

concerned and discouraging perjury, the misconduct of participants, or decisions based on

secret bias or partiality. In addition, the significant community therapeutic value of public

trials was recognized: when a shocking crime occurs, a community reaction of outrage and

public protest often follows, and thereafter the

open processes of justice serve an important prophylactic purpose, providing an outlet for

community concern, hostility, and emotion. To work effectively, it is important that society’s

criminal process ‘satisfy the appearance of

justice,’ Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be

provided by allowing people to observe such process. From this unbroken, uncontradicted

history, supported by reasons as valid today as in centuries past, it must be concluded that a

presumption of openness inheres in the very

nature of a criminal trial under this Nation’s system of justice, Cf., e.g., Levine v. United

States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech,

press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose

of assuring freedom of communication on matters relating to the functioning of government. In

guaranteeing freedoms such as those of speech

and press, the First Amendment can be read as protecting the right of everyone to attend trials so

as give meaning to those explicit guarantees; the First Amendment right to receive information and

ideas means, in the context of trials, that the guarantees of speech and press, standing alone,

prohibit government from summarily closing

courtroom doors which had long been open to the

public at the time the First Amendment was adopted. Moreover, the right of assembly is also

relevant, having been regarded not only as an independent right but also as a catalyst to

augment the free exercise of the other First

Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a

public place where the people generally – and representatives of the media – have a right to be

present, and where their presence historically has been thought to enhance the integrity and quality

of what takes place.

(c) Even though the Constitution

contains no provision which by its terms guarantees to the public the right to attend

criminal trials, various fundamental rights, not

expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated

rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment:

without the freedom to attend such trials, which people have exercised for centuries, important

aspects of freedom of speech and of the press

could be eviscerated.’

Be that as it may, we recognize that pervasive and prejudicial publicity under certain

circumstances can deprive an accused of his due

process right to fair trial. Thus, in Martelino, et al. v. Alejandro, et al., we held that to warrant a

finding of prejudicial publicity there must be allegation and proof that the judges have been

unduly influenced, not simply that they might be,

by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the

tone and content of the publicity that attended the investigation of petitioners fatally infected the

fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal

effects of publicity on the sense of fairness of the

DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is

composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long

experience in criminal investigation is a factor to

consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed,

their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they

considered any extra-record evidence except evidence properly adduced by the parties. The

length of time the investigation was conducted

despite it summary nature and the generosity with which they accommodated the discovery

motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the

disqualification of any member of the DOJ Panel

on the ground of bias resulting from their bombardment of prejudicial publicity.”

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more

than hostile headlines to discharge his burden of proof. He needs to show more than weighty social science

evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the

cases against the petitioner are still undergoing

113

preliminary investigation by a special panel of prosecutors

in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner

that the minds of the members of this special panel have already been infected by bias because of the pervasive

prejudicial publicity against him. Indeed, the special panel

has yet to come out with its findings and the Court cannot second guess whether its recommendation will be

unfavorable to the petitioner. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno])

The Right against Self-Incrimination

250. Accused-appellant alleges that while in the custody of police officers, some hair strands were taken from him without his consent and submitted to the NBI for investigation, in violation of his right against self-incrimination. Aside from executing a waiver of the provisions of Article 125 of the Revised Penal Code, accused-appellant executed a waiver of the provisions of Article III, Section 12 of the Constitution regarding the rights of an accused during custodial investigation. It appears, however, that the waivers were executed by the accused without the assistance of a counsel of his own choice.

Held: The use of evidence against the accused

obtained by virtue of his testimony or admission without

the assistance of counsel while under custodial investigation is proscribed under Sections 12 and 17,

Article III of the Constitution x x x.

The aforesaid rules are set forth in the

Constitution as a recognition of the fact that the psychological if not physical atmosphere of custodial

investigations in the absence of procedural safeguards is inherently coercive in nature. However, to paraphrase

Justice Sanchez in the case of Chavez v. Court of Appeals (24 SCRA 663 [1968]), “Compulsion does not necessarily

connote the use of violence; it may be the product of

unintentional statements. Pressure which operates to overbear his will, disable him from making a free and

rational choice or impair his capacity for making rational judgment would be sufficient. So is moral coercion

tending to force testimony from the unwilling lips of the

defendant.” Needless to say, the above-mentioned provisions are an affirmation that “coercion can be mental

as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.”

(Blackburn v. Alabama, 361 US 199)

It bears emphasis, however, that under the

above-quoted provisions, what is actually proscribed is the use of physical or moral compulsion to extort

communication from the accused-appellant and not the inclusion of his body in evidence when it may be material.

For instance, substance emitted from the body of the

accused may be received as evidence in prosecution for acts of lasciviousness (US v. Tan Teng, 23 Phil. 145 [1912]) and morphine forced out of the mouth of the accused may also be used as evidence against him (US v. Ong Siu Hong, 36 Phil. 735 [1917]). Consequently,

although accused-appellant insists that hair samples were forcibly taken from him and submitted to the NBI for

forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of

testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. (People

v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999, En Banc [Per Curiam])

251. Does the right against self-incrimination extend to administrative proceedings?

Held: In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-

incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal

prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an

administrative investigation of a licensed physician who is

charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The

Court, citing the earlier case of Cabal v. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s

license as a medical practitioner, is an even greater

deprivation than forfeiture of property. (Secretary of Justice v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000, En Banc [Melo])

252. May the right against self-incrimination be validly invoked during inquiry in aid of legislation?

Held: [I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant

limitations placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of

Rights’.”

In another case –

“x x x the mere semblance of legislative

purpose would not justify an inquiry in the face of

the Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the

interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply

assume, however, that every congressional investigation is justified by a public need that

over-balances any private rights affected. To do

so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure

that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge

his liberty of speech, press, religion or assembly.”

(Watkins v. US, 354 USS 178 citing US v. Rumely, 345 US 41)

One of the basic rights guaranteed by the

Constitution to an individual is the right against self-incrimination. This right construed as the right to remain

completely silent may be availed of by the accused in a

criminal case; but it may be invoked by other witnesses only as questions are asked of them.

This distinction is enunciated by the Court in

Romeo Chavez v. The Honorable Court of Appeals, et al. thus –

“Petitioner, as accused, occupies a different tier of protection from an ordinary

witness. Whereas an ordinary witness may be

compelled to take the witness stand and claim the privilege as each question requiring an

incriminating answer is shot at him, an accused may altogether refuse to take the witness stand

and refuse to answer any and all questions.”

114

Moreover, this right of the accused is extended to

respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or

analogous to a criminal proceeding. In Galman v. Pamaran, the Court reiterated the doctrine in Cabal v. Kapunan to illustrate the right of witnesses to invoke the

right against self-incrimination not only in criminal proceedings but also in all other types of suit.

It was held that:

“We did not therein state that since he is

not an accused and the case is not a criminal

case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right

against self-incrimination only when a question which tends to elicit an answer that will

incriminate him is propounded to him. Clearly

then, it is not the character of the suit involved but the nature of the proceedings that controls.

The privilege has consistently been held to extend to all proceedings sanctioned by law and to all

cases in which punishment is sought to be visited upon a witness, whether a party or not.”

We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by

the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the

questioned inquiry is not in aid of legislation and, if

pursued, would be violative of the principle of separation of powers between the legislative and the judicial

departments of government, ordained by the Constitution. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

253. What are the two types of immunity statutes? Which has broader scope of protection?

Held: Our immunity statutes are of American

origin. In the United States, there are two types of statutory immunity granted to a witness. They are the

transactional immunity and the use-and-derivative-use

immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be

prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-and-

derivative-use immunity, a witness is only assured that his

or her particular testimony and evidence derived from it will not be used against him or her in a subsequent

prosecution. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno]) 254. Is the grant of immunity to an accused willing to

testify for the government a special privilege and, therefore, must be strictly construed against the accused?

Held: [W]e reject respondent court’s ruling that

the grant of section 5 immunity must be strictly construed

against the petitioners. It simplistically characterized the grant as a special privilege, as if it was gifted by the

government, ex gratia. In taking this posture, it misread the raison d’ etre and the long pedigree of the right

against self-incrimination vis-à-vis immunity statutes.

The days of inquisition brought about the most

despicable abuses against human rights. Not the least of these abuses is the expert use of coerced confessions to

send to the guillotine even the guiltless. To guard against the recurrence of this totalitarian method, the right

against self-incrimination was ensconced in the

fundamental laws of all civilized countries. Over the

years, however, came the need to assist government in its task of containing crime for peace and order is a

necessary matrix of public welfare. To accommodate the need, the right against self-incrimination was stripped of

its absoluteness. Immunity statutes in varying shapes

were enacted which would allow government to compel a witness to testify despite his plea of the right against self-

incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has come to

be known as transactional or a use-derivative-use immunity x x x. Quite clearly, these immunity statutes are

not a bonanza from government. Those given the

privilege of immunity paid a high price for it – the surrender of their precious right to be silent. Our

hierarchy of values demands that the right against self-incrimination and the right to be silent should be accorded

greater respect and protection. Laws that tend to erode

the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual.

The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 805-806, April 26, 1994, En Banc [Puno])

The Right against Double Jeopardy

255. Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds

of double jeopardy. The first sentence of Clause 20, Section 1, Article III of the Constitution ordains that “no

person shall be twice put in jeopardy of punishment for

the same offense.” The second sentence of said clause provides that “if an act is punishable by a law and an

ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

Thus, the first sentence prohibits double jeopardy of

punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same

act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he

is charged with different offenses, or the offense charged in one case is not included in, or does not include, the

crime charged in the other case. The second sentence

applies, even if the offense charged are not the same, owing to the fact that one constitutes a violation of an

ordinance and the other a violation of statute. If the two charges are based on one and the same act, conviction or

acquittal under either the law or the ordinance shall bar a

prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of

double jeopardy of punishment or the same offense. So long as jeopardy has been attached under one of the

informations charging said offense, the defense may be availed of in the other case involving the same offense,

even if there has been neither conviction nor acquittal in

either case.

Elsewhere stated, where the offense charged are penalized either by different sections of the same statute

or by different statutes, the important inquiry relates to

the identity of offenses charged. The constitutional protection against double jeopardy is available only where

an identity is shown to exist between the earlier and the subsequent offenses charged. The question of identity or

lack of identity of offenses is addressed by examining the

essential elements of each of the two offenses charged, as such elements are set out in the respective legislative

definitions of the offenses involved. (People v. Quijada, 259 SCRA 191, July 24, 1996) 256. What must be proved to substantiate a claim of

double jeopardy? When may legal jeopardy attach?

115

Held: To substantiate a claim of double jeopardy, the following must be proven:

(1) A first jeopardy must have attached prior to

the second; (2) the first jeopardy must have been validly

terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily

included in the offense charged in the first information, or is an attempt to commit the same or is a frustration

thereof.

Legal jeopardy attaches only: (1) upon a valid

indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and

(e) the case was dismissed or otherwise terminated without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban]) 257. In its decision in a criminal case, the Judge

promulgated only the civil aspect of the case, but not the criminal. Will the promulgation of the criminal aspect later constitute double jeopardy?

Held: Petitioner contends that "the promulgation

by Judge Ramos on April 4, 1995 of the Respondent Court's decision of June 30, 1991 by reading its dispositive

portion has effectively terminated the criminal cases against the petitioner x x x." In other words, petitioner

claims that the first jeopardy attached at that point.

The Court is not persuaded. As a rule, a criminal

prosecution includes a civil action for the recovery of indemnity. Hence, a decision in such case disposes of

both the criminal as well as the civil liabilities of an

accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal.

[T]he promulgation of the CA Decision was not

complete. In fact and in truth, the promulgation was not merely incomplete; it was also void. In excess of its

jurisdiction, the trial judge rendered a substantially

incomplete promulgation on April 4, 1995, and he repeated his mistake in his April 12, 1996 Order. We

emphasize that grave abuse of discretion rendered the aforementioned act of the trial court void. Since the

criminal cases have not yet been terminated, the first

jeopardy has not yet attached. Hence, double jeopardy cannot prosper as a defense.

We must stress that Respondent Court's

questioned Decision did not modify or amend its July 30, 1991 Decision. It merely ordered the promulgation of the

judgment of conviction and the full execution of the

penalty it had earlier imposed on petitioner. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

258. What are the exceptions to the rule that the

dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy?

Held: In the cases at bar, the order of dismissal

based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial

court. It was made at the instance of the accused before the trial court, and with his express consent. Generally,

the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own

motion will not place the accused in double jeopardy.

However, this rule admits of two exceptions, namely:

insufficiency of evidence and denial of the right to speedy trial. Double jeopardy may attach when the proceedings

have been prolonged unreasonably, in violation of the accused’s right to speedy trial. (Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing]

259. If the criminal case was dismissed predicated on the right of the accused to speedy trial, but later the trial court reconsidered its decision and allowed the case to be reinstated as it noted that the delay in the trial was due to circumstances beyond the control of the parties and of the trial court, i.e., the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala, is there violation of the accused’s right against double jeopardy?

Held: Here we must inquire whether there was unreasonable delay in the conduct of the trial so that

violation of the right to speedy trial of the accused x x x resulted. For it must be recalled that in the application of

the constitutional guaranty of the right to speedy

disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. Both the trial court and the appellate court noted that after pre-trial of petitioner’s case was terminated x x x

continuous trial was set x x x. The scheduled hearings,

however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as

trial judge was not immediately appointed, nor another judge detailed to his sala.

X x x

As observed by respondent appellate court, delay

in the trial was due to circumstances beyond the control of the parties and of the trial court. x x x. Thus, after a

closer analysis of these successive events, the trial court realized that the dates of the hearings were transferred

for valid grounds. Hence, the trial court set aside its initial

order and reinstated the cases against petitioner, which order the appellate court later sustained.

That there was no unreasonable delay of the

proceedings is apparent from the chronology of the

hearings with the reasons for their postponements or transfers. x x x

There being no oppressive delay in the

proceedings, and no postponements unjustifiably sought, we concur with the conclusion reached by the Court of

Appeals that petitioner’s right to speedy trial had not been

infringed. Where the right of the accused to speedy trial had not been violated, there was no reason to support the

initial order of dismissal.

It follows that petitioner cannot invoke the

constitutional right against double jeopardy when that order was reconsidered seasonably. For as petitioner’s

right to speedy trial was not transgressed, this exception to the fifth element of double jeopardy – that the

defendant was acquitted or convicted, or the case was

dismissed or otherwise terminated without the express consent of the accused – was not met. The trial court’s

initial order of dismissal was upon motion of petitioner’s counsel, hence made with the express consent of

petitioner. That being the case, despite the reconsideration of said order, double jeopardy did not

attach. As this Court had occasion to rule in People v.

116

Tampal, reiterated in People v. Leviste, where we

overturned an order of dismissal by the trial court predicated on the right to speedy trial –

It is true that in an unbroken line of

cases, we have held that the dismissal of cases on

the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of

the accused for the same offense. It must be stressed, however, that these dismissals were

predicated on the clear right of the accused to speedy trial. These cases are not applicable to

the petition at bench considering that the right of

the private respondents to speedy trial has not been violated by the State. For this reason,

private respondents cannot invoke their right against double jeopardy.

Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of the

cases against petitioner. (Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing] 260. Is there double jeopardy when an accused was

acquitted in a criminal case for reckless imprudence but the civil aspect of the case was elevated to the Court of Appeals and the latter found him liable for indemnity and damages?

Held: Petitioner opines that the Court of Appeals

should not have disturbed the findings of the trial court on the lack of negligence or reckless imprudence under the

guise of determining his civil liability. He argues that the trial court’s finding that he was neither imprudent nor

negligent was the basis for his acquittal, and not

reasonable doubt. He submits that in finding him liable for indemnity and damages, the appellate court not only

placed his acquittal in suspicion, but also put him in “double jeopardy.”

Private respondents contend that while the trial

court found that petitioner’s guilt had not been proven

beyond reasonable doubt, it did not state in clear and unequivocal terms that petitioner was not recklessly

imprudent or negligent. Hence, impliedly the trial court acquitted him on reasonable doubt. Since civil liability is

not extinguished in criminal cases, if the acquittal is based

on reasonable doubt, the Court of Appeals had to review the findings of the trial court to determine if there was a

basis for awarding indemnity and damages.

Preliminarily, petitioner’s claim that the decision of the appellate court awarding indemnity placed him in

double jeopardy is misplaced. x x x. When a person is

charged with an offense and the case is terminated either by acquittal or conviction or in any manner without the

consent of the accused, the latter cannot again be charged with the same or identical offense. This is double

jeopardy. For double jeopardy to exist, the following

elements must be established: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy

must have terminated; and (3) the second jeopardy must be for the same offense as the first. In the instant case,

petitioner had once been placed in jeopardy by the filing

of Criminal Case No. 066 and the jeopardy was terminated by his discharge. The judgment of acquittal became

immediately final. Note, however, that what was elevated to the Court of Appeals by private respondents was the

civil aspect of Criminal Case No. 066. Petitioner was not charged anew in CA-G.R. CV No. 19240 with a second

criminal offense identical to the first offense. The records

clearly show that no second criminal offense was being

imputed to petitioner on appeal. In modifying the lower court’s judgment, the appellate court did not modify the

judgment of acquittal. Nor did it order the filing of a second criminal cases against petitioner for the same

offense. Obviously, therefore, there was no second

jeopardy to speak of. Petitioner’s claim of having been placed in double jeopardy is incorrect.

Our law recognizes two kinds of acquittal, with

different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the

author of the act or omission complained of. This

instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or

omission cannot and can never be held liable for such or omission. There being no delict, civil liability ex delicto is

out of the question, and the civil action, if any, which may

be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in

Rule 111 of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the

accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from

civil liability which may be proved by preponderance of

evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the civil action for

damages is “for the same act or omission.” Although the two actions have different purposes, the matters

discussed in the civil case are similar to those discussed in

the criminal case. However, the judgment in the criminal proceeding cannot be read in evidence in the civil action

to establish any fact there determined, even though both actions involve the same act or omission. The reason for

this rule is that the parties are not the same and

secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioner’s acquittal, the

Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question

of petitioner’s negligence or reckless imprudence. (Manantan v. Court of Appeals, 350 SCRA 387, Jan. 29, 2001, 2nd Div. [Quisumbing])

The Right against Ex Post Facto Law and Bill of

Attainder

261. What is a bill of attainder? Is P.D. 1866 a bill of attainder?

Held: [T]he Court, in People v. Ferrer, defined a

bill of attainder as a legislative act which inflicts

punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of

attainder are a specification of certain individuals or a

group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last

element, the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be

imposed, is the most essential. P.D. No. 1866 does not

possess the elements of a bill of attainder. It does not seek to inflict punishment without a judicial trial.

Nowhere in the measure is there a finding of guilt and an imposition of a corresponding punishment. What the

decree does is to define the offense and provide for the

penalty that may be imposed, specifying the qualifying circumstances that would aggravate the offense. There is

no encroachment on the power of the court to determine after due hearing whether the prosecution has proved

beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the

qualifying circumstances attached to it has been

117

established also beyond reasonable doubt as the

Constitution and judicial precedents require. (Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes])

262. What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?

Held: Ex post facto law, generally, prohibits

retrospectivity of penal laws. R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the

Legislature which prohibit certain acts and establish

penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.

R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayan’s jurisdiction, its mode of appeal and other

procedural matters, has been declared by the Court as not

a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts

applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A.

8249 cannot be challenged as unconstitutional.

Petitioner’s and intervenors’ contention that their

right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A.

8249, is incorrect. The same contention has already been rejected by the court several times considering that the

right to appeal is not a natural right but statutory in

nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is

not included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and

being merely an amendatory statute it does not partake

the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the

prohibition. Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled that

adjective statutes may be made applicable to actions pending and unresolved at the time of their passage.

At any rate, R.A. 8249 has preserved the accused’s right to appeal to the Supreme Court to review

questions of law. On the removal of the intermediate review of facts, the Supreme Court still has the power of

review to determine if the presumption of innocence has

been convincingly overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R. No. 128096, Jan. 20, 1999 [Martinez])

GOD BLESS Ǖ Ǖ Ǖ

FOUR HUNDRED AND SEVENTY-NINE (479)

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 August 25, 2006)

PART II

C. ADMINISTRATIVE LAW

280. Describe the Administrative Code of 1987.

Held: The Code is a general law and “incorporates in

a unified document the major structural, functional and

procedural principles of governance (Third Whereas Clause,

Administrative Code of 1987) and “embodies changes in

administrative structures and procedures designed to serve the

people.” (Fourth Whereas Clause, Administrative Code of 1987)

The Code is divided into seven (7) books. These books contain

provisions on the organization, powers and general

administration of departments, bureaus and offices under the

executive branch, the organization and functions of the

Constitutional Commissions and other constitutional bodies, the

rules on the national government budget, as well as guidelines

for the exercise by administrative agencies of quasi-legislative

and quasi-judicial powers. The Code covers both the internal

administration, i.e., internal organization, personnel and

recruitment, supervision and discipline, and the effects of the

functions performed by administrative officials on private

individuals or parties outside government. (Ople v. Torres,

G.R. No. 127685, July 23, 1998 [Puno])

281. What is Administrative Power?

Held: Administrative power is concerned with the

work of applying policies and enforcing orders as determined by

proper governmental organs. It enables the President to fix a

uniform standard of administrative efficiency and check the

official conduct of his agents. To this end, he can issue

administrative orders, rules and regulations. (Ople v. Torres,

G.R. No. 127685, July 23, 1998 [Puno])

282. What is an Administrative Order?

Held: An administrative order is an ordinance issued

by the President which relates to specific aspects in the

administrative operation of government. It must be in harmony

with the law and should be for the sole purpose of implementing

the law and carrying out the legislative policy. (Ople v. Torres,

G.R. No. 127685, July 23, 1998 [Puno])

283. What is the Government of the Republic of the

Philippines?

Ans.: The Government of the Republic of the

Philippines refers to the corporate governmental entity through

which the functions of the government are exercised throughout

the Philippines, including, save as the contrary appears from the

context, the various arms through which political authority is

made effective in the Philippines, whether pertaining to the

autonomous regions, the provincial, city, municipal or barangay

subdivisions or other forms of local government. (Sec. 2[1],

Introductory Provisions, Executive Order No. 292)

284. What is an Agency of the Government?

LEX REVIEWS AND SEMINARS INC; NATIONAL BAR REVIEW CENTER

118

Ans.: Agency of the Government refers to any of the

various units of the Government, including a department,

bureau, office, instrumentality, or government-owned or

controlled corporation, or a local government or a distinct unit

therein. (Sec. 2[4], Introductory Provisions, Executive Order

No. 292)

285. What is a Department?

Ans.: Department refers to an executive department

created by law. For purposes of Book IV, this shall include any

instrumentality, as herein defined, having or assigned the rank

of a department, regardless of its name or designation. (Sec.

2[7], Introductory Provisions, Executive Order No. 292)

286. What is a Bureau?

Ans.: Bureau refers to any principal subdivision or

unit of any department. For purposes of Book IV, this shall

include any principal subdivision or unit of any instrumentality

given or assigned the rank of a bureau, regardless of actual

name or designation, as in the case of department-wide regional

offices. (Sec. 2[8], Introductory Provisions, Executive Order

No. 292)

287. What is an Office?

Ans.: Office refers, within the framework of

governmental organization, to any major functional unit of a

department or bureau including regional offices. It may also

refer to any position held or occupied by individual persons,

whose functions are defined by law or regulation. (Sec. 2[9],

Introductory Provisions, Executive Order No. 292)

288. What is a Government Instrumentality? What are

included in the term Government Instrumentality?

Ans.: A government instrumentality refers to any

agency of the national government, not integrated within the

department framework, vested with special functions or

jurisdiction by law, endowed with some if not all corporate

powers, administering special funds, enjoying operational

autonomy, usually through a charter. The term includes

regulatory agencies, chartered institutions and government-

owned or controlled corporations. (Sec. 2[10], Introductory

Provisions, Executive Order No. 292)

289. What is a Regulatory Agency?

Ans.: A regulatory agency refers to any agency

expressly vested with jurisdiction to regulate, administer or

adjudicate matters affecting substantial rights and interest of

private persons, the principal powers of which are exercised by

a collective body, such as a commission, board or council. (Sec.

2[11], Introductory Provisions, Executive Order No. 292)

290. What is a Chartered Institution?

Ans.: A chartered institution refers to any agency

organized or operating under a special charter, and vested by

law with functions relating to specific constitutional policies or

objectives. This term includes state universities and colleges

and the monetary authority of the State. (Section 2[12],

Introductory Provisions, Executive Order No. 292)

291. What is a Government-Owned or Controlled

Corporation?

Ans.: Government-owned or controlled corporation

refers to any agency organized as a stock or non-stock

corporation, vested with functions relating to public needs

whether governmental or proprietary in nature, and owned by

the Government directly or through its instrumentalities either

wholly, or, where applicable as in the case of stock corporations,

to the extent of at least fifty-one (51) per cent of its capital

stock; x x x (Sec. 2[13], Introductory Provisions, Executive

Order No. 292)

292. When is a Government-Owned or Controlled

Corporation deemed to be performing proprietary

function? When is it deemed to be performing

governmental function?

Held: Government-owned or controlled corporations

may perform governmental or proprietary functions or both,

depending on the purpose for which they have been created. If

the purpose is to obtain special corporate benefits or earn

pecuniary profit, the function is proprietary. If it is in the

interest of health, safety and for the advancement of public good

and welfare, affecting the public in general, the function is

governmental. Powers classified as “proprietary” are those

intended for private advantage and benefit. (Blaquera v.

Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc

[Purisima])

293. The Philippine National Red Cross (PNRC) is a

government-owned and controlled corporation with

an original charter under R.A. No. 95, as amended.

Its charter, however, was amended to vest in it the

authority to secure loans, be exempted from

payment of all duties, taxes, fees and other charges,

etc. With the amendnt of its charter, has it been

“impliedly converted to a private corporation”?

Held: The test to determine whether a corporation is

government owned or controlled, or private in nature is simple.

Is it created by its own charter for the exercise of a public

function, or by incorporation under the general corporation law?

Those with special charters are government corporations subject

to its provisions, and its employees are under the jurisdiction of

the Civil Service Commission. The PNRC was not “impliedly

converted to a private corporation” simply because its charter

was amended to vest in it the authority to secure 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])

294. When may the Government not validly invoke the

rule that prescription does not run against the

State? Illustrative Case.

Held: While it is true that prescription does not run

against the State, the same may not be invoked by the

government in this case since it is no longer interested in the

subject matter. While Camp Wallace may have belonged to the

government at the time Rafael Galvez’s title was ordered

cancelled in Land Registration Case No. N-361, the same no

longer holds true today.

Republic Act No. 7227, otherwise known as the Base

Conversion and Development Act of 1992, created the Bases

Conversion and Development Authority. X x x

X x x

With the transfer of Camp Wallace to the BCDA, the

government no longer has a right or interest to protect.

Consequently, the Republic is not a real party in interest and it

may not institute the instant action. Nor may it raise the defense

of imprescriptibility, the same being applicable only in cases

where the government is a party in interest. x x x. Being the

owner of the areas covered by Camp Wallace, it is the Bases

Conversion and Development Authority, not the Government,

which stands to be benefited if the land covered by TCT No. T-

5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of

military reservations and their extensions to the BCDA is

basically for the purpose of accelerating the sound and balanced

conversion of these military reservations into alternative

119

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 country’s 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 country’s goal for

enhancement, in general, do not make the BCDA equivalent to

the Government. Other corporations have been created by

government to act as its agents for the realization of its

programs, the SSS, GSIS, NAWASA and the NIA, to count a

few, and yet, the Court has ruled that these entities, although

performing functions aimed at promoting public interest and

public welfare, are not government-function corporations

invested with governmental attributes. It may thus be said that

the BCDA is not a mere agency of the Government but a

corporate body performing proprietary functions.

X x x

Having the capacity to sue or be sued, it should thus be

the BCDA which may file an action to cancel petitioner’s 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])

295. Discuss the nature and functions of the National

Telecommunications Commission (NTC), and

analyze its powers and authority as well as the

laws, rules and regulations that govern its

existence and operations.

Held: The NTC was created pursuant to Executive

Order No. 546 x x x. It assumed the functions formerly

assigned to the Board of Communications and the

Communications Control Bureau, which were both abolished

under the said Executive Order. Previously, the NTC’s 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,

1st Div. [Ynares-Santiago])

120

296. Is the filing of the administrative rules and

regulations with the UP Law Center the operative

act that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to

operate a CMTS, the NTC applied Rule 15, Section 3 of its

1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. – Upon the filing

of an application, complaint or petition or at any stage

thereafter, the Board may grant on motion of the

pleader or on its own initiative, the relief prayed for,

based on the pleading, together with the affidavits and

supporting documents attached thereto, without

prejudice to a final decision after completion of the

hearing which shall be called within thirty (30) days

from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC

should have applied the Revised Rules which were filed with

the Office of the National Administrative Register on February

3, 1993. These Revised Rules deleted the phrase “on its own

initiative”; accordingly, a provisional authority may be issued

only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the

Secretary of the Commission, issued a certification to the effect

that inasmuch as the 1993 Revised Rules have not been

published in a newspaper of general circulation, the NTC has

been applying the 1978 Rules.

The absence of publication, coupled with the

certification by the Commissioner of the NTC stating that the

NTC was still governed by the 1987 Rules, clearly indicate that

the 1993 Revised Rules have not taken effect at the time of the

grant of the provisional authority to Bayantel. The fact that the

1993 Revised Rules were filed with the UP Law Center on

February 3, 1993 is of no moment. There is nothing in the

Administrative Code of 1987 which implies that the filing of the

rules with the UP Law Center is the operative act that gives the

rules force and effect. Book VII, Chapter 2, Section 3 thereof

merely states:

Filing. – (1) Every agency shall file with the

University of the Philippines Law Center three (3)

certified copies of every rule adopted by it. Rules in

force on the date of effectivity of this Code which are

not filed within three (3) months from the date shall not

thereafter be the basis of any sanction against any party

or persons.

(2) The records officer of the agency, or his

equivalent functionary, shall carry out the requirements

of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be

kept by the issuing agency and shall be open to public

inspection.

The National Administrative Register is merely a

bulletin of codified rules and it is furnished only to the Office of

the President, Congress, all appellate courts, the National

Library, other public offices or agencies as the Congress may

select, and to other persons at a price sufficient to cover

publication and mailing or distribution costs (Administrative

Code of 1987, Book VII, Chapter 2, Section 7). In a similar

case, we held:

This does not imply, however, that the subject

Administrative Order is a valid exercise of such quasi-

legislative power. The original Administrative Order

issued on August 30, 1989, under which the

respondents filed their applications for importations,

was not published in the Official Gazette or in a

newspaper of general circulation. The questioned

Administrative Order, legally, until it is published, is

invalid within the context of Article 2 of Civil Code,

which reads:

“Article 2. Laws shall take effect

after fifteen days following the completion of

their publication in the Official Gazette (or in

a newspaper of general circulation in the

Philippines), unless it is otherwise provided.

X x x”

The fact that the amendments to

Administrative Order No. SOCPEC 89-08-01 were

filed with, and published by the UP Law Center in the

National Administrative Register, does not cure the

defect related to the effectivity of the Administrative

Order.

This Court, in Tanada v. Tuvera stated, thus:

“We hold therefore that all statutes,

including those of local application and private laws, shall be

published as a condition for their effectivity, which shall begin

fifteen days after publication unless a different effectivity is

fixed by the legislature.

Covered by this rule are presidential

decrees and executive orders promulgated by the President in

the exercise of legislative power or, at present, directly

conferred by the Constitution. Administrative Rules and

Regulations must also be published if their purpose is to

enforce or implement existing law pursuant also to a valid

delegation.

Interpretative regulations and those

merely internal in nature, that is, regulating only the personnel

of the administrative agency and not the public, need not be

published. Neither is publication required of the so-called

letters of instructions issued by administrative superiors

concerning the rules or guidelines to be followed by their

subordinates in the performance of their duties.

X x x

We agree that the publication must

be in full or it is no publication at all since its purpose is to

inform the public of the contents of the laws.”

The Administrative Order under consideration

is one of those issuances which should be published for

its effectivity, since its purpose is to enforce and

implement an existing law pursuant to a valid

delegation, i.e., P.D. 1071, in relation to LOI 444 and

EO 133.

Thus, publication in the Official Gazette or a

newspaper of general circulation is a condition sine qua non

before statutes, rules or regulations can take effect. This is

explicit from Executive Order No. 200, which repealed Article 2

of the Civil Code, and which states that:

Laws shall take effect after fifteen days

following the completion of their publication either in the

Official Gazette or in a newspaper of general circulation in the

Philippines, unless it is otherwise provided (E.O. 200, Section

1).

The Rules of Practice and Procedure of the NTC,

which implements Section 29 of the Public Service Act, fall

squarely within the scope of these laws, as explicitly mentioned

in the case of Tanada v. Tuvera.

Our pronouncement in Tanada v. Tuvera is

clear and categorical. Administrative rules and regulations

must be published if their purpose is to enforce or implement

121

existing law pursuant to a valid delegation. The only exception

are interpretative regulations, those merely internal in nature,

or those so-called letters of instructions issued by

administrative superiors concerning the rules and guidelines to

be followed by their subordinates in the performance of their

duties (PHILSA International Placement & Services Corp. v.

Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA

174).

Hence, the 1993 Revised Rules should be published in

the Official Gazette or in a newspaper of general circulation

before it can take effect. Even the 1993 Revised Rules itself

mandates that said Rules shall take effect only after their

publication in a newspaper of general circulation (Section 20

thereof). In the absence of such publication, therefore, it is the

1978 Rules that govern. (Republic v. Express

Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002,

1st Div. [Ynares-Santiago])

297. 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 People’s 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, 3rd

Div., [Gonzaga-Reyes])

298. Does the publication requirement apply as well to

administrative regulations addressed only to a

specific group and not to the general public?

Held: The Office of the Solicitor General likewise

argues that the questioned administrative circular is not among

those requiring publication contemplated by Tanada v. Tuvera

as it is addressed only to a specific group of persons and not to

the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a

specified group, namely private employment agencies or

authority holders, does not take it away from the ambit of our

ruling in Tanada v. Tuvera. In the case of Phil. Association of

Service Exporters v. Torres, the administrative circulars

questioned therein were addressed to an even smaller group,

namely Philippine and Hong Kong agencies engaged in the

recruitment of workers for Hong Kong, and still the Court ruled

therein that, for lack of proper publication, the said circulars

may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and

categorical. Administrative rules and regulations must be

published if their purpose is to enforce or implement existing

law pursuant to a valid delegation. The only exceptions are

interpretative regulations, those merely internal in nature, or

those so-called letters of instructions issued by administrative

superiors concerning the rules and guidelines to be followed by

their subordinates in the performance of their duties.

Administrative Circular No. 2, Series of 1983 has not been

shown to fall under any of these exceptions.

In this regard, the Solicitor General’s reliance on the

case of Yaokasin v. Commissioner of Customs is misplaced. In

the said case, the validity of certain Customs Memorandum

Orders were upheld despite their lack of publication as they

were addressed to a particular class of persons, the customs

collectors, who were also the subordinates of the Commissioner

of the Bureau of Customs. As such, the said Memorandum

Orders clearly fall under one of the exceptions to the publication

requirement, namely those dealing with instructions from an

administrative superior to a subordinate regarding the

performance of their duties, a circumstance which does not

obtain in the case at bench.

X x x

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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, 3rd

Div., [Gonzaga-Reyes])

299. May a successful bidder compel a government

agency to formalize a contract with it

notwithstanding that its bid exceeds the amount

appropriated by Congress for the project?

Held: Enshrined in the 1987 Philippine Constitution is

the mandate that “no money shall be paid out of the Treasury

except in pursuance of an appropriation made by law.” (Sec.

29[1], Article VI of the 1987 Constitution) Thus, in the

execution of government contracts, the precise import of this

constitutional restriction is to require the various agencies to

limit their expenditures within the appropriations made by law

for each fiscal year.

X x x

It is quite evident from the tenor of the language of the

law that the existence of appropriations and the availability of

funds are indispensable pre-requisites to or conditions sine qua

non for the execution of government contracts. The obvious

intent is to impose such conditions as a priori requisites to the

validity of the proposed contract. Using this as our premise, we

cannot accede to PHOTOKINA’s contention that there is

already a perfected contract. While we held in Metropolitan

Manila Development Authority v. Jancom Environmental

Corporation that “the effect of an unqualified acceptance of the

offer or proposal of the bidder is to perfect a contract, upon

notice of the award to the bidder,” however, such statement

would be inconsequential in a government where the acceptance

referred to is yet to meet certain conditions. To hold otherwise

is to allow a public officer to execute a binding contract that

would obligate the government in an amount in excess of the

appropriations for the purpose for which the contract was

attempted to be made. This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the

legal requirements as early as the bidding stage. The first step

of a Bids and Awards Committee (BAC) is to determine

whether the bids comply with the requirements. The BAC shall

rate a bid “passed” only if it complies with all the requirements

and the submitted price does not exceed the approved budget for

the contract.” (Implementing Rules and Regulations [IRR] for

Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project

was awarded to PHOTOKINA on account of its bid in the

amount of P6.588 Billion Pesos. However, under Republic Act

No. 8760 (General Appropriations Act, FY 2000, p. 1018,

supra.), the only fund appropriated for the project was P1

Billion Pesos and under the Certification of Available Funds

(CAF) only P1.2 Billion Pesos was available. Clearly, the

amount appropriated is insufficient to cover the cost of the

entire VRIS Project. There is no way that the COMELEC could

enter into a contract with PHOTOKINA whose accepted bid

was way beyond the amount appropriated by law for the project.

This being the case, the BAC should have rejected the bid for

being excessive or should have withdrawn the Notice of Award

on the ground that in the eyes of the law, the same is null and

void.

X x x

Even the draft contract submitted by Commissioner

Sadain that provides for a contract price in the amount of P1.2

Billion Pesos is unacceptable. x x x While the contract price

under the draft contract is only P1.2 Billion and, thus, within the

certified available funds, the same covers only Phase I of the

VRIS Project, i.e., the issuance of identification cards for only

1,000,000 voters in specified areas. In effect, the

implementation of the VRIS Project will be “segmented” or

“chopped” into several phases. Not only is such arrangement

disallowed by our budgetary laws and practices, it is also

disadvantageous to the COMELEC because of the uncertainty

that will loom over its modernization project for an indefinite

period of time. Should Congress fail to appropriate the amount

necessary for the completion of the entire project, what good

will the accomplished Phase I serve? As expected, the project

failed “to sell” with the Department of Budget and

Management. Thus, Secretary Benjamin Diokno, per his letter

of December 1, 2000, declined the COMELEC’s request for the

issuance of the Notice of Cash Availability (NCA) and a multi-

year obligatory authority to assume payment of the total VRIS

Project for lack of legal basis. Corollarily, under Section 33 of

R.A. No. 8760, no agency shall enter into a multi-year contract

without a multi-year obligational authority, thus:

“SECTION 33. Contracting Multi-Year

Projects. - In the implementation of multi-year projects, no

agency shall enter into a multi-year contract without a multi-

year Obligational Authority issued by the Department of Budget

and Management for the purpose. Notwithstanding the issuance

of the multi-year Obligational Authority, the obligation to be

incurred in any given calendar year, shall in no case exceed the

amount programmed for implementation during said calendar

year.”

Petitioners are justified in refusing to formalize the

contract with PHOTOKINA. Prudence dictated them not to

enter into a contract not backed up by sufficient appropriation

and available funds. Definitely, to act otherwise would be a

futile exercise for the contract would inevitably suffer the vice

of nullity. x x x

X x x

Verily, the contract, as expressly declared by law, is

inexistent and void ab initio (Article 1409 of the Civil Code of

the Philippines). This is to say that the proposed contract is

without force and effect from the very beginning or from its

incipiency, as if it had never been entered into, and hence,

cannot be validated either by lapse of time or ratification.

X x x

In fine, we rule that PHOTOKINA, though the winning

bidder, cannot compel the COMELEC to formalize the contract.

Since PHOTOKINA’s bid is beyond the amount appropriated

by Congress for the VRIS Project, the proposed contract is not

binding upon the COMELEC and is considered void x x x.

(Commission on Elections v. Judge Ma. Luisa Quijano-

Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-

Gutierrez])

300. What is the remedy available to a party who

contracts with the government contrary to the

requirements of the law and, therefore, void ab

initio?

Held: Of course, we are not saying that the party who

contracts with the government has no other recourse in law.

The law itself affords him the remedy. Section 48 of E.O. No.

292 explicitly provides that any contract entered into contrary to

the above-mentioned requirements shall be void, and “the

officers entering into the contract shall be liable to the

Government or other contracting party for any consequent

damage to the same as if the transaction had been wholly

between private parties.” So when the contracting officer

transcends his lawful and legitimate powers by acting in excess

of or beyond the limits of his contracting authority, the

Government is not bound under the contract. It would be as if

the contract in such case were a private one, whereupon, he

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binds himself, and thus, assumes personal liability thereunder.

Otherwise stated, the proposed contract is unenforceable as to

the Government.

While this is not the proceeding to determine where the

culpability lies, however, the constitutional mandate cited above

constrains us to remind all public officers that public office is a

public trust and all public officers must at all times be

accountable to the people. The authority of public officers to

enter into government contracts is circumscribed with a heavy

burden of responsibility. In the exercise of their contracting

prerogative, they should be the first judges of the legality,

propriety and wisdom of the contract they entered into. They

must exercise a high degree of caution so that the Government

may not be the victim of ill-advised or improvident action.

(Commission on Elections v. Judge Ma. Luisa Quijano-

Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-

Gutierrez])

301. Does the Commission on Human Rights have the

power to adjudicate?

Held: In its Order x x x denying petitioners’ motion to

dismiss, the CHR theorizes that the intention of the members of

the Constitutional Commission is to make CHR a quasi-judicial

body. This view, however, has not heretofore been shared by

this Court. In Carino v. Commission on Human Rights, the

Court x x x has observed that it is “only the first of the

enumerated powers and functions that bears any resemblance to

adjudication of adjudgment,” but that resemblance can in no

way be synonymous to the adjudicatory power itself. The Court

explained:

“x x x [T]he Commission on Human Rights x

x x was not meant by the fundamental law to be

another court or quasi-judicial agency in this country,

or duplicate much less take over the functions of the

latter.

“The most that may be conceded to the

Commission in the way of adjudicative power is that it may

investigate, i.e., receive evidence and make findings of fact as

regards claimed human rights violations involving civil and

political rights. But fact finding is not adjudication, and cannot

be likened to the judicial function of a court of justice, or even

a quasi-judicial agency or official. The function of receiving

evidence and ascertaining therefrom the facts of a controversy

is not a judicial function, properly speaking. To be considered

such, the faculty of receiving evidence and making factual

conclusions in a controversy must be accompanied by the

authority of applying the law to those factual conclusions to the

end that the controversy may be decided or determined

authoritatively, finally and definitively, subject to such appeals

or modes of review as may be provided by law. This function,

to repeat, the Commission does not have.

(Simon, Jr. v. Commission on Human Rights, 229 SCRA 117,

125, Jan. 5, 1994, En Banc [Vitug, J.])

302. Does the Commission on Human Rights have

jurisdiction to issue TRO or writ of preliminary

injunction?

Held: In Export Processing Zone Authority v.

Commission on Human Rights, the Court x x x explained:

“The constitutional provision directing the

CHR to ‘provide for preventive measures and legal aid

services to the underprivileged whose human rights

have been violated or need protection’ may not be

construed to confer jurisdiction on the Commission to

issue a restraining order or writ of injunction for, if that

were the intention, the Constitution would have

expressly said so. ‘Jurisdiction is conferred only by the

Constitution or by law.’ It is never derived by

implication.”

“Evidently, the ‘preventive measures and legal

aid services’ mentioned in the Constitution refer to

extrajudicial and judicial remedies (including a writ of

preliminary injunction) which the CHR may seek from

the proper courts on behalf of the victims of human

rights violations. Not being a court of justice, the CHR

itself has no jurisdiction to issue the writ, for a writ of

preliminary injunction may only be issued ‘by the

judge of any court in which the action is pending

[within his district], or by a Justice of the Court of

Appeals, or of the Supreme Court. x x x. A writ of

preliminary injunction is an ancillary remedy. It is

available only in a pending principal action, for the

preservation or protection of the rights and interest of a

party thereto, and for no other purpose.”

The Commission does have legal standing to indorse, for

appropriate action, its findings and recommendations to any

appropriate agency of government. (Simon, Jr. v. Commission

on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En

Banc [Vitug, J.])

303. Does the petition for annulment of proclamation of

a candidate merely involve the exercise by the

COMELEC of its administrative power to review,

revise and reverse the actions of the board of

canvassers and, therefore, justifies non-observance

of procedural due process, or does it involve the

exercise of the COMELEC's quasi-judicial

function?

Held: Taking cognizance of private respondent's

petitions for annulment of petitioner's proclamation, COMELEC

was not merely performing an administrative function. The

administrative powers of the COMELEC include the power to

determine the number and location of polling places, appoint

election officials and inspectors, conduct registration of voters,

deputize law enforcement agencies and governmental

instrumentalities to ensure free, orderly, honest, peaceful and

credible elections, register political parties, organizations or

coalition, accredit citizen's arms of the Commission, prosecute

election offenses, and recommend to the President the removal

of or imposition of any other disciplinary action upon any

officer or employee it has deputized for violation or disregard of

its directive, order or decision. In addition, the Commission

also has direct control and supervision over all personnel

involved in the conduct of election. However, the resolution of

the adverse claims of private respondent and petitioner as

regards the existence of a manifest error in the questioned

certificate of canvass requires the COMELEC to act as an

arbiter. It behooves the Commission to hear both parties to

determine the veracity of their allegations and to decide whether

the alleged error is a manifest error. Hence, the resolution of

this issue calls for the exercise by the COMELEC of its quasi-

judicial power. It has been said that where a power rests in

judgment or discretion, so that it is of judicial nature or

character, but does not involve the exercise of functions of a

judge, or is conferred upon an officer other than a judicial

officer, it is deemed quasi-judicial. The COMELEC therefore,

acting as quasi-judicial tribunal, cannot ignore the requirements

of procedural due process in resolving the petitions filed by

private respondent. (Federico S. Sandoval v. COMELEC, G.R.

No. 133842, Jan. 26, 2000 [Puno])

304. Discuss the contempt power of the Commission on

Human Rights (CHR). When may it be validly

exercised?

Held: On its contempt powers, the CHR is

constitutionally authorized to “adopt its operational guidelines

and rules of procedure, and cite for contempt for violations

thereof in accordance with the Rules of Court.” Accordingly,

the CHR acted within its authority in providing in its revised

rules, its power “to cite or hold any person in direct or indirect

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contempt, and to impose the appropriate penalties in accordance

with the procedure and sanctions provided for in the Rules of

Court.” That power to cite for contempt, however, should be

understood to apply only to violations of its adopted operational

guidelines and rules of procedure essential to carry out its

investigatorial powers. To exemplify, the power to cite for

contempt could be exercised against persons who refuse to

cooperate with the said body, or who unduly withhold relevant

information, or who decline to honor summons, and the like, in

pursuing its investigative work. The “order to desist” (a

semantic interplay for a restraining order) in the instance before

us, however, is not investigatorial in character but prescinds

from an adjudicative power that it does not possess. x x x

(Simon, Jr. v. Commission on Human Rights, 229 SCRA 117,

134, Jan. 5, 1994, En Banc [Vitug, J.])

305. Discuss the Doctrine of Primary Jurisdiction (or

Prior Resort).

Held: Courts cannot and will not resolve a controversy

involving a question which is within the jurisdiction of an

administrative tribunal, especially where the question demands

the exercise of sound administrative discretion requiring the

special knowledge, experience and services of the

administrative tribunal to determine technical and intricate

matters of fact.

In recent years, it has been the jurisprudential trend to

apply this doctrine to cases involving matters that demand the

special competence of administrative agencies even if the

question involved is also judicial in character. It applies “where

a claim is originally cognizable in the courts, and comes into

play whenever enforcement of the claim requires the resolution

of issues which, under a regulatory scheme, have been placed

within the special competence of an administrative body; in

such case, the judicial process is suspended pending referral of

such issues to the administrative body for its view.”

In cases where the doctrine of primary jurisdiction is

clearly applicable, the court cannot arrogate unto itself the

authority to resolve a controversy, the jurisdiction over which is

lodged with an administrative body of special competence.

(Villaflor v. CA, 280 SCRA 297, Oct. 9, 1992, 3rd

Div.

[Panganiban])

306. Discuss the Doctrine of Exhaustion of

Administrative Remedies. What are the exceptions

thereto.

Held: 1. Before a party is allowed to seek the

intervention of the court, it is a pre-condition that he should

have availed of all the means of administrative processes

afforded him. Hence, if a remedy within the administrative

machinery can still be resorted to by giving the administrative

officer concerned every opportunity to decide on a matter that

comes within his jurisdiction then such remedy should be

exhausted first before the court’s judicial power can be sought.

The premature invocation of court’s jurisdiction is fatal to one’s

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:

when there is a violation of due process;

when the issue involved is purely a legal question;

when the administrative action is patently illegal

amounting to lack or excess of jurisdiction;

when there is estoppel on the part of the administrative

agency concerned;

when there is irreparable injury;

when the respondent is a department secretary whose

acts as an alter ego of the President bears the

implied and assumed approval of the latter;

when to require exhaustion of administrative remedies

would be unreasonable;

when it would amount to a nullification of a claim;

when the subject matter is a private land in land case

proceeding;

when the rule does not provide a plain, speedy and

adequate remedy, and

when there are circumstances indicating the urgency of

judicial intervention.

(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not

jurisdictional. It only renders the action premature, i.e., claimed

cause of action is not ripe for judicial determination and for that

reason a party has no cause of action to ventilate in court.

(Carale v. Abarintos, 269 SCRA 132, March 3, 1997, 3rd

Div.

[Davide])

D. THE LAW OF PUBLIC OFFICERS

307. Define Appointment. Discuss its nature.

Held: An “appointment” to a public office is the

unequivocal act of designating or selecting by one having the

authority therefor of an individual to discharge and perform the

duties and functions of an office or trust. The appointment is

deemed complete once the last act required of the appointing

authority has been complied with and its acceptance thereafter

by the appointee in order to render it effective. Appointment

necessarily calls for an exercise of discretion on the part of the

appointing authority. In Pamantasan ng Lungsod ng Maynila v.

Intermediate Appellate Court, reiterated in Flores v. Drilon, this

Court has held:

“The power to appoint is, in essence,

discretionary. The appointing power has the right of

choice which he may exercise freely according to his

judgment, deciding for himself who is best qualified

among those who have the necessary qualifications and

eligibilities. It is a prerogative of the appointing power

x x x.”

Indeed, it may rightly be said that the right of choice is the heart

of the power to appoint. In the exercise of the power of

appointment, discretion is an integral thereof. (Bermudez v.

Torres, 311 SCRA 733, Aug. 4, 1999, 3rd

Div. [Vitug])

308. May the Civil Service Commission, or the Supreme

Court, validly nullify an appointment on the

ground that somebody else is better qualified?

Held: The head of an agency who is the appointing

power is the one most knowledgeable to decide who can best

perform the functions of the office. Appointment is an

essentially discretionary power and must be performed by the

officer vested with such power according to his best lights, the

only condition being that the appointee should possess the

qualifications required by law. If he does, then the appointment

cannot be faulted on the ground that there are others better

qualified who should have been preferred. Indeed, this is a

prerogative of the appointing authority which he alone can

decide. The choice of an appointee from among those who

possess the required qualifications is a political and

administrative decision calling for considerations of wisdom,

convenience, utility and the interests of the service which can

best be made by the head of the office concerned, the person

most familiar with the organizational structure and

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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 Commission’s authority

only to whether or not the appointees possess the legal

qualifications and the appropriate civil service eligibility,

nothing else. If they do then the appointments are approved

because the Commission cannot exceed its power by

substituting its will for that of the appointing authority. Neither

can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995,

En Banc [Bellosillo, J.])

309. Does the “next-in-rank” rule import any

mandatory or peremptory requirement that the

person next-in-rank must be appointed to the

vacancy?

Held: The “next-in-rank rule is not absolute; it only

applies in cases of promotion, a process which denotes a scalar

ascent of an officer to another position higher either in rank or

salary. And even in promotions, it can be disregarded for

sound reasons made known to the next-in-rank, as the concept

does not import any mandatory or peremptory requirement that

the person next-in-rank must be appointed to the vacancy. The

appointing authority, under the Civil Service Law, is allowed to

fill vacancies by promotion, transfer of present employees,

reinstatement, reemployment, and appointment of outsiders who

have appropriate civil service eligibility, not necessarily in that

order. There is no legal fiat that a vacancy must be filled only

by promotion; the appointing authority is given wide discretion

to fill a vacancy from among the several alternatives provided

by law.

What the Civil Service Law provides is that if a

vacancy is filled by promotion, the person holding the position

next in rank thereto “shall be considered for promotion.”

In Taduran v. Civil Service Commission, the Court

construed that phrase to mean that the person next-in-rank

“would be among the first to be considered for the vacancy, if

qualified.” In Santiago, Jr. v. Civil Service Commission, the

Court elaborated the import of the rule in the following manner:

“One who is next-in-rank is entitled to

preferential consideration for promotion to the higher

vacancy but it does not necessarily follow that he and

no one else can be appointed. The rule neither grants a

vested right to the holder nor imposes a ministerial

duty on the appointing authority to promote such

person to the next higher position x x x”

(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc

[Feliciano])

310. Can a person who lacks the necessary

qualifications for a public position be appointed to

it in a permanent capacity? Illustrative case.

Held: At the outset, it must be stressed that the

position of Ministry Legal Counsel-CESO IV is embraced in the

Career Executive Service. X x x

In the case at bar, there is no question that private

respondent does not have the required CES eligibility. As

admitted by private respondent in his Comment, he is “not a

CESO or a member of the Career Executive Service.”

In the case of Achacoso v. Macaraig, et al., the Court

held:

It is settled that a permanent appointment can

be issued only “to a person who meets all the requirements for

the position to which he s being appointed, including the

appropriate eligibility prescribed.” Achacoso did not. At best,

therefore, his appointment could be regarded only as

temporary. And being so, it could be withdrawn at will by the

appointing authority and “at a moment’s notice,” conformably

to established jurisprudence.

The Court, having considered these

submissions and the additional arguments of the parties

in the petitioner’s Reply and of the Solicitor-General’s

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 respondent’s 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 respondent’s appointment is merely temporary;

hence, he could be transferred or reassigned to other positions

without violating his right to security of tenure. (De Leon v.

Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc

[Ynares-Santiago])

311. In the career executive service, is a career

executive service (CES) eligibility all that an

employee needs to acquire security of tenure? Is

appointment to a CES rank necessary for the

acquisition of such security of tenure?

Held: In the career executive service, the acquisition

of security of tenure which presupposes a permanent

appointment is governed by the rules and regulations

promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two

requisites must concur in order that an employee in the career

executive service may attain security of tenure, to wit:

CES eligibility; and

Appointment to the appropriate CES rank.

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

126

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])

312. How are positions in the Civil Service classified?

Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified

into: 1) Career Positions, and 2) Non-Career Positions.

Career Positions are characterized by (1) entrance

based on merit and fitness to be determined as far as practicable

by competitive examination, or based on highly technical

qualifications; (2) opportunity for advancement to higher career

positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A,

Title I, Bk. V, E.O. No. 292).

The Non-Career Service shall be characterized by (1)

entrance on bases other than of the usual tests of merit or fitness

utilized for the career service; and (2) tenure which is limited to

a period specified by law, or which is coterminous with that of

the appointing authority or subject to his pleasure, or which is

limited to the duration of a particular project for which purpose

employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk.

V, E.O. No. 292).

313. What is a primarily confidential position? What is

the test to determine whether a position is primarily

confidential or not?

Held: A primarily confidential position is one which

denotes not only confidence in the aptitude of the appointee for

the duties of the office but primarily close intimacy which

ensures freedom from intercourse without embarrassment or

freedom from misgivings or betrayals of personal trust or

confidential matters of state. (De los Santos v. Mallare, 87 Phil.

289 [1950])

Under the proximity rule, the occupant of a particular

position could be considered a confidential employee if the

predominant reason why he was chosen by the appointing

authority was the latter’s belief that he can share a close intimate

relationship with the occupant which ensures freedom of

discussion without fear or embarrassment or misgivings of

possible betrayal of personal trust or confidential matters of

state. Withal, where the position occupied is more remote from

that of the appointing authority, the element of trust between

them is no longer predominant. (CSC v. Salas, 274 SCRA 414,

June 19, 1997)

314. Does the Civil Service Law contemplate a review of

decisions exonerating officers or employees from

administrative charges?

Held: By this ruling, we now expressly abandon and

overrule extant jurisprudence that “the phrase ‘party adversely

affected by the decision’ refers to the government employee

against whom the administrative case is filed for the purpose of

disciplinary action which may take the form of suspension,

demotion in rank or salary, transfer, removal or dismissal from

office” and not included are “cases where the penalty imposed is

suspension for not more than thirty (30) days or fine in an

amount not exceeding thirty days salary” (Paredes v. Civil

Service Commission, 192 SCRA 84, 85) or “when respondent is

exonerated of the charges, there is no occasion for appeal.”

(Mendez v. Civil Service Commission, 204 SCRA 965, 968) In

other words, we overrule prior decisions holding that the Civil

Service Law “does not contemplate a review of decisions

exonerating officers or employees from administrative charges”

enunciated in Paredes v. Civil Service Commission (192 SCRA

84); Mendez v. Civil Service Commission (204 SCRA 965);

Magpale v. Civil Service Commission (215 SCRA 398); Navarro

v. Civil Service Commission and Export Processing Zone

Authority (226 SCRA 207) and more recently Del Castillo v.

Civil Service Commission (237 SCRA 184). (CSC v. Pedro O.

Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

315. What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an

administrative investigation, preventive suspension is not a

penalty in itself. It is merely a measure of precaution so that the

employee who is charged may be separated, for obvious

reasons, from the scene of his alleged misfeasance while the

same is being investigated. Thus preventive suspension is

distinct from the administrative penalty of removal from office

such as the one mentioned in Sec. 8(d) of P.D. No. 807. While

the former may be imposed on a respondent during the

investigation of the charges against him, the latter is the penalty

which may only be meted upon him at the termination of the

investigation or the final disposition of the case. (Beja, Sr. v.

CA, 207 SCRA 689, March 31, 1992 [Romero])

316. Discuss the kinds of preventive suspension under

the Civil Service Law. When may a civil service

employee placed under preventive suspension be

entitled to compensation?

Held: There are two kinds of preventive suspension of

civil service employees who are charged with offenses

punishable by removal or suspension: (1) preventive suspension

pending investigation (Sec. 51, Civil Service Law, EO No. 292)

and (2) preventive suspension pending appeal if the penalty

imposed by the disciplining authority is suspension or dismissal

and, after review, the respondent is exonerated (Section 47, par.

4, Civil Service Law, EO No. 292).

Preventive suspension pending investigation is not a

penalty. It is a measure intended to enable the disciplining

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authority to investigate charges against respondent by

preventing the latter from intimidating or in any way influencing

witnesses against him. If the investigation is not finished and a

decision is not rendered within that period, the suspension will

be lifted and the respondent will automatically be reinstated. If

after investigation respondent is found innocent of the charges

and is exonerated, he should be reinstated. However, no

compensation was due for the period of preventive suspension

pending investigation. The Civil Service Act of 1959 (R.A. No.

2260) providing for compensation in such a case once the

respondent was exonerated was revised in 1975 and the

provision on the payment of salaries during suspension was

deleted.

But although it is held that employees who are

preventively suspended pending investigation are not entitled to

the payment of their salaries even if they are exonerated, they

are entitled to compensation for the period of their suspension

pending appeal if eventually they are found innocent.

Preventive suspension pending investigation x x x is

not a penalty but only a means of enabling the disciplining

authority to conduct an unhampered investigation. On the other

hand, preventive suspension pending appeal is actually punitive

although it is in effect subsequently considered illegal if

respondent is exonerated and the administrative decision finding

him guilty is reversed. Hence, he should be reinstated with full

pay for the period of the suspension. (Gloria v. CA, G.R. No.

131012, April 21, 1999, En Banc [Mendoza])

317. Discuss the power of Ombudsman to conduct

administrative investigations, and to impose

preventive suspension.

Held: Worth stressing, to resolve the present

controversy, we must recall that the authority of the

Ombudsman to conduct administrative investigations is

mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the

Office of the Ombudsman the statutory power to conduct

administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to

the Ombudsman’s disciplinary authority x x x.

Petitioner is an elective local official accused of grave

misconduct and dishonesty. That the Office of the Ombudsman

may conduct an administrative investigation into the acts

complained of, appears clear from the foregoing provisions of

R.A. 6770.

However, the question of whether or not the

Ombudsman may conduct an investigation over a particular act

or omission is different from the question of whether or not

petitioner, after investigation, may be held administratively

liable. This distinction ought here to be kept in mind even as we

must also take note that the power to investigate is distinct from

the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the

Ombudsman to preventively suspend an official subject to its

administrative investigation is provided by specific provision of

law. x x x

We have previously interpreted the phrase “under his

authority” to mean that the Ombudsman can preventively

suspend all officials under investigation by his office, regardless

of the branch of government in which they are employed,

excepting of course those removable by impeachment, members

of Congress and the Judiciary.

The power to preventively suspend is available not

only to the Ombudsman but also to the Deputy Ombudsman.

This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power

and authority of respondent Deputy Ombudsman to issue an

order of preventive suspension against an official like the

petitioner, to prevent that official from using his office to

intimidate or influence witnesses (Gloria v. CA, et al., G.R. No.

131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with

records that might be vital to the prosecution of the case against

him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December

28, 1998, p. 9, 300 SCRA 494). In our view, the present

controversy simply boils down to this pivotal question: Given

the purpose of preventive suspension and the circumstances of

this case, did respondent Deputy Ombudsman commit a grave

abuse of discretion when he set the period of preventive

suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x

may be imposed when, among other factors, the evidence of

guilt is strong. The period for which an official may be

preventively suspended must not exceed six months. In this

case, petitioner was preventively suspended and ordered to

cease and desist from holding office for the entire period of six

months, which is the maximum provided by law.

The determination of whether or not the evidence of

guilt is strong as to warrant preventive suspension rests with the

Ombudsman. The discretion as regards the period of such

suspension also necessarily belongs to the Ombudsman, except

that he cannot extend the period of suspension beyond that

provided by law. But, in our view, both the strength of the

evidence to warrant said suspension and the propriety of the

length or period of suspension imposed on petitioner are

properly raised in this petition for certiorari and prohibition. X

x x

X x x

Given these findings, we cannot say now that there is

no evidence sufficiently strong to justify the imposition of

preventive suspension against petitioner. But considering its

purpose and the circumstances in the case brought before us, it

does appear to us that the imposition of the maximum period of

six months is unwarranted.

X x x [G]ranting that now the evidence against

petitioner is already strong, even without conceding that initially

it was weak, it is clear to us that the maximum six-month period

is excessive and definitely longer than necessary for the

Ombudsman to make its legitimate case against petitioner. We

must conclude that the period during which petitioner was

already preventively suspended, has been sufficient for the

lawful purpose of preventing petitioner from hiding and

destroying needed documents, or harassing and preventing

witnesses who wish to appear against him. (Garcia v. Mojica,

314 SCRA 207, Sept. 10, 1999, 2nd

Div. [Quisumbing])

318. Distinguish preventive suspension under the Local

Government Code from preventive suspension

under the Ombudsman Act.

Held: We reach the foregoing conclusion, however,

without necessarily subscribing to petitioner’s 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

128

Ombudsman, who can impose a longer period of preventive

suspension, is not likely to be similarly motivated because it is a

constitutional body. The distinction is valid but not decisive, in

our view, of whether there has been grave abuse of discretion in

a specific case of preventive suspension.

X x x

Respondents may be correct in pointing out the reason

for the shorter period of preventive suspension imposable under

the Local Government Code. Political color could taint the

exercise of the power to suspend local officials by the mayor,

governor, or President’s 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])

319. Does Section 13, Republic Act No. 3019 exclude

from its coverage the members of Congress and,

therefore, the Sandiganbayan erred in decreeing

the preventive suspension order against Senator

Miriam Defensor-Santiago? Will the order of

suspension prescribed by Republic Act No. 3019

not encroach on the power of Congress to

discipline its own ranks under the Constitution?

Held: The petition assails the authority of the

Sandiganbayan to decree a ninety-day preventive suspension of

Mme. Miriam Defensor-Santiago, a Senator of the Republic of

the Philippines, from any government position, and furnishing a

copy thereof to the Senate of the Philippines for the

implementation of the suspension order.

The authority of the Sandiganbayan to order the

preventive suspension of an incumbent public official charged

with violation of the provisions of Republic Act No. 3019 has

both legal and jurisprudential support. X x x

In the relatively recent case of Segovia v.

Sandiganbayan, the Court reiterated:

“The validity of Section 13, R.A. 3019, as

amended – treating of the suspension pendente lite of

an accused public officer – may no longer be put at

issue, having been repeatedly upheld by this Court.

“X x x

“The provision of suspension pendente lite

applies to all persons indicted upon a valid information

under the Act, whether they be appointive or elective

officials; or permanent or temporary employees, or

pertaining to the career or non-career service.” (At pp.

336-337)

It would appear, indeed, to be a ministerial duty of the

court to issue an order of suspension upon determination of the

validity of the information filed before it. Once the information

is found to be sufficient in form and substance, the court is

bound to issue an order of suspension as a matter of course, and

there seems to be “no ifs and buts about it.” Explaining the

nature of the preventive suspension, the Court in the case of

Bayot v. Sandiganbayan:

“x x x It is not a penalty because it is not

imposed as a result of judicial proceedings. In fact, if

acquitted, the official concerned shall be entitled to

reinstatement and to the salaries and benefits which he

failed to receive during suspension.”

In issuing the preventive suspension of petitioner, the

Sandiganbayan merely adhered to the clear and unequivocal

mandate of the law, as well as the jurisprudence in which the

Court has, more than once, upheld Sandiganbayan’s 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

129

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.

X x x

The pronouncement, upholding the validity of the

information filed against petitioner, behooved Sandiganbayan to

discharge its mandated duty to forthwith issue the order of

preventive suspension.

The order of suspension prescribed by Republic Act

No. 3019 is distinct from the power of Congress to discipline its

own ranks under the Constitution which provides that each –

“x x x house may determine the rules of its

proceedings, punish its Members for disorderly behavior, and,

with the concurrence of two-thirds of all its Members, suspend

or expel a Member. A penalty of suspension, when imposed,

shall not exceed sixty days.” (Section 16[3], Article VI, 1987

Constitution)

The suspension contemplated in the above

constitutional provision is a punitive measure that is imposed

upon determination by the Senate or the House of

Representatives, as the case may be, upon an erring member.

Thus, in its resolution in the case of Ceferino Paredes, Jr. v.

Sandiganbayan, et al., the Court affirmed the order of

suspension of Congressman Paredes by the Sandiganbayan,

despite his protestations on the encroachment by the court on

the prerogatives of Congress. The Court ruled:

“x x x Petitioner’s 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])

320. May an elective public official be validly appointed

or designated to any public office or position

during his tenure?

130

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)

321. May an appointive public official hold any other

office or employment?

Ans.: Unless otherwise allowed by law or by the

primary functions of his position, no appointive official shall

hold any other office or employment in the Government or any

subdivision, agency or instrumentality thereof, including

government-owned or controlled corporation. (Sec. 7, 2nd

par.,

Art. IX-B, 1987 Constitution)

322. May the President, Vice-President, Members of the

Cabinet, their deputies or assistants hold any other

office or employment?

Ans.: The President, Vice-President, the Members of

the Cabinet, and their deputies or assistants shall not, unless

otherwise provided in this Constitution, hold any other office or

employment during their tenure. (Sec. 13, Art. VII, 1987

Constitution)

323. Does the prohibition in Section 13, Article VII of

the 1987 Constitution insofar as Cabinet members,

their deputies or assistants are concerned admit of

the broad exceptions made for appointive officials

in general under Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is: does the

prohibition in Section 13, Article VII of the 1987 Constitution

insofar as Cabinet members, their deputies or assistants are

concerned admit of the broad exceptions made for appointive

officials in general under Section 7, par. (2), Article IX-B

which, for easy reference is quoted anew, thus: “Unless

otherwise allowed by law or by the primary functions of his

position, no appointive official shall hold any other office or

employment in the government or any subdivision, agency or

instrumentality thereof, including government-owned or

controlled corporation or their subsidiaries.”

We rule in the negative.

X x x

The practice of designating members of the Cabinet,

their deputies and assistants as members of the governing bodies

or boards of various government agencies and instrumentalities,

including government-owned and controlled corporations,

became prevalent during the time legislative powers in this

country were exercised by former President Ferdinand E.

Marcos pursuant to his martial law authority. There was a

proliferation of newly-created agencies, instrumentalities and

government-owned and controlled corporations created by

presidential decrees and other modes of presidential issuances

where Cabinet members, their deputies or assistants were

designated to head or sit as members of the board with the

corresponding salaries, emoluments, per diems, allowances and

other perquisites of office. X x x

This practice of holding multiple offices or positions in

the government soon led to abuses by unscrupulous public

officials who took advantage of this scheme for purposes of

self-enrichment. X x x

Particularly odious and revolting to the people’s 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

131

or employees such as the Members of Congress, members of the

civil service in general and members of the armed forces, are

proof of the intent of the 1987 Constitution to treat the President

and his official family as a class by itself and to impose upon

said class stricter prohibitions.

X x x

Thus, while all other appointive officials in the civil

service are allowed to hold other office or employment in the

government during their tenure when such is allowed by law or

by the primary functions of their positions, members of the

Cabinet, their deputies and assistants may do so only when

expressly authorized by the Constitution itself. In other words,

Section 7, Article IX-B is meant to lay down the general rule

applicable to all elective and appointive public officials and

employees, while Section 13, Article VII is meant to be the

exception applicable only to the President, the Vice-President,

Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase “unless

otherwise provided in this Constitution” in Section 13, Article

VII cannot possibly refer to the broad exceptions provided under

Section 7, Article IX-B of the 1987 Constitution. To construe

said qualifying phrase as respondents would have us to do,

would render nugatory and meaningless the manifest intent and

purpose of the framers of the Constitution to impose a stricter

prohibition on the President, Vice-President, Members of the

Cabinet, their deputies and assistants with respect to holding

other offices or employment in the government during their

tenure. Respondents’ interpretation that Section 13 of Article

VII admits of the exceptions found in Section 7, par. (2) of

Article IX-B would obliterate the distinction so carefully set by

the framers of the Constitution as to when the high-ranking

officials of the Executive Branch from the President to assistant

Secretary, on the one hand, and the generality of civil servants

from the rank immediately below Assistant Secretary

downwards, on the other, may hold any other office or position

in the government during their tenure.

Moreover, respondents’ reading of the provisions in

question would render certain parts of the Constitution

inoperative. This observation applies particularly to the Vice-

President who, under Section 13 of Article VII is allowed to

hold other office or employment when so authorized by the

Constitution, but who as an elective public official under Sec. 7,

par. (1) of Article IX-B is absolutely ineligible “for appointment

or designation in any capacity to any public office or position

during his tenure.” Surely, to say that the phrase “unless

otherwise provided in this Constitution” found in Section 13,

Article VII has reference to Section 7, par. (1) of Article IX-B

would render meaningless the specific provisions of the

Constitution authorizing the Vice-President to become a

member of the Cabinet (Sec. 3, Ibid.), and to act as President

without relinquishing the Vice-Presidency where the President

shall not have been chosen or fails to qualify (Sec. 7, Article

VII). Such absurd consequence can be avoided only by

interpreting the two provisions under consideration as one, i.e.,

Section 7, par. (1) of Article IX-B providing the general rule and

the other, i.e., Section 13, Article VII as constituting the

exception thereto. In the same manner must Section 7, par. (2)

of Article IX-B be construed vis-à-vis Section 13, Article VII.

X x x

Since the evident purpose of the framers of the 1987

Constitution is to impose a stricter prohibition on the President,

Vice-President, members of the Cabinet, their deputies and

assistants with respect to holding multiple offices or

employment in the government during their tenure, the

exception to this prohibition must be read with equal severity.

On its face, the language of Section 13, Article VII is

prohibitory so that it must be understood as intended to be a

positive and unequivocal negation of the privilege of holding

multiple government offices and employment. Verily, wherever

the language used in the constitution is prohibitory, it is to be

understood as intended to be a positive and unequivocal

negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v.

State, 22 Tex. App. 396, 3 S.W. 233). The phrase “unless

otherwise provided in this Constitution” must be given a literal

interpretation to refer only to those particular instances cited in

the Constitution itself, to wit: the Vice-President being

appointed as a member of the Cabinet under Section 3, par. (2),

Article VII; or acting as President in those instances provided

under Section 7, pars. (2) and (3), Article VII; and, the Secretary

of Justice being ex-officio member of the Judicial and Bar

Council by virtue of Section 8 (1), Article VIII.

X x x

It being clear x x x that the 1987 Constitution seeks to

prohibit the President, Vice-President, members of the Cabinet,

their deputies or assistants from holding during their tenure

multiple offices or employment in the government, except in

those cases specified in the Constitution itself and as above

clarified with respect to posts held without additional

compensation in an ex-officio capacity as provided by law and

as required by the primary functions of their office, the citation

of Cabinet members (then called Ministers) as examples during

the debate and deliberation on the general rule laid down for all

appointive officials should be considered as mere personal

opinions which cannot override the constitution’s manifest

intent and the people’s 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 head’s 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

132

herein defined, in the government, including government-owned

or controlled corporations and their subsidiaries. (Civil

Liberties Union v. Executive Secretary, 194 SCRA 317, Feb.

22, 1991, En Banc [Fernan, CJ])

324. Does the prohibition against holding dual or

multiple offices or employment under Section 13,

Article VII of the Constitution apply to posts

occupied by the Executive officials specified

therein without additional compensation in an ex-

officio capacity as provided by law and as required

by the primary functions of said officials’ office?

Held: The prohibition against holding dual or multiple

offices or employment under Section 13, Article VII of the

Constitution must not, however, be construed as applying to

posts occupied by the Executive officials specified therein

without additional compensation in an ex-officio capacity as

provided by law and as required (As opposed to the term

“allowed” used in Section 7, par. (2), Article IX-B of the

Constitution, which is permissive. “Required” suggests an

imposition, and therefore, obligatory in nature) by the primary

functions of said officials’ office. The reason is that these posts

do not comprise “any other office” within the contemplation of

the constitutional prohibition but are properly an imposition of

additional duties and functions on said officials. To characterize

these posts otherwise would lead to absurd consequences,

among which are: The President of the Philippines cannot chair

the National Security Council reorganized under Executive

Order No. 115. Neither can the Vice-President, the Executive

Secretary, and the Secretaries of National Defense, Justice,

Labor and Employment and Local Government sit in this

Council, which would then have no reason to exist for lack of a

chairperson and members. The respective undersecretaries and

assistant secretaries, would also be prohibited.

X x x

Indeed, the framers of our Constitution could not have

intended such absurd consequences. A Constitution, viewed as

a continuously operative charter of government, is not to be

interpreted as demanding the impossible or the impracticable;

and unreasonable or absurd consequences, if possible, should be

avoided.

To reiterate, the prohibition under Section 13, Article

VII is not to be interpreted as covering positions held without

additional compensation in ex-officio capacities as provided by

law and as required by the primary functions of the concerned

official’s 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 official’s primary functions. Examples of designations to

positions by virtue of one’s 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

133

Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991,

En Banc [Fernan, CJ])

325. Should members of the Cabinet appointed to other

positions in the government pursuant to Executive

Order No. 284 which later was declared

unconstitutional by the SC for being violative of

Section 13, Article VII of the Constitution be made

to reimburse the government for whatever pay and

emoluments they received from holding such other

positions?

Held: During their tenure in the questioned positions,

respondents may be considered de facto officers and as such

entitled to emoluments for actual services rendered. It has been

held that “in cases where there is no de jure officer, a de facto

officer, who, in good faith has had possession of the office and

has discharged the duties pertaining thereto, is legally entitled to

the emoluments of the office, and may in an appropriate action

recover the salary, fees and other compensations attached to the

office. This doctrine is, undoubtedly, supported on equitable

grounds since it seems unjust that the public should benefit by

the services of an officer de facto and then be freed from all

liability to pay any one for such services. Any per diem,

allowances or other emoluments received by the respondents by

virtue of actual services rendered in the questioned positions

may therefore be retained by them. (Civil Liberties Union v.

Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc

[Fernan, CJ])

326. May a Senator or Congressman hold any other

office or employment?

Ans.: No Senator or Member of the House of

Representatives may hold any other office or employment in the

government, or any subdivision, agency, or instrumentality

thereof, including government-owned or controlled corporations

or their subsidiaries, during his term without forfeiting his seat.

Neither shall he be appointed to any office which may have

been created or the emoluments thereof increased during the

term for which he was elected. (Sec. 13, Art. VI, 1987

Constitution).

327. What are the situations covered by the law on

nepotism?

Held: Under the definition of nepotism, one is guilty

of nepotism if an appointment is issued in favor of a relative

within the third civil degree of consanguinity or affinity of any

of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office; and

d) person exercising immediate supervision over the

appointee.

Clearly, there are four situations covered. In the last

two mentioned situations, it is immaterial who the appointing or

recommending authority is. To constitute a violation of the law,

it suffices that an appointment is extended or issued in favor of a

relative within the third civil degree of consanguinity or affinity

of the chief of the bureau or office, or the person exercising

immediate supervision over the appointee. (CSC v. Pedro O.

Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

328. What are the exemptions from the operation of the

rules on nepotism?

Ans.: The following are exempted from the operation

of the rules on nepotism: (a) persons employed in a confidential

capacity, (b) teachers, (c) physicians, and (d) members of the

Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable

to the case of a member of any family who, after his or her

appointment to any position in an office or bureau, contracts

marriage with someone in the same office or bureau, in which

event the employment or retention therein of both husband and

wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk.

V, E.O. No. 292)

329. What is the doctrine of forgiveness or

condonation? Does it apply to pending criminal

cases?

Held: 1. A public official cannot be removed for

administrative misconduct committed during a prior term, since

his re-election to office operates as a condonation of the

officer’s previous misconduct to the extent of cutting off the

right to remove him therefor. The foregoing rule, however,

finds no application to criminal cases pending against petitioner.

(Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held

administratively accountable for misconduct committed during

his prior term of office. The rationale for this holding is that

when the electorate put him back into office, it is presumed that

it did so with full knowledge of his life and character, including

his past misconduct. If, armed with such knowledge, it still

reelects him, then such reelection is considered a condonation of

his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C.

Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

330. What is the Doctrine of Condonation? Illustrative

case.

Held: Petitioner contends that, per our ruling in

Aguinaldo v. Santos, his reelection has rendered the

administrative case filed against him moot and academic. This

is because his reelection operates as a condonation by the

electorate of the misconduct committed by an elective official

during his previous term. Petitioner further cites the ruling of

this Court in Pascual v. Hon. Provincial Board of Nueva Ecija,

citing Conant v. Brogan, that

“x x x When the people have elected a man to

office, it must be assumed that they did this with

knowledge of his life and character, and that they

disregarded or forgave his faults or misconduct, if he

had been guilty of any. It is not for the court, by reason

of such faults or misconduct to practically overrule the

will of the people.”

Respondents, on the other hand, contend that while the

contract in question was signed during the previous term of

petitioner, it was to commence or be effective only on

September 1998 or during his current term. It is the

respondents’ submission that petitioner “went beyond the

protective confines” of jurisprudence when he “agreed to extend

his act to his current term of office.” Aguinaldo cannot apply,

according to respondents, because what is involved in this case

is a misconduct committed during a previous term but to be

effective during the current term.

Respondents maintain that,

“x x x petitioner performed two acts with respect to the

contract: he provided for a suspensive period making

the supply contract commence or be effective during

his succeeding or current term and during his current

term of office he acceded to the suspensive period

making the contract effective during his current term

by causing the implementation of the contract.”

Hence, petitioner cannot take refuge in the fact of his

reelection, according to respondents.

134

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 petitioner’s character.

On this point, petitioner responds that knowledge of an

official’s 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 contract’s execution or implementation, or any act

subsequent to the perfection of the contract.

In Salalima, we recall that the Solicitor General

maintained that Aguinaldo did not apply to that case because the

administrative case against Governor Rodolfo Aguinaldo of

Cagayan was already pending when he filed his certificate of

candidacy for his reelection bid. Nevertheless, in Salalima, the

Court applied the Aguinaldo doctrine, even if the administrative

case against Governor Salalima was filed after his reelection.

X x x

We now come to the concluding inquiry. Granting that

the Office of the Ombudsman may investigate, for purposes

provided for by law, the acts of petitioner committed prior to his

present term of office; and that it may preventively suspend him

for a reasonable period, can that office hold him

administratively liable for said acts?

In a number of cases, we have repeatedly held that a

reelected local official may not be held administratively

accountable for misconduct committed during his prior term of

office. The rationale for this holding is that when the electorate

put him back into office, it is resumed that it did so with full

knowledge of his life and character, including his past

misconduct. If, armed with such knowledge, it still reelects

him, then such reelection is considered a condonation of his past

misdeeds.

However, in the present case, respondents point out

that the contract entered into by petitioner with F.E. Zuellig was

signed just four days before the date of the elections. It was not

made an issue during the election, and so the electorate could

not be said to have voted for petitioner with knowledge of this

particular aspect of his life and character.

For his part, petitioner contends that “the only

conclusive determining factor” as regards the people’s 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

official’s 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

official’s 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

petitioner’s second term.

However, respondents argue that the contract, although

signed on May 7, 1998, during petitioner’s 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 petitioner’s 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])

331. Petitioner claims that Benipayo has no authority to

remove her as Director IV of the EID and reassign

her to the Law Department. Petitioner further

argues that only the COMELEC, acting as a

collegial body, can authorize such reappointment.

Moreover, petitioner maintains that a reassignment

without her consent amounts to removal from

office without due process and therefore illegal.

Held: Petitioner’s 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

135

Chairman is not required by law to secure the approval of the

COMELEC en banc.

Petitioner’s appointment papers x x x indisputably

show that she held her Director IV position in the EID only in

an acting or temporary capacity. Petitioner is not a Career

Executive Service (CES), and neither does she hold Career

Executive Service Eligibility, which are necessary qualifications

for holding the position of Director IV as prescribed in the

Qualifications Standards (Revised 1987) issued by the Civil

Service Commission. Obviously, petitioner does not enjoy

security of tenure as Director IV. X x x

X x x

Having been appointed merely in a temporary or acting

capacity, and not possessed of the necessary qualifications to

hold the position of Director IV, petitioner has no legal basis in

claiming that her reassignment was contrary to the Civil Service

Law. X x x

Still, petitioner assails her reassignment, carried out

during the election period, as a prohibited act under Section 261

(h) of the Omnibus Election Code x x x.

X x x

Petitioner claims that Benipayo failed to secure the approval of

the COMELEC en banc to effect transfers or reassignments of

COMELEC personnel during the election period. Moreover,

petitioner insists that the COMELEC en banc must concur to

every transfer or reassignment of COMELEC personnel during

the election period.

Contrary to petitioner’s allegation, the COMELEC did

in fact issue COMELEC Resolution No. 3300 dated November

6, 2000, exempting the COMELEC from Section 261 (h) of the

Omnibus Election Code. X x x

X x x

The proviso in COMELEC Resolution No. 3300, requiring due

notice and hearing before any transfer or reassignment can be

made within thirty days prior to election day, refers only to

COMELEC field personnel and not to head office personnel like

the petitioner. Under the Revised Administrative Code, the

COMELEC Chairman is the sole officer specifically vested with

the power to transfer or reassign COMELEC personnel. The

COMELEC Chairman will logically exercise the authority to

transfer or reassign COMELEC personnel pursuant to

COMELEC Resolution No. 3300. The COMELEC en banc

cannot arrogate unto itself this power because that will mean

amending the Revised Administrative Code, an act the

COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that

every transfer or reassignment of COMELEC personnel should

carry the concurrence of the COMELEC as a collegial body.

Interpreting Resolution No. 3300 to require such concurrence

will render the resolution meaningless since the COMELEC en

banc will have to approve every personnel transfer or

reassignment, making the resolution utterly useless. Resolution

No. 3300 should be interpreted for what it is, an approval to

effect transfers and reassignments of personnel, without need of

securing a second approval from the COMELEC en banc to

actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly

authorized by law to transfer or reassign COMELEC personnel.

The person holding that office, in a de jure capacity, is

Benipayo. The COMELEC en banc, in COMELEC Resolution

No. 3300, approved the transfer or reassignment of COMELEC

personnel during the election period. Thus, Benipayo’s 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, Benipayo’s order designating Cinco Officer-in-

Charge of the EID is legally unassailable. (Matibag v.

Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

332. May the appointment of a person assuming a

position in the civil service under a completed

appointment be validly recalled or revoked?

Held: It has been held that upon the issuance of an

appointment and the appointee’s 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 CSC’s

jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing

Regulations of the Revised Administrative Code specifically

provides that “an appointment accepted by the appointee cannot

be withdrawn or revoked by the appointing authority and shall

remain in force and in effect until disapproved by the

Commission.” Thus, it is the CSC that is authorized to recall an

appointment initially approved, but only when such appointment

and approval are proven to be in disregard of applicable

provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance

with pertinent laws and rules shall take effect immediately

upon its issuance by the appointing authority, and if the

appointee has assumed the duties of the position, he shall be

entitled to receive his salary at once without awaiting the

approval of his appointment by the Commission. The

appointment shall remain effective until disapproved by the

Commission. In no case shall an appointment take effect

earlier than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an

appointment, the same may be recalled on any of the

following grounds:

Non-compliance with the procedures/criteria

provided in the agency’s Merit

Promotion Plan;

Failure to pass through the agency’s

Selection/Promotion Board;

Violation of the existing collective agreement

between management and employees

relative to promotion; or

Violation of other existing civil service law,

rules and regulations.

Accordingly, the appointments of the private

respondents may only be recalled on the above-cited grounds.

And yet, the only reason advanced by the petitioner to justify

136

the recall was that these were “midnight appointments.” The

CSC correctly ruled, however, that the constitutional prohibition

on so-called “midnight appointments,” specifically those made

within two (2) months immediately prior to the next presidential

elections, applies only to the President or Acting President. (De

Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En

Banc [Ynares-Santiago])

333. Is a government employee who has been ordered

arrested and detained for a non-bailable offense

and for which he was suspended for his inability to

report for work until the termination of his case,

still required to file a formal application for leave

of absence to ensure his reinstatement upon his

acquittal and thus protect his security of tenure?

Concomitantly, will his prolonged absence from

office for more than one (1) year automatically

justify his being dropped from the rolls without

prior notice despite his being allegedly placed

under suspension by his employer until the

termination of his case, which finally resulted in

his acquittal for lack of evidence?

Held: EUSEBIA R. GALZOTE was employed as a

lowly clerk in the service of the City Government of Makati

City. With her meager income she was the lone provider for her

children. But her simple life was disrupted abruptly when she

was arrested without warrant and detained for more than three

(3) years for a crime she did not commit. Throughout her ordeal

she trusted the city government that the suspension imposed on

her was only until the final disposition of her case. As she drew

near her vindication she never did expect the worst to come to

her. On the third year of her detention the city government

lifted her suspension, dropped her from the rolls without prior

notice and without her knowledge, much less gave her an

opportunity to forthwith correct the omission of an application

for leave of absence belatedly laid on her.

Upon her acquittal for lack of evidence and her release

from detention she was denied reinstatement to her position.

She was forced to seek recourse in the Civil Service

Commission which ordered her immediate reinstatement with

back wages from 19 October 1994, the date when she presented

herself for reassumption of duties but was turned back by the

city government, up to the time of her actual reinstatement.

X x x

Plainly, the case of petitioner City Government of

Makati City revolves around a rotunda of doubt, a dilemma

concerning the legal status and implications of its suspension of

private respondent Eusebia R. Galzote and the automatic leave

of absence espoused by the Civil Service Commission. Against

this concern is 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

respondent’s substantial compliance with the standing rules, and

the City Government’s insistence that the lowly clerk should

have still gone through the formalities of applying for leave

despite her detention, of which petitioner had actual notice, and

the suspension order couched in simple language that she was

being suspended until the final disposition of her criminal case.

The meaning of suspension until the final disposition of

her case is that should her case be dismissed she should be

reinstated to her position with payment of back wages. She did

not have to apply for leave of absence since she was already

suspended by her employer until her case would be terminated.

We have done justice to the workingman in the past; today we

will do no less by resolving all doubts in favor of the humble

employee in faithful obeisance to the constitutional mandate to

afford full protection to labor (Const., Art. XIII, Sec. 3, par. 1;

Art. II, Sec. 18)

X x x

As may be gleaned from the pleadings of the parties,

the issues are: (1) whether private respondent Eusebia R.

Galzote may be considered absent without leave; (b) whether

due process had been observed before she was dropped from the

rolls; and, (3) whether she may be deemed to have abandoned

her position, hence, not entitled to reinstatement with back

salaries for not having filed a formal application for leave.

Encapsulated, the issues may be reduced to whether private

respondent may be considered absent without leave or whether

she abandoned her job as to justify being dropped from the

service for not filing a formal application for leave.

Petitioner would have private respondent declared on

AWOL and faults her for failing to file an application for leave

of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of

Absence, of Res. No. 91-1631 dated 27 December 1991, as

amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of

Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27

December 1991, as amended by CSC MC Nos. 41, s. 1998 and

14, s. 1999) of the CSC Rules and rejects the CSC’s 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 respondent’s 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.

137

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

Government’s order of suspension, as we have no reason to do

so, much less retroactively apply such nullification to deprive

private respondent of a compelling and valid reason for not

filing the leave application. For as we have held, a void act

though in law a mere scrap of paper nonetheless confers

legitimacy upon past acts or omissions done in reliance thereof.

Consequently, the existence of a statute or executive order prior

to its being adjudged void is an operative fact to which legal

consequences are attached. It would indeed be ghastly unfair to

prevent private respondent from relying upon the order of

suspension in lieu of a formal leave application.

At any rate, statements are, or should be, construed

against the one responsible for the confusion; otherwise stated,

petitioner must assume full responsibility for the consequences

of its own act, hence, he should be made to answer for the mix-

up of private respondent as regards the leave application. At the

very least, it should be considered estopped from claiming that

its order of suspension is void or that it did not excuse private

respondent from filing an application for leave on account of her

incarceration. It is a fact that she relied upon this order, issued

barely three (3) days from the date of her arrest, and assumed

that when the criminal case would be settled she could return to

work without need of any prior act. x x x

X x x

The holding of the Civil Service Commission that

private respondent was on automatic leave of absence during the

period of her detention must be sustained. The CSC is the

constitutionally mandated central personnel agency of the

Government tasked to “establish a career service and adopt

measures to promote morale, efficiency, integrity,

responsiveness, progressiveness and courtesy in the civil

service” (Const., Art. IX-B, Sec. 3) and “strengthen the merit

and rewards system, integrate all human resources development

programs for all levels and ranks, and institutionalize a

management climate conducive to public accountability.”

Besides, the Administrative Code of 1987 further empowers the

CSC to “prescribe, amend, and enforce rules and regulations for

carrying into effect the provisions of the Civil Service Law and

other pertinent laws,” and for matters concerning leaves of

absence, the Code specifically vests the CSC to ordain –

Sec. 60. Leave of absence. – Officers and

employees in the Civil Service shall be entitled to leave

of absence, with or without pay, as may be provided by

law and the rules and regulations of the Civil Service

Commission in the interest of the service.

Pursuant thereto the CSC promulgated Resolution No.

91-1631 dated 27 December 1991 entitled Rules Implementing

Book V of Executive Order No. 292 and Other Pertinent Civil

Service Laws which it has several times amended through

memorandum circulars. It devotes Rule XVI to leaves of

absence. Petitioner City Government relies upon Secs. 20 and

35 to debunk the CSC ruling of an automatic leave of absence.

Significantly, these provisions have been amended so that Sec.

20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on

Leave of Absence, of Resolution No. 91-1631 dated 27

December 1991 as amended by CSC MC No. 41, s. 1998, and

Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998

and 14, s. 1999.

X x x

As a general rule, Secs. 20 and 52, as well as Secs. 35

and 63, require an approved leave of absence to avoid being an

AWOL. However, these provisions cannot be interpreted as

exclusive and referring only to one mode of securing the

approval of a leave of absence which would require an

employee to apply for it, formalities and all, before exceeding

thirty (30) days of absence in order to avoid from being dropped

from the rolls. There are, after all, other means of seeking and

granting an approved leave of absence, one of which is the CSC

recognized rule of automatic leave of absence under specified

circumstances. x x x

X x x

As properly noted, the CSC was only interpreting its

own rules on leave of absence and not a statutory provision (As

a matter of fact, Sec. 60 of the Administrative Code does not

provide for any rule on leave of absence other than that civil

servants are entitled to leave of absence) in coming up with this

uniform rule. Undoubtedly, the CSC like any other agency has

the power to interpret its own rules and any phrase contained in

them with its interpretation significantly becoming part of the

rules themselves. x x x

X x x

Under RA 6656 (An Act to Protect the Security of

Tenure of Civil Service Officers and Employees in the

Implementation of Government Reorganization) and RA 7160

(The Local Government Code of 1991), civil servants who are

found illegally dismissed or retrenched are entitled to full pay

for the period of their separation.

Our final point. An efficient and honest bureaucracy is

never inconsistent with the emphasis on and the recognition of

the basic rights and privileges of our civil servants or, for that

matter, the constitutional mandates of the Civil Service

Commission. In fact only from an enlightened corps of

government workers and an effective CSC grows the

professionalization of the bureaucracy. Indeed the government

cannot be left in the lurch; but 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

138

extra effort to rebel against the allure of legal over-

simplification, justice would have been done where it is truly

due. (City Government of Makati City v. Civil Service

Commission, 376 SCRA 248, Feb. 6, 2002, En Banc

[Bellosillo])

334. What is abandonment of office? What are its

essential elements?

Held: Abandonment of an office is the voluntary

relinquishment of an office by the holder, with the intention of

terminating his possession and control thereof. In order to

constitute abandonment of an office, it must be total and under

such circumstances as clearly to indicate an absolute

relinquishment. There must be a complete abandonment of

duties of such continuance that the law will infer a

relinquishment. Abandonment of duties is a voluntary act; it

springs from and is accompanied by deliberation and freedom of

choice. There are, therefore, two essential elements of

abandonment: first, an intention to abandon and second, an overt

or “external” act by which the intention is carried into effect.

Generally speaking, a person holding a public office

may abandon such office by non-user or acquiescence. Non-

user refers to a neglect to use a right or privilege or to exercise

an office. However, non-performance of the duties of an office

does not constitute abandonment where such non-performance

results from temporary disability or from involuntary failure to

perform. Abandonment may also result from an acquiescence

by the officer in his wrongful removal or discharge, for instance,

after a summary removal, an unreasonable delay by an officer

illegally removed in taking steps to vindicate his rights may

constitute an abandonment of the office. Where, while desiring

and intending to hold the office, and with no willful desire or

intention to abandon it, the public officer vacates it in deference

to the requirements of a statute which is afterwards declared

unconstitutional, such a surrender will not be deemed an

abandonment and the officer may recover the effect.

(Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15,

2001, En Banc [Gonzaga-Reyes])

335. By accepting another position in the government

during the pendency of a case – brought precisely

to assail the constitutionality of his removal - may a

person be deemed to have abandoned his claim for

reinstatement?

Held: Although petitioners do not deny the

appointment of Canonizado as Inspector General, they maintain

that Canonizado’s initiation and tenacious pursuance of the

present case would belie any intention to abandon his former

office. Petitioners assert that Canonizado should not be faulted

for seeking gainful employment during the pendency of this

case. Furthermore, petitioners point out that from the time

Canonizado assumed office as Inspector General he never

received the salary pertaining to such position x x x.

X x x

By accepting the position of Inspector General during

the pendency of the present case – brought precisely to assail the

constitutionality of his removal from the NAPOLCOM –

Canonizado cannot be deemed to have abandoned his claim for

reinstatement to the latter position. First of all, Canonizado did

not voluntarily leave his post as Commissioner, but was

compelled to do so on the strength of Section 8 of RA 8551 x x

x

In our decision of 25 January 2000, we struck down the

abovequoted provision for being violative of petitioner’s

constitutionally guaranteed right to security of tenure. Thus,

Canonizado harbored no willful desire or intention to abandon

his official duties. In fact, Canonizado, together with petitioners

x x x lost no time disputing what they perceived to be an illegal

removal; a few weeks after RA 8551 took effect x x x

petitioners instituted the current action x x x assailing the

constitutionality of certain provisions of said law. The removal

of petitioners from their positions by virtue of a constitutionally

infirm act necessarily negates a finding of voluntary

relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-

668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

336. Distinguish “term” of office from “tenure” of the

incumbent.

Held: In the law of public officers, there is a settled

distinction between “term” and “tenure.” “[T]he term of an

office must be distinguished from the tenure of the incumbent.

The term means the time during which the officer may claim to

hold office as of right, and fixes the interval after which the

several incumbents shall succeed one another. The tenure

represents the term during which the incumbent actually holds

the office. The term of office is not affected by the hold-over.

The tenure may be shorter than the term for reasons within or

beyond the power of the incumbent.” (Thelma P. Gaminde v.

COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

337. Discuss the operation of the rotational plan insofar

as the term of office of the Chairman and Members

of the Constitutional Commissions is concerned.

Held: In Republic v. Imperial, we said that “the

operation of the rotational plan requires two conditions, both

indispensable to its workability: (1) that the terms of the first

three (3) Commissioners should start on a common date, and (2)

that any vacancy due to death, resignation or disability before

the expiration of the term should only be filled only for the

unexpired balance of the term.”

Consequently, the terms of the first Chairmen and

Commissioners of the Constitutional Commissions under the

1987 Constitution must start on a common date, irrespective of

the variations in the dates of appointments and qualifications of

the appointees, in order that the expiration of the first terms of

seven, five and three years should lead to the regular recurrence

of the two-year interval between the expiration of the terms.

Applying the foregoing conditions x x x, we rule that

the appropriate starting point of the terms of office of the first

appointees to the Constitutional Commissions under the 1987

Constitution must be on February 2, 1987, the date of the

adoption of the 1987 Constitution. In case of a belated

appointment or qualification, the interval between the start of

the term and the actual qualification of the appointee must be

counted against the latter. (Thelma P. Gaminde v. COA, G.R.

No. 140335, Dec. 13, 2000, En Banc [Pardo])

338. What is the hold-over doctrine? What is its

purpose?

Held: 1. The concept of holdover when applied to a

public officer implies that the office has a fixed term and the

incumbent is holding onto the succeeding term. It is usually

provided by law that officers elected or appointed for a fixed

term shall remain in office not only for that term but until their

successors have been elected and qualified. Where this

provision is found, the office does not become vacant upon the

expiration of the term if there is no successor elected and

qualified to assume it, but the present incumbent will carry over

until his successor is elected and qualified, even though it be

beyond the term fixed by law.

Absent an express or implied constitutional or statutory

provision to the contrary, an officer is entitled to stay in office

until his successor is appointed or chosen and has qualified.

The legislative intent of not allowing holdover must be clearly

expressed or at least implied in the legislative enactment,

otherwise it is reasonable to assume that the law-making body

favors the same.

139

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.])

339. What is resignation? What are the requisites of a

valid resignation?

Held: 1. It is the act of giving up or the act of an

officer by which he declines his office and renounces the further

right to use it. It is an expression of the incumbent in some

form, express or implied, of the intention to surrender, renounce,

and relinquish the office and the acceptance by competent and

lawful authority. To constitute a complete and operative

resignation from public office, there must be: (a) an intention to

relinquish a part of the term; (b) an act of relinquishment; and

(c) an acceptance by the proper authority. The last one is

required by reason of Article 238 of the Revised Penal Code.

(Sangguniang Bayan of San Andres, Catanduanes v. CA, 284

SCRA 276, Jan. 16, 1998)

2. Resignation x x x is a factual question and its

elements are beyond quibble: there must be an intent to resign

and the intent must be coupled by acts of relinquishment. The

validity of a resignation is not governed by any formal

requirement as to form. It can be oral. It can be written. It can

be express. It can be implied. As long as the resignation is

clear, it must be given legal effect. (Estrada v. Desierto, G.R.

Nos. 146710-15, March 2, 2001, en Banc [Puno])

340. What is abandonment of an office? What are its

requisites? How is it distinguished from

resignation?

Held: Abandonment of an office has been defined as

the voluntary relinquishment of an office by the holder, with the

intention of terminating his possession and control thereof.

Indeed, abandonment of office is a species of resignation; while

resignation in general is a formal relinquishment, abandonment

is a voluntary relinquishment through nonuser.

Abandonment springs from and is accompanied by

deliberation and freedom of choice. Its concomitant effect is

that the former holder of an office can no longer legally

repossess it even by forcible reoccupancy.

Clear intention to abandon should be manifested by the

officer concerned. Such intention may be express or inferred

from his own conduct. Thus, the failure to perform the duties

pertaining to the office must be with the officer’s actual or

imputed intention to abandon and relinquish the office.

Abandonment of an office is not wholly a matter of intention; it

results from a complete abandonment of duties of such

continuance that the law will infer a relinquishment. Therefore,

there are two essential elements of abandonment; first, an

intention to abandon and, second, an overt or “external” act by

which the intention is carried into effect. (Sangguniang Bayan

of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16,

1998)

341. What is the effect of acceptance of an incompatible

office to a claim for reinstatement?

Held: The next issue is whether Canonizado’s

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 person’s performing the

duties of the two offices due to a lack of time or the inability to

be in two places at the same moment, but that which proceeds

from the nature and relations of the two positions to each other

as to give rise to contrariety and antagonism should one person

attempt to faithfully and impartially discharge the duties of one

toward the incumbent of the other.

There is no question that the positions of NAPOLCOM

Commissioner and Inspector General of the IAS are

incompatible with each other. As pointed out by respondents,

RA 8551 prohibits any personnel of the IAS from sitting in a

committee charged with the task of deliberating on the

appointment, promotion, or assignment of any PNP personnel,

whereas the NAPOLCOM has the power of control and

supervision over the PNP. However, the rule on

incompatibility of duties will not apply to the case at bar

because at no point did Canonizado discharge the functions of

the two offices simultaneously. Canonizado was forced out of

his first office by the enactment of Section 8 of RA 8551. Thus,

when Canonizado was appointed as Inspector General x x x he

had ceased to discharge his official functions as NAPOLCOM

Commissioner. x x x Thus, to reiterate, the incompatibility of

duties rule never had a chance to come into play for petitioner

never occupied the two positions, of Commissioner and

Inspector General, nor discharged their respective functions,

concurrently.

X x x

As in the Tan v. Gimenez and Gonzales v. Hernandez

cases, Canonizado was compelled to leave his position as

Commissioner, not by an erroneous decision, but by an

unconstitutional provision of law. Canonizado, like the

petitioners in the above mentioned cases, held a second office

during the period that his appeal was pending. As stated in the

Comment filed by petitioners, Canonizado was impelled to

accept this subsequent position by a desire to continue serving

the country, in whatever capacity. Surely, this selfless and

noble aspiration deserves to be placed on at least equal footing

with the worthy goal of providing for oneself and one’s family,

either of which are sufficient to justify Canonizado’s 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])

140

342. When may unconsented transfers be considered

anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez:

"x x x the rule that outlaws unconsented

transfers as anathema to security of tenure applies only

to an officer who is appointed - not merely assigned -

to a particular station. Such a rule does not pr[o]scribe

a transfer carried out under a specific statute that

empowers the head of an agency to periodically

reassign the employees and officers in order to improve

the service of the agency. x x x"

The guarantee of security of tenure under the Constitution is not

a guarantee of perpetual employment. It only means that an

employee cannot be dismissed (or transferred) from the service

for causes other than those provided by law and after due

process is accorded the employee. What it seeks to prevent is

capricious exercise of the power to dismiss. But where it is the

law-making authority itself which furnishes the ground for the

transfer of a class of employees, no such capriciousness can be

raised for so long as the remedy proposed to cure a perceived

evil is germane to the purposes of the law. (Agripino A. De

Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19,

2000, En Banc [Purisima])

343. Discuss Abolition of Office?

Held: The creation and abolition of public offices is

primarily a legislative function. It is acknowledged that

Congress may abolish any office it creates without impairing the

officer's right to continue in the position held and that such

power may be exercised for various reasons, such as the lack of

funds or in the interest of economy. However, in order for the

abolition to be valid, it must be made in good faith, not for

political or personal reasons, or in order to circumvent the

constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away

with such office wholly and permanently, as the word

"abolished" denotes. Where one office is abolished and

replaced with another office vested with similar functions, the

abolition is a legal nullity. Thus, in U.P. Board of Regents v.

Rasul we said:

It is true that a valid and bona fide abolition of

an office denies to the incumbent the right to security

of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]).

However, in this case, the renaming and restructuring

of the PGH and its component units cannot give rise to

a valid and bona fide abolition of the position of PGH

Director. This is because where the abolished office

and the offices created in its place have similar

functions, the abolition lacks good faith (Jose L.

Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928,

June 4, 1990, 186 SCRA 108 [1990]). We hereby

apply the principle enunciated in Cezar Z. Dario v.

Hon. Salvador M. Mison (176 SCRA 84 [1989]) that

abolition which merely changes the nomenclature of

positions is invalid and does not result in the removal

of the incumbent.

The above notwithstanding, and assuming that

the abolition of the position of the PGH Director and

the creation of a UP-PGH Medical Center Director are

valid, the removal of the incumbent is still not justified

for the reason that the duties and functions of the two

positions are basically the same.

This was also our ruling in Guerrero v. Arizabal,

wherein we declared that the substantial identity in the functions

between the two offices was indicia of bad faith in the removal

of petitioner pursuant to a reorganization. (Alexis C.

Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R.

No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])

344. What is reorganization? When is it valid? When is

it invalid?

Held: 1. Reorganization takes place when there is an

alteration of the existing structure of government offices or units

therein, including the lines of control, authority and

responsibility between them. It involves a reduction of

personnel, consolidation of offices, or abolition thereof by

reason of economy or redundancy of functions. Naturally, it

may result in the loss of one's position through removal or

abolition of an office. However, for a reorganization to be

valid, it must also pass the test of good faith, laid down in Dario

v. Mison:

x x x As a general rule, a reorganization is

carried out in "good faith" if it is for the purpose of

economy or to make bureaucracy more efficient. In

that event, no dismissal (in case of dismissal) or

separation actually occurs because the position itself

ceases to exist. And in that case, security of tenure

would not be a Chinese wall. Be that as it may, if the

"abolition" which is nothing else but a separation or

removal, is done for political reasons or purposely to

defeat security of tenure, or otherwise not in good faith,

no valid "abolition" takes place and whatever

"abolition" is done, is void ab initio. There is an

invalid "abolition" as where there is merely a change of

nomenclature of positions, or where claims of economy

are belied by the existence of ample funds.

(Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et

al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-

Reyes])

2. While the President’s power to reorganize can not

be denied, this does not mean however that the reorganization

itself is properly made in accordance with law. Well-settled is

the rule that reorganization is regarded as valid provided it is

pursued in good faith. Thus, in Dario v. Mison, this Court has

had the occasion to clarify that:

“As a general rule, a reorganization is carried out in

‘good faith’ if it is for the purpose of economy or to

make the bureaucracy more efficient. In that event no

dismissal or separation actually occurs because the

position itself ceases to exist. And in that case the

security of tenure would not be a Chinese wall. Be that

as it may, if the abolition which is nothing else but a

separation or removal, is done for political reasons or

purposely to defeat security of tenure, or otherwise not

in good faith, no valid abolition takes place and

whatever abolition done is void ab initio. There is an

invalid abolition as where there is merely a change of

nomenclature of positions or where claims of economy

are belied by the existence of ample funds.”

(Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

345. What are the circumstances evidencing bad faith in

the removal of employees as a result of

reorganization and which may give rise to a claim

for reinstatement or reappointment)?

Held:

Where there is a significant increase in the number of

positions in the new staffing pattern of the

department or agency concerned;

Where an office is abolished and another performing

substantially the same functions is created;

Where incumbents are replaced by those less qualified

in terms of status of appointment, performance and

merit;

141

Where there is a reclassification of offices in the

department or agency concerned and the

reclassified offices perform substantially the same

functions as the original offices;

Where the removal violates the order of separation

provided in Section 3 hereof.

(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280

SCRA 713, Oct. 16, 1997)

E. ELECTION LAWS

346. Discuss the Right of Suffrage, and its substantive

and procedural requirements.

Held: In a representative democracy such as ours, the

right of suffrage, although accorded a prime niche in the

hierarchy of rights embodied in the fundamental law, ought to

be exercised within the proper bounds and framework of the

Constitution and must properly yield to pertinent laws skillfully

enacted by the Legislature, which statutes for all intents and

purposes, are crafted to effectively insulate such so cherished

right from ravishment and preserve the democratic institutions

our people have, for so long, guarded against the spoils of

opportunism, debauchery and abuse.

To be sure, the right of suffrage x x x is not at all

absolute. Needless to say, the exercise of the right of suffrage,

as in the enjoyment of all other rights, is subject to existing

substantive and procedural requirements 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 “Voter’s Registration Act of

1996.” (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar.

26, 2001, En Banc [Buena])

347. Discuss the nature of Voter’s 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 voter’s registration for the ultimate purpose of conducting

honest, orderly and peaceful election, to the incidental yet

generally important end, that even pre-election activities could

be performed by the duly constituted authorities in a realistic

and orderly manner – one which is not indifferent and so far

removed from the pressing order of the day and the prevalent

circumstances of the times. (Akbayan-Youth v. COMELEC,

355 SCRA 318, Mar. 26, 2001, En Banc [Buena])

348. Discuss the reason behind the principle of ballot

secrecy. May the conduct of exit polls transgress

the sanctity and the secrecy of the ballot to justify

its prohibition?

Held: The reason behind the principle of ballot

secrecy is to avoid vote buying through voter identification.

Thus, voters are prohibited from exhibiting the contents of their

official ballots to other persons, from making copies thereof, or

from putting distinguishing marks thereon so as to be identified.

Also proscribed is finding out the contents of the ballots cast by

particular voters or disclosing those of disabled or illiterate

voters who have been assisted. Clearly, what is forbidden is the

association of voters with their respective votes, for the purpose

of assuring that the votes have been cast in accordance with the

instructions of a third party. This result cannot, however, be

achieved merely through the voters’ verbal and confidential

disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not

actually exposed. Furthermore, the revelation of whom an

elector has voted for is not compulsory, but voluntary. Voters

may also choose not to reveal their identities. Indeed, narrowly

tailored countermeasures may be prescribed by the Comelec, so

as to minimize or suppress incidental problems in the conduct of

exit polls, without transgressing the fundamental rights of our

people. (ABS-CBN Broadcasting Corporation v. COMELEC,

G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban])

349. Does Section 5(d) of Rep. Act No. 9189 violate

Section 1, Article V of the 1987 Constitution of the

Republic of the Philippines?

Held: [P]etitioner posits that Section 5(d) is

unconstitutional because it violates Section 1, Article V of the

1987 Constitution which requires that the voter must be a

resident in the Philippines for at least one year and in the place

where he proposes to vote for at least six months immediately

preceding an election. Petitioner cites the ruling of the Court in

Caasi v. Court of Appeals (G.R. No. 88831, 8 November 1990,

191 SCRA 229) to support his claim. In that case, the Court held

that a “green card” holder immigrant to the United States is

deemed to have abandoned his domicile and residence in the

Philippines.

Petitioner further argues that Section 1, Article V of the

Constitution does not allow provisional registration or a promise

by a voter to perform a condition to be qualified to vote in a

political exercise; that the legislature should not be allowed to

circumvent the requirement of the Constitution on the right of

suffrage by providing a condition thereon which in effect

amends or alters the aforesaid residence requirement to qualify a

Filipino abroad to vote. He claims that the right of suffrage

should not be granted to anyone who, on the date of the election,

does not possess the qualifications provided for by Section 1,

Article V of the Constitution.

X x x

The seed of the present controversy is the interpretation

that is given to the phrase, “qualified citizens of the Philippines

abroad” as it appears in R.A. No. 9189 x x x.

X x x Under Section 5(d) of R.A. No. 9189, one of

those disqualified from voting is an immigrant or permanent

resident who is recognized as such in the host country unless

he/she executes an affidavit declaring that he/she shall resume

actual physical permanent residence in the Philippines not later

than three years from approval of his/her registration under said

Act.

142

Petitioner questions the rightness of the mere act of

execution of an affidavit to qualify the Filipinos abroad who are

immigrants or permanent residents, to vote. He focuses solely

on Section 1, Article V of the Constitution in ascribing

constitutional infirmity to Section 5(d) of R.A. No. 9189, totally

ignoring the provisions of Section 2 empowering Congress to

provide a system for absentee voting by qualified Filipinos

abroad.

A simple, cursory reading of Section 5(d) of R.A. No.

9189 may indeed give the impression that it contravenes Section

1, Article V of the Constitution. Filipino immigrants and

permanent residents overseas are perceived as having left and

abandoned the Philippines to live permanently in their host

countries and therefore, a provision in the law enfranchising

those who do not possess the residency requirement of the

Constitution by the mere act of executing an affidavit expressing

their intent to return to the Philippines within a given period,

risks a declaration of unconstitutionality. However, the risk is

more apparent than real.

X x x

As the essence of R.A. No. 9189 is to enfranchise

overseas qualified Filipinos, it behooves the Court to take a

holistic view of the pertinent provisions of both the Constitution

and R.A. No. 9189. It is a basic rule in constitutional

construction that the Constitution should be construed as a

whole. X x x

R.A. No. 9189 was enacted in obeisance to the

mandate of the first paragraph of Section 2, Article V of the

Constitution that Congress shall provide a system for voting by

qualified Filipinos abroad. It must be stressed that Section 2

does not provide for the parameters of the exercise of legislative

authority in enacting said law. Hence, in the absence of

restrictions, Congress is presumed to have duly exercised its

function as defined in Article VI (the Legislative Department) of

the Constitution.

To put matters in their right perspective, it is necessary

to dwell first on the significance of absentee voting. The

concept of absentee voting is relatively new. X x x

Ordinarily, an absentee is not a resident and vice versa;

a person cannot be at the same time, both a resident and an

absentee (1 WORDS AND PHRASES 264 citing Savant v.

Mercadal, 66 So. 961, 962, 136 La., 248). However, under our

election laws and the countless pronouncements of the Court

pertaining to elections, an absentee remains attached to his

residence in the Philippines as residence is considered

synonymous with domicile.

X x x

Aware of the domiciliary legal tie that links an

overseas Filipino to his residence in this country, the framers of

the Constitution considered the circumstances that impelled

them to require Congress to establish a system for overseas

absentee voting x x x.

X x x

Thus, the Constitutional Commission recognized the

fact that while millions of Filipinos reside abroad principally for

economic reasons and hence they contribute in no small

measure to the economic uplift of this country, their voices are

marginal insofar as the choice of this country’s leaders is

concerned.

The Constitutional Commission realized that under the

laws then existing and considering the novelty of the system of

absentee voting in this jurisdiction, vesting overseas Filipinos

with the right to vote would spawn constitutional problems

especially because the Constitution itself provides for the

residency requirement of voters x x x. Thus, Section 2, Article

V of the Constitution came into being to remove any doubt as to

the inapplicability of the residency requirement in Section 1. It

is precisely to avoid any problems that could impede the

implementation of its pursuit to enfranchise the largest number

of qualified Filipinos who are not in the Philippines that the

Constitutional Commission explicitly mandated Congress to

provide a system for overseas absentee voting.

The discussion of the Constitutional Commission on

the effect of the residency requirement prescribed by Section 1,

Article V of the Constitution on the proposed system for

absentee voting for qualified Filipinos abroad is enlightening x x

x.

Clearly therefrom, the intent of the Constitutional

Commission is to entrust to Congress the responsibility of

devising a system of absentee voting. The qualifications of

voters as stated in Section 1 shall remain except for the

residency requirement. This is in fact the reason why the

Constitutional Commission opted for the term qualified

Filipinos abroad with respect to the system of absentee voting

that Congress should draw up. As stressed by Commissioner

Monsod, by the use of the adjective qualified with respect to

Filipinos abroad, the assumption is that they have the

“qualifications and none of the disqualifications to vote.” In

fine-tuning the provision on absentee voting, the Constitutional

Commission discussed how the system should work x x x.

It is clear from these discussions of the members of the

Constitutional Commission that they intended to enfranchise as

much as possible all Filipino citizens abroad who have not

abandoned their domicile of origin. The Commission even

intended to extend to young Filipinos who reach voting age

abroad whose parents’ domicile of origin is in the Philippines,

and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission

provided for Section 2 immediately after the residency

requirement of Section 1. By the doctrine of necessary

implication in statutory construction, which may be applied in

construing constitutional provisions (Marcelino v. Cruz, 121

SCRA 51, 56), the strategic location of Section 2 indicates that

the Constitutional Commission provided for an exception to the

actual residency requirement of Section 1 with respect to

qualified Filipinos abroad. The same Commission has in effect

declared that qualified Filipinos who are not in the Philippines

may be allowed to vote though they do not satisfy the residency

requirement in Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an

exception to the residency requirement found in Section 1 of the

same Article was in fact the subject of debate when Senate Bill

No. 2104, which became R.A. No. 9189, was deliberated upon

on the Senate floor x x x.

X x x

Accordingly, Section 4 of R.A. No. 9189 provides for

the coverage of the absentee voting process x x x which does

not require physical residency in the Philippines; and Section 5

of the assailed law which enumerates those who are disqualified

x x x.

As finally approved into law, Section 5(d) of R.A. No.

9189 specifically disqualifies an immigrant or permanent

resident who is “recognized as such in the host country”

because immigration or permanent residence in another country

implies renunciation of one’s residence in his country of origin.

However, same Section allows an immigrant and permanent

resident abroad to register as voter for as long as he/she executes

an affidavit to show that he/she has not abandoned his domicile

in pursuance of the constitutional intent expressed in Sections 1

and 2 of Article V that “all citizens of the Philippines not

otherwise disqualified by law” must be entitled to exercise the

143

right of suffrage and, that Congress must establish a system for

absentee voting; for otherwise, if actual, physical residence in

the Philippines is required, there is no sense for the framers of

the Constitution to mandate Congress to establish a system for

absentee voting.

Contrary to the claim of petitioner, the execution of the

affidavit itself is not the enabling or enfranchising act. The

affidavit required in Section 5(d) is not only proof of the

intention of the immigrant or permanent resident to go back and

resume residency in the Philippines, but more significantly, it

serves as an explicit expression that he had not in fact

abandoned his domicile of origin. Thus, it is not correct to say

that the execution of the affidavit under Section 5(d) violates the

Constitution that proscribes “provisional registration or a

promise by a voter to perform a condition to be qualified to vote

in a political exercise.”

To repeat, the affidavit is required of immigrants and

permanent residents abroad because by their status in their host

countries, they are presumed to have relinquished their intent to

return to this country; thus, without the affidavit, the

presumption of abandonment of Philippine domicile shall

remain.

Further perusal of the transcripts of the Senate

proceedings discloses another reason why the Senate required

the execution of said affidavit. It wanted the affiant to exercise

the option to return or to express his intention to return to his

domicile of origin and not to preempt that choice by legislation.

X x x

X x x

In the advent of The Overseas Absentee Voting Act of

2003 or R.A. No. 9189, they may still be considered as a

“qualified citizen of the Philippines abroad” upon fulfillment of

the requirements of registration under the new law for the

purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only

require an affidavit or a promise to “resume actual physical

permanent residence in the Philippines not later than three years

from approval of his/her registration,” the Filipinos abroad must

also declare that they have not applied for citizenship in another

country. Thus, they must return to the Philippines otherwise,

their failure to return “shall be cause for the removal” of their

names “from the National Registry of absentee voters and

his/her permanent disqualification to vote in absentia.”

Thus, Congress crafted a process of registration by

which a Filipino voter permanently residing abroad who is at

least eighteen years old, not otherwise disqualified by law, who

has not relinquished Philippine citizenship and who has not

actually abandoned his/her intentions to return to his/her

domicile of origin, the Philippines, is allowed to register and

vote in the Philippine embassy, consulate or other foreign

service establishments of the place which has jurisdiction over

the country where he/she has indicated his/her address for

purposes of the elections, while providing for safeguards to a

clean election.

X x x

Contrary to petitioner’s claim that Section 5(d)

circumvents the Constitution, Congress enacted the law

prescribing a system of overseas absentee voting in compliance

with the constitutional mandate. Such mandate expressly

requires that Congress provide a system of absentee voting that

necessarily presupposes that the “qualified citizen of the

Philippines abroad” is not physically present in the country.

The provisions of Sections 5(d) and 11 are components of the

system of overseas absentee voting established by R.A. No.

9189. The qualified Filipino abroad who executed the affidavit

is deemed to have retained his domicile in the Philippines. He is

presumed not to have lost his domicile by his physical absence

from this country. His having become an immigrant or

permanent resident of his host country does not necessarily

imply an abandonment of his intention to return to his domicile

of origin, the Philippines. Therefore, under the law, he must be

given the opportunity to express that he has not actually

abandoned his domicile in the Philippines by executing the

affidavit required by Sections 5(d) and 8(c) of the law.

Petitioner’s speculative apprehension that the

implementation of Section 5(d) would affect the credibility of

the elections is insignificant as what is important is to ensure

that all those who possess the qualifications to vote on the date

of the election are given the opportunity and permitted to freely

do so. The COMELEC and the Department of Foreign Affairs

gave enough resources and talents to ensure the integrity and

credibility of any election conducted pursuant to R.A. No. 9189.

As to the eventuality that the Filipino abroad would

renege on his undertaking to return to the Philippines, the

penalty of perpetual disenfranchisement provided for by Section

5(d) would suffice to serve as deterrence to non-compliance

with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of

“immigrants” renege on their promise to return, the result of the

elections would be affected and could even be a ground to

contest the proclamation of the winning candidates and cause

further confusion and doubt on the integrity of the results of the

election. Indeed, the probability that after an immigrant has

exercised the right to vote, he shall opt to remain in his host

country beyond the third year from the execution of the

affidavit, is not farfetched. However, it is not for this Court to

determine the wisdom of a legislative exercise. X x x

Congress itself was conscious of said probability and in

fact, it has addressed the expected problem. Section 5(d) itself

provides for a deterrence which is that the Filipino who fails to

return as promised stands to lose his right of suffrage. Under

Section 9, should a registered overseas absentee voter fail to

vote for two consecutive national elections, his name may be

ordered removed from the National Registry of Overseas

Absentee Voters.

Other serious legal questions that may be raised would

be: what happens to the votes cast by the qualified voters abroad

who were not able to return within three years as promised?

What is the effect on the votes cast by the non-returnees in favor

of the winning candidates? The votes cast by qualified Filipinos

abroad who failed to return within three years shall not be

invalidated because they were qualified to vote on the date of

the elections, but their failure to return shall be cause for the

removal of the names of the immigrants or permanent residents

from the National Registry of Absentee Voters and their

permanent disqualification to vote in absentia.

In fine, considering the underlying intent of the

Constitution, the Court does not find Section 5(d) of R.A. No.

9189 as constitutionally defective. (Makalintal v. COMELEC,

G.R. No. 157013, July 10, 2003, En Banc [Austria-Martinez])

350. Discuss the meaning and purpose of residency

requirement in Election Law.

Held: 1. The meaning and purpose of the residency

requirement were explained recently in our decision in Aquino

v. Comelec, as follows:

X x x [T]he place “where a party actually or

constructively has his permanent home,” where he, no

matter where he may be found at any given time,

eventually intends to return and remain, i.e., his

domicile, is that to which the Constitution refers when

it speaks of residence for the purposes of election law.

The manifest purpose of this deviation from the usual

144

conceptions of residency in law as explained in

Gallego v. Vera is “to exclude strangers or newcomers

unfamiliar with the conditions and needs of the

community” from taking advantage of favorable

circumstances existing in that community for electoral

gain. While there is nothing wrong with the practice of

establishing residence in a given area for meeting

election law requirements, this nonetheless defeats the

essence of representation, which is to place through the

assent of voters those most cognizant and sensitive to

the needs of a particular district, if a candidate falls

short of the period of residency mandated by law for

him to qualify. That purpose could be obviously best

met by individuals who have either had actual

residence in the area for a given period or who have

been domiciled in the same area either by origin or by

choice.

(Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct.

28, 1999, En Banc [Mendoza])

2. The Constitution and the law requires residence as a

qualification for seeking and holding elective public office, in

order to give candidates the opportunity to be familiar with the

needs, difficulties, aspirations, potentials for growth and all

matters vital to the welfare of their constituencies; likewise, it

enables the electorate to evaluate the office seekers’

qualifications and fitness for the job they aspire for. Inasmuch

as Vicente Y. Emano has proven that he, together with his

family, (1) had actually resided in a house he bought in 1973 in

Cagayan de Oro City; (2) had actually held office there during

his three terms as provincial governor of Misamis Oriental, the

provincial capitol being located therein; and (3) has registered as

voter in the city during the period required by law, he could not

be deemed “a stranger or newcomer” when he ran for and was

overwhelmingly voted as city mayor. Election laws must be

liberally construed to give effect to the popular mandate.

(Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En

Banc [Panganiban])

3. Generally, in requiring candidates to have a

minimum period of residence in the area in which they seek to

be elected, the Constitution or the law intends to prevent the

possibility of a “stranger or newcomer unacquainted with the

conditions and needs of a community and not identified with the

latter from [seeking] an elective office to serve that

community.” Such provision is aimed at excluding outsiders

“from taking advantage of favorable circumstances existing in

that community for electoral gain.” Establishing residence in a

community merely to meet an election law requirement defeats

the purpose of representation: to elect through the assent of

voters those most cognizant and sensitive to the needs of the

community. This purpose is “best met by individuals who have

either had actual residence in the area for a given period or who

have been domiciled in the same area either by origin or by

choice.” (Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9,

2000, En Banc [Panganiban])

351. Does the fact that a person is registered as a voter

in one district proof that he is not domiciled in

another district?

Held: The fact that a person is registered as a voter in

one district is not proof that he is not domiciled in another

district. Thus, in Faypon v. Quirino, this Court held that the

registration of a voter in a place other than his residence of

origin is not sufficient to consider him to have abandoned or lost

his residence. (Marcita Mamba Perez v. COMELEC, G.R. No.

133944, Oct. 28, 1999, En Banc [Mendoza])

352. What are the three classes of domicile? Discuss.

Held: There are three classes of domicile, namely:

domicile of origin, domicile of choice, and domicile by

operation of law. At any given point, a person can only have

one domicile.

Domicile of origin is acquired by every person at birth

and continues until replaced by the acquisition of another

domicile. More specifically, it is the domicile of the child’s

parents or of the persons upon whom the child is legally

dependent at birth. Although referred to as domicile of birth,

domicile of origin is actually the domicile of one’s parents at the

time of birth and may not necessarily be the actual place of

one’s birth (25 Am Jur 2d, Domicil Sec 11 at 13). Domicile of

choice is a domicile chosen by a person to replace his or her

former domicile. An adult may change domicile at will. The

choice involves an exercise of free will and presumes legal

capacity to make a choice. While intention is a principal feature

of domicile of choice, a mere intention without the fact of actual

presence in the locality cannot bring about the acquisition of a

new domicile. Domicile of choice generally consists of a bodily

presence in a particular locality and a concurrent intent to

remain there permanently or at least indefinitely (Id. at Sec 12).

Domicle by operation of law is a domicile that the law

attributes to a person independent of a person’s residence or

intention. It applies to infants, incompetents, and other persons

under disabilities that prevent them from acquiring a domicile of

choice (Id. at sec 13). (Puno, Concurring and Dissenting

Opinion in Makalintal v. COMELEC, G.R. No. 157013, July

10, 2003, En Banc [Austria-Martinez])

353. What is required to successfully effect a change of

domicile? Is a Filipino who becomes an

“immigrant” or “permanent resident” of a foreign

country considered to have changed his domicile?

Held: In Romualdez-Marcos v. COMELEC, we

ruled that domicile of origin is not easily lost. To successfully

effect a change of domicile, one must demonstrate an actual

removal or an actual change of domicile; a bona fide intention

of abandoning the former place of residence and establishing a

new one; and acts which correspond with purpose. This change

of domicile is effected by a Filipino who becomes an

“immigrant” or a “permanent resident” of a foreign

country. Thus, we held in Caasi v. Court of Appeals (Supra

note 4), viz:

Miguel’s application for immigrant and

permanent residence in the U.S. and his possession of a

green card attesting to such status are conclusive proof

that he is a permanent resident of the U.S. despite his

occasional visits to the Philippines. The waiver of such

immigrant status should be as indubitable as his

application for it. Absent clear evidence that he made

an irrevocable waiver of that status or that he

surrendered his green card to the appropriate U.S.

authorities before he ran for mayor x x x (Id. at 237)

The doctrine in Caasi is by no means new. Our

election laws have continuously regarded “immigrants” or

“permanent residents” of a foreign country to have lost their

domiciles in the Philippines and hence are not qualified to run

for public office (See for instance, Rep. Act No. 7160, section

40(f); B.P. Blg. 52, sec. 4; B.P. Blg. 881, sec. 68). There is no

reason not to apply the Caasi ruling in disputes involving the

qualification of voters. In essence, both cases concern the

fulfillment of the residence requirements. (Puno, Concurring

and Dissenting Opinion in Makalintal v. COMELEC, G.R.

No. 157013, July 10, 2003, En Banc [Austria-Martinez])

354. What is the Lone Candidate Law? What are its

salient provisions?

Ans.: The Lone Candidate Law is Republic Act No.

8295, enacted on June 6, 1997. Section 2 thereof provides that

“Upon the expiration of the deadline for the filing of the

certificate of candidacy in a special election called to fill a

vacancy in an elective position other than for President and

Vice-President, when there is only one (1) qualified candidate

for such position, the lone candidate shall be proclaimed elected

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to the position by proper proclaiming body of the Commission

on Elections without holding the special election upon

certification by the Commission on Elections that he is the only

candidate for the office and is thereby deemed elected.”

Section 3 thereof provides that “the lone candidate so

proclaimed shall assume office not earlier than the scheduled

election day, in the absence of any lawful ground to deny due

course or cancel the certificate of candidacy in order to prevent

such proclamation, as provided for under Sections 69 and 78 of

Batas Pambansa Bilang 881 also known as the Omnibus

Election Code.”

355. Who are disqualified to run in a special election

under the Lone Candidate Law?

Ans.: Section 4 of the Lone Candidate Law provides

that “In addition to the disqualifications mentioned in Sections

12 and 68 of the Omnibus Election Code and Section 40 of

Republic Act No. 7160, otherwise known as the Local

Government Code, whenever the evidence of guilt is strong, the

following persons are disqualified to run in a special election

called to fill the vacancy in an elective office, to wit:

a) Any elective official who has resigned from his

office by accepting an appointive office or for

whatever reason which he previously occupied

but has caused to become vacant due to his

resignation; and

b) Any person who, directly or indirectly, coerces,

bribes, threatens, harasses, intimidates or actually

causes, inflicts or produces any violence, injury,

punishment, torture, damage, loss or disadvantage

to any person or persons aspiring to become a

candidate or that of the immediate member of his

family, his honor or property that is meant to

eliminate all other potential candidate.”

356. What is the purpose of the law in requiring the

filing of certificate of candidacy and in fixing the

time limit therefor?

Held: The evident purpose of the law in requiring the

filing of certificate of candidacy and in fixing the time limit

therefor are: (a) to enable the voters to know, at least sixty days

before the regular election, the candidates among whom they are

to make the choice, and (b) to avoid confusion and

inconvenience in the tabulation of the votes cast. For if the law

did not confine the choice or election by the voters to the duly

registered candidates, there might be as many persons voted for

as there are voters, and votes might be cast even for unknown or

fictitious persons as a mark to identify the votes in favor of a

candidate for another office in the same election. (Miranda v.

Abaya, G.R. No. 136351, July 28, 1999)

357. May a disqualified candidate and whose certificate

of candidacy was denied due course and/or

canceled by the Comelec be validly substituted?

Held: Even on the most basic and fundamental

principles, it is readily understood that the concept of a

substitute presupposes the existence of the person to be

substituted, for how can a person take the place of somebody

who does not exist or who never was. The Court has no other

choice but to rule that in all instances enumerated in Section 77

of the Omnibus Election Code, the existence of a valid

certificate of candidacy seasonably filed is a requisite sine qua

non.

All told, a disqualified candidate may only be

substituted if he had a valid certificate of candidacy in the first

place because, if the disqualified candidate did not have a valid

and seasonably filed certificate of candidacy, he is and was not a

candidate at all. If a person was not a candidate, he cannot be

substituted under Section 77 of the Code. (Miranda v. Abaya,

G.R. No. 136351, July 28, 1999, en Banc [Melo])

358. Should the votes cast for the substituted candidate

be considered votes for the substitute candidate?

Ans.: Republic Act No. 9006, otherwise known as the

Fair Election Act, provides in Section 12 thereof: “In case of

valid substitutions after the official ballots have been printed,

the votes cast for the substituted candidates shall be considered

as stray votes but shall not invalidate the whole ballot. For this

purpose, the official ballots shall provide spaces where the

voters may write the name of the substitute candidates if they

are voting for the latter: Provided, however, That if the

substitute candidate is of the same family name, this provision

shall not apply.”

359. What is the effect of the filing of certificate of

candidacy by elective officials?

Ans.: COMELEC Resolution No. 3636, promulgated

March 1, 2001, implementing the Fair Election Act (R.A. No.

9006) provides in Section 26 thereof: “any elective official,

whether national or local, who has filed a certificate of

candidacy for the same or any other office shall not be

considered resigned from his office.”

Note that Section 67 of the Omnibus Election Code and

the first proviso in the third paragraph of Section 11 of Republic

Act No. 8436 which modified said Section 67, were expressly

repealed and rendered ineffective, respectively, by Section 14

(Repealing Clause) of The Fair Election Act (R.A. No. 9006).

360. What kind of “material misrepresentation” is

contemplated by Section 78 of the Omnibus

Election Code as a ground for disqualification of a

candidate? Does it include the use of surname?

Held: Therefore, it may be concluded that the material

misrepresentation contemplated by Section 78 of the (Omnibus

Election) Code refers to qualifications for elective office. This

conclusion is strengthened by the fact that the consequences

imposed upon a candidate guilty of having made a false

representation in his certificate of candidacy are grave – to

prevent the candidate from running or, if elected, from serving,

or to prosecute him for violation of the election laws. It could

not have been the intention of the law to deprive a person of

such a basic and substantial political right to be voted for a

public office upon just any innocuous mistake.

[A]side from the requirement of materiality, a false

representation under Section 78 must consist of a “deliberate

attempt to mislead, misinform, or hide a fact which would

otherwise render a candidate ineligible.” In other words, it must

be made with an intention to deceive the electorate as to one’s

qualifications for public office. The use of a surname, when not

intended to mislead or deceive the public as to one’s identity, is

not within the scope of the provision. (Victorino Salcedo II v.

COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc

[Gonzaga-Reyes])

361. Who has authority to declare failure of elections

and the calling of special election? What are the

three instances where a failure of election may be

declared?

Held: The COMELEC’s 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

146

has not been held on the date fixed on account of force majeure,

violence, terrorism, fraud or other analogous causes; (b) the

election in any polling place has been suspended before the hour

fixed by law for the closing of the voting on account of force

majeure, violence, terrorism, fraud or other analogous causes; or

(c) after the voting and during the preparation and transmission

of the election returns or in the custody or canvass thereof, such

election results in a failure to elect on account of force majeure,

violence, terrorism, fraud or other analogous causes. In these

instances, there is a resulting failure to elect. This is obvious in

the first two scenarios, where the election was not held and

where the election was suspended. As to the third scenario,

where the preparation and the transmission of the election

returns give rise to the consequence of failure to elect, it must x

x x, be interpreted to mean that nobody emerged as a winner.

(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En

Banc [Quisumbing])

362. What are the two conditions that must concur

before the COMELEC can act on a verified

petition seeking to declare a afailure of election?

Held: Before the COMELEC can act on a verified

petition seeking to declare a failure of election two conditions

must concur, namely: (1) no voting took place in the precinct or

precincts on the date fixed by law, or even if there was voting,

the election resulted in a failure to elect; and (2) the votes not

cast would have affected the result of the election. Note that the

cause of such failure of election could only be any of the

following: force majeure, violence, terrorism, fraud or other

analogous causes.

Thus, in Banaga, Jr. v. COMELEC, the SC held:

“We have painstakingly examined the petition

filed by petitioner Banaga before the Comelec. But we

found that petitioner did not allege at all that elections were

either not held or suspended. Neither did he aver that

although there was voting, nobody was elected. On the

contrary, he conceded that an election took place for the

office of vice-mayor of Paranaque City, and that private

respondent was, in fact, proclaimed elected to that post.

While petitioner contends that the election was tainted with

widespread anomalies, it must be noted that to warrant a

declaration of failure of election the commission of fraud

must be such that it prevented or suspended the holding of

an election, or marred fatally the preparation and

transmission, custody and canvass of the election returns.

These essential facts ought to have been alleged clearly by

the petitioner below, but he did not.”

363. Cite instances when Comelec may or may not

validly declare failure of elections.

Held: In Mitmug v. COMELEC, petitioner instituted

with the COMELEC an action to declare failure of election in

forty-nine precincts where less than a quarter of the electorate

were able to cast their votes. He also lodged an election protest

with the Regional Trial Court disputing the result of the election

in all precincts in his municipality. The Comelec denied motu

proprio and without due notice and hearing the petition to

declare failure of election despite petitioner’s 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

petitioner’s first two actions involved pre-proclamation

controversies which can no longer be entertained after the

winning candidates have been proclaimed. Regarding the

petition to declare a failure of election, we held that the

destruction and loss of copies of election returns intended for

the municipal board of canvassers on account of violence is not

one of the causes that would warrant the declaration of failure of

election. The reason is that voting actually took place as

scheduled and other valid election returns still existed.

Moreover, the destruction or loss did not affect the result of the

election. We also declared that there is failure of elections only

when the will of the electorate has been muted and cannot be

ascertained. If the will of the people is determinable, the same

must as far as possible be respected.

X x x

In Loong v. COMELEC, the petition for annulment of

election results or to declare failure of elections in Parang, Sulu,

on the ground of statistical improbability and massive fraud was

granted by the COMELEC. Even before the technical

examination of election documents was conducted, the Comelec

already observed badges of fraud just by looking at the election

results in Parang. Nevertheless, the Comelec dismissed the

petition for annulment of election results or to declare failure of

elections in the municipalities of Tapul, Panglima Estino, Pata,

Siasi and Kalinggalang Calauag. The COMELEC dismissed the

latter action on ground of untimeliness of the petition, despite a

finding that the same badges of fraud evident from the results of

the election based on the certificates of canvass of votes in

Parang, are also evident in the election results of the five

mentioned municipalities. We ruled that Comelec committed

grave abuse of discretion in dismissing the petition as there is no

law which provides for a reglementary period to file annulment

of elections when there is yet no proclamation. The election

resulted in a failure to elect on account of fraud. Accordingly,

we ordered the Comelec to reinstate the aforesaid petition.

Those circumstances, however, are not present in this case, so

that reliance on Loong by petitioner Banaga is misplaced.

(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En

Banc [Quisumbing])

364. Is a petition to declare failure of election different

from a petition to annul the election results?

Held: A prayer to declare failure of elections and a

prayer to annul the election results x x x are actually of the same

nature. Whether an action is for declaration of failure of

elections or for annulment of election results, based on

allegations of fraud, terrorism, violence or analogous causes, the

Omnibus Election Code denominates them similarly. (Banaga,

Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc

[Quisumbing])

365. What conditions must concur before the Comelec

can act on a verified petition seeking to declare a

failure of election? Is low turn-out of voters

enough basis to grant the petition?

Held: Before COMELEC can act on a verified petition

seeking to declare a failure of election, two (2) conditions must

concur: first, no voting has taken place in the precinct or

precincts on the date fixed by law or, even if there was voting,

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the election nevertheless results in failure to elect; and, second,

the votes not cast would affect the result of the election.

There can be failure of election in a political unit only

if the will of the majority has been defiled and cannot be

ascertained. But, if it can be determined, it must be accorded

respect. After all, there is no provision in our election laws

which requires that a majority of registered voters must cast

their votes. All the law requires is that a winning candidate

must be elected by a plurality of valid votes, regardless of the

actual number of ballots cast. Thus, even if less than 25% of the

electorate in the questioned precincts cast their votes, the same

must still be respected. (Mitmug v. COMELEC, 230 SCRA 54,

Feb. 10, 1994, En Banc [Bellosillo])

366. Distinguish a petition to declare failure of elections

from an election protest.

Held: While petitioner may have intended to institute

an election protest by praying that said action may also be

considered an election protest, in our view, petitioner’s 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

petitioner’s 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 petitioner’s action as a

petition to declare failure of elections or to annul election

results. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31,

2000, En Banc [Quisumbing])

367. What are pre-proclamation cases, and exceptions

thereto? What Court has jurisdiction over pre-

proclamation cases?

Held: Pre-proclamation cases refer to any question

pertaining to or affecting the proceedings of the board of

canvassers which may be raised by any candidate or by any

registered political party or coalition of political parties before

the board or directly with the Commission, or any matter raised

under Sections 233, 234, 235 and 236 in relation to the

preparation, transmission, receipt, custody and appreciation of

election returns (Section 241, Omnibus Election Code). The

Comelec has exclusive jurisdiction over all pre-proclamation

controversies (Section 242, supra). As an exception, however,

to the general rule, Section 15 of Republic Act 7166 prohibits

candidates in the presidential, vice-presidential, senatorial and

congressional elections from filing pre-proclamation cases. It

states:

“Sec. 15. Pre-Proclamation Cases Not

Allowed in Elections for President, Vice-President,

Senator, and Members of the House of Representatives.

- For purposes of the elections for President, Vice-

President, Senator and Member of the House of

Representatives, no pre-proclamation cases shall be

allowed on matters relating to the preparation,

transmission, receipt, custody and appreciation of

election returns or the certificates of canvass, as the

case may be. However, this does not preclude the

authority of the appropriate canvassing body motu

proprio or upon written complaint of an interested

person to correct manifest errors in the certificate of

canvass or election returns before it.”

The prohibition aims to avoid delay in the proclamation of the

winner in the election, which delay might result in a vacuum in

these sensitive posts. The law, nonetheless, provides an

exception to the exception. The second sentence of Section 15

allows the filing of petitions for correction of manifest errors in

the certificate of canvass or election returns even in elections for

president, vice-president and members of the House of

Representatives for the simple reason that the correction of

manifest error will not prolong the process of canvassing nor

delay the proclamation of the winner in the election. The rule is

consistent with and complements the authority of the Comelec

under the Constitution to “enforce and administer all laws and

regulations relative to the conduct of an election, plebiscite,

initiative, referendum and recall” (Section 2[1], Article IX-C,

1987 Constitution) and its power to “decide, except those

involving the right to vote, all questions affecting elections.”

(Section 2[3], Article IX-C, supra) (Federico S. Sandoval v.

COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

368. Who has authority to rule on petitions for

correction of manifest error in the certificate of

canvass or election returns?

Held: The authority to rule on petitions for correction

of manifest error is vested in the Comelec en banc. Section 7 of

Rule 27 of the 1993 COMELEC Rules of Procedure provides

that if the error is discovered before proclamation, the board of

canvassers may motu proprio, or upon verified petition by any

candidate, political party, organization or coalition of political

parties, after due notice and hearing, correct the errors

committed. The aggrieved party may appeal the decision of the

board to the Commission and said appeal shall be heard and

decided by the Commission en banc. Section 5, however, of the

same rule states that a petition for correction of manifest error

may be filed directly with the Commission en banc provided

that such errors could not have been discovered during the

canvassing despite the exercise of due diligence and

148

proclamation of the winning candidate had already been made.

(Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.

26, 2000 [Puno])

369. Distinguish Election Protest from Petition for Quo

Warranto.

Held: In Samad v. COMELEC, we explained that a

petition for quo warranto under the Omnibus Election Code

raises in issue the disloyalty or ineligibility of the winning

candidate. It is a proceeding to unseat the respondent from

office but not necessarily to install the petitioner in his place.

An election protest is a contest between the defeated and

winning candidates on the ground of frauds or irregularities in

the casting and counting of the ballots, or in the preparation of

the returns. It raises the question of who actually obtained the

plurality of the legal votes and therefore is entitled to hold the

office. (Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53,

April 20, 2001, En Banc [Quisumbing])

370. What is a counter-protest? When should it be

filed?

Held: Under the Comelec Rules of Procedure, the

protestee may incorporate in his answer a counter-protest. It has

been said that a counter-protest is tantamount to a counterclaim

in a civil action and may be presented as a part of the answer

within the time he is required to answer the protest, i.e., within

five (5) days upon receipt of the protest, unless a motion for

extension is granted, in which case it must be filed before the

expiration of the extended time.

As early as in the case of Arrieta v. Rodriguez, the SC

had firmly settled the rule that the counter-protest must be filed

within the period provided by law, otherwise, the forum loses its

jurisdiction to entertain the belatedly filed counter-protest. (Kho

v. COMELEC, 279 SCRA 463, Sept. 25, 1997, En Banc

[Torres])

371. What is the effect of death of a party in an election

protest? Should it warrant the dismissal of the

protest?

Held: An election protest involves both the private

interests of the rival candidates and the public interest in the

final determination of the real choice of the electorate, and for

this reason, an election contest necessarily survives the death of

the protestant or the protestee. X x x. But while the right to a

public office is personal and exclusive to the public officer, an

election protest is not purely personal and exclusive to the

protestant or to the protestee such that after the death of either

would oust the court of all authority to continue the protest

proceedings. An election contest, after all, involves not merely

conflicting private aspirations but is imbued with paramount

public interests. The death of the protestant neither constitutes a

ground for the dismissal of the contest nor ousts the trial court

of its jurisdiction to decide the election contest. (De Castro v.

COMELEC, 267 SCRA 806, Feb. 7, 1997)

372. Does the fact that one or a few candidates in an

election got zero votes in one or a few precincts

adequately support a finding that the election

returns are statistically improbable?

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])

373. What Court has jurisdiction over election protests

and quo warranto proceedings involving

Sangguniang Kabataan (SK) elections?

Held: Any contest relating to the election of members

of the Sangguniang Kabataan (including the chairman) –

whether pertaining to their eligibility or the manner of their

election – is cognizable by MTCs, MCTCs, and MeTCs.

Section 6 of Comelec Resolution No. 2824 which provides that

cases involving the eligibility or qualification of SK candidates

shall be decided by the City/Municipal Election Officer whose

decision shall be final, applies only to proceedings before the

election. Before proclamation, cases concerning eligibility of

SK officers and members are cognizable by the Election

Officer. But after the election and proclamation, the same cases

become quo warranto cases cognizable by MTCs, MCTCs, and

MeTCs. The distinction is based on the principle that it is the

proclamation which marks off the jurisdiction of the courts from

the jurisdiction of election officials.

The case of Jose M. Mercado v. Board of Election

Supervisors, in which this Court ruled that election protests

involving SK elections are to be determined by the Board of

Election Supervisors was decided under the aegis of Comelec

Resolution No. 2499, which took effect on August 27, 1992.

However, Comelec Resolution No. 2824, which took effect on

February 6, 1996 and was passed pursuant to R.A. 7808, in

relation to Arts. 252-253 of the Omnibus Election Code, has

since transferred the cognizance of such cases from the Board of

Election Supervisors to the MTCs, MCTCs and MeTCs. Thus,

the doctrine of Mercado is no longer controlling. (Francis King

L. Marquez v. COMELEC, G.R. No. 127318, Aug. 25, 1999,

En Banc [Purisima])

374. What acts of a Division of the COMELEC may be

subject of a motion for reconsideration of the

COMELEC en banc?

Held: Section 5, Rule 19 of the COMELEC Rules of

Procedure, provides:

“SEC. 5. How Motion for Reconsideration

Disposed of. - Upon the filing of a motion to

reconsider a decision, resolution, order or ruling of a

Division, the Clerk of Court concerned shall, within

twenty-four (24) hours from the filing thereof, notify

the presiding Commissioner. The latter shall within

two (2) days thereafter certify the case to the

Commission en banc.”

Under the above-quoted rule, the acts of a Division that

are subject of a motion for reconsideration must have a

character of finality before the same can be elevated to the

COMELEC en banc. The elementary rule is that an order is

final in nature if it completely disposes of the entire case. But if

there is something more to be done in the case after its issuance,

that order is interlocutory.

As correctly pointed out by public respondent in its

assailed order of November 29, 1999, the October 11, 1999 did

not dispose of the case completely as there is something more to

be done which is to decide the election protest. As such, it is the

herein public respondent (Second Division of the COMELEC)

which issued the interlocutory order of October 11, 1999 that

should resolve petitioner’s motion for reconsideration, not the

COMELEC en banc. Accordingly, the applicable rule on the

149

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

375. What is an autonomous region?

Ans.: An autonomous region consists of provinces,

cities, municipalities, and geographical areas sharing common

and distinctive historical and cultural heritage, economic and

social structures, and other relevant characteristics within the

framework of the Constitution and the national sovereignty as

well as the territorial integrity of the Republic of the Philippines.

(Sec. 15, Art. X, 1987 Constitution)

376. What are administrative regions? Are they

considered territorial and political subdivisions of

the State? Who has the power to create

administrative regions?

Held: Administrative regions are mere groupings of

contiguous provinces for administrative purposes. They are not

territorial and political subdivisions like provinces, cities,

municipalities and barangays. While the power to merge

administrative regions is not expressly provided for in the

Constitution, it is a power which has traditionally been lodged

with the President to facilitate the exercise of the power of

general supervision over local governments. (Abbas v.

COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])

377. Is there a conflict between the power of the

President to merge administrative regions with the

constitutional provision requiring a plebiscite in

the merger of local government units?

Held: There is no conflict between the power of the

President to merge administrative regions with the constitutional

provision requiring a plebiscite in the merger of local

government units because the requirement of a plebiscite in a

merger expressly applies only to provinces, cities, municipalities

or barangays, not to administrative regions. (Abbas v.

COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])

378. What is the Metropolitan Manila Development

Authority (MMDA)? Is it a local government unit

or public corporation endowed with legislative

power? May it validly exercise police power? How

is it distinguished from the former Metro Manila

Council (MMC) created under PD No. 824?

Held: Metropolitan or Metro Manila is a body

composed of several local government units – i.e., twelve (12)

cities and five (5) municipalities x x x. With the passage of

Republic Act No. 7924 in 1995, Metropolitan Manila was

declared as a “special development and administrative region”

and the Administration of “metrowide” basic services affecting

the region placed under “a development authority” referred to

as the MMDA.

The governing board of the MMDA is the Metro

Manila Council. The Council is composed of the mayors of the

component 12 cities and 5 municipalities, the president of the

Metro Manila Vice-Mayors’ League and the president of the

Metro Manila Councilors’ League. The Council is headed by a

Chairman who is appointed by the President and vested with the

rank of cabinet member. As the policy-making body of the

MMDA, the Metro Manila Council approves metro-wide plans,

programs and projects, and issues the necessary rules and

regulations for the implementation of said plans; it approves the

annual budget of the MMDA and promulgates the rules and

regulations for the delivery of basic services, collection of

service and regulatory fees, fines and penalties. X x x

Clearly, the scope of the MMDA’s function is limited

to the delivery of the seven (7) basic services. One of these is

transport and traffic management x x x.

X x x

Clearly, the MMDA is not a political unit of

government. The power delegated to the MMDA is that given

to the Metro Manila Council to promulgate administrative rules

and regulations in the implementation of the MMDA’s

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 bill’s 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])

379. Discuss the concept of local autonomy.

150

Held: Autonomy is either decentralization of

administration or decentralization of power. There is

decentralization of administration when the central government

delegates administrative powers to political subdivisions in

order to broaden the base of government and in the process to

make local governments more responsive and accountable, and

ensure their fullest development as self-reliant communities and

make them more effective partners in the pursuit of national

development and social progress. At the same time, it relieves

the central government of the burden of managing local affairs

and enables it to concentrate on national concerns. The

President exercises general supervision over them, but only to

ensure that local affairs are administered according to law. He

has no control over their acts in the sense that he can substitute

their judgments with his own.

Decentralization of power, on the other hand, involves

an abdication of political power in favor of local government

units declared autonomous. In that case, the autonomous

government is free to chart its own destiny and shape its own

future with minimum intervention from central authorities.

According to a constitutional author, decentralization of power

amounts to “self-immolation,” since in that event, the

autonomous government becomes accountable not to the central

authorities but to its constituency. (Limbona v. Mangelin, 170

SCRA 786, Feb. 28, 1989, En Banc [Sarmiento])

380. What kind of local autonomy is contemplated by

the Constitution? What about the autonomy

contemplated insofar as the autonomous regions

are concerned?

Held: 1. The principle of local autonomy under the

1987 Constitution simply means “decentralization.” It does not

make local governments sovereign within the state or an

“imperium in imperio.” Remaining to be an intra sovereign

subdivision of one sovereign nation, but not intended, however,

to be an imperium in imperio,” the local government unit is

autonomous in the sense that it is given more powers, authority,

responsibilities and resources. Power which used to be highly

centralized in Manila, is thereby deconcentrated, enabling

especially the peripheral local government units to develop not

only at their own pace and discretion but also with their own

resources and assets. (Alvarez v. Guingona, Jr., 252 SCRA 695,

Jan. 31, 1996, En Banc [Hermosisima])

2. The constitutional guarantee of local autonomy in

the Constitution refers to the administrative autonomy of local

government units or, cast in more technical language, the

decentralization of government authority.

On the other hand, the creation of autonomous regions

in Muslim Mindanao and the Cordilleras, which is peculiar to

the 1987 Constitution, contemplates the grant of political

autonomy and not just administrative autonomy to these regions.

Thus, the provision in the Constitution for an autonomous

regional government with a basic structure consisting of an

executive department and a legislative assembly and special

courts with personal, family and property law jurisdiction in

each of the autonomous regions. (Cordillera Broad Coalition v.

COA, 181 SCRA 495, Jan. 29, 1990, En Banc [Cortes])

381. What is the meaning of "devolution"?

Ans: The term “devolution” refers to the act by which

the National government confers power and authority upon the

various local government units to perform specific functions and

responsibilities. (Sec. 17[e], 2nd

par., Local Government Code)

382. The City of Butuan enacted an ordinance

prohibiting the Land Transportation Office (LTO)

to register motor vehicles, tricycles in particular, as

well as to issue licenses for the driving thereof,

contending that these powers have been devolved to

local governments under the Local Government

Code. Was the City of Butuan correct in its

assertion?

Held: Only the powers of the Land Transportation

Franchising Regulatory Board (LTFRB) to regulate the

operation of tricycles-for-hire and to grant franchises for the

operation thereof had been devolved to local governments under

the Local Government Code. Clearly unaffected by the Local

Government Code are the powers of the LTO under R.A. No.

4136 requiring the registration of all kinds of motor vehicles

“used or operated on or upon any public highway” in the

country. This can be gleaned from the explicit language of the

statute itself, as well as the corresponding guidelines issued by

the DOTC. In fact, even the power of LGUs to regulate the

operation of tricycles and to grant franchises for the operation

thereof are still subject to the guidelines prescribed by the

DOTC. (LTO v. City of Butuan, G.R. No. 131512, Jan. 20,

2000, 3rd

Div. [Vitug])

383. The City of Pasig created Barangays Karangalan

and Napico and plebiscites were scheduled to ratify

said creation. It was found, however, that the two

proposed barangays were subject of a pending

boundary dispute between the City of Pasig and the

Municipality of Cainta in the RTC of Antipolo.

Whether or not the plebiscites scheduled should be

suspended or cancelled in view of the pending

boundary dispute between the two local

governments and, if one had already been held,

whether it should be nullified.

Held: To begin with, we agree with the position of the

COMELEC that Civil Case No. 94-3006 involving the boundary

dispute between the Municipality of Cainta and the City of

Pasig presents a prejudicial question which must first be decided

before the plebiscites for the creation of the proposed barangays

may be held.

X x x

In the case at bar, while the City of Pasig vigorously

claims that the areas covered by the proposed Barangays

Karangalan and Napico are within its territory, it can not deny

that portions of the same area are included in the boundary

dispute case pending before the Regional Trial Court of

Antipolo. Surely, whether the areas in controversy shall be

decided as within the territorial jurisdiction of the Municipality

of Cainta or the City of Pasig has material bearing to the

creation of the proposed Barangays Karangalan and Napico.

Indeed, a requisite for the creation of a barangay is for its

territorial jurisdiction to be properly identified by metes and

bounds or by more or less permanent natural boundaries (Sec.

386[b], R.A. No. 7160). Precisely because territorial jurisdiction

is an issue raised in the pending civil case, until and unless such

issue is resolved with finality, to define the territorial

jurisdiction of the proposed barangays would only be an

exercise in futility. Not only that, we would be paving the way

for potentially ultra vires acts of such barangays. X x x

Moreover, considering the expenses entailed in the

holding of plebiscites, it is far more prudent to hold in abeyance

the conduct of the same, pending final determination of whether

or not the entire area of the proposed barangays are truly within

the territorial jurisdiction of the City of Pasig.

Neither do we agree that merely because a plebiscite

had already been held in the case of the proposed Barangay

Napico, the petition of the Municipality of Cainta has already

been rendered moot and academic. The issue raised by the

Municipality of Cainta in its petition before the COMELEC

against the holding of the plebiscite for the creation of Barangay

Napico are still pending determination before the Antipolo

Regional Trial Court.

X x x

151

Therefore, the plebiscite on the creation of Barangay

Karangalan should be held in abeyance pending final resolution

of the boundary dispute between the City of Pasig and the

Municipality of Cainta by the Regional Trial Court of Antipolo

City. In the same vein, the plebiscite held on March 15, 1997 to

ratify the creation of Barangay Napico, Pasig City, should be

annulled and set aside. (City of Pasig v. COMELEC, 314

SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])

384. Are the Internal Revenue Allotments (IRAs)

considered income and, therefore, to be included in

the computation of the average annual income of a

municipality for purposes of its conversion into an

independent component city?

Held: Yes. The IRAs are items of income because

they form part of the gross accretion of the funds of the local

government unit. The IRAs regularly and automatically accrue

to the local treasury without need of any further action on the

part of the local government unit. They thus constitute income

which the local government can invariably rely upon as the

source of much needed funds.

X x x

[T]o reiterate, IRAs are a regular, recurring item of

income; nil is there a basis, too, to classify the same as a special

fund or transfer, since IRAs have a technical definition and

meaning all its own as used in the Local Government Code that

unequivocally makes it distinct from special funds or transfers

referred to when the Code speaks of “funding support from the

national government, its instrumentalities and government-

owned or controlled corporations.”

Thus, Department of Finance Order No. 35-93

correctly encapsulizes the full import of the above disquisition

when it defined ANNUAL INCOME to be “revenues and

receipts realized by provinces, cities and municipalities from

regular sources of the Local General Fund including the internal

revenue allotment and other shares provided for in Sections

284, 290 and 291 of the Code, but exclusive of non-recurring

receipts, such as other national aids, grants, financial assistance,

loan proceeds, sales of fixed assets, and similar others”. Such

order, constituting executive or contemporaneous construction

of a statute by an administrative agency charged with the task of

interpreting and applying the same, is entitled to full respect and

should be accorded great weight by the courts, unless such

construction is clearly shown to be in sharp conflict with the

Constitution, the governing statute, or other laws. (Alvarez v.

Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc

[Hermosisima, Jr., J.])

385. State the importance of drawing with precise

strokes the territorial boundaries of a local

government unit.

Held: The importance of drawing with precise strokes

the territorial boundaries of a local unit of government cannot be

overemphasized. The boundaries must be clear for they define

the limits of the territorial jurisdiction of a local government

unit. It can legitimately exercise powers of government only

within the limits of its territorial jurisdiction. Beyond these

limits, its acts are ultra vires. Needless to state, any uncertainty

in the boundaries of local government units will sow costly

conflicts in the exercise of governmental powers which

ultimately will prejudice the people’s welfare. This is the evil

sought to be avoided by the Local Government Code in

requiring that the land area of a local government unit must be

spelled out in metes and bounds, with technical descriptions.

(Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7,

1995, En Banc [Puno])

386. R.A. 7854 was enacted converting the Municipality

of Makati into a highly urbanized city. Section 2

thereof did not provide for a cadastral type of

description of its boundary but merely provided

that the boundary of the new city of Makati shall

be the boundary of the present municipality of

Makati. Petitioners contended in a petition

brought the SC that R.A. 7854 was defective

because it did not comply with the requirement in

the Local Government Code that “the territorial

jurisdiction of newly created or converted cities

should be described by metes and bounds, with

technical descriptions.” Note that at the time the

law was enacted, there was a pending boundary

dispute between Makati and one of its neighbors,

Taguig, before the regular court. Should the

contention be upheld?

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 people’s

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 city’s 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.

152

Certainly, Congress did not intend that laws

creating new cities must contain therein detailed

technical descriptions similar to those appearing in

Torrens titles, as petitioners seem to imply. To require

such description in the law as a condition sine qua non

for its validity would be to defeat the very purpose

which the Local Government Code seeks to serve. The

manifest intent of the Code is to empower local

government units and to give them their rightful due. It

seeks to make local governments more responsive to

the needs of their constituents while at the same time

serving as a vital cog in national development. To

invalidate R.A. No. 7854 on the mere ground that no

cadastral type of description was used in the law would

serve the letter but defeat the spirit of the Code. It then

becomes a case of the master serving the slave, instead

of the other way around. This could not be the

intendment of the law.” X x x

(Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7,

1995, En Banc [Puno])

387. Discuss the authority of mayors to issue or grant

licenses and business permits, and how should it be

exercised.

Held: The authority of city mayors to issue or grant

licenses and business permits is beyond cavil. It is provided for

by law.

X x x

However, the power to grant or issue licenses or

business permits must always be exercised in accordance with

law, with utmost observance of the rights of all concerned to

due process and equal protection of the law.

Succinct and in point is the ruling of this Court, that:

“x x x While a business may be regulated,

such regulation must, however, be within the bounds of

reason, i.e., the regulatory ordinance must be

reasonable, and its provision cannot be oppressive

amounting to an arbitrary interference with the

business or calling subject of regulation. A lawful

business or calling may not, under the guise of

regulation, be unreasonably interfered with even by the

exercise of police power. X x x

X x x The exercise of police power by the

local government is valid unless it contravenes the

fundamental law of the land or an act of the legislature,

or unless it is against public policy or is unreasonable,

oppressive, partial, discriminating or in derogation of a

common right.” (Balacuit v. CFI of Agusan del Norte,

163 SCRA 182) (Acebedo Optical Company, Inc. v.

CA, 329 SCRA 314, 326-327, March 31, 2000, En

Banc [Purisima])

388. Distinguish the power to grant a license or permit

to do business and the power to issue a license to

engage in the practice of a particular profession.

Held: Distinction must be made between the grant of a

license or permit to do business and the issuance of a license to

engage in the practice of a particular profession. The first is

usually granted by the local authorities and the second is issued

by the Board or Commission tasked to regulate the particular

profession. A business permit authorizes the person, natural or

otherwise, to engage in business or some form of commercial

activity. A professional license, on the other hand, is the grant

of authority to a natural person to engage in the practice or

exercise of his or her profession. (Acebedo Optical Company,

Inc. v. CA, 329 SCRA 314, 328, March 31, 2000, En Banc

[Purisima])

389. Acebedo Optical Company, Inc. applied for a

permit to engage in the business of running an

optical shop. Its application was granted with

several conditions. The conditions, in essence,

prohibit it from engaging in the practice of

optometry as a corporate body or entity. Later, the

grant was revoked by the Mayor on the alleged

ground that it violated all the conditions of its

business permit. Was the revocation valid?

Held: In the case at bar, what is sought by petitioner

(Acebedo Optical Company, Inc.) from respondent City Mayor

is a permit to engage in the business of running an optical shop.

It does not purport to seek a license to engage in the practice of

optometry as a corporate body or entity, although it does have in

its employ, persons who are duly licensed to practice optometry

by the Board of Examiners in Optometry.

The case of Samahan ng Optometrists sa Pilipinas v.

Acebedo International Corporation, G.R. No. 117097,

promulgated by this Court on March 21, 1997, is in point. X x x

The First Division of this Court x x x ruled in favor of

respondent Acebedo International Corporation, holding that “the

fact that private respondent hires optometrists who practice their

profession in the course of their employment in private

respondent’s 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 petitioner’s business permit could be

attained by requiring the optometrists in petitioner’s employ to

produce a valid certificate of registration as optometrists, from

the Board of Examiners in Optometry. A business permit is

issued primarily to regulate the conduct of business and the City

Mayor cannot, through the issuance of such permit, regulate the

practice of a profession, like that of optometry. Such a function

is within the exclusive domain of the administrative agency

specifically empowered by law to supervise the profession, in

this case the Professional Regulations Commission and the

Board of Examiners in Optometry.

It is significant to note that during the deliberations of

the bicameral conference committee of the Senate and the

House of Representatives on R.A. 8050 x x x the committee

failed to reach a consensus as to the prohibition on indirect

practice of optometry by corporations. (Acebedo Optical

Company, Inc. v. CA, 329 SCRA 314, 328-330, March 31,

2000, En Banc [Purisima])

390. May a local government unit validly authorize an

expropriation of private property through a mere

resolution of its lawmaking body?

Held: The Local Government Code expressly and

clearly requires an ordinance or a local law for that purpose. A

resolution that merely expresses the sentiment or opinion of the

Municipal Council will not suffice. The case of Province of

Camarines Sur v. Court of Appeals which held that a mere

resolution may suffice to support the exercise of eminent

domain by a local government unit is not in point because the

applicable law at that time was B.P. 337, the previous Local

Government Code, which had provided that a mere resolution

would enable an LGU to exercise eminent domain. In contrast,

R.A. 7160, the present Local Government Code, explicitly

153

required an ordinance for this purpose. (Municipality of

Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998

[Panganiban])

391. What are the requisites before a Local Government

Unit can validly exercise the power of eminent

domain?

Held: In Municipality of Paranaque v. V.M. Realty

Corp. (292 SCRA 678, July 20, 1998 [Panganiban]), it was

clarified that the requisites before a local government unit can

validly exercise the power of eminent domain are:

An ordinance is enacted by the local legislative council

authorizing the local chief executive, in behalf of

the LGU, to exercise the power of eminent domain

or pursue expropriation proceedings over a

particular private property;

The power of eminent domain is exercised for public

use, purpose or welfare, or for the benefit of the

poor and the landless;

There is payment of just compensation, as required

under Section 9, Article III of the Constitution, and

other pertinent laws;

A valid and definite offer has been previously made to

the owner of the property sought to be

expropriated, but said offer was not accepted.

392. May the Sangguniang Panlalawigan validly

disapprove a resolution or ordinance of a

municipality calling for the expropriation of

private property to be made site of a Farmers

Center and Other Government Sports Facilities on

the ground that said “expropriation is unnecessary

considering that there are still available lots of the

municipality for the establishment of a government

center”?

Held: Under the Local Government Code, the

Sangguniang Panlalawigan is granted the power to declare a

municipal resolution invalid on the sole ground that it is beyond

the power of the Sangguniang Bayan or Mayor to issue. As held

in Velazco v. Blas, “The only ground upon which a provincial

board may declare any municipal resolution, ordinance or order

invalid is when such resolution, ordinance, or order is ‘beyond

the powers conferred upon the council or president making the

same.’ A strictly legal question is before the provincial board in

its consideration of a municipal resolution, ordinance, or order.

The provincial board’s disapproval of any resolution, ordinance,

or order must be premised specifically upon the fact that such

resolution, ordinance, or order is outside the scope of the legal

powers conferred by law. If a provincial board passes these

limits, it usurps the legislative functions of the municipal

council or president. Such has been the consistent course of

executive authority.” (Moday v. CA, 268 SCRA 586, Feb. 20,

1997)

393. Is a contract entered into by the city mayor

involving the expenditure of public funds by the

local government without prior appropriation by

the city council valid and binding?

Held: If we are to limit our disquisition to the cited

provisions of Presidential Decree No. 1445, or the Auditing

Code of the Philippines, in conjunction with Section 177 (b) of

Batas Pambansa Blg. 337, or the Local Government Code of

1983, which empowered the Sangguniang Panlungsod to

“appropriate funds for expenses of the city government, and fix

the salaries of its officers and employees according to law,”

there would be no debate that prior appropriation by the city

council and a certification that funds are available therefore is

indeed mandatorily required.

X x x

However, the very same Presidential Decree No. 1445,

which is the cornerstone of petitioner’s 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 mayor’s 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 mayor’s 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 council’s 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 council’s 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

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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]).

City of Quezon v. Lexber Incorporated, 354 SCRA 493, Mar.

15, 2001, 1st Div. [Ynares-Santiago])

394. Who has the legal authority to represent a

municipality in lawsuits?

Held: Only the provincial fiscal, provincial attorney,

and municipal attorney should represent a municipality in its

lawsuits. Only in exceptional instances may a private attorney

be hired by a municipality to represent it in lawsuits. (Ramos v.

CA, 269 SCRA 34, March 3, 1997)

395. What are the exceptional instances when a private

attorney may be validly hired by a municipality in

its lawsuits?

Held: In Alinsug v. RTC Br. 58, San Carlos City,

Negros Occidental, it was held that “the law allows a private

counsel to be hired by a municipality only when the

municipality is an adverse party in a case involving the

provincial government or another municipality or city within the

province. This provision has its apparent origin in De Guia v.

The Auditor General where the Court held that the

municipality’s authority to employ a private attorney is

expressly limited only to situations where the provincial fiscal

would be disqualified to serve and represent it.” (Ramos v. CA,

269 SCRA 34, March 3, 1997)

396. Cite instances when the provincial fiscal may be

disqualified to represent in court a particular

municipality.

Held: As held in Enriquez, Sr. v. Gimenez, the

provincial fiscal may be disqualified to represent in court a

particular municipality in the following instances:

If and when original jurisdiction of case involving the

municipality is vested in the Supreme Court;

When the municipality is a party adverse to the

provincial government or to some other

municipality in the same province; and

When, in a case involving the municipality, he, or his

wife, or child, is pecuniarily involved, as heir,

legatee, creditor or otherwise.

(Ramos v. CA, 269 SCRA 34, March 3, 1997)

397. May a municipality be represented by a private law

firm which had volunteered its services gratis, in

collaboration with the municipal attorney and the

fiscal?

Held: No. Such representation will be violative of

Section 1983 of the old Administrative Code. This strict

coherence to the letter of the law appears to have been dictated

by the fact that “the municipality should not be burdened with

expenses of hiring a private lawyer” and that “the interests of

the municipality would be best protected if a government lawyer

handles its litigations.”

Private lawyers may not represent municipalities on

their own. Neither may they do so even in collaboration with

authorized government lawyers. This is anchored on the

principle that only accountable public officers may act for and

in behalf of public entities and that public funds should not be

expended to hire private lawyers. (Ramos v. CA, 269 SCRA 34,

March 3, 1997)

398. May a municipality adopt the work already

performed in good faith by a private lawyer, which

work proved beneficial to it?

Held: Although a municipality may not hire a private

lawyer to represent it in litigations, in the interest of substantial

justice, however, it was held that a municipality may adopt the

work already performed in good faith by such private lawyer,

which work is beneficial to it (1) provided that no injustice is

thereby heaped on the adverse party and (2) provided further

that no compensation in any guise is paid therefor by said

municipality to the private lawyer. Unless so expressly adopted,

the private lawyer’s work cannot bind the municipality. (Ramos

v. CA, 269 SCRA 34, March 3, 1997)

399. Does the President’s 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

X x x

The ligas are primarily governed by the provisions of

the Local Government Code (Book III, Title VI, Local

Government Code). However, their respective constitution and

by-laws shall govern other matters affecting internal

organization of the liga not otherwise provided for in the Local

Government Code provided that the constitution and by-laws

shall be suppletory to the provisions of Book III, Title VI of the

Local Government Code and shall always conform to the

provisions of the Constitution and existing laws (Sec. 507, Local

Government Code).

Having in mind the foregoing principles, we rule that

Memorandum Circular No. 97-193 of the DILG insofar as it

authorizes the filing a Petition for Review of the BES with the

regular courts in a post proclamation electoral protest is of

doubtful constitutionality. We agree with both the petitioner

and the Solicitor General that in authorizing the filing of the

petition for review of the decision of the BES with the regular

courts, the DILG Secretary in effect amended and modified the

GUIDELINES promulgated by the National Liga Board and

adopted by the LIGA which provides that the decision of the

BES shall be subject to review by the National Liga Board. The

amendment of the GUIDELINES is more than an exercise of the

power of supervision but is an exercise of the power of control,

which the President does not have over the LIGA. Although the

DILG is given the power to prescribe rules, regulations and

other issuances, the Administrative Code limits its authority to

merely “monitoring compliance” by local government units of

such issuances. To monitor means “to watch, observe or check”

155

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 respondent’s 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])

400. May the President validly withhold a portion of the

internal revenue allotments of Local Government

Units legally due them by administrative fiat?

Held: The Constitution vests the President with the

power of supervision, not control, over local government units

(LGUs). Such power enables him to see to it that LGUs and

their officials execute their tasks in accordance with law. While

he may issue advisories and seek their cooperation in solving

economic difficulties, he cannot prevent them from performing

their tasks and using available resources to achieve their goals.

He may not withhold or alter any authority or power given them

by the law. Thus, the withholding of a portion of internal

revenue allotments legally due them cannot be directed by

administrative fiat.

X x x

Section 4 of AO 372 cannot x x x be upheld. A basic

feature of local fiscal autonomy is the automatic release of the

shares of LGUs in the National internal revenue. This is

mandated by no less than the Constitution. The Local

Government Code (Sec. 286[a]) specifies further that the release

shall be made directly to the LGU concerned within five (5)

days after every quarter of the year and “shall not be subject to

any lien or holdback that may be imposed by the national

government for whatever purpose.” As a rule, the term “shall”

is a word of command that must be given a compulsory

meaning.” The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding,

effective January 1, 1998, of 10 percent of the LGUs’ IRA

“pending the assessment and evaluation by the Development

Budget Coordinating Committee of the emerging fiscal

situation” in the country. Such withholding clearly contravenes

the Constitution and the law. Although, temporary, it is

equivalent to a holdback, which means “something held back or

withheld. Often temporarily.” Hence, the “temporary” nature of

the retention by the national government does not matter. Any

retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as

an advisory effected in times of national crisis, Section 4 thereof

has no color of validity at all. The latter provision effectively

encroaches on the fiscal autonomy of local governments.

Concededly, the President was well-intentioned in issuing his

Order to withhold the LGUs’ IRA, but the rule of law requires

that even the best intentions must be carried out within the

parameters of the Constitution and the law. Verily, laudable

purposes must be carried out by legal methods. (Pimentel, Jr. v.

Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En

Banc [Panganiban])

401. What is meant by fiscal autonomy of Local

Governments? Does it rule out in any manner

national government intervention by way of

supervision in order to ensure that local programs

are consistent with national goals?

Held: Under existing law, local government units, in

addition to having administrative autonomy in the exercise of

their functions, enjoy fiscal autonomy as well. Fiscal autonomy

means that local governments have the power to create their

own sources of revenue in addition to their equitable share in the

national taxes released by the national government, as well as

the power to allocate their resources in accordance with their

own priorities. It extends to the preparation of their budgets,

and local officials in turn have to work within the constraints

thereof. They are not formulated at the national level and

imposed on local governments, whether they are relevant to

local needs and resources or not. Hence, the necessity of a

balancing of viewpoints and the harmonization of proposals

from both local and national officials, who in any case are

partners in the attainment of national goals.

Local fiscal autonomy does not, however, rule out any

manner of national government intervention by way of

supervision, in order to ensure that local programs, fiscal and

otherwise, are consistent with national goals. Significantly, the

President, by constitutional fiat, is the head of the economic and

planning agency of the government (Section 9, Article XII of the

Constitution), primarily responsible for formulating and

implementing continuing, coordinated and integrated social and

economic policies, plans and programs (Section 3, Chapter 1,

Subtitle C, Title II, Book V, EO 292 [Administrative Code of

1987]) for the entire country. However, under the Constitution,

the formulation and the implementation of such policies and

programs are subject to “consultations with the appropriate

public agencies, various private sectors, and local government

units.” The President cannot do so unilaterally. (Pimentel, Jr. v.

Aguirre, 336 SCRA 201, July 19, 2000, En Banc

[Panganiban])

402. What are the requisites before the President may

interfere in local fiscal matters?

Held: x x x [T]he Local Government Code provides

(Sec. 284. See also Art. 379 of the Rules and Regulations

Implementing the Local Government Code of 1991):

“x x x [I]n the event the national government

incurs an unmanaged public sector deficit, the

President of the Philippines is hereby authorized, upon

the recommendation of [the] Secretary of Finance,

Secretary of the Interior and Local Government and

Secretary of Budget and Management, and subject to

consultation with the presiding officers of both Houses

of Congress and the presidents of the liga, to make the

necessary adjustments in the internal revenue allotment

of local government units but in no case shall the

allotment be less than thirty percent (30%) of the

collection of national internal revenue taxes of the third

fiscal year preceding the current fiscal year x x x”

There are therefore several requisites before the

President may interfere in local fiscal matters: (1) an unmanaged

public sector deficit of the national government; (2)

consultations with the presiding officers of the Senate and the

House of Representatives and the presidents of the various local

leagues; and (3) the corresponding recommendation of the

secretaries of the Department of Finance, Interior and Local

Government, and Budget and Management. Furthermore, any

adjustment in the allotment shall in no case be less than thirty

percent (30%) of the collection of national internal revenue

taxes of the third fiscal year preceding the current one.

(Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En

Banc [Panganiban])

403. On May 3, 2001, petitioner filed with the Provincial

Election Supervisor in Pagadian City a petition for

the disqualification of respondent Sulong,

pursuant to Sec. 40[b] of Republic Act No. 7160

(Local Government Code), which disqualifies from

running for any elective local position “those

156

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 Sulong’s motion for

reconsideration and/or notice of appeal; that the

said complainant had not yet complied therewith

and his (respondent Sulong’s) motion had

consequently remained pending. Respondent

Sulong denied he had been removed from office by

virtue of the decision in AC No. 12-91.

Held: Petitioner contends that the COMELEC en banc

erred in applying the ruling in Aguinaldo v. Commission on

Elections in holding that the reelection of respondent Sulong in

1992 and 1995 as mayor of Lapuyan had the effect of condoning

the misconduct for which he was ordered dismissed by the

Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner

cites Reyes v. Commission on Elections in which we held that an

elective local executive officer, who is removed before the

expiration of the term for which he was elected, is disqualified

from being a candidate for a local elective position under

Section 40[b] of the Local Government Code.

X x x

However, Reyes cannot be applied to this case because

it appears that the 1992 decision of the Sangguniang

Panlalawigan, finding respondent Sulong guilty of dishonesty,

falsification and malversation of public funds, has not until now

become final. x x x The filing of his motion for reconsideration

prevented the decision of Sangguniang Panlalawigan from

becoming final.

While R.A. No. 7160 on disciplinary actions is silent

on the filing of a motion for reconsideration, the same cannot be

interpreted as a prohibition against the filing of a motion for

reconsideration. x x x.

There is thus no decision finding respondent guilty to

speak of. As Provincial Secretary of Zamboanga del Sur

Wilfredo Cimafranca attested, the Sangguniang Panlalawigan

simply considered the matter as having become moot and

academic because it was “overtaken by the local elections of

May [11], 1992.”

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 respondent’s motion, it is unfair to the

electorate to be told after they have voted for respondent Sulong

that after all he is disqualified, especially since at the time of the

elections on May 14, 2001, the decision of the Sangguniang

Panlalawigan had been rendered nearly ten years ago. (Atty.

Miguel M. Lingating v. Commission on Elections and Cesar

B. Sulong, G.R. No. 153475, Nov. 13, 2002, En Banc

[Mendoza])

404. Under Section 8, Article X of the Constitution,

"[T]he term of office of elective local officials x x x

shall be three years and no such official shall serve

for more than three consecutive terms." How is

this term limit for elective local officials to be

interpreted?

Held: The term limit for elective local officials must

be taken to refer to the right to be elected as well as the right to

serve in the same elective position. Consequently, it is not

enough that an individual has served three consecutive terms in

an elective local office, he must also have been elected to the

same position for the same number of times before the

disqualification can apply. (Borja, Jr. v. COMELEC and

Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En

Banc [Mendoza])

405. Case No. 1. Suppose A is a vice-mayor who

becomes mayor by reason of the death of the

incumbent. Six months before the next election, he

resigns and is twice elected thereafter. Can he run

again for mayor in the next election?

Ans.: Yes, because although he has already first

served as mayor by succession and subsequently resigned from

office before the full term expired, he has not actually served

three full terms in all for the purpose of applying the term limit.

Under Art. X, Sec. 8, voluntary renunciation of the office is not

considered as an interruption in the continuity of his service for

the full term only if the term is one “for which he was elected.”

Since A is only completing the service of the term for which the

deceased and not he was elected, A cannot be considered to

have completed one term. His resignation constitutes an

interruption of the full term.

406. Case No. 2. Suppose B is elected Mayor and,

during his first term, he is twice suspended for

misconduct for a total of 1 year. If he is twice

reelected after that, can he run for one more term

in the next election?

Ans.: Yes, because he has served only two full terms

successively.

In both cases, the mayor is entitled to run for reelection

because the two conditions for the application of the

disqualification provisions have not concurred, namely, that the

local official concerned has been elected three consecutive times

and that he has fully served three consecutive terms. In the first

case, even if the local official is considered to have served three

full terms notwithstanding his resignation before the end of the

first term, the fact remains that he has not been elected three

times. In the second case, the local official has been elected

three consecutive times, but he has not fully served three

consecutive terms.

407. Case No. 3. The case of vice-mayor C who

becomes mayor by succession involves a total

failure of the two conditions to concur for the

purpose of applying Art. X, Sec. 8. Suppose he is

twice elected after that term, is he qualified to run

again in the next election?

157

Ans.: Yes, because he was not elected to the office of

mayor in the first term but simply found himself thrust into it by

operation of law. Neither had he served the full term because he

only continued the service, interrupted by the death, of the

deceased mayor. (Borja, Jr. v. COMELEC and Capco, Jr.,

G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc

[Mendoza])

408. What are the policies embodied in the

constitutional provision barring elective local

officials, with the exception of barangay officials,

from serving more than three consecutive terms?

Held: To prevent the establishment of political

dynasties is not the only policy embodied in the constitutional

provision in question (barring elective local officials, with the

exception of barangay officials, from serving more than three

consecutive terms). The other policy is that of enhancing the

freedom of choice of the people. To consider, therefore, only

stay in office regardless of how the official concerned came to

that office – whether by election or by succession by operation

of law – would be to disregard one of the purposes of the

constitutional provision in question. (Borja, Jr. v. COMELEC

and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA

157, En Banc [Mendoza])

409. Lonzanida was previously elected and served two

consecutive terms as mayor of San Antonio,

Zambales prior to the May 1995 mayoral elections.

In the May 1995 elections he again ran for mayor

of San Antonio, Zambales and was proclaimed

winner. He assumed office and discharged the

rights and duties of mayor until March 1998 when

he was ordered to vacate the post by reason of the

COMELEC decision on the election protest against

him which declared his opponent Juan Alvez the

duly elected mayor. Alvez served the remaining

portion of the 1995-1998 mayoral term. Is

Lonzanida still qualified to run for mayor of San

Antonio, Zambales in the May 1998 local

elections?

Held: The two requisites for the application of the

three-term rule was absent. First, Lonzanida cannot be

considered as having been duly elected to the post in the May

1995 elections, and second, he did not fully serve the 1995-1998

mayoral term by reason of involuntary relinquishment of office.

After a re-appreciation and revision of the contested ballots the

COMELEC itself declared by final judgment that Lonzanida

lost in the May 1995 mayoral elections and his previous

proclamation as winner was declared null and void. His

assumption of office as mayor cannot be deemed to have been

by reason of a valid election but by reason of a void

proclamation. It has been repeatedly held by the SC that a

proclamation subsequently declared void is no proclamation at

all and while a proclaimed candidate may assume office on the

strength of the proclamation of the Board of Canvassers he is

only a presumptive winner who assumes office subject to the

final outcome of the election protest. Lonzanida did not serve a

term as mayor of San Antonio, Zambales from May 1995 to

March 1998 because he was not duly elected to the post; he

merely assumed office as presumptive winner, which

presumption was later overturned by the COMELEC when it

decided with finality that Lonzanida lost in the May 1995

mayoral elections.

Second, Lonzanida cannot be deemed to have served

the May 1995 to 1998 term because he was ordered to vacate his

post before the expiration of the term. His opponents'

contention that Lonzanida should be deemed to have served one

full term from May 1995-1998 because he served the greater

portion of that term has no legal basis to support it; it disregards

the second requisite for the application of the disqualification,

i.e., that he has fully served three consecutive terms. The

second sentence of the constitutional provision under scrutiny

states, "Voluntary renunciation of office for any length of time

shall not be considered as an interruption in the continuity of

service for the full term for which he was elected." The clear

intent of the framers of the Constitution to bar any attempt to

circumvent the three-term limit by a voluntary renunciation of

office and at the same time respect the people's choice and grant

their elected official full service of a term is evident in this

provision. Voluntary renunciation of a term does not cancel the

renounced term in the computation of the three term limit;

conversely, involuntary severance from office for any length of

time short of the full term provided by law amounts to an

interruption of continuity of service. Lonzanida vacated his post

a few months before the next mayoral elections, not by

voluntary renunciation but in compliance with the legal process

of writ of execution issued by the COMELEC to that effect.

Such involuntary severance from office is an interruption of

continuity of service and thus, Lonzanida did not fully serve the

1995-1998 mayoral term.

In sum, Lonzanida was not the duly elected mayor and

that he did not hold office for the full term; hence, his

assumption of office from May 1995 to March 1998 cannot be

counted as a term for purposes of computing the three-term

limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28,

1999, En Banc [Gonzaga-Reyes])

410. Mayor Edward S. Hagedorn of Puerto Princesa

City was elected for three consecutive times in the

1992, 1995 and 1998 elections and served in full

his three consecutive terms as Mayor. In the 2001

elections, he ran for Governor of the Province of

Palawan and lost. Socrates ran and won as Mayor

of Puerto Princesa in that election. On July 2,

2002, the Preparatory Recall Assembly (PRA) of

Puerto Princesa City adopted a Resolution calling

for the recall of incumbent Mayor Socrates. The

COMELEC scheduled a Special Recall Election

for Mayor of that City on September 24, 2002. Is

Mayor Hagedorn qualified to run again for Mayor

in that Special Recall Election considering the

circumstances?

Held: The three-term limit rule for elective local

officials is found in Section 8, Article X of the Constitution x x

x.

This three-term limit rule is reiterated in Section 43 (b)

of RA No. 7160, otherwise known as the Local Government

Code x x x.

These constitutional and statutory provisions have two

parts. The first part provides that an elective local official

cannot serve for more than three consecutive terms. The clear

intent is that only consecutive terms count in determining the

three-term limit rule. The second part states that voluntary

renunciation of office for any length of time does not interrupt

the continuity of service. The clear intent is that involuntary

severance from office for any length of time interrupts

continuity of service and prevents the service before and after

the interruption from being joined together to form a continuous

service or consecutive terms.

After three consecutive terms, an elective local official

cannot seek immediate reelection for a fourth term. The

prohibited election refers to the next regular election for the

same office following the end of the third consecutive term.

Any subsequent election, like a recall election, is no longer

covered by the prohibition for two reasons. First, a subsequent

election like a recall election is no longer an immediate

reelection after three consecutive terms. Second, the

intervening period constitutes an involuntary interruption in the

continuity of service.

X x x

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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.

X x x

In the case of Hagedorn, his candidacy in the recall

election on September 24, 2002 is not an immediate reelection

after his third consecutive term which ended on June 30, 2001.

The immediate reelection that the Constitution barred Hagedorn

from seeking referred to the regular elections in 2001.

Hagedorn did not seek reelection in the 2001 elections.

X x x

From June 30, 2001 until the recall election on

September 24, 2002, the mayor of Puerto Princesa was Socrates.

This period is clearly an interruption in the continuity of

Hagedorn’s service as mayor, not because of his voluntary

renunciation, but because of a legal prohibition. Hagedorn’s

three consecutive terms ended on June 30, 2001. Hagedorn’s

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 Hagedorn’s

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 Hagedorn’s service as mayor.

X x x In Hagedorn’s 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 official’s

continuity of service. (Victorino Dennis M. Socrates v. The

Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En

Banc [Carpio])

411. Petitioners would seek the disqualification of

respondent Leonardo B. Roman on the ground of

his having transgressed the three-term limit under

Section 8, Article X, of the 1987 Constitution and

Section 43 of Republic Act No. 7160 (Local

Government Code). The focal issue presented

before the Court x x x would revolve on the

question of whether or not private respondent

Roman exceeded the three-term limit for elective

local officials, expressed in the Constitution and

the Local Government Code, when he again ran

for the position of Governor in the 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 respondent’s 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 official’s 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 people’s 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 respondent’s election on May 14,

2002 as null and void.

159

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 Roman’s election in 2001 cannot exempt him

from the three-term limit imposed by the Constitution.

In his Separate Opinion, Justice Vitug voted to

dismiss the petition on the following considerations:

In order that the three-consecutive term limit can apply,

two conditions must concur, i.e., (1) that the elective local

official concerned has been elected for three consecutive terms

to the same local government position, and (2) that he has

served three consecutive full terms, albeit a voluntary

renunciation of the office for any length of time shall not be

deemed to be an interruption in the continuity of the service for

the full term for which he is elected. The constitutional

provision does not appear to be all that imprecise for and in its

application. Section 8, Article X, of the Constitution is explicit

that the “term of office of elective local officials x x x shall be

three years” which phrase is forthwith followed by its mandate

that “no such official shall serve for more than three consecutive

terms,” and that “[v]oluntary renunciation of the office for any

length of time shall not be considered as an interruption in the

continuity of his service for the full term for which he [is]

elected.” The law evidently contemplates a continuous full

three-year term before the proscription can apply.

The Constitutional Commission, in its deliberations,

referred to a full nine (9) years of service for each elective local

government official in the application of the prohibition,

envisioning at the same time a continuous and uninterrupted

period of nine years by providing for only one exception, i.e.,

when an incumbent voluntarily gives up the office.

X x x

A winner who dislodges in a recall election an

incumbent elective local official merely serves the balance of

the latter’s 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 incumbent’s 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 candidate’s eligibility, even only as a

practical matter, must be so resolved as to respect and carry out,

not defeat, the paramount will of the electorate. While the

Constitution would attempt to prevent the monopolization of

political power, indeed a wise rule, the precept of preserving the

freedom of choice of the people on who shall rightfully hold the

reins of government for them is no less than fundamental in

looking at its overriding intent. (Melanio L. Mendoza and

Mario E. Ibarra v. Commission on Elections and Leonardo B.

Roman, G.R. No. 149736, Dec. 17, 2002, En Banc)

412. When may a permanent vacancy arise under

Section 44 of the Local Government Code?

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])

413. How is Section 45(b) of the Local Government

Code to be interpreted? What is the reason behind

the right given to a political party to nominate a

replacement where a permanent vacancy occurs in

the Sanggunian?

Held: What is crucial is the interpretation of Section

45(b) providing that “x x x only the nominee of the political

party under which the Sanggunian member concerned has been

elected and whose elevation to the position next higher in rank

created the last vacancy in the Sanggunian shall be appointed in

the manner hereinabove provided. The appointee shall come

from the political party as that of the Sanggunian member who

caused the vacancy x x x.”

The reason behind the right given to a political party to

nominate a replacement where a permanent vacancy occurs in

the Sanggunian is to maintain the party representation as willed

by the people in the election.

With the elevation of petitioner Tamayo, who belonged

to REFORMA-LM, to the position of Vice-Mayor, a vacancy

occurred in the Sanggunian that should be filled up with

someone who should belong to the political party of petitioner

Tamayo. Otherwise, REFORMA-LM’s 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

party’s 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

160

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])

414. May an incumbent Vice-Governor, while

concurrently the Acting Governor, continue to

preside over the sessions of the Sangguniang

Panlalawigan (SP)? If no, who may preside in the

meantime?

Held: Being the acting governor, the Vice-governor

cannot continue to simultaneously exercise the duties of the

latter office, since the nature of the duties of the Provincial

Governor calls for a full-time occupant to discharge them. Such

is not only consistent with but also appears to be the clear

rationale of the new (Local Government) Code wherein the

policy of performing dual functions in both offices has already

been abandoned. To repeat, the creation of a temporary vacancy

in the office of the Governor creates a corresponding vacancy in

the office of the Vice-Governor whenever the latter acts as

Governor by virtue of such temporary vacancy. This event

constitutes an “inability” on the part of the regular presiding

officer (Vice-Governor) to preside during the SP sessions,

which thus calls for the operation of the remedy set in Article

49(b) of the Local Government Code – concerning the election

of a temporary presiding officer. The continuity of the Acting

Governor’s (Vice-Governor) powers as presiding officer of the

SP is suspended so long as he is in such capacity. Under

Section 49(b), “in the event of the inability of the regular

presiding officer to preside at the sanggunian session, the

members present and constituting a quorum shall elect from

among themselves a temporary presiding officer.” (Gamboa,

Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc

[Ynares-Santiago])

415. Distinguish an ordinance from a mere resolution.

Held: A municipal ordinance is different from a

resolution. An ordinance is a law, but a resolution is merely a

declaration of the sentiment or opinion of a lawmaking body on

a specific matter. An ordinance possesses a general and

permanent character, but a resolution is temporary in nature.

Additionally, the two are enacted differently – a third reading is

necessary for an ordinance, but not for a resolution, unless

decided otherwise by a majority of all the Sanggunian members.

(Municipality of Paranaque v. V.M. Realty Corporation, 292

SCRA 678, July 20, 1998 [Panganiban])

416. On its first regular session, may the Sanggunian

transact business other than the matter of adopting

or updating its existing rules or procedure?

Held: We cannot infer the mandate of the (Local

Government) Code that no other business may be transacted on

the first regular session except to take up the matter of adopting

or updating rules. All that the law requires is that “on the first

regular session x x x the sanggunian concerned shall adopt or

update its existing rules or procedures.” There is nothing in the

language thereof that restricts the matters to be taken up during

the first regular session merely to the adoption or updating of

the house rules. If it were the intent of Congress to limit the

business of the local council to such matters, then it would have

done so in clear and unequivocal terms. But as it is, there is no

such intent.

Moreover, adopting or updating of house rules would

necessarily entail work beyond the day of the first regular

session. Does this mean that prior thereto, the local council's

hands were tied and could not act on any other matter? That

would certainly be absurd for it would result in a hiatus and a

paralysis in the local legislature's work which could not have

been intended by the law. (Malonzo v. Zamora, 311 SCRA

224, July 27, 1999, En Banc [Romero])

417. May local elective officials practice their profession

or engage in any occupation?

Ans.: Sec. 90, Local Government Code, provides:

SEC. 90. Practice of Profession. – (a) All governors,

city and municipal mayors are prohibited from practicing their

profession or engaging in any occupation other than the exercise

of their functions as local chief executives.

(b) Sanggunian members may practice their

professions, engage in any occupation, or teach in schools

except during session hours: Provided, That sanggunian

members who are also members of the Bar shall not:

Appear as counsel before any court in any civil

case wherein a local government unit or any

office, agency, or instrumentality of the

government is the adverse party;

Appear as counsel in any criminal case wherein an

officer or employee of the national or local

government is accused of an offense

committed in relation to his office;

Collect any fee for their appearance in

administrative proceedings involving the local

government unit of which he is an official;

and

Use property and personnel of the government

except when the sanggunian member

concerned is defending the interest of the

Government.

(c) Doctors of medicine may practice their profession

even during official hours of work only on occasions of

emergency: Provided, that the officials concerned do not derive

monetary compensation therefrom.

418. What is recall?

Held: Recall is a mode of removal of a public officer

by the people before the end of his term of office. The people's

prerogative to remove a public officer is an incident of their

sovereign power and in the absence of constitutional restraint,

the power is implied in all governmental operations. Such

power has been held to be indispensable for the proper

administration of public affairs. Not undeservedly, it is

frequently described as a fundamental right of the people in a

representative democracy. (Garcia v. COMELEC, 227 SCRA

108, Oct. 5, 1993, En Banc [Puno])

419. What is the ground for recall? Is this subject to

judicial inquiry?

Held: Former Senator Aquilino Pimentel, Jr., a major

author of the subject law in his book The Local Government

Code of 1991: The Key to National Development, stressed the

same reason why the substantive content of a vote of lack of

confidence is beyond any inquiry, thus:

“There is only one ground for recall of local

government officials: loss of confidence. This means

that the people may petition or the Preparatory Recall

Assembly may resolve to recall any local elective

161

official without specifying any particular ground

except loss of confidence. There is no need for them to

bring up any charge of abuse or corruption against the

local elective officials who are subject of any recall

petition.

In the case of Evardone v. Commission on

Elections, et al., 204 SCRA 464, 472 (1991), the Court

ruled that ‘loss of confidence’ as a ground for recall is

a political question. In the words of the Court,

'whether or not the electorate of the municipality of

Sulat has lost confidence in the incumbent mayor is a

political question.’”

(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc

[Puno])

420. The members of the Preparatory Recall Assembly

(PRA) of the province of Bataan adopted a

resolution calling for the recall of Governor

Garcia. It was admitted, however, by the

proponents of the recall resolution that only those

members of the assembly inclined to agree were

notified of the meeting where said resolution was

adopted “as a matter of strategy and security.”

They justified these selective notices on the ground

that the law (Local Government Code) does not

specifically mandate the giving of notice. Should

this submission be sustained?

Held: We reject this submission of the respondents.

The due process clause of the Constitution requiring notice as an

element of fairness is inviolable and should always be

considered part and parcel of every law in case of its silence.

The need for notice to all the members of the assembly is also

imperative for these members represent the different sectors of

the electorate of Bataan. To the extent that they are not notified

of the meeting of the assembly, to that extent is the sovereign

voice of the people they represent nullified. The resolution to

recall should articulate the majority will of the members of the

assembly but the majority will can be genuinely determined

only after all the members of the assembly have been given a

fair opportunity to express the will of their constituents.

Needless to stress, the requirement of notice is mandatory for it

is indispensable in determining the collective wisdom of the

members of the Preparatory Recall Assembly. Its non-

observance is fatal to the validity of the resolution to recall

petitioner Garcia as Governor of the province of Bataan.

(Garcia v. COMELEC, G.R. No. 111511, Sept. 21, 1993; 227

SCRA 100, Oct. 5, 1993, En Banc [Puno])

421. Will it be proper for the Commission on Elections

to act on a petition for recall signed by just one

person?

Held: A petition for recall signed by just one person is

in violation of the statutory 25% minimum requirement as to the

number of signatures supporting any petition for recall. Sec.

69(d) of the Local Government Code of 1991 expressly provides

that 'recall of any elective x x x municipal x x x official may

also be validly initiated upon petition of at least twenty-five

percent (25%) of the total number of registered voters in the

local government unit concerned during the election in which

the local official sought to be recalled was elected.' The law is

plain and unequivocal as to what constitutes recall proceedings:

only a petition of at least 25% of the total number of registered

voters may validly initiate recall proceedings. (Angobung v.

COMELEC, G.R. No. 126576, March 5, 1997)

422. What are the limitations on recall?

Ans.: Section 74, Local Government Code, provides:

SEC. 74. Limitations on Recall. – (a) Any elective

local official may be the subject of a recall election only once

during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from

the date of the official’s assumption to office or one (1) year

immediately preceding a regular local election.

423. Section 74 of the Local Government Code provides

that “no recall shall take place within one year x x

x immediately preceding a regular local election.”

What does the term “regular local election,” as

used in this section, mean?

Held: The term “regular local election” under Sec. 74

of the Local Government Code of 1991 which provides that “no

recall shall take place within one (1) year x x x immediately

preceding a regular local election” refers to one where the

position of the official sought to be recalled is to be actually

contested and filled by the electorate (Paras v. Comelec, G.R.

No. 123169, Nov. 4, 1996). The one-year time bar will not

apply where the local official sought to be recalled is a Mayor

and the approaching election is a barangay election. (Angobung

v. COMELEC, G.R. No. 126576, March 5, 1997)

424. Does the word “Recall” in paragraph (b) of Section

74 of the Local Government Code include the

convening of the Preparatory Recall Assembly and

the filing by it of a recall resolution? Discuss.

Held: We can agree that recall is a process which

begins with the convening of the preparatory recall assembly or

the gathering of the signatures at least 25% of the registered

voters of a local government unit, and then proceeds to the filing

of a recall resolution or petition with the COMELEC, the

verification of such resolution or petition, the fixing of the date

of the recall election, and the holding of the election on the

scheduled date. However, as used in paragraph (b) of Sec. 74,

“recall” refers to the election itself by means of which voters

decide whether they should retain their local official or elect his

replacement.

X x x

To sum up, the term “recall” in paragraph (b) refers to

the recall election and not to the preliminary proceedings to

initiate recall –

Because Sec. 74 speaks of limitations on “recall”

which, according to Sec. 69, is a power which

shall be exercised by the registered voters of a

local government unit. Since the voters do not

exercise such right except in an election, it is clear

that the initiation of recall proceedings is not

prohibited within the one-year period provided in

paragraph (b);

Because the purpose of the first limitation in paragraph

(b) is to provide voters a sufficient basis for

judging an elective local official, and final judging

is not done until the day of the election; and

Because to construe the limitation in paragraph (b) as

including the initiation of recall proceedings would

unduly curtail freedom of speech and of assembly

guaranteed in the Constitution.

(Jovito O. Claudio v. COMELEC, G.R. No. 140560, May 4,

2000, En Banc [Mendoza])

425. The members of the Preparatory Recall Assembly

(PRA) of Puerto Princesa City met and adopted a

resolution calling for the recall of incumbent

Mayor Dennis Victorino M. Socrates on the

ground of loss of confidence on July 2, 2002.

Mayor Socrates argued that they have no authority

to adopt said Recall Resolution because a majority

of PRA members were seeking a new electoral

mandate in the barangay elections scheduled on

July 15, 2002. Should his contention be sustained?

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Held: This argument deserves scant consideration

considering that when the PRA members adopted the Recall

Resolution their terms of office had not yet expired. They were

all de jure sangguniang barangay members with no legal

disqualification to participate in the recall assembly under

Section 70 of the Local Government Code. (Victorino Dennis

M. Socrates v. The Commission on Elections, G.R. No.

154512, Nov. 12, 2002, En Banc [Carpio])

426. Whether or not a local elective official who became

City Mayor by legal succession can be the subject

of a recall election by virtue of a Preparatory

Recall Assembly Resolution which was passed or

adopted when the she was still the Vice-Mayor.

Held: The specific purpose of the Preparatory Recall

Assembly was to remove Amelita S. Navarro as the elected

Vice-Mayor of Santiago City since PRA Resolution No. 1 dated

July 12, 1999 expressly states that “ x x x it is hereby resolved

to invoke the rescission of the electoral mandate of the

incumbent City Vice-Mayor 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 official’s

assumption of office or one (1) year immediately preceding a

regular election.” There is no more allowable time in the light

of that law within which to hold recall elections for that

purpose. The then Vice-Mayor Amelita S. Navarro assumed

office as Mayor of Santiago City on October 11, 1999. One

year after her assumption of office as Mayor will be October 11,

2000 which is already within the one (1) year prohibited period

immediately preceding the next regular election in May 2001.

(Afiado v. Commission on Elections, 340 SCRA 600, Sept. 18,

2000, En Banc [De Leon]

427. May the Punong Barangay validly appoint or

remove the barangay treasurer, the barangay

secretary, and other appointive barangay officials

without the concurrence of the majority of all the

members of the Sangguniang Barangay?

Held: The Local Government Code explicitly vests on

the punong barangay, upon approval by a majority of all the

members of the sangguniang barangay, the power to appoint or

replace the barangay treasurer, the barangay secretary, and

other appointive barangay officials. Verily, the power of

appointment is to be exercised conjointly by the punong

barangay and a majority of all the members of the sangguniang

barangay. Without such conjoint action, neither an appointment

nor a replacement can be effectual.

Applying the rule that the power to appoint includes

the power to remove x x x the questioned dismissal from office

of the barangay officials by the punong barangay without the

concurrence of the majority of all the members of the

Sangguniang Barangay cannot be legally justified. To rule

otherwise could also create an absurd situation of the

Sangguniang Barangay members refusing to give their approval

to the replacements selected by the punong barangay who has

unilaterally terminated the services of the incumbents. It is

likely that the legislature did not intend this absurdity to follow

from its enactment of the law. (Ramon Alquizola, Sr. v.

Gallardo Ocol, G.R. No. 132413, Aug. 27, 1999, 3rd

Div.

[Vitug])

G. PUBLIC INTERNATIONAL LAW

428. What is the Doctrine of Incorporation? How is it

applied by local courts?

Held: Under the doctrine of incorporation, rules of

international law form part of the law of the land and no further

legislative action is needed to make such rules applicable in the

domestic sphere.

The doctrine of incorporation is applied whenever

municipal tribunals (or local courts) are confronted with

situations in which there appears to be a conflict between a rule

of international law and the provisions of the Constitution or

statute of the local state. Efforts should first be exerted to

harmonize them, so as to give effect to both since it is to be

presumed that municipal law was enacted with proper regard for

the generally accepted principles of international law in

observance of the Incorporation Clause in Section 2, Article II

of the Constitution. In a situation however, where the conflict is

irreconcilable and a choice has to be made between a rule of

international law and municipal law, jurisprudence dictates that

municipal law should be upheld by the municipal courts for the

reason that such courts are organs of municipal law and are

accordingly bound by it in all circumstances. The fact that

international law has been made part of the law of the land does

not pertain to or imply the primacy of international law over

national or municipal law in the municipal sphere. The doctrine

of incorporation, as applied in most countries, decrees that rules

of international law are given equal standing with, but are not

superior to, national legislative enactments. Accordingly, the

principle of lex posterior derogat priori takes effect – a treaty

may repeal a statute and a statute may repeal a treaty. In states

where the Constitution is the highest law of the land, such as the

Republic of the Philippines, both statutes and treaties may be

invalidated if they are in conflict with the Constitution.

(Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No.

139465, Jan. 18, 2000, En Banc [Melo])

429. Discuss the contemporary view on the rightful

place of an Individual in International Law? Does

he remain a mere “object” of International Law, or

is he now a proper “subject” of International Law?

Held: Then came the long and still ongoing debate on

what should be the subject of international law. The 20th

century saw the dramatic rise and fall of different types and hues

of authoritarianism – the fascism of Italy’s Mussolini and

Germany’s Hitler, the militarism of Japan’s Hirohito and the

communism of Russia’s 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 individual’s

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, 1st Div. [Motion for

Reconsideration])

163

430. What must a person who feels aggrieved by the acts

of a foreign sovereign do to espouse his cause?

Held: Private respondent is not left without any legal

remedy for the redress of its grievances. Under both Public

International Law and Transnational Law, a person who feels

aggrieved by the acts of a foreign sovereign can ask his own

government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government,

through the Foreign Office, to espouse its claims against the

Holy See. Its first task is to persuade the Philippine government

to take up with the Holy See the validity of its claim. Of course,

the Foreign Office shall first make a determination of the impact

of its espousal on the relations between the Philippine

government and the Holy See. Once the Philippine government

decides to espouse the claim, the latter ceases to be a private

cause.

According to the Permanent Court of International

Justice, the forerunner of the International Court of Justice:

“By taking up the case of one of its subjects

and by resorting to diplomatic action or international

judicial proceedings on his behalf, a State is in reality

asserting its own rights - its right to ensure, in the

person of its subjects, respect for the rules of

international law” (The Mavrommatis Palestine

Concessions, 1 Hudson, World Court Reports 293, 302

[1924]).

(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec.

1, 1994, En Banc [Quiason])

431. Discuss the Indigenous International Movement.

Is the Philippines an active participant in the

Indigenous International Movement?

Held: The Indigenous Peoples Rights Act (IPRA) is a

recognition of our active participation in the indigenous

international movement.

The indigenous movement can be seen as the heir to a

history of anti-imperialism stretching back to prehistoric times.

The movement received a massive impetus during the 1960’s

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 1980’s, 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

People’s 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 today’s priorities for the international

agenda.

International organizations and bodies have realized

the necessity of applying policies, programs and specific rules

concerning IPs in some nations. The World Bank, for example,

first adopted a policy on IPs as a result of the dismal experience

of projects in Latin America. The World Bank now seeks to

apply its current policy on IPs to some of its projects in Asia.

This policy has provided an influential model for the projects of

the Asian Development Bank.

The 1987 Philippine Constitution formally recognizes

the existence of ICCs/IPs and declares as a State policy the

promotion of their rights within the framework of national unity

and development (Section 22, Article II, 1987 Constitution).

The IPRA amalgamates the Philippine category of ICCs with

the international category of IPs, and is heavily influenced by

both the International Labor Organization (ILO) Convention

169 and the United Nations (UN) Draft Declaration on the

Rights of Indigenous Peoples.

ILO Convention No. 169 is entitled the “Convention

Concerning Indigenous and Tribal Peoples in Independent

Countries” (also referred to as the “Indigenous and Tribal

Peoples Convention, 1989”) and was adopted on June 27, 1989.

It is based on the Universal Declaration of Human Rights, the

International Covenant on Economic, Social and Cultural

Rights, the International Covenant on Civil and Political Rights,

and many other international instruments on the prevention of

discrimination. ILO Convention No. 169 revised the

“Convention Concerning the Protection and Integration of

Indigenous and Other Tribal and Semi-Tribal Populations in

Independent Countries” passed on June 26, 1957.

Developments in international law made it appropriate to adopt

new international standards on indigenous peoples “with a view

to removing the assimilationist orientation of the earlier

standards,” and “recognizing the aspirations of these peoples to

exercise control over their own institutions, ways of life and

economic development.” (Separate Opinion, Puno, J., in Cruz

v. Secretary of Environment and Natural Resources, 347

SCRA 128, 238-241, Dec. 6, 2000, En Banc)

432. Is sovereignty really absolute and all-

encompassing? If no, what are its restrictions and

limitations?

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

164

very nature of membership in the family of nations and (2)

limitations imposed by treaty stipulations. (Tanada v. Angara,

272 SCRA 18, May 2, 1997 [Panganiban])

433. Discuss the Status of the Vatican and the Holy See

in International Law.

Held: Before the annexation of the Papal States by

Italy in 1870, the Pope was the monarch and he, as the Holy

See, was considered a subject of International Law. With the

loss of the Papal States and the limitation of the territory under

the Holy See to an area of 108.7 acres, the position of the Holy

See in International Law became controversial.

In 1929, Italy and the Holy See entered into the Lateran

Treaty, where Italy recognized the exclusive dominion and

sovereign jurisdiction of the Holy See over the Vatican City. It

also recognized the right of the Holy See to receive foreign

diplomats, to send its own diplomats to foreign countries, and to

enter into treaties according to International Law.

The Lateran Treaty established the statehood of the

Vatican City “for the purpose of assuring to the Holy See

absolute and visible independence and of guaranteeing to it

indisputable sovereignty also in the field of international

relations.”

In view of the wordings of the Lateran Treaty, it is

difficult to determine whether the statehood is vested in the

Holy See or in the Vatican City. Some writers even suggested

that the treaty created two international persons - the Holy See

and Vatican City.

The Vatican City fits into none of the established

categories of states, and the attribution to it of “sovereignty”

must be made in a sense different from that in which it is

applied to other states. In a community of national states, the

Vatican City represents an entity organized not for political but

for ecclesiastical purposes and international objects. Despite its

size and object, the Vatican City has an independent

government of its own, with the Pope, who is also head of the

Roman Catholic Church, as the Holy See or Head of State, in

conformity with its traditions, and the demands of its mission in

the world. Indeed, the worldwide interests and activities of the

Vatican City are such as to make it in a sense an “international

state.”

One authority wrote that the recognition of the Vatican

City as a state has significant implication - that it is possible for

any entity pursuing objects essentially different from those

pursued by states to be invested with international personality.

Inasmuch as the Pope prefers to conduct foreign

relations and enter into transactions as the Holy See and not in

the name of the Vatican City, one can conclude that in the

Pope's own view, it is the Holy See that is the international

person.

The Republic of the Philippines has accorded the Holy

See the status of a foreign sovereign. The Holy See, through its

Ambassador, the Papal Nuncio, has had diplomatic

representations with the Philippine government since 1957.

This appears to be the universal practice in international

relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-

534, Dec. 1, 1994, En Banc [Quiason])

434. What are the conditions before the rights of

belligerency may be accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to

fulfill certain conditions before the rights of belligerency are

accorded them, namely:

An organized civil government that has control and

direction over the armed struggle launched by the

rebels;

Occupation of a substantial portion of the national

territory;

Seriousness of the struggle, which must be so

widespread thereby leaving no doubt as to the

outcome;

Willingness on the part of the rebels to observe the

rules and customs of war.

435. Discuss the legal consequences that follow

recognition of belligerency.

Ans.: Before recognition as such, it is the legitimate

government that is responsible for the acts of the rebels

affecting foreign nationals and their properties. Once

recognition is given, the legitimate government may no longer

be held responsible for their acts; responsibility is shifted to the

rebel government;

The legitimate government, once it recognizes the

rebels as belligerents, is bound to observe the laws and customs

of war in conducting the hostilities;

From the point of view of third States, the effect of

recognition of belligerency is to put them under obligation to

observe strict neutrality and abide by the consequences arising

from that position;

On the side of the rebels, recognition of belligerency

puts them under responsibility to third States and to the

legitimate government for all their acts which do not conform to

the laws and customs of war. (Salonga & Yap, Public

International Law, 5th Ed. [1992], p. 33)

436. Discuss the occasions when the use of force may be

allowed under the UN Charter.

Ans.: There are only two occasions when the use of

force is allowed under the UN Charter. The first is when it is

authorized in pursuance of the enforcement action that may be

decreed by the Security Council under Art. 42. The second is

when it is employed in the exercise of the inherent right of self-

defense under conditions prescribed in Art. 51. (Justice Isagani

A. Cruz, in an article entitled “A New World Order” written in

his column “Separate Opinion” published in the March 30,

2003 issue of the Philippines Daily Inquirer)

437. Is the United States justified in invading Iraq

invoking its right to defend itself against an

expected attack by Iraq with the use of its

biological and chemical weapons of mass

destruction?

Ans.: The United States is invoking its right to defend

itself against an expected attack by Iraq with the use of its

biological and chemical weapons of mass destruction. There is

no evidence of such a threat, but Bush is probably invoking the

modern view that a state does not have to wait until the potential

enemy fires first. The cowboy from Texas says that outdrawing

the foe who is about to shoot is an act of self-defense.

Art. 51 says, however, that there must first be an

“armed attack” before a state can exercise its inherent right of

self-defense, and only until the Security Council, to which the

aggression should be reported, shall have taken the necessary

measures to maintain international peace and security. It was

the United States that made the “armed attack” first, thus

becoming the aggressor, not Iraq. Iraq is now not only

exercising its inherent right of self-defense as recognized by the

UN Charter. (Justice Isagani A. Cruz, in an article entitled “A

New World Order” written in his column “Separate Opinion”

published in the March 30, 2003 issue of the Philippines Daily

Inquirer)

165

438. Will the subsequent discovery of weapons of mass

destruction in Iraq after its invasion by the US

justify the attack initiated by the latter?

Ans.: Even if Iraq’s hidden arsenal is discovered – or

actually used – and the United States is justified in its

suspicions, that circumstance will not validate the procedure

taken against Iraq. It is like searching a person without warrant

and curing the irregularity with the discovery of prohibited

drugs in his possession. The process cannot be reversed. The

warrant must first be issued before the search and seizure can be

made.

The American invasion was made without permission

from the Security Council as required by the UN Charter. Any

subsequent discovery of the prohibited biological and chemical

weapons will not retroactively legalize that invasion, which was,

legally speaking, null and void ab initio. (Justice Isagani A.

Cruz, in an article entitled “A New World Order” written in

his column “Separate Opinion” published in the March 30,

2003 issue of the Philippines Daily Inquirer)

439. What Crimes come within the jurisdiction of the

Rome Statute of the International Criminal Court?

Ans.: 1. The jurisdiction of the Court shall be limited

to the most serious crimes of concern to the international

community as a whole. The Court has jurisdiction in

accordance with this Statute with respect to the following

crimes:

The crime of genocide;

Crimes against humanity;

War crimes;

The crime of aggression.

2. The Court shall exercise jurisdiction over the crime

of aggression once a provision is adopted in accordance with

articles 121 and 123 defining the crime and setting out the

conditions under which the Court shall exercise jurisdiction with

respect to this crime. Such a provision shall be consistent with

the relevant provisions of the Charter of the United Nations.

(Art. 5, Rome Statute of the International Criminal Court)

440. What is Genocide?

Ans.: For the purpose of this Statute, “genocide”

means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or

religious group, such as:

Killing members of the group;

Causing serious bodily or mental harm to members of

the group;

Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in

whole or in part;

Imposing measures intended to prevent births within

the group;

Forcibly transferring children of the group to another

group.

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

441. What are Crimes against Humanity?

Ans.: 1. For the purpose of this Statute, “crime against

humanity” means any of the following acts when committed as

part of a widespread or systematic attack directed against any

civilian population, with knowledge of the attack:

Murder;

Extermination;

Enslavement;

Deportation or forcible transfer of population;

Imprisonment or other severe deprivation of physical

liberty in violation of fundamental rules of

international law;

Torture;

Rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, or any other

form of sexual violence of comparable gravity;

Persecution against any identifiable group or

collectivity on political, racial, national, ethnic,

cultural, religious, gender as defined in paragraph

3, or other grounds that are universally recognized

as impermissible under international law, in

connection with any act referred to in this

paragraph or any crime within the jurisdiction of

the Court;

Enforced disappearance of persons;

The crime of apartheid;

Other inhumane acts of a similar character intentionally

causing great suffering, or serious injury to body

or to mental or physical health.

2. For the purpose of paragraph 1:

“Attack directed against any civilian population”

means a course of conduct involving the multiple

commission of acts referred to in paragraph 1

against any civilian population, pursuant to or in

furtherance of a State or organizational policy to

commit such attack;

“Extermination” includes the intentional infliction of

conditions of life, inter alia the deprivation of

access to food and medicine, calculated to bring

about the destruction of part of a population;

“Enslavement” means the exercise of any or all of the

powers attaching to the right of ownership over a

person and includes the exercise of such power in

the course of trafficking in persons, in particular

women and children;

“Deportation or forcible transfer of population” means

forced displacement of the persons concerned by

expulsion or other coercive acts from the area in

which they are lawfully present, without grounds

permitted under international law;

“Torture” means the intentional infliction of severe

pain or suffering, whether physical or mental,

upon a person in the custody or under the control

of the accused; except that torture shall not include

pain or suffering arising only from, inherent in or

incidental to lawful, sanctions;

“Forced pregnancy” means the unlawful confinement,

of a woman forcibly made pregnant, with the

intent of affecting the ethnic composition of any

population or carrying out other grave violations

of international law. This definition shall not in

any way be interpreted as affecting national laws

relating to pregnancy;

“Persecution” means the intentional and severe

deprivation of fundamental rights contrary to

international law by reason of the identity of the

group or collectivity;

“The crime of apartheid” means inhumane acts of a

character similar to those referred to in paragraph

1, committed in the context of an institutionalized

regime of systematic oppression and domination

by one racial group over any other racial group or

groups and committed with the intention of

maintaining that regime;

“Enforced disappearance of persons” means the arrest,

detention or abduction of persons by, or with the

authorization, support or acquiescence of, a State

or a political organization, followed by a refusal to

acknowledge the deprivation of freedom or to give

information on the fate or whereabouts of those

persons, with the intention of removing them from

166

the protection of the law for a prolonged period of

time.

3. For the purpose of this Statute, it is understood that

the term “gender” refers to the two sexes, male and female,

within the context of society. The term “gender” does not

indicate any meaning different from the above.

(Art. 7, Rome Statute of the International Criminal Court)

442. What are International Organizations? Discuss

their nature.

Held: International organizations are institutions

constituted by international agreement between two or more

States to accomplish common goals. The legal personality of

these international organizations has been recognized not only

in municipal law, but in international law as well.

Permanent international commissions and

administrative bodies have been created by the agreement of a

considerable number of States for a variety of international

purposes, economic or social and mainly non-political. In so far

as they are autonomous and beyond the control of any one State,

they have distinct juridical personality independent of the

municipal law of the State where they are situated. As such,

they are deemed to possess a species of international personality

of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb.

14, 1992)

443. Discuss the basic immunities of international

organizations and the reason for affording them

such immunities.

Held: One of the basic immunities of an international

organization is immunity from local jurisdiction, i.e., that it is

immune from legal writs and processes issued by the tribunals

of the country where it is found. The obvious reason for this is

that the subjection of such an organization to the authority of the

local courts would afford a convenient medium through which

the host government may interfere in their operations or even

influence or control its policies and decisions; besides, such

subjection to local jurisdiction would impair the capacity of

such body to discharge its responsibilities impartially on behalf

of its member-states. (SEAFDEC-AQD v. NLRC, 206 SCRA

283, Feb. 4, 1992)

444. Is the determination of the executive branch of the

government that a state or instrumentality is

entitled to sovereign or diplomatic immunity

subject to judicial review, or is it a political

question and therefore, conclusive upon the

courts?

Held: The issue of petitioner’s (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 country’s foreign relations. As in

International Catholic Migration Commission and in World

Health Organization, we abide by the certification of the

Department of Foreign Affairs. (Holy See, The v. Rosario, Jr.,

238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

445. Should Courts blindly adhere and take on its face

the communication from the Department of

Foreign Affairs (DFA) that a person is covered by

any immunity?

Held: Courts cannot blindly adhere and take on its

face the communication from the DFA that petitioner is covered

by any immunity. The DFA’s determination that a certain

person is covered by immunity is only preliminary which has no

binding effect in courts. In receiving ex parte the DFA’s advice

and in motu proprio dismissing the two criminal cases without

notice to the prosecution, the latter’s 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])

446. Discuss the basis of the argument that a

determination by the DFA that a person is entitled

to diplomatic immunity is a political question

binding on the courts.

Held: Petitioner’s 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

167

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 petitioner’s 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, 1st Div. [Motion for Reconsideration])

447. What are the differences between Diplomatic and

International Immunities? Discuss.

Held: There are three major differences between

diplomatic and international immunities. Firstly, one of the

recognized limitations of diplomatic immunity is that members

of the diplomatic staff of a mission may be appointed from

among the nationals of the receiving State only with the express

consent of that State; apart from inviolability and immunity

from jurisdiction in respect of official acts performed in the

exercise of their functions, nationals enjoy only such privileges

and immunities as may be granted by the receiving State.

International immunities may be specially important in relation

to the State of which the official is a national. Secondly, the

immunity of a diplomatic agent from the jurisdiction of the

receiving State does not exempt him from the jurisdiction of the

sending State; in the case of international immunities there is no

sending State and an equivalent for the jurisdiction of the

Sending State therefore has to be found either in waiver of

immunity or in some international disciplinary or judicial

procedure. Thirdly, the effective sanctions which secure respect

for diplomatic immunity are the principle of reciprocity and the

danger of retaliation by the aggrieved State; international

immunities enjoy no similar protection. (Concurring Opinion,

Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No.

125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

448. Discuss the immunity of International Officials.

Held: The generally accepted principles which are

now regarded as the foundation of international immunities are

contained in the ILO Memorandum, which reduced them in

three basic propositions, namely: (1) that international

institutions should have a status which protects them against

control or interference by any one government in the

performance of functions for the effective discharge of which

they are responsible to democratically constituted international

bodies in which all the nations concerned are represented; (2)

that no country should derive any financial advantage by

levying fiscal charges on common international funds; and (3)

that the international organization should, as a collectivity of

States Members, be accorded the facilities for the conduct of its

official business customarily extended to each other by its

individual member States. The thinking underlying these

propositions is essentially institutional in character. It is not

concerned with the status, dignity or privileges of individuals,

but with the elements of functional independence necessary to

free international institutions from national control and to

enable them to discharge their responsibilities impartially on

behalf of all their members. (Concurring Opinion, Puno J., in

Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26,

2001, 1st Div. [Motion for Reconsideration])

449. What are the three methods of granting privileges

and immunities to the personnel of international

organizations? Under what category does the

Asian Development Bank and its Personnel fall?

Held: Positive international law has devised three

methods of granting privileges and immunities to the personnel

of international organizations. The first is by simple

conventional stipulation, as was the case in the Hague

Conventions of 1899 and 1907. The second is by internal

legislation whereby the government of a state, upon whose

territory the international organization is to carry out its

functions, recognizes the international character of the

organization and grants, by unilateral measures, certain

privileges and immunities to better assure the successful

functioning of the organization and its personnel. In this

situation, treaty obligation for the state in question to grant

concessions is lacking. Such was the case with the Central

Commission of the Rhine at Strasbourg and the International

Institute of Agriculture at Rome. The third is a combination of

the first two. In this third method, one finds a conventional

obligation to recognize a certain status of an international

organization and its personnel, but the status is described in

broad and general terms. The specific definition and application

of those general terms are determined by an accord between the

organization itself and the state wherein it is located. This is the

case with the League of Nations, the Permanent Court of

Justice, and the United Nations.

The Asian Development Bank and its Personnel fall

under this third category.

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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 diplomat’s 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])

450. What is the reason behind the current tendency of

reducing privileges and immunities of personnel of

international organizations to a minimum?

Held: Looking back over 150 years of privileges and

immunities granted to the personnel of international

organizations, it is clear that they were accorded a wide scope of

protection in the exercise of their functions – The Rhine Treaty

of 1804 between the German Empire and France which

provided “all the rights of neutrality” to persons employed in

regulating navigation in the international interest; The Treaty of

Berlin of 1878 which granted the European Commission of the

Danube “complete independence of territorial authorities” in the

exercise of its functions; The Convention of the League which

granted “diplomatic immunities and privileges.” Today, the age

of the United Nations finds the scope of protection narrowed.

The current tendency is to reduce privileges and immunities of

personnel of international organizations to a minimum. The

tendency cannot be considered as a lowering of the standard but

rather as a recognition that the problem on the privileges and

immunities of international officials is new. The solution to the

problem presented by the extension of diplomatic prerogatives

to international functionaries lies in the general reduction of the

special position of both types of agents in that the special status

of each agent is granted in the interest of function. The wide

grant of diplomatic prerogatives was curtailed because of

practical necessity and because the proper functioning of the

organization did not require such extensive immunity for its

officials. While the current direction of the law seems to be to

narrow the prerogatives of the personnel of international

organizations, the reverse is true with respect to the prerogatives

of the organizations themselves, considered as legal entities.

Historically, states have been more generous in granting

privileges and immunities to organizations than they have to the

personnel of these organizations.

Thus, Section 2 of the General Convention on the

Privileges and Immunities of the United Nations states that the

UN shall enjoy immunity from every form of legal process

except insofar as in any particular case it has expressly waived

its immunity. Section 4 of the Convention on the Privileges and

Immunities of the Specialized Agencies likewise provides that

the specialized agencies shall enjoy immunity from every form

of legal process subject to the same exception. Finally, Article

50[1] of the ADB Charter and Section 5 of the Headquarters

Agreement similarly provide that the bank shall enjoy immunity

from every form of legal process, except in cases arising out of

or in connection with the exercise of its powers to borrow

money, to guarantee obligations, or to buy and sell or

underwrite the sale of securities.

The phrase “immunity from every form of legal

process” as used in the UN General Convention has been

interpreted to mean absolute immunity from a state’s

jurisdiction to adjudicate or enforce its law by legal process, and

it is said that states have not sought to restrict that immunity of

169

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 official’s 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, 1st Div. [Motion for

Reconsideration])

451. What is the status of the international official with

respect to his private acts?

Held: Section 18 [a] of the General Convention has

been interpreted to mean that officials of the specified categories

are denied immunity from local jurisdiction for acts of their

private life and empowers local courts to assume jurisdiction in

such cases without the necessity of waiver. It has earlier been

mentioned that historically, international officials were granted

diplomatic privileges and immunities and were thus considered

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,

1st Div. [Motion for Reconsideration])

452. Who is competent to determine whether a given act

of international officials and representatives is

private or official?

Held: In connection with this question, the current

tendency to narrow the scope of privileges ad immunities of

international officials and representatives is most apparent.

Prior to the regime of the United Nations, the determination of

this question rested with the organization and its decision was

final. By the new formula, the state itself tends to assume this

competence. If the organization is dissatisfied with the decision,

under the provisions of the General Convention of the United

Nations, or the Special Convention for Specialized Agencies,

the Swiss Arrangement, and other current dominant instruments,

it may appeal to an international tribunal by procedures outlined

in these instruments. Thus, the state assumes this competence in

the first instance. It means that, if a local court assumes

jurisdiction over an act without the necessity of waiver from the

organization, the determination of the nature of the act is made

at the national level.

It appears that the inclination is to place the

competence to determine the nature of an act as private or

official in the courts of the state concerned. That the practical

notion seems to be to leave to the local courts determination of

whether or not a given act is official or private does not

necessarily mean that such determination is final. If the United

Nations questions the decision of the Court, it may invoke

proceedings for settlement of disputes between the organization

and the member states as provided in Section 30 of the General

Convention. Thus, the decision as to whether a given act is

official or private is made by the national courts in the first

instance, but it may be subjected to review in the international

level if questioned by the United Nations.

x x x

Under the Third Restatement of the Law, it is

suggested that since an international official does not enjoy

personal inviolability from arrest or detention and has immunity

only with respect to official acts, he is subject to judicial or

administrative process and must claim his immunity in the

proceedings by showing that the act in question was an official

act. Whether an act was performed in the individual’s official

capacity is a question for the court in which a proceeding is

brought, but if the international organization disputes the court’s

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

170

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, 1st Div.

[Motion for Reconsideration])

453. Discuss the extent of the international official’s

immunity for official acts.

Held: The international official’s immunity for official

acts may be likened to a consular official’s 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 officer’s official duties. (Concurring Opinion, Puno

J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865,

Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

454. Discuss the two conflicting concepts of sovereign

immunity from suit.

Held: There are two conflicting concepts of sovereign

immunity, each widely held and firmly established. According

to the classical or absolute theory, a sovereign cannot, without

its consent, be made a respondent in the courts of another

sovereign. According to the newer or restrictive theory, the

immunity of the sovereign is recognized only with regard to

public acts or acts jure imperii of a state, but not with regard to

private acts or acts jure gestionis.

Some states passed legislation to serve as guidelines

for the executive or judicial determination when an act may be

considered as jure gestionis. The United States passed the

Foreign Sovereign Immunities Act of 1976, which defines a

commercial activity as “either a regular course of commercial

conduct or a particular commercial transaction or act.”

Furthermore, the law declared that the “commercial character of

the activity shall be determined by reference to the nature of the

course of conduct or particular transaction or act, rather than by

reference to its purpose.” The Canadian Parliament enacted in

1982 an Act to Provide For State Immunity in Canadian Courts.

The Act defines a “commercial activity” as any particular

transaction, act or conduct or any regular course of conduct that

by reason of its nature, is of a “commercial character.”

The restrictive theory, which is intended to be a

solution to the host of problems involving the issue of sovereign

immunity, has created problems of its own. Legal treatises and

the decisions in countries which follow the restrictive theory

have difficulty in characterizing whether a contract of a

sovereign state with a private party is an act jure gestionis or an

act jure imperii.

The restrictive theory came about because of the entry

of sovereign states into purely commercial activities remotely

connected with the discharge of governmental functions. This is

particularly true with respect to the Communist states which

took control of nationalized business activities and international

trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1,

1994, En Banc [Quiason])

455. Cite some transactions by a foreign state with

private parties that were considered by the Supreme

Court as acts “jure imperii” and acts “jure

gestionis.”

Held: This Court has considered the following

transactions by a foreign state with private parties as acts jure

imperii: (1) the lease by a foreign government of apartment

buildings for use of its military officers; (2) the conduct of

public bidding for the repair of a wharf at a United States Naval

Station; and (3) the change of employment status of base

employees.

On the other hand, this Court has considered the

following transactions by a foreign state with private parties as

acts jure gestionis: (1) the hiring of a cook in the recreation

center, consisting of three restaurants, a cafeteria, a bakery, a

store, and a coffee and pastry shop at the John Hay Air Station

in Baguio City, to cater to American servicemen and the general

public; and (2) the bidding for the operation of barber shops in

Clark Air Base in Angeles City. The operation of the

restaurants and other facilities open to the general public is

undoubtedly for profit as a commercial and not a governmental

activity. By entering into the employment contract with the

cook in the discharge of its proprietary function, the United

States government impliedly divested itself of it sovereign

immunity from suit. (Holy See, The v. Rosario, Jr., 238 SCRA

524, Dec. 1, 1994, En Banc [Quiason])

456. What should be the guidelines to determine what

activities and transactions shall be considered

“commercial” and as constituting acts “jure

gestionis” by a foreign state?

Held: In the absence of legislation defining what

activities and transactions shall be considered “commercial” and

as constituting acts jure gestionis, we have to come out with our

own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign

state with a private party cannot be the ultimate test. Such an

act can only be the start of the inquiry. The logical question is

whether the foreign state is engaged in the activity in the regular

course of business. If the foreign state is not engaged regularly

in a business or trade, the particular act or transaction must then

be tested by its nature. If the act is in pursuit of a sovereign

activity, or an incident thereof, then it is an act jure imperii,

especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto:

“There is no question that the United States of

America, like any other state, will be deemed to have

impliedly waived its non-suability if it has entered into

a contract in its proprietary or private capacity. It is

only when the contract involves its sovereign or

governmental capacity that no such waiver may be

implied.”

(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994,

En Banc [Quiason])

457. May the Holy See be sued for selling the land it

acquired by donation from the Archdiocese of

Manila to be made site of its mission or the

Apostolic Nunciature in the Philippines but which

purpose cannot be accomplished as the land was

occupied by squatters who refused to vacate the

area?

Held: In the case at bench, if petitioner (Holy See) has

bought and sold lands in the ordinary course of a real estate

business, surely the said transaction can be categorized as an act

jure gestionis. However, petitioner has denied that the

acquisition and subsequent disposal of Lot 5-A were made for

171

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])

458. How is sovereign or diplomatic immunity pleaded

in a foreign court?

Held: In Public International Law, when a state or

international agency wishes to plead sovereign or diplomatic

immunity in a foreign court, it requests the Foreign Office of the

state where it is sued to convey to the court that said defendant

is entitled to immunity.

In the United States, the procedure followed is the

process of “suggestion,” where the foreign state or the

international organization sued in an American court requests

the Secretary of State to make a determination as to whether it is

entitled to immunity. If the Secretary of State finds that the

defendant is immune from suit, he, in turn, asks the Attorney

General to submit to the court a “suggestion” that the defendant

is entitled to immunity. In England, a similar procedure is

followed, only the Foreign Office issues a certification to that

effect instead of submitting a “suggestion”.

In the Philippines, the practice is for the foreign

government or the international organization to first secure an

executive endorsement of its claim of sovereign or diplomatic

immunity. But how the Philippine Foreign Office conveys its

endorsement to the courts varies. In International Catholic

Migration Commission v. Calleja, the Secretary of Foreign

Affairs just sent a letter directly to the Secretary of Labor and

Employment, informing the latter that the respondent-employer

could not be sued because it enjoyed diplomatic immunity. In

World Health Organization v. Aquino, the Secretary of Foreign

Affairs sent the trial court a telegram to that effect. In Baer v.

Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs

to request the Solicitor General to make, in behalf of the

commander of the United States Naval Base at Olongapo City,

Zambales, a “suggestion” to respondent Judge. The Solicitor

General embodied the “suggestion” in a Manifestation and

Memorandum as amicus curiae.

In the case at bench, the Department of Foreign

Affairs, through the Office of Legal Affairs moved with this

Court to be allowed to intervene on the side of petitioner. The

Court allowed the said Department to file its memorandum in

support of petitioner’s claim of sovereign immunity.

In some cases, the defense of sovereign immunity was

submitted directly to the local courts by the respondents through

their private counsels. In cases where the foreign states bypass

the Foreign Office, the courts can inquire into the facts and

make their own determination as to the nature of the acts and

transactions involved. (Holy See, The v. Rosario, Jr., 238

SCRA 524, Dec. 1, 1994, En Banc [Quiason])

459. What is extradition? To whom does it apply?

Held: It is the “process by which persons charged with

or convicted of crime against the law of a State and found in a

foreign State are returned by the latter to the former for trial or

punishment. It applies to those who are merely charged with an

offense but have not been brought to trial; to those who have

been tried and convicted and have subsequently escaped from

custody; and those who have been convicted in absentia. It does

not apply to persons merely suspected of having committed an

offense but against whom no charge has been laid or to a person

whose presence is desired as a witness or for obtaining or

enforcing a civil judgment.” (Weston, Falk, D' Amato,

International Law and Order, 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)

460. Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians,

Chinese, Chaldeans and Assyro-Babylonians but their basis for

allowing extradition was unclear. Sometimes, it was granted

due to pacts; at other times, due to plain good will. The

classical commentators on international law thus focused their

early views on the nature of the duty to surrender an extraditee -

-- whether the duty is legal or moral in character. Grotius and

Vattel led the school of thought that international law imposed a

legal duty called civitas maxima to extradite criminals. In sharp

contrast, Puffendorf and Billot led the school of thought that the

so-called duty was but an "imperfect obligation which could

become enforceable only by a contract or agreement between

states.

Modern nations tilted towards the view of Puffendorf

and Billot that under international law there is no duty to

extradite in the absence of treaty, whether bilateral or

multilateral. Thus, the US Supreme Court in US v. Rauscher,

held: “x x x it is only in modern times that the nations of the

earth have imposed upon themselves the obligation of delivering

up these fugitives from justice to the states where their crimes

were committed, for trial and punishment. This has been done

generally by treaties x x x. Prior to these treaties, and apart

from them there was no well-defined obligation on one country

to deliver up such fugitives to another; and though such delivery

was often made it was upon the principle of comity x x x.”

(Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon.

Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

461. What is the nature of an extradition proceeding?

Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is

not a criminal proceeding which will call into operation all the

rights of an accused as guaranteed by the Bill of Rights. To

begin with, the process of extradition does not involve the

determination of the guilt or innocence of an accused. His guilt

or innocence will be adjudged in the court of the state where he

will be extradited. Hence, as a rule, constitutional rights that are

only relevant to determine the guilt or innocence of an accused

cannot be invoked by an extraditee especially by one whose

extradition papers are still undergoing evaluation. As held by

the US Supreme Court in United States v. Galanis:

172

“An extradition proceeding is not a criminal

prosecution, and the constitutional safeguards that

accompany a criminal trial in this country do not shield

an accused from extradition pursuant to a valid treaty.”

(Wiehl, Extradition Law at the Crossroads: The Trend

Toward Extending Greater Constitutional Procedural

Protections To Fugitives Fighting Extradition from the

United States, 19 Michigan Journal of International

Law 729, 741 [1998], citing United States v. Galanis,

429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding

and a criminal proceeding. An extradition proceeding is

summary in nature while criminal proceedings involve a full-

blown trial. In contradistinction to a criminal proceeding, the

rules of evidence in an extradition proceeding allow admission

of evidence under less stringent standards. In terms of the

quantum of evidence to be satisfied, a criminal case requires

proof beyond reasonable doubt for conviction while a fugitive

may be ordered extradited “upon showing of the existence of a

prima facie case.” Finally, unlike in a criminal case where

judgment becomes executory upon being rendered final, in an

extradition proceeding, our courts may adjudge an individual

extraditable but the President has the final discretion to extradite

him. The United States adheres to a similar practice whereby

the Secretary of State exercises wide discretion in balancing the

equities of the case and the demands of the nation's foreign

relations before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in

character and the evaluation stage in an extradition proceeding

is not akin to a preliminary investigation, the due process

safeguards in the latter do not necessarily apply to the former.

This we hold for the procedural due process required by a given

set of circumstances “must begin with a determination of the

precise nature of the government function involved as well as

the private interest that has been affected by governmental

action.” The concept of due process is flexible for “not all

situations calling for procedural safeguards call for the same

kind of procedure.” (Secretary of Justice v. Hon. Ralph C.

Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

462. Will the retroactive application of an extradition

treaty violate the constitutional prohibition against

"ex post facto" laws?

Held: The prohibition against ex post facto law applies

only to criminal legislation which affects the substantial rights

of the accused. This being so, there is no merit in the contention

that the ruling sustaining an extradition treaty’s retroactive

application violates the constitutional prohibition against ex post

facto laws. The treaty is neither a piece of criminal legislation

nor a criminal procedural statute. (Wright v. CA, 235 SCRA

341, Aug. 15, 1994 [Kapunan])

463. Discuss the rules in the interpretation of

extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition

Treaty, should be interpreted in light of their intent. Nothing

less than the Vienna Convention on the Law of Treaties to which

the Philippines is a signatory provides that “a treaty shall be

interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context

and in light of its object and purpose.” x x x. It cannot be

gainsaid that today, countries like the Philippines forge

extradition treaties to arrest the dramatic rise of international

and transnational crimes like terrorism and drug trafficking.

Extradition treaties provide the assurance that the punishment of

these crimes will not be frustrated by the frontiers of territorial

sovereignty. Implicit in the treaties should be the unbending

commitment that the perpetrators of these crimes will not be

coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty

calls for an interpretation that will minimize if not prevent the

escape of extraditees from the long arm of the law and expedite

their trial. x x x

[A]n equally compelling factor to consider is the

understanding of the parties themselves to the RP-US

Extradition Treaty as well as the general interpretation of the

issue in question by other countries with similar treaties with

the Philippines. The rule is recognized that while courts have

the power to interpret treaties, the meaning given them by the

departments of government particularly charged with their

negotiation and enforcement is accorded great weight. The

reason for the rule is laid down in Santos III v. Northwest Orient

Airlines, et al., where we stressed that a treaty is a joint

executive-legislative act which enjoys the presumption that “it

was first carefully studied and determined to be constitutional

before it was adopted and given the force of law in the country.”

(Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No.

139465, Oct. 17, 2000, En Banc [Puno])

464. Discuss the Five Postulates of Extradition.

Held:

1. Extradition Is a Major Instrument for the

Suppression of Crime.

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.

X x x

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 other’s legal system and judicial process. More pointedly,

our duly authorized representative’s 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;

173

in extradition which is sui generis – in a class by itself – they

are not.

X x x

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.

Compliance Shall Be in Good Faith.

Fourth, our executive branch of government

voluntarily entered into the Extradition Treaty, and our

legislative branch ratified it. Hence, the Treaty carries the

presumption that its implementation will serve the national

interest.

Fulfilling our obligations under the Extradition Treaty

promotes comity (In line with the Philippine policy of

cooperation and amity with all nations set forth in Article II,

Section 2, Constitution). On the other hand, failure to fulfill our

obligations thereunder paints at bad image of our country before

the world community. Such failure would discourage other

states from entering into treaties with us, particularly an

extradition treaty that hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply

in good faith with our obligations under the Treaty. This

principle requires that we deliver the accused to the requesting

country if the conditions precedent to extradition, as set forth in

the Treaty, are satisfied. In other words, “[t]he demanding

government, when it has done all that the treaty and the law

require it to do, is entitled to the delivery of the accused on the

issue of the proper warrant, and the other government is under

obligation to make the surrender.” Accordingly, the Philippines

must be ready and in a position to deliver the accused, should it

be found proper.

There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight

risks. This prima facie presumption finds reinforcement in the

experience of the executive branch: nothing short of

confinement can ensure that the accused will not flee the

jurisdiction of the requested state in order to thwart their

extradition to the requesting state. (Government of the United

States of America v. Hon. Guillermo Purganan, G.R. No.

148571, Sept. 24, 2002, En Banc [Panganiban])

465. Discuss the Ten Points to consider in Extradition

Proceedings?

Held: 1. The ultimate purpose of extradition

proceedings is to determine whether the request expressed in the

petition, supported by its annexes and the evidence that may be

adduced during the hearing of the petition, complies with the

Extradition Treaty and Law; and whether the person sought is

extraditable. The proceedings are intended merely to assist the

requesting state in bringing the accused – or the fugitive who

has illegally escaped – back to its territory, so that the criminal

process may proceed therein.

2. By entering into an extradition treaty, the

Philippines is deemed to have reposed its trust in the reliability

or soundness of the legal and judicial system of its treaty

partner; as well as in the ability and the willingness of the latter

to grant basic rights to the accused in the pending criminal case

therein.

3. By nature then, extradition proceedings are not

equivalent to a criminal case in which guilt or innocence is

determined. Consequently, an extradition case is not one in

which the constitutional rights of the accused are necessarily

available. It is more akin, if at all, to a court’s 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 partner’s 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

174

with the Extradition Treaty and Law; and, while safeguarding

basic individual rights, to avoid the legalistic contortions, delays

and technicalities that may negate that purpose. (Government

of the United States of America v. Hon. Guillermo Purganan,

G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

466. What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention

on the Law of Treaties, is “an international instrument

concluded between States in written form and governed by

international law, whether embodied in a single instrument or in

two or more related instruments, and whatever its particular

designation.” There are many other terms used for a treaty or

international agreement, some of which are: act, protocol,

agreement, compromis d' arbitrage, concordat, convention,

declaration, exchange of notes, pact, statute, charter and modus

vivendi. All writers, from Hugo Grotius onward, have pointed

out that the names or titles of international agreements included

under the general term treaty have little or no significance.

Certain terms are useful, but they furnish little more than mere

description

Article 2[2] of the Vienna Convention provides that

“the provisions of paragraph 1 regarding the use of terms in the

present Convention are without prejudice to the use of those

terms, or to the meanings which may be given to them in the

internal law of the State.” (BAYAN [Bagong Alyansang

Makabayan] v. Executive Secretary Ronaldo Zamora, G.R.

No. 138570, Oct. 10, 2000, En Banc [Buena])

467. Discuss the binding effect of treaties and executive

agreements in international law.

Held: [I]n international law, there is no difference

between treaties and executive agreements in their binding

effect upon states concerned, as long as the functionaries have

remained within their powers. International law continues to

make no distinction between treaties and executive agreements:

they are equally binding obligations upon nations. (BAYAN

[Bagong Alyansang Makabayan] v. Executive Secretary

Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc

[Buena])

468. Do the Philippines recognize the binding effect of

executive agreements even without the concurrence

of the Senate or Congress?

Held: In our jurisdiction, we have recognized the

binding effect of executive agreements even without the

concurrence of the Senate or Congress. In Commissioner of

Customs v. Eastern Sea Trading, we had occasion to pronounce:

“x x x the right of the Executive to enter into

binding agreements without the necessity of subsequent

Congressional approval has been confirmed by long

usage. From the earliest days of our history we have

entered into executive agreements covering such

subjects as commercial and consular relations, most-

favored-nation rights, patent rights, trademark and

copyright protection, postal and navigation

arrangements and the settlement of claims. The

validity of these has never been seriously questioned by

our courts."

(BAYAN [Bagong Alyansang Makabayan] v. Executive

Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,

En Banc [Buena])

469. What is a "protocol de cloture"? Will it require

concurrence by the Senate?

Held: A final act, sometimes called protocol de

cloture, is an instrument which records the winding up of the

proceedings of a diplomatic conference and usually includes a

reproduction of the texts of treaties, conventions,

recommendations and other acts agreed upon and signed by the

plenipotentiaries attending the conference. It is not the treaty

itself. It is rather a summary of the proceedings of a protracted

conference which may have taken place over several years. It

will not require the concurrence of the Senate. The documents

contained therein are deemed adopted without need for

ratification. (Tanada v. Angara, 272 SCRA 18, May 2, 1997

[Panganiban])

470. What is the “most-favored-nation” clause? What

is its purpose?

Answer: 1. The most-favored-nation clause may be

defined, in general, as a pledge by a contracting party to a treaty

to grant to the other party treatment not less favorable than that

which has been or may be granted to the “most favored” among

other countries. The clause has been commonly included in

treaties of commercial nature. (Salonga & Yap, Public

International Law, 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])

471. What are the two types of most-favored nation

clause?

Held: There are generally two types of most-favored-

nation clause, namely, conditional and unconditional.

According to the clause in its unconditional form, any advantage

of whatever kind which has been or may in future be granted by

either of the contracting parties to a third State shall

simultaneously and unconditionally be extended to the other

under the same or equivalent conditions as those under which it

has been granted to the third State. (Salonga & Yap, Public

International Law, 5th

Edition, 1992, pp. 141-142)

472. Discuss the essence of the principle behind the

"most-favored-nation" clause as applied to tax

treaties?

Held: The essence of the principle is to allow the

taxpayer in one state to avail of more liberal provisions granted

in another tax treaty to which the country of residence of such

taxpayer is also a party provided that the subject matter of

taxation x x x is the same as that in the tax treaty under which

the taxpayer is liable.

In Commissioner of Internal Revenue v. S.C. Johnson

and Son, Inc., 309 SCRA 87, June 25, 1999, the SC did not

grant the claim filed by S.C. Johnson and Son, Inc., a non-

resident foreign corporation based in the USA, with the BIR for

refund of overpaid withholding tax on royalties pursuant to the

most-favored-nation clause of the RP-US Tax Treaty in relation

to the RP-West Germany Tax Treaty. It held:

Given the purpose underlying tax treaties and

the rationale for the most favored nation clause, the

concessional tax rate of 10 percent provided for in the

RP-Germany Tax Treaty should apply only if the taxes

imposed upon royalties in the RP-US Tax Treaty and in

the RP-Germany Tax Treaty are paid under similar

circumstances. This would mean that private

respondent (S.C. Johnson and Son, Inc.) must prove

that the RP-US Tax Treaty grants similar tax reliefs to

residents of the United States in respect of the taxes

imposable upon royalties earned from sources within

175

the Philippines as those allowed to their German

counterparts under the RP-Germany Tax Treaty.

The RP-US and the RP-West Germany Tax

Treaties do not contain similar provisions on tax

crediting. Article 24 of the RP-Germany Tax Treaty x

x x expressly allows crediting against German income

and corporation tax of 20% of the gross amount of

royalties paid under the law of the Philippines. On the

other hand, Article 23 of the RP-US Tax Treaty, which

is the counterpart provision with respect to relief for

double taxation, does not provide for similar crediting

of 20% of the gross amount of royalties paid. X x x

X x x The entitlement of the 10% rate by U.S.

firms despite the absence of matching credit (20% for

royalties) would derogate from the design behind the

most favored nation clause to grant equality of

international treatment since the tax burden laid upon

the income of the investor is not the same in the two

countries. The similarity in the circumstances of

payment of taxes is a condition for the enjoyment of

most favored nation treatment precisely to underscore

the need for equality of treatment.

473. Discuss the nature of ratification in the treaty-

making process?

Held: Ratification is generally held to be an executive

act, undertaken by the head of state or of the government, as the

case may be, through which the formal acceptance of the treaty

is proclaimed. A State may provide in its domestic legislation

the process of ratification of a treaty. (BAYAN [Bagong

Alyansang Makabayan] v. Executive Secretary Ronaldo

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

474. How is the consent of the State to be bound by a

treaty by ratification expressed?

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])

475. Discuss the effect of the ratification of the Visiting

Forces Agreement (VFA).

Held: With the ratification of the VFA, which is

equivalent to final acceptance, and with the exchange of notes

between the Philippines and the United States of America, it

now becomes obligatory and incumbent on our part, under the

principles of international law, to be bound by the terms of the

agreement. Thus, no less than Section 2, Article II of the

Constitution, declares that the Philippines adopts the generally

accepted principles of international law as part of the law of the

land and adheres to the policy of peace, equality, justice,

freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines

agrees to be bound by generally accepted rules for the conduct

of its international relations. While the international obligation

devolves upon the state and not upon any particular branch,

institution, or individual member of its government, the

Philippines is nonetheless responsible for violations committed

by any branch or subdivision of its government or any official

thereof. As an integral part of the community of nations, we are

responsible to assure that our government, Constitution and laws

will carry out our international obligation. Hence, we cannot

readily plead the Constitution as a convenient excuse for non-

compliance with our obligations, duties and responsibilities

under international law.

Beyond this, Article 13 of the Declaration of Rights

and Duties of States adopted by the International Law

Commission in 1949 provides: Every State has the duty to carry

out in good faith its obligations arising from treaties and other

sources of international law, and it may not invoke provisions in

its constitution or its laws as an excuse for failure to perform

this duty.

Equally important is Article 26 of the Convention

which provides that “Every treaty in force is binding upon the

parties to it and must be performed by them in good faith.” This

is known as the principle of pacta sunt servanda which

preserves the sanctity of treaties and have been one of the most

fundamental principles of positive international law, supported

by the jurisprudence of international tribunals. (BAYAN

[Bagong Alyansang Makabayan] v. Executive Secretary

Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA

449, 492-493, En Banc [Buena])

476. Explain the “pacta sunt servanda” rule.

Held: One of the oldest and most fundamental rules in

international law is pacta sunt servanda – international

agreements must be performed in good faith. “A treaty

engagement is not a mere moral obligation but creates a legally

binding obligation on the parties x x x. A state which has

contracted valid international obligations is bound to make in its

legislations such modifications as may be necessary to ensure

the fulfillment of the obligations undertaken.” (Tanada v.

Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

477. Explain the "rebus sic stantibus" rule (i.e., things

remaining as they are).

Held: According to Jessup, the doctrine constitutes an

attempt to formulate a legal principle which would justify non-

performance of a treaty obligation if the conditions with rela

tion to which the parties contracted have changed so materially

and so unexpectedly as to create a situation in which the

exaction of performance would be unreasonable. The key

element of this doctrine is the vital change in the condition of

the contracting parties that they could not have foreseen at the

time the treaty was concluded. (Santos III v. Northwest Orient

Airlines, 210 SCRA 256, June 23, 1992)

478. Does the “rebus sic stantibus” rule operate

automatically to render a treaty inoperative?

Held: The doctrine of rebus sic stantibus does not

operate automatically to render the treaty inoperative. There is a

necessity for a formal act of rejection, usually made by the head

of state, with a statement of the reasons why compliance with

the treaty is no longer required. (Santos III v. Northwest Orient

Airlines, 210 SCRA 256, June 23, 1992)

479. What is the “Doctrine of Effective Nationality”

(Genuine Link Doctrine)?

Held: This principle is expressed in Article 5 of the

Hague Convention of 1930 on the Conflict of Nationality Laws

as follows:

Art. 5. Within a third State a person having

more than one nationality shall be treated as if he had

only one. Without prejudice to the application of its

law in matters of personal status and of any convention

in force, a third State shall, of the nationalities which

any such person possesses, recognize exclusively in its

territory either the nationality of the country in which

he is habitually and principally resident or the

nationality of the country with which in the

176

circumstances he appears to be in fact most closely

connected. (Frivaldo v. COMELEC, 174 SCRA 245,

June 23, 1989)