consti 1 reviewer

CONSTITUTIONAL LAW 1 JL CADIATAN

I. IN GENERAL

POLITICAL LAW, DEFINEDPolitical Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections.

MACARIOLA VS. JUDGE ASUNCION, 114 SCRA 77The provision in the Code of Commerce which prohibits judges, justices, etc., (public officers) from engaging in business within the territorial jurisdiction of their courts is political in nature and therefore, said provision was deemed abrogated when there was a change of sovereignty from Spain to the United States at the turn of the century. Political laws are deemed abrogated if there is a change of sovereignty and unless re-enacted under the new sovereign, the same is without force and effect.

CONSTITUTIONAL LAW 1, DEFINEDA study of the structure and powers of the Government of the Republic of the Philippines.

CONSTITUTION, DEFINEDMANILA PRINCE HOTEL VS. GSIS, 267 SCRA 408A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.

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.

KINDS OF CONSTITUTIONa) written or unwrittenb) rigid and flexiblec) cumulative or conventional

CONSTITUTION, HOW CONSTRUCTEDSELF-EXECUTING

MANILA PRINCE HOTEL VS. GSIS, 267 SCRA 408. Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. 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.

NOT A PENAL STATUTEThe ordinary concept of retroactive applicability does not apply. So even if it is favourable to the accused, since it is not a penal statute, it cannot be applied.

ORDINARY MEANINGCHAVEZ VS JBC 696 S 496 In the creation of JBC, what should “congress”

mean?In the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels

Based on the Lectures of Atty. Paul Montejo of 30


acceptance and bars modification even by the branch tasked to interpret it.

In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Rather, in the creation of the JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3) representatives from the major branches of government - the Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing the Executive Department), and a representative of the Congress (representing the Legislative Department). The total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature, not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government.

DESIGNEED TO MEET FUTURE EVENTS AND CONTINGENCIES

TANADA VS ANGARA May 2, 1997. Constitutions are designed to meet not only the vagaries of contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law writer and respected jurist explains:

“The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly ‘in the crucible of Filipino minds and hearts,’ where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation.”

II. JUDICIAL ELABORATION ON THE CONSTITUTION

JUDICIAL REVIEW

Atty Montejo: While the separation of powers are put into our system to ensure that there is no over concentration of power in one branch, the principle admits of the so called INTERDEPENDENCE, that for a more harmonious exercise of government or state power, all the branches of government must work INTERDEPENDENT with each other. Although the other rule there is the concept of check and balance also prevents them from getting into the bounds or the boundaries of such power and because the power to interpret the Constitution and the law, with respect to questions of exercise of power, as we have mentioned last night, the Constitution being a limitation, rather than a grant, the JUDICIAL DEPARTMENT, especially the SC, is duty-bound, it’s not considered a prerogative but a duty to ensure that the constitutional limitations of power, the prohibitions of such exercised are not violated or are maintained and the court will have to exercise judicial review.

2 CONSIDERATIONS:

1. SEPARATION OF POWERSCSC VS RAMONEDA 696 S 155. We have always maintained that it is only the Supreme Court that can oversee the judges’ and court personnel’s administrative compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. However, as aptly pointed out by the OCA, Ramoneda-Pita was afforded the full protection of the law, that is, afforded due process. She was able to file several affidavits and pleadings before the CSC with counsel. It may also be noted that the case had been elevated to the Court of Appeals and this Court, where the Resolution of the CSC was upheld in both instances.

GARCIA VS DRILON 699 S 352. Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon the “Supreme Court and such other lower courts as may be established by law” and, thus, protests the delegation of power to barangay officials to issue protection orders.



The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

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.112 On the other hand, executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”114

We have held that “(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not constitute an exercise of judicial powers.”115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding “whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof,” the Punong Barangay must determine reasonable ground to believe that an imminent danger of violence against the woman and her children exists or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement

agencies are required to extend assistance to victims of violence and abuse, it would be very unlikely that they would remain objective and impartial, and that the chances of acquittal are nil. As already stated, assistance by barangay officials and other law enforcement agencies is consistent with their duty to enforce the law and to maintain peace and order.

HEIRS OF MALABANAN VS REPUBLIC 704 S 561. Whether or not land of the public domain is alienable and disposable primarily rests on the classification of public lands made under the Constitution. Under the 1935 Constitution, lands of the public domain were classified into three, namely, agricultural, timber and mineral. Section 10, Article XIV of the 1973 Constitution classified lands of the public domain into seven, specifically, agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest, and grazing land, with the reservation that the law might provide other classifications. The 1987 Constitution adopted the classification under the 1935 Constitution into agricultural, forest or timber, and mineral, but added national parks. Agricultural lands may be further classified by law according to the uses to which they may be devoted. The identification of lands according to their legal classification is done exclusively by and through a positive act of the Executive Department.

Alienable and disposable lands of the State fall into two categories, to wit: (a) patrimonial lands of the State, or those classified as lands of private ownership under Article 425 of the Civil Code, without limitation; and (b) lands of the public domain, or the public lands as provided by the Constitution, but with the limitation that the lands must only be agricultural. Consequently, lands classified as forest or timber, mineral, or national parks are not susceptible of alienation or disposition unless they are reclassified as agricultural. A positive act of the Government is necessary to enable such reclassification, and the exclusive prerogative to classify public lands under existing laws is vested in the Executive Department, not in the courts. If, however, public land will be classified as neither agricultural, forest or timber, mineral or national park, or when public land is no longer intended for public service or for the development of the national wealth, thereby effectively removing the land from the ambit of public dominion, a declaration of such conversion must be made in the form of a law duly enacted by Congress or by a Presidential proclamation in cases where the President is duly authorized by law to that effect.



2. PRESUMPTION OF CONSTITUTIONALITYPEREZ VS PEOPLE 544 S 532. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in harmony with, rather than in violation of, the Constitution. The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law. It is presumed that the legislature has acted within its constitutional powers. So, it is the generally accepted rule that every statute, or regularly accepted act, is, or will be, or should be, presumed to be valid and constitutional.

He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.

EXERCISE OF JUDICIAL REVIEW, CONDITIONS:

1. There must be an appropriate case or controversy.

Atty. Montejo: two things come to mind: What is an appropriate petition? What kind of petition of cases can you raise a constitutional question?

DECLARATORY RELIEF - If it were to be an ordinary petition, declaratory relief before a claim if the violation has been had, provided it is not the SC because the SC does not have jurisdiction over declaratory reliefs but other courts have.

PETITION FOR CERTIORARI under Rule 65 - it is a question of jurisdiction.

PETITION FOR PROHIBITION - to prohibit an act to be done and the reason is that, the act to be done is unconstitutional.

DEFENSE IN A CRIMINAL CASE - so if you are charged in a criminal case and you allege that that law is unconstitutional if applied to you,

then that may be a proper venue for bringing a constitutional question.

2. It must be raised at the earliest opportunity.

the concept of RIPENESS - In relation to that, the concept of ripeness states that there is already a violation or an impending violation that if the acts sought to be declared unconstitutional, is not prevented or is not declared unconstitutional, will most likely be ripe for violation

it must be raised at the EARLIEST OPPORTUNITY

3. It must be raised by the proper party.Ordinarily, legal standing is given:

a. when the person can’t show that he will personally suffer actual or threatened injury because of the questioned act.

b. The injury is clearly traceable to the challenged action

c. The injury is likely to be redressed by a favourable action

Atty Montejo: Those are the 3 conditions or requirements to grant the party, legal standing and this is in the concept of a CITIZEN SUIT, an ordinary citizen would bring a constitutional question before the court and these three must have to be satisfied.

This has been related to the discussion in your civil procedure, that, legal standing or locus standi, to be given to a party petitioner is likened to a real party in interest in a civil action. In a civil action, real party in interest, as defined in your Rules of Civil Procedure, is allowed to file a case because there is a VIOLATION OF HIS PRIVATE RIGHT. In the context of JUDICIAL REVIEW, a citizen is given LEGAL STANDING, as a REAL PARTY IN INTEREST because of a VIOLATION OF A PUBLIC RIGHT.

Through the decisions of the SC, this has been expanded to include among others:

1. TAXPAYERS SUIT – if the questioned act involves expenditure of public funds. If it has nothing to do with public funds, the person filing the case as a taxpayer will not be given the legal standing.



2. VOTERS’ SUIT – if there is a violation of a right, of suffrage, meaning to run for public office, or to be allowed to vote, on a constitutional question, a voter may be given legal standing

3. LEGISLATOR’S SUIT – if a law is passed or a law is implemented and executed by the executive and it violates the prerogative of a member of Congress, a member of Congress has a direct interest over the outcome of the constitutional question raised. He is given legal standing in the concept of a legislators’ suit.

4. EXEMPTION OR DISCRETION OF THE SC – we have come to know the DOCTRINE OF TRANSCENDENTAL IMPORTANCE – this requires that:

a. there is a public character of the fund or asset involved

b. there is a clear case of constitutional disregard

c. there is lack of any other direct party with legal standing

Atty. Montejo: This must be a QUESTION OF DISCRETION. The usual question in the bar exams with respect to judicial review, they will give you a set of facts, and they will ask you to decide the petition. The first thing to ask yourselves is this; Is there a prior ruling of the SC on the given set of facts? If there is NONE, DO NOT EVER ATTEMPT TO ANSWER THE CONSTITUTIONAL QUESTION, DISMISS THE PETITION and YOU DISMISS THE PETITION BECAUSE OF LACK OF ONE OR ALL OF THE ELEMENTS because again, you are just being asked of your knowledge of what judicial review is. Of course, if there is a prior ruling of the SC, you must answer the question based on that prior ruling.

4. It must be the very lis mota of the case.

It simply means that the SC cannot dispose of the case without resolving the constitutional question. Stated differently, the constitutional question must have to be resolved because the court cannot go any way but to meet the question head on. If one or some of the elements or lacking and the constitutional question can be avoided, meaning it is not the very lis mota of the case. But if the constitutional question cannot be avoided, then the court must have to rule on the constitutional question.

Now, the other matter with respect to those conditions would be the concept of MOOTNESS when by reason of a SUPERVENING EVENT, the petition or the question raised has become MOOT AND ACADEMIC. Can the court still resolve the constitutional question? YES. The SC may still opt to decide the constitutional question because or under any of the following circumstances:

1. there is a grave violation of the constitution

2. the exceptional character of the situation, where there is paramount public interest involved, meaning the question is NOVEL

3. the constitutional issue is raised and it requires formulation of foregoing principles, to guide the bench, the bar and the public

4. the case is capable of repetition

Actually, most of these refer to the SYMBOLIC OR TEACHING FUNCTION.

3 THEORIES OF JUDICIAL REVIEW1. NEGATIVE OR CHECKING FUNCTION

When a petition is granted and a constitutional question is resolved and the SC would declare the act in question as UNCONSTITUTIONAL, then in effect, the court has exercised its checking or negative function. In negates the validity of the act in question.

2. POSITIVE OR LEGITIMATING FUNCTION

In positive or legitimating function, the constitutional question is resolved, and the court will declare that the law or act in question that the law or act in question is NOT UNCONSTITUTIONAL. We remember the phrase NOT UNCONSTITUTIONAL in the double negative to emphasize the presumption of CONSTITUTIONALITY. The court, in the exercise of LEGITIMATING OR POSITIVE FUNCTION will never declare a law to be constitutional. With or without the declaration, the law is presumed to be CONSTITUTIONAL. So that if the court will eventually rule on the constitutional question and it will state that it is not violative of the constitution, it will resolve it in the manner that it is NOT UNCONSTITUTIONAL.

3. SYMBOLIC OR TEACHING FUNCTION



When the question need no longer be resolved because the question has become moot or academic. A SUPERVENING FACT HAS TRANSPIRED which no longer require a decision on the case.

ADVOCATES FOR TRUTH VS BANGKO SENTRAL 688 S 530. In the 1993 case of Joya v. Presidential Commission on Good Government,25Ïit was held that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (a) that the question must be raised by the proper party; (b) that there must be an actual case or controversy; (c) that the question must be raised at the earliest possible opportunity; and (d) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.

In Prof. David v. Pres. Macapagal-Arroyo,26Ï‚rÎ½l1 the Court summarized the requirements before taxpayers, voters, concerned citizens, and legislators can be accorded a standing to sue, viz:

(1)the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal

disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

While the Court may have shown in recent decisions a certain toughening in its attitude concerning the question of legal standing, it has nonetheless always made an exception where the transcendental importance of the issues has been established, notwithstanding the petitioners' failure to show a direct injury.27Ï‚rÎ½l1 In CREBA v. ERC,28Ï‚rÎ½l1 the Court set out the following instructive guides as determinants on whether a matter is of transcendental importance, namely: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a

more direct and specific interest in the questions being raised. Further, the Court stated in Anak Mindanao Party-List Group v. The Executive Secretary29Ï‚rÎ½l1 that the rule on standing will not be waived where these determinants are not established.c

In the instant case, there is no allegation of misuse of public funds in the implementation of CB Circular No. 905. Neither were borrowers who were actually affected by the suspension of the Usury Law joined in this petition. Absent any showing of transcendental importance, the petition must fail.

FUNA VS AGRA 691 S 196. In Funa v. Ermita, the Court recognized the locus standi of the petitioner as a taxpayer, a concerned citizen and a lawyer because the issue raised therein involved a subject of transcendental importance whose resolution was necessary to promulgate rules to guide the Bench, Bar, and the public in similar cases.

But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the Solicitor General during the pendency of this suit render this suit and the issue tendered herein moot and academic?

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Although the controversy could have ceased due to the intervening appointment of and assumption by Cadiz as the Solicitor General during the pendency of this suit, and such cessation of the controversy seemingly rendered moot and academic the resolution of the issue of the constitutionality of the concurrent holding of the two positions by Agra, the Court should still go forward and resolve the issue and not abstain from exercising its power of judicial review because this case comes under several of the well-recognized exceptions established in jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event meanwhile rendered moot and academic if any of the following recognized exceptions obtained, namely: (1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and was of paramount public interest; (3) the constitutional issue raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of repetition, yet evading review.



It is the same here. The constitutionality of the concurrent holding by Agra of the two positions in the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized exceptions. The issue involves a probable violation of the Constitution, and relates to a situation of exceptional character and of paramount public interest by reason of its transcendental importance to the people. The resolution of the issue will also be of the greatest value to the Bench and the Bar in view of the broad powers wielded through said positions. The situation further calls for the review because the situation is capable of repetition, yet evading review. In other words, many important and practical benefits are still to be gained were the Court to proceed to the ultimate resolution of the constitutional issue posed.

BELGICA VS OCHOA 710 S 1. By constitutional fiat, judicial power operates only when there is an actual case or controversy. This is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. In other words, "there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence." Related to the requirement of an actual case or controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action." "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions."

Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for adjudication since the challenged funds and the provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently existing and operational; hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. Differing from this description, the Court observes that respondents‘ proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and existing. Neither will the President‘s declaration that he had already "abolished the PDAF" render the issues on PDAF moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence. By constitutional design, the annulment or nullification of a law may be done either by Congress, through the passage of a repealing law, or by the Court, through a declaration of unconstitutionality.

MANILA MEMORIAL VS DSWD 711 S 302. When the constitutionality of a law is put in issue, judicial review may be availed of only if the following requisites concur: “(1) the existence of an actual and appropriate case; (2) the existence of personal and substantial interest on the part of the party raising the [question of constitutionality]; (3) recourse to judicial review is made at the earliest opportunity; and (4) the [question of constitutionality] is the lis mota of the case.”32

In this case, petitioners are challenging the constitutionality of the tax deduction scheme provided in RA 9257 and the implementing rules and regulations issued by the DSWD and the DOF. Respondents, however, oppose the Petition on the ground that there is no actual case or controversy. We do not agree with



respondents.

An actual case or controversy exists when there is “a conflict of legal rights” or “an assertion of opposite legal claims susceptible of judicial resolution.”33 The Petition must therefore show that “the governmental act being challenged has a direct adverse effect on the individual challenging it.”34 In this case, the tax deduction scheme challenged by petitioners has a direct adverse effect on them. Thus, it cannot be denied that there exists an actual case or controversy.

FUNCTIONS OF JUDICIAL REVIEWCENTRAL BANK VS BSP 446 S 229. It bears stressing that the exemption from the SSL is a “privilege” fully within the legislative prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter’s right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review. So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct.

ALL COURTS CAN EXERCISE JUDICIAL REVIEW

ONGSUCO VS MALONES 604 S 499. The rule on the exhaustion of administrative remedies is intended to preclude a court from arrogating unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. Thus, a case where the issue raised is a purely legal question, well within the competence; and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception. Resolving questions of law, which involve the interpretation and application of laws, constitutes essentially an exercise of judicial power that is exclusively allocated to the Supreme Court and such lower courts the Legislature may establish.

In this case, the parties are not disputing any factual matter on which they still need to present evidence. The sole issue petitioners raised before the RTC in Civil Case No. 25843 was whether Municipal Ordinance No. 98-01 was valid and enforceable despite

the absence, prior to its enactment, of a public hearing held in accordance with Article 276 of the Implementing Rules and Regulations of the Local Government Code. This is undoubtedly a pure question of law, within the competence and jurisdiction of the RTC to resolve.

Paragraph 2(a) of Section 5, Article VIII of the Constitution, expressly establishes the appellate jurisdiction of this Court, and impliedly recognizes the original jurisdiction of lower courts over cases involving the constitutionality or validity of an ordinance:

Section 5. The Supreme Court shall have the following powers: x x x x

(2) Review, revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphases ours.)

In J.M. Tuason and Co., Inc. v. Court of Appeals, Ynot v. Intermediate Appellate Court, and Commissioner of Internal Revenue v. Santos, the Court has affirmed the jurisdiction of the RTC to resolve questions of constitutionality and validity of laws (deemed to include local ordinances) in the first instance, without deciding questions which pertain to legislative policy.

EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY

GR: The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new



Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution.

FLORES VS DRILON 223 S 568. The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged XXX As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such

ALDOVINO VS ALUNAN 230 S 825. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. It is therefore stricken from the statute books and considered never to have existed at all. Not only the parties but all persons are bound by the declaration of unconstitutionality which means that no one may thereafter invoke it nor may the courts be permitted to apply it in subsequent cases. It is, in other words, a total nullity. 16 Plainly, it was as if petitioners and intervenors were never served their termination orders and, consequently, were never separated from the service, The fact that they were not able to assume office and exercise their duties is attributable to the continuing refusal of public respondents to take them in

unless they first obtained court orders, perhaps, for government budgetary and accounting purposes. Under the circumstances, the more prudent thing that public respondents could have done upon receipt of the decision in Mandani, if they were earnest in making amends and restoring petitioners and intervenors to their positions, was to inform the latter of the nullification of their termination orders and to return to work and resume their functions. After all, many of them were supposed to be waiting for instructions from the DOT because in their termination orders it promised to directly contact them by telephone, telegram or written notice as soon as funds for their separation would be available.

XPN: OPERATIVE FACT DOCTRINE

Atty. Montejo: So it was the old case of SERRANO DE AGBAYANI vs. PNB on the moratorium law. The SC applied what we know then, what is being repeated today as the OPERATIVE FACT DOCTRINE that for the period of the time that the law has been effect up to the time that the law was declared unconstitutional, one cannot close his eyes to that time like it never happened, like that law never existed because in fact, that law existed, acts and omissions were made or were not made pursuant to that law. So whatever was done or omitted to be done pursuant to that law for that period of efficacy of that law shall be operative.

One must remember that the OPERATIVE FACT DOCTRINE is a question or a matter of discretion. It is a RULE OF EQUITY AND NOT A RULE OF LAW. If there is a declaration of unconstitutionality, one cannot assume that the SC can apply the operative fact doctrine in each and every case but only as a matter of EQUITY. The SC may only apply it based on their discretion.

Again, the question is asked on operative fact, whether you give effect to those acts done or omitted to be done based on a law which was subsequently declared unconstitutional, DO NOT APPLY THE OPERATIVE FACT DOCTRINE UNLESS THERE IS A COURT RULING BY THE SUPREME COURT ON THAT ISSUE BECAUSE IT IS NOT A RULE BUT AN EXERCISE OF DISCRETION.

Atty. Montejo: HACIENDA LUISITA VS PARC 660 S 525. This has been a long running problem in hacienda luisita and the question there is whether or not the operative fact doctrine applies. That case involves the Stock Distribution Option, SDO which SC declares



unconstitutional because the Agrarian Reform Law, based on R.A. 6657, mandates that these beneficiaries must be given lands, the SDO is not allowed by the law because these are shares of stock in a corporation with a land and these are not land. But in a span of 14 years, some were already given shares so the question is, should those already given out be returned? SC applied the operative fact doctrine, yung nabigyan na, wala na pero yung hindi pa nabigyan cannot be given anymore.

Now, in the DAP case of hacienda luisita, one of the arguements raised was that, the operative fact doctrine SHOULD NOT BE APPLIED because that involves an executive order, not a statute enacted by congress. SC said no, it applies to law, executive orders as well because that was the ruling in SERRANO VS DE AGBAYANI, they always go back to that old case.

Atty Montejo: CIR vs SAN ROQUE, this was a claim for tax refund, tax credit. And the subject of the erroneous reliance of San Roque here was a BIR ruling declared invalid because it was inconsistent with the law and prior issuances of the BIR were based on that so a question was asked whether the OPERATIVE FACT DOCTRINE may be applied and the SC said, NO IT CANNOT BE APPLIED. It can be applied only when there is a declaration of unconstitutionality of a LAW OR AN EXECUTIVE ORDER. Not a BIR ruling. A BIR ruling is not a law. That is not part of the legal system. It is not a ruling of an appealed case of the DOJ. It’s not an adversarial thing, it does not apply to anybody like a law or statute, it only applies to that entity. It does not involve a LAW OR AN EXECUTIVE ORDER.

POLITICAL QUESTION VS JUSTICIABLE QUESTION

OPOSA VS FACTORAN 224 S 792. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

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.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary.

VELARDE VS SJS 428 S 283.

Issue on Judicial Controversy and Transcendental Importance cannot be answered.

The basic question posed in the SJS Petition -- WHETHER ENDORSEMENTS OF CANDIDACIES BY RELIGIOUS LEADERS IS UNCONSTITUTIONAL -- undoubtedly deserves serious consideration. As stated earlier, the Court deems this constitutional issue to be of paramount interest to the Filipino citizenry, for it concerns the governance of our country and its people. Thus, despite the obvious procedural transgressions by both SJS and the trial court, this Court still called for Oral Argument, so as not to leave any doubt that there might be room to entertain and dispose of the SJS Petition on the merits.

Counsel for SJS has utterly failed, however, to convince the Court that there are enough factual and legal bases



to resolve the paramount issue. On the other hand, the Office of the Solicitor General has sided with petitioner insofar as there are no facts supporting the SJS Petition and the assailed Decision.

We reiterate that the said Petition failed to state directly the ultimate facts that it relied upon for its claim. During the Oral Argument, counsel for SJS candidly admitted that there were no factual allegations in its Petition for Declaratory Relief. Neither were there factual findings in the assailed Decision. At best, SJS merely asked the trial court to answer a hypothetical question. In effect, it merely sought an advisory opinion, the rendition of which was beyond the court’s constitutional mandate and jurisdiction.

Regrettably, it is not legally possible for the Court to take up, on the merits, the paramount question involving a constitutional principle. It is a time-honored rule that “the constitutionality of a statute [or act] will be passed upon only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned.”

VINUYA VS ROMULO 619 S 533. In Tañada v. Cuenco, we held that 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 the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure."

Certain types of cases often have been found to present political questions. One such category involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." The US Supreme Court has further cautioned that decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither

aptitude, facilities nor responsibility.

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for certiorari.

III. THE PHILIPPINES AS A STATE

TERRITORIAL WATERS

Baseline (sea) - Normally, the baseline from which the territorial sea is measured is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. This is either the low-water mark closest to the shore, or alternatively it may be an unlimited distance from permanently exposed land, provided that some portion of elevations exposed at low tide but covered at high tide (like mud flats) is within 12 nautical miles (22 km; 14 mi) of permanently exposed land.

Internal waters - Waters landward of the baseline are defined as internal waters, over which the state has complete sovereignty: not even innocent passage is allowed. Lakes and rivers are considered internal waters.

Territorial sea- A state's territorial sea extends up to 12 nautical miles (22.2 km; 13.8 mi) from its baseline.

Contiguous zone - The contiguous zone is a band of water extending from the outer edge of the territorial sea to up to 24 nautical miles (44.4 km; 27.6 mi) from the baseline, within which a state can exert limited control for the purpose of preventing or punishing "infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea". This will typically be 12 nautical miles (22 km; 14 mi) wide, but could be more (if a state has



chosen to claim a territorial sea of less than 12 nautical miles), or less, if it would otherwise overlap another state's contiguous zone.

Exclusive Economic Zone - An exclusive economic zone extends from the outer limit of the territorial sea to a maximum of 200 nautical miles (370.4 km; 230.2 mi) from the territorial sea baseline, thus it includes the contiguous zone.

CITIZENSHIP

2 KINDS OF CITIZENSHIP

1. NATURAL BORN - The phrase from birth refers to citizenship and not to the fact of performing an act to perfect or acquire citizenship because under our laws on reacquisition even if a person has performed an act to reacquire citizenship, his citizenship would still be reacquire to its former status. So if he was a former natural born, lost his citizenship, by law he is allowed to reacquire it in its former status which is natural born.

2. NATURALIZED CITIZEN –1. CA 473 which is the Judicial Naturalization; and 2. RA 9139 which is the Administrative Naturalization.

WHO ARE CITIZENS OF THE PHILIPPINES?

ART IV SECTION 1 1987 CONSTITUTION

Section 1. The following are citizens of the Philippines:[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;[2] Those whose fathers or mothers are citizens of the Philippines;[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and[4] Those who are naturalized in accordance with law.

[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;

Time of the adoption of this Constitution - February 2, 1987

Atty Montejo: Citizenship in our country follows the jus sanguinis or blood relations rule. We do not follow the jus soli rule unless you fall under the category under the Philippine Bill of 1902.

Was there any time in the past where foreigners were considered as Filipino citizens without going through naturalization proceedings? YES

1. Before then, there were no Filipino citizens. And because of the sale of the Philippines to the US which included all the living creatures living therein including indios, the Americans decided who its natural-born citizens are. And for that short period of time, they followed the rule of jus soli ALSO, not only, but also jus sanguinis. Those who were born here even of foreign parents but after the sale or on 1899, because the Treaty of Paris was in 1898, so those who were born here even if they were not native inhabitants of the territory but who remained here after the Treaty of Paris were all deemed to be Filipino citizens.

2. The second special classification you would find in the 35 Constitution because if they were already elected to public office, even if they were foreigners, the 35 Constitution considers them Filipino citizens, of course, not natural-born.

[2] Those whose fathers or mothers are citizens of the Philippines;

So if a Filipino mother is married to a foreigner father, the child follows the citizenship, during his minority, that of the father. Is he a Filipino citizenship at birth? If he subsequently elects Philippine citizenship upon reaching the age of majority, then he is deemed to have perfected his inchoate right to become a Filipino citizen. By then, he is considered a Filipino citizen from birth. But if the cohabitation is not one of legal marriage, the Court has interestingly applied civil law provision. Since the child is illegitimate, the citizenship follows that of the mother. Then, he does not need to elect Philippine citizenship upon reaching the age of majority because since birth, he is deemed to be a Filipino. The illegitimate child is given a right from birth to be a Filipino citizen immediately unlike that of a legitimate child of mixed parents.



[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority;

The matter on the 73 definition is again the correct interpretation of the phrase “from birth.” Does it refer to the fact of being a citizen or to the fact that the person does not perform any act to perfect or acquire citizenship from birth? In the 1935 Constitution, you may see that there is a special class of Filipino individuals born of a Filipino mother and married to a foreigner father. Children under the 35 constitution will have to elect Filipino citizenship upon reaching the age of majority. If they have chosen under 35 Constitution, cut of date being January 17, 1973, question asked is, is that child a natural born? In the 87 Constitution, one of the, if not the only provision which has retroactive effect, it being applied prospectively, is that it clarified that natural-born citizens also covers those who elected Philippine citizenship under the conditions set under the 35 but has elected upon reaching the age of majority. So the meaning of “from birth” should not refer to “performance of any act” but should refer to “the fact of citizenship”.

COMMONWEALTH ACT No. 625

AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECT PHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE MOTHER IS A FILIPINO CITIZEN

Be it enacted by the National Assembly of the Philippines:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), section 1, Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines.

Section 2. If the party concerned is absent from the Philippines, he may make the statement herein authorized before any officer of the Government of the United States2 authorized to administer oaths, and he shall forward such statement together with his oath of allegiance, to the Civil Registry of Manila.

Section 3. The civil registrar shall collect as filing fees of the statement, the amount of ten pesos.

Section 4. The penalty of prision correccional, or a fine not exceeding ten thousand pesos, or both, shall be imposed on anyone found guilty of fraud or falsehood in making the statement herein prescribed.

Section 5. This Act shall take effect upon its approval.

Approved, June 7, 1941.

MA VS FERNANDEZ 625 S 566.

Should children born under the 1935 Constitution of a Filipino mother and an alien father, who executed an affidavit of election of Philippine citizenship and took their oath of allegiance to the government upon reaching the age of majority, but who failed to immediately file the documents of election with the nearest civil registry, be considered foreign nationals subject to deportation as undocumented aliens for failure to obtain alien certificates of registration? NO.

In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing Philippine citizenship, to wit:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), Section 1, Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines.

The statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath; (2) an oath of allegiance to the Constitution and Government of the Philippines; and (3) registration of the statement of election and of the oath with the nearest civil registry.

In Re:Application for Admission to the Philippine Bar, Vicente D. Ching, we determined the meaning of the period of election described by phrase "upon reaching



the age of majority." Our references were the Civil Code of the Philippines, the opinions of the Secretary of Justice, and the case of Cueco v. Secretary of Justice. We pronounced:

x x x [T]he 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship should be made. The 1935 Charter only provides that the election should be made "upon reaching the age of majority." The age of majority then commenced upon reaching twenty-one (21) years. In the opinions of the Secretary of Justice on cases involving the validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department of State of the United States Government to the effect that the election should be made within a reasonable time after attaining the age of majority. The phrase "reasonable time" has been interpreted to mean that the elections should be made within three (3) years from reaching the age of majority. However, we held in Cue[n]co vs. Secretary of Justice, that the three (3) year period is not an inflexible rule. We said:It is true that this clause has been construed to mean a reasonable time after reaching the age of majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable time to elect Philippine citizenship under the constitutional provision adverted to above, which period may be extended under certain circumstances, as when the person concerned has always considered himself a Filipino.

However, we cautioned in Cue[n]co that the extension of the option to elect Philippine citizenship is not indefinite.

Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority. It is clear that said election has not been made "upon reaching the age of majority.

We reiterated the above ruling in Go, Sr. v. Ramos, a case in which we adopted the findings of the appellate court that the father of the petitioner, whose citizenship was in question, failed to elect Philippine

citizenship within the reasonable period of three (3) years upon reaching the age of majority; and that "the belated submission to the local civil registry of the affidavit of election and oath of allegiance x x x was defective because the affidavit of election was executed after the oath of allegiance, and the delay of several years before their filing with the proper office was not satisfactorily explained."

In both cases, we ruled against the petitioners because they belatedly complied with all the requirements. The acts of election and their registration with the nearest civil registry were all done beyond the reasonable period of three years upon reaching the age of majority. The instant case presents a different factual setting. Petitioners complied with the first and second requirements upon reaching the age of majority. It was only the registration of the documents of election with the civil registry that was belatedly done.

We rule that under the facts peculiar to the petitioners, the right to elect Philippine citizenship has not been lost and they should be allowed to complete the statutory requirements for such election.

VILANDO VS HRET 656 S 17. Respondent Limkaichong falls under the category of those persons whose fathers are citizens of the Philippines. (Section 1(3), Article IV, 1935 Constitution) It matters not whether the father acquired citizenship by birth or by naturalization. Therefore, following the line of transmission through the father under the 1935 Constitution, the respondent has satisfactorily complied with the requirement for candidacy and for holding office, as she is a natural-born Filipino citizen.

Likewise, the citizenship of respondent Limkaichong finds support in paragraph 4, Section 1, Article IV of the 1935 Constitution.

Having failed to prove that Anesia Sy lost her Philippine citizenship, respondent can be considered a natural born citizen of the Philippines, having been born to a mother who was a natural-born Filipina at the time of marriage, and because respondent was able to elect citizenship informally when she reached majority age. Respondent participated in the barangay elections as a young voter in 1976, accomplished voter’s affidavit as of 1984, and ran as a candidate and was elected as Mayor of La Libertad, Negros Oriental in 2004. These are positive acts of election of Philippine citizenship. The case of In re: Florencio Mallare, elucidates how election of citizenship



is manifested in actions indubitably showing a definite choice. We note that respondent had informally elected citizenship after January 17, 1973 during which time the 1973 Constitution considered as citizens of the Philippines all those who elect citizenship in accordance with the 1935 Constitution. The 1987 Constitution provisions, i.e., Section 1(3), Article [IV] and Section 2, Article [IV] were enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically accorded the status of a natural-born citizen, while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship yet if so elected, was not conferred natural-born status. It was the intention of the framers of the 1987 Constitution to treat equally those born before the 1973 Constitution and who elected Philippine citizenship upon reaching the age of majority either before or after the effectivity of the 1973 Constitution. Thus, those who would elect Philippine citizenship under par. 3, Section 1, Article [IV] of the 1987 Constitution are now, under Section 2, Article [IV] thereof also natural-born Filipinos.

[4] Those who are naturalized in accordance with law.

2 laws on naturalization:

1. CA 473 which is the Judicial Naturalization; and

2. RA 9139 which is the Administrative Naturalization.

REPUBLIC VS LI CHING CHUNG 694 S 249. As held in Tan v. Republic, "the period of one year required therein is the time fixed for the State to make inquiries as to the qualifications of the applicant. If this period of time is not given to it, the State will have no sufficient opportunity to investigate the qualifications of the applicants and gather evidence thereon. An applicant may then impose upon the courts, as the State would have no opportunity to gather evidence that it may present to contradict whatever evidence that the applicant may adduce on behalf of his petition." The period is designed to give the government ample time to screen and examine the qualifications of an applicant and to measure the latter’s good intention and sincerity of purpose. Stated otherwise, the waiting period will unmask the true intentions of those who seek Philippine citizenship for selfish reasons alone, such as, but not limited to, those who are merely interested in protecting their wealth, as distinguished from those who have truly come to love the Philippines and its

culture and who wish to become genuine partners in nation building.

The only exception to the mandatory filing of a declaration of intention is specifically stated in Section 6 of CA No. 473, to wit:

Section 6. Persons exempt from requirement to make a declaration of intention. – Persons born in the Philippines and have received their primary and secondary education in public schools or those recognized by the Government and not limited to any race or nationality, and those who have resided continuously in the Philippines for a period of thirty years or more before filing their application, may be naturalized without having to make a declaration of intention upon complying with the other requirements of this Act. To such requirements shall be added that which establishes that the applicant has given primary and secondary education to all his children in the public schools or in private schools recognized by the Government and not limited to any race or nationality. The same shall be understood applicable with respect to the widow and minor children of an alien who has declared his intention to become a citizen of the Philippines, and dies before he is actually naturalized. (Emphases supplied)Unquestionably, respondent does not fall into the category of such exempt individuals that would excuse him from filing a declaration of intention one year prior to the filing of a petition for naturalization.

The substantive requirements are also the same for administrative and judicial; the only difference is the residency. Do you know the pneumonic there? ARCPEN (Age, Residency, character, property, education, not otherwise disqualified by law) applied to both proceedings. The only difference is:

1. In administrative naturalization, the residency requirement is changed to “from birth” because this is especially applicable to those who were born here but have remained to be foreigners and has not become Filipinos. So to make it easier for them, they are allowed to file for a decree of naturalization administratively. In judicial its 10 years lowered to 5 years under special circumstances.

2. The other difference is on education, property requirement is also the same. The money value there is P5,000 but with respect to livelihood, it’s the same. But for education, unlike in judicial naturalization wherein



education is only required for children, in administrative naturalization it is required for the applicant to be xxx meaning he has to be schooled here because he has been a residence since birth. Philippine schools must not be exclusive to foreigners, among the subjects taught would be Philippine constitution, government and in addition that just like judicial proceedings must require minor children.

3. Procedurally, judicial naturalization requires declaration of intention, in administrative there’s none.

4. In judicial, there is a 2 year waiting period. In administrative, there is no waiting period simply because you were born here in the country. So if you were able to prove substantive requirements before the Special Committee on Naturalization, then you would be given a decree of naturalization administratively.

5. In effect, in the Philippines we always follow the rule that in naturalization proceedings that it is the husband-father who would apply for naturalization. So in judicial proceedings, it is supposed to be the husband who should file and the grant will redound to the benefit of the wife assuming she is a foreigner, and of the children. The reason for that is the wife must not be disqualified. In our naturalization proceedings, if a Filipino-man marries a foreigner-woman, the foreigner-woman will automatically become a Filipino citizen. If it is the other way around, if the man is foreigner and the woman is a Filipina, the residency requirement for the foreigner husband will be no longer from 10 years to 5 years. There is no automatic grant to citizenship status to the foreigner husband. That is the ruling in the case of Republic vs Batuigas. This referred to a foreigner woman married a Filipino male. In all cases of citizenship where the declaration of citizenship has been sought, the SC has maintained the view that there is no proceeding in our system where a person files a case/petition to declare him a Filipino citizen. Cases where Filipino citizenship issue is resolved is almost or always a product of an issue of his citizenship not that of voluntary petition for a declaration of citizenship is filed because the SC said there is no proceeding in our rules or in our jurisdiction. This case of Batuigas is an exception because the wife here should have benefited from that Sec 15 of CA 473. That when a foreigner woman marries a Filipino male, the woman automatically becomes a Filipino citizen. All that the woman will have to show by administrative proceedings only, is that she is not disqualified by law. She need not prove that she is qualified but that she is not disqualified. So Batuigas filed a petition in court wanting

to claim the benefit under Sec 15 of CA 473. SC reiterated the rule that there is no such proceeding, but because of the special circumstances this woman had to undergo that there is no proceeding. Reason being before she was declared Filipino citizen, her husband died. So now she has no any citizenship. The special circumstance, SC granted the petition rather than dismiss it and saying the law is quite clear that she is already considered a Filipino citizen, without having to prove anything except that she must have to prove that she is not disqualified by law. In administrative proceedings, it is allowable that a woman would file citizenship or naturalization under RA 9139 because she is born in the Philippines of foreigner parents and has since birth resided here. So in judicial proceedings the default is that it is the husband or father who will file for the rights of the wife or the children. In the case of administrative naturalization the woman is the applicant, the grant to the woman will redound to her children but will not benefit the husband if he is a foreigner.

LOSS AND ACQUISITION

Republic Act No. 9225 August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT.AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title – this act shall be known as the "Citizenship Retention and Re-acquisition Act of 2003."

Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:



"I _____________________, solemny swear (or affrim) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines.

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any other section or provision not affected thereby shall remain valid and effective.

Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 8. Effectivity Clause – This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or two (2) newspaper of general circulation.

SOBEJANA-CONDON VS COMELEC 678 S 267. R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18,



2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines.

Atty. Montejo: Question, is a person with dual citizenship under the Phil be allowed to hold public office? Answer is, if it were elective no, but if it were appointed, yes.

There are 2 specific provisions for subsections there:

1. Elected public official

2. Appointed public official.

You will notice that in elected position, the sworn renunciation is on citizenship but if it were appointed office, the sworn renunciation is on allegiance. So you may have more than 1 citizenship but only 1 allegiance if you were to be appointed in an office. But if it were an elective office, only 1 citizenship.

Atty Montejo: Maquiling vs Comelec.The person involved is a Mayor in Kauswagan, Lanao del Norte. The issue here was w/r the mayor was disqualified under Sec 40(d) Those with dual citizenship; of the Local Government Code. If you have read the case the dissent proceeded that it would lead him w/o any citizenship because apparently the Mayor took advantage of RA 9225 and then executed a sworn renunciation of all foreign citizenship, including his American citizenship. But he travelled several times to the US using his American passport. So that the question there was has he renounced his Philippine citizenship? Because in our study of express renunciation as a ground for losing citizenship, I remember the case of Yu vs Santiago. A Portuguese national who was granted Filipino status, he travelled to HK and made some business transactions, stated publicly in the travel documents that he is a Portuguese. So the SC sustained the decision, that the act of publicly representing himself as a Portuguese national despite of the grant of Filipino status is an express renunciation. A renunciation which is not left to interest but is voluntary and knowingly made.

So in Maquiling vs Comelec, here was a Filipino citizen formerly natural born who has lost it but reacquired it under RA 9225. But made public representations that he was an American in his travels when his Philippine passport was not yet issued. Did that amount to express

renunciation of his Filipino citizenship? SC said, it did not. What he expressly renounced is his sworn renunciation of any and all foreign citizenships. So it is as if he has not executed that sworn renunciation which made him a person with dual citizen, which makes him disqualified under Sec 4(d) of the LGC.

So if you have reacquired your citizenship under RA 9225 and you failed to execute those sworn statements either with respect to citizenships or with respect to allegiances, or if you did but you made public representations that you are such a foreign citizen or that you have other foreign allegiances, it does not mean that you have lost your reacquired citizenship. What you have lost or the effect of those acts would be that there is an express renunciation of your sworn renunciation required to be qualified for an elective or appointive office. So that is the decision of the court in the case of Maquiling vs Comelec.

It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship by naturalization. There is no doubt that he reacquired his Filipino citizenship by taking his Oath of Allegiance to the Philippines and that he renounced his American citizenship. It is also indubitable that after renouncing his American citizenship, Arnado used his U.S. passport at least six times.

If there is any remaining doubt, it is regarding the efficacy of Arnado’s renunciation of his American citizenship when he subsequently used his U.S. passport. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality.

The dissent states that the Court has effectively left Arnado "a man without a country".1âwphi1 On the contrary, this Court has, in fact, found Arnado to have more than one. Nowhere in the decision does it say that Arnado is not a Filipino citizen. What the decision merely points out is that he also possessed another citizenship at the time he filed his certificate of candidacy.



DUAL CITIZENSHIP

MERCADO VS MANZANO 307 S 630. To begin with, dual citizenship is different from dual allegiance. The former 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. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the 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.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: “Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.”

SOVEREIGN IMMUNITY

BASIS:

1. The Immunity from Suit Doctrine provided under Art 16 Sec 3, is not a grant of Immunity from the State. It is a restatement that the State cannot be sued. The State can only be sued if it has consented.

2. For this Immunity from Suit Doctrine to apply, one must have to determine w/r the case is a suit against the government or not. In old cases, there was an enumeration: xxx corporate government entity is sued, when a public officer is sued in his official capacity. In all these 3 instances, the common denominator is that any adverse ruling must have to require the State to appropriate money from the public treasury to pay the adverse decision. So if the suit regardless of the name of the defendant will not amount to appropriating funds from the public treasury that is not a suit against the State. State Immunity does not apply. We don’t talk about consent, waiver or anything.

3. When a construction supply is delivered to government and government failed to pay the value, can a case prosper? Again, the answer to the question should go directly to the question of w/r any adverse ruling would require the State to appropriate funds from the public treasury. If it does not require even if there is a money judgment, then you have to discuss immunity. But if there is no financial obligation despite the named defendant, it is not a suit against the State. Do not discuss Immunity Doctrine. So those are the first things to remember when a question is asked.

4. If a suit is filed against the State, it will only apply if it does not involve an incorporated agency. We always take the case of GOCCs. If the case involved a GOCC, GOCC even w/o original charter, much more with, are not part of the State technically in its political or sovereign functions. GOCCs are established for business or proprietary functions. So when a case is filed against any of them, you don’t apply State Immunity not only because there are separate and different entities but because any monetary liability against them will not require disbursement from the public treasury. Therefore all their assets any be levied, garnished, whatever because it is not part of the funds of public treasury. Are they public funds? The answer is yes! But they are not part of the State in the public treasury requiring legislative authorization in the form of an appropriation.

CONSENT

ACT NO. 3083



AN ACT DEFINING THE CONDITIONS UNDER WHICH THE GOVERNMENT OF THE PHILIPPINE ISLANDS MAY BE SUED

SECTION 1. Complaint against Government. — Subject to the provisions of this Act, the Government of the Philippine Islands hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, expressed or implied, which could serve as a basis of civil action between private parties.

SECTION 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Insular Auditor and that the latter did not decide the same within two months from the date of its presentation.

SECTION 3. Venue. — Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Court of First Instance of the City of Manila or of the province were the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions.

SECTION 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties.

SECTION 5. When the Government of the Philippine Island is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties.

SECTION 6. Process in actions brought against the Government of the Philippine Islands pursuant to the authority granted in this Act shall be served upon the Attorney-General whose duty it shall be to appear and make defense, either himself or through delegates.

SECTION 7. Execution. — No execution shall issue upon any judgment rendered by any court against the Government of the Philippine Islands under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the Governor-General, within five days after the same becomes final.

SECTION 8. Transmittal of Decision. — The Governor-General, at the commencement of each

regular session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year.

SECTION 9. This Act shall take effect on its approval.

Approved, March 16, 1923.

Atty Montejo: Consent w/r express or implied, simply grants the party claimant the right to file the case and prosecute his case. It does not mean automatic liability on the part of the State much more in case of an adverse ruling, execution in the ordinary course of things. The plaintiff claimant must still prove his case because consent only allows filing and prosecuting his case. The basis for allowing the case to proceed is the presence of consent. The basis for filing liability is the fact or evidence as proven by the claimant and the applicable laws in the case at bar. This brings as to the so called common form of implied consent which is entering into a contract. If the State enters into a contract, it means it has lowered its level into an ordinary party. But while it is true, it is not actually correct that any act of entering the contract would mean an implied waiver because only those contracts entered into not in sovereign or governmental capacity or entered in business or proprietary concept would constitute as valid consent. It’s not the act or fact of entering the contract, it’s the nature of the contract entered into.

Example: The Phil Air Force ordered new helicopters. They ordered to a foreign supplier, the government did not pay the value. Can it sue? You must have to answer that not on fact of entering the contract, it’s the nature of the contract entered into. W/r the contract is entered in government capacity or in a proprietary capacity. If that contract is entered into in governmental capacity, then there is no xxx You must proceed to file under Act 3083. Do not commit the mistake of saying that yes because there is implied consent because the act of the state is governmental function, not proprietary function.

Now, assuming that there is consent. The decision of the court will not be executed based on your ordinary rules of execution under the rules of court. You must have to present it to the COA and COA will fund it and



COA will submit to the president as part of the national expenditure program. Congress may consider it and make appropriations to be taken for the next year budget.

DOH VS PHILPHARMA 691 S 421.

The doctrine of non-suability.

The discussion of this Court in Department of Agriculture v. National Labor Relations Commission32 on the doctrine of non-suability is enlightening.

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. x x x [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 nonsuability. 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.

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstance. On the contrary, as correctly phrased, 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 States consent may be given either expressly or impliedly. Express consent may be made through a general law or a special law. x x x 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.

This rule, x x x is not, however, 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.33?r?l1

As a general rule, a state may not be sued. However, if it consents, either expressly or impliedly, then it may be the subject of a suit.34 There is express consent when a law, either special or general, so provides. On the other hand, there is implied consent when the state "enters into a contract or it itself commences litigation."35

However, it must be clarified that when a state enters into a contract, it does not automatically mean that it has waived its non-suability. 36 The State "will be deemed to have impliedly waived its non-suability [only] if it has entered into a contract in its proprietary or private capacity. [However,] when the contract involves its sovereign or governmental capacity[,] x x x no such waiver may be implied."37 "Statutory provisions waiving [s]tate immunity are construed in strictissimi juris. For, waiver of immunity is in derogation of sovereignty."

The DOH can validly invoke state immunity.

a) DOH is an unincorporated agency which performs sovereign or governmental functions.

In this case, the DOH, being an "unincorporated agency of the government"39 can validly invoke the defense of immunity from suit because it has not consented, either expressly or impliedly, to be sued. Significantly, the DOH is an unincorporated agency which performs functions of governmental character.

The ruling in Air Transportation Office v. Ramos40 is relevant, viz:

An unincorporated government agency without any separate juridical personality of its own enjoys immunity from suit because it is invested with an inherent power of sovereignty. Accordingly, a claim for damages against the agency cannot prosper; otherwise, the doctrine of sovereign immunity is violated. However, the need to distinguish between an unincorporated government agency performing governmental function and one performing proprietary functions has arisen. The immunity has been upheld in favor of the former because its function is


http://www.chanrobles.com/cralaw/2013februarydecisions.php?id=181#fnt40









governmental or incidental to such function; it has not been upheld in favor of the latter whose function was not in pursuit of a necessary function of government but was essentially a business.41

b) The Complaint seeks to hold the DOH solidarily and jointly liable with the other defendants for damages which constitutes a charge or financial liability against the state.

Moreover, it is settled that if a Complaint seeks to "impose a charge or financial liability against the state,"42 the defense of non-suability may be properly invoked. In this case, PPI specifically prayed, in its Complaint and Amended and Supplemental Complaint, for the DOH, together with Secretaries Romualdez and Dayrit as well as Undersecretary Galon, to be held jointly and severally liable for moral damages, exemplary damages, attorneys fees and costs of suit.43

Undoubtedly, in the event that PPI succeeds in its suit, the government or the state through the DOH would become vulnerable to an imposition or financial charge in the form of damages. This would require an appropriation from the national treasury which is precisely the situation which the doctrine of state immunity aims to protect the state from.

The mantle of non-suability extends to complaints filed against public officials for acts done in the performance of their official functions.

As regards the other petitioners, to wit, Secretaries Romualdez and Dayrit, and Undersecretary Galon, it must be stressed that the doctrine of state immunity extends its protective mantle also to complaints filed against state officials for acts done in the discharge and performance of their duties.44 "The suability of a government official depends on whether the official concerned was acting within his official or jurisdictional capacity, and whether the acts done in the performance of official functions will result in a charge or financial liability against the government."45 Otherwise stated, "public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith."46 Moreover, "[t]he rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state x x

x. In such a situation, the state may move to dismiss the [C]omplaint on the ground that it has been filed without its consent." 47

It is beyond doubt that the acts imputed against Secretaries Romualdez and Dayrit, as well as Undersecretary Galon, were done while in the performance and discharge of their official functions or in their official capacities, and not in their personal or individual capacities. Secretaries Romualdez and Dayrit were being charged with the issuance of the assailed orders. On the other hand, Undersecretary Galon was being charged with implementing the assailed issuances. By no stretch of imagination could the same be categorized as ultra vires simply because the said acts are well within the scope of their authority. Section 4 of RA 3720 specifically provides that the BFAD is an office under the Office of the Health Secretary. Also, the Health Secretary is authorized to issue rules and regulations as may be necessary to effectively enforce the provisions of RA 3720.48 As regards Undersecretary Galon, she is authorized by law to supervise the offices under the DOHs authority,49 such as the BFAD. Moreover, there was also no showing of bad faith on their part. The assailed issuances were not directed only against PPI. The suspension of PPIs accreditation only came about after it failed to submit its comment as directed by Undersecretary Galon. It is also beyond dispute that if found wanting, a financial charge will be imposed upon them which will require an appropriation from the state of the needed amount. Thus, based on the foregoing considerations, the Complaint against them should likewise be dismissed for being a suit against the state which absolutely did not give its consent to be sued. Based on the foregoing considerations, and regardless of the merits of PPIs case, this case deserves a dismissal. Evidently, the very foundation of Civil Case No. 68200 has crumbled at this initial juncture.

ROYAL PREROGATIVE DISHONESTY

The SC has applied it to a Foreign State claiming Immunity in the Philippines because of the concept of royalty. If the State is not immune then all of its resources may have to be spent to protect itself from suit. This was first applied in the old case where US government was claiming immunity in this jurisdiction. We still follow the concept of immunity from suit, not because of section 3 of art 16 but because of section 2 of art 2. Generally accepted principles of international law are deemed part of the law of the land and












Immunity from suit among equals is part and parens habets imperio. So they say is the basis for co-equals that a Sovereign cannot be subjected to the laws of another Sovereign otherwise it will cause xxx among nations.

IMMUNITY FROM SUITS OF STATES

1. HEADS OF STATE

If it were a foreign state per se, there’s no other employer or officer involved, supposedly the immunity is absolute. You cannot sue the US government here. If it were to be heads of State, we follow still the so-called theory of absolute immunity. President is immune from the processes of host country. But what about representatives of foreign country, then there’s absolute or relative immunity is supposed to be discussed.

2. DIPLOMATS

Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. Following is a basic overview of its key provisions.

Article 9. The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity.

Article 22. The premises of a diplomatic mission, such as an embassy, are inviolate and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.

Article 27. The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained.

Article 29. Diplomats must not be liable to any form of arrest or detention. They are immune

from civil or criminal prosecution, though the sending country may waive this right under Article 32. Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties.

Article 31.1c Actions not covered by diplomatic immunity: professional activity outside diplomat's official functions.

Article 37. The family members of a diplomat that are living in the host country enjoy most of the same protections as the diplomats themselves.

They are not subject to the processes of the host country w/r its personal liability, official liability and in all civil, criminal and administrative cases. The only recourse of the host country is to declare this person as persona non grata. If he refuses then that’s the time that the person be subjected to all processes because he is no longer covered by any immunity.

3. CONSULS

A consul normally operates out of an embassy in another country, and performs two functions: (1) protecting in the host country the interests of their countrymen, and (2) furthering the commercial and economic relations between the two countries.

Consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction, they may be tried for certain local crimes upon action by a local court, and are immune from local jurisdiction only in cases directly relating to consular functions.

The 1963 Convention on Consular Relations only cover immunity on the official functions of consular officers and employees. For their personal and private liabilities, the convention does not apply.

4. OFFICERS SUED IN OFFICIAL CAPACITY

If an American officer is sued here, the question is, can he be subjected to immunity processes? If he is sued in his official capacity where the ultimate liability rests on the American government, then immunity shall be claimable. But in case not, meaning he is not sued in his official capacity because the liability is personal, then the suit may prosper.

5. INTERNATIONAL ORGANIZATIONS


http://en.wikipedia.org/wiki/Criminal_jurisdiction

http://en.wikipedia.org/wiki/Diplomatic_courier

http://en.wikipedia.org/wiki/Diplomatic_bag

http://en.wikipedia.org/wiki/Persona_non_grata

http://en.wikipedia.org/wiki/Treaty


Only the UN and its agencies are covered by the absolute immunity rule. All the rest w/r its inter-governmental or international non-governmental organizations, they are exempt from liability under the concept of relative immunity. One must have to determine based on the host agreement, what is the extent of their liabilities or immunities.

6. IMPEACHABLE OFFICERS

If the result of the case filed against the so called impeachable officers, the President, Vice-President, members of the Supreme Court, members of the Constitutional Commission and the Ombudsman would effectively cause to remove them from office then these cases cannot prosper unless and until they are impeached. To that extent they are immune from such cases.

Special mention must be made to the President because we follow the Rule on Immutability. During the incumbency the president he cannot be sued. And it is not only involving cases which were effectively removed him from office. Any kind of cases to his or against his person whether it involves criminal, civil or administrative case, the President is immune. Do not however confuse that which you come across against the office of the president. It is not against the President but it is against the decisions of the Office of the President under the doctrine of qualified political agency. Some decisions of the Secretary are elevated to the Office of the President. And with regards to the decision of the President that is questioned normally the case title would involve the Office of the President. That is not one of the cases.

SUABILITY VS LIABILITY

MUNICIPALITY OF HAGONOY VS DUMDUM 616 S 1. The general rule spelled out in Section 3, Article XVI of the Constitution is that the state and its political subdivisions may not be sued without their consent. Otherwise put, they are open to suit but only when they consent to it. Consent is implied when the government enters into a business contract, as it then descends to the level of the other contracting party; or it may be embodied in a general or special lawsuch as that found in Book I, Title I, Chapter 2, Section 22 of the Local Government Code of 1991, which vests local government units with certain corporate powers —one of them is the power to sue and be sued.

Be that as it may, a difference lies between suability and liability. As held in City of Caloocan v. Allarde, where the suability of the state is conceded and by which liability is ascertained judicially, the state is at liberty to determine for itself whether to satisfy the judgment or not. Execution may not issue upon such judgment, because statutes waiving non-suability do not authorize the seizure of property to satisfy judgments recovered from the action. These statutes only convey an implication that the legislature will recognize such judgment as final and make provisions for its full satisfaction. Thus, where consent to be sued is given by general or special law, the implication thereof is limited only to the resultant verdict on the action before execution of the judgment.

Traders Royal Bank v. Intermediate Appellate Court, citing Commissioner of Public Highways v. San Diego, is instructive on this point. In that case which involved a suit on a contract entered into by an entity supervised by the Office of the President, the Court held that while the said entity opened itself to suit by entering into the subject contract with a private entity; still, the trial court was in error in ordering the garnishment of its funds, which were public in nature and, hence, beyond the reach of garnishment and attachment proceedings. Accordingly, the Court ordered that the writ of preliminary attachment issued in that case be lifted, and that the parties be allowed to prove their respective claims at the trial on the merits. There, the Court highlighted the reason for the rule, to wit:

The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant’s action “only up to the completion of proceedings anterior to the stage of execution” and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriations as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion



of public funds from their legitimate and specific objects. x x x

With this in mind, the Court holds that the writ of preliminary attachment must be dissolved and, indeed, it must not have been issued in the very first place. While there is merit in private respondent’s position that she, by affidavit, was able to substantiate the allegation of fraud in the same way that the fraud attributable to petitioners was sufficiently alleged in the complaint and, hence, the issuance of the writ would have been justified. Still, the writ of attachment in this case would only prove to be useless and unnecessary under the premises, since the property of the municipality may not, in the event that respondent’s claim is validated, be subjected to writs of execution and garnishment — unless, of course, there has been a corresponding appropriation provided by law.

IV. CONGRESS

TERM LIMITATION

Section 10 prohibits the increase in salaries to take effect during the term of the Congress. The word term is used in singular form to indicate that all the terms of the members of that congress must have expired already.Because of the interloping of 12 members in any given time, the question is asked on the increase that must have to be considered whether the senators who are elected for a six year term every three years hereafter their terms office singularly have already been expired.

RESIDENCY

Constitution has used the word residence but the Supreme Court has consistently defined it or means it, as domicile. The reason for requiring residence as domicile in an old case is that:

1) It entitles or it allows the person to know the needs of his constituents more so in terms of legislation;

2) On the part of electors, if you are not really a domiciliary in the place how will the electors know you

Now, it settled rule that it is your legal residence and not your actual residence. Even if you are temporarily absent there is an intention of returning, animus revertandi. And that intention of returning is

continuous, animus maniendi. It does not require physical presence all the time. But it requires you have the intention to return even you are absent on that place. And some other ruling on residency brought about the decision of the SC established:

1) minors retain the residency of their parents but they are not prohibited to choose their own residency after attaining the age of majority;

2) Wives under the NCC or the FC may maintain a residence other than their legal residence because spouses are required to maintain a conjugal dwelling. The conjugal dwelling may not necessarily be the legal residency of the spouse. Not because under the FC that the conjugal abode shall be established by the husband, it has to be established by both. But the law says that in case of disagreement the husband‘s decision shall prevail otherwise they shall go to court. (Romualdes-Marcos vs. Comelec)

While a person may have only one legal residence at any given time, it does not mean that the same person cannot acquire a new legal residence. What is only required to acquire a new legal residence is that the person must have:

a) a bona fide intention to change his old residence;

b) actual abandonment of the old to acquire a new one;

c) performance or commission of acts indicating he is abandoning the old and acquiring a new one.

Butch Aquino vs. (?), he was a legal resident of Tarlac. He wanted to run in Makati that is why he rented a house in Makati, without doing anything. Just renting a house without residing in it. So the SC said there were no acts performed that would show that he abandoned the old and acquired a new one. All his businesses private or official were still in Tarlac, the only thing that would indicate his actual residence is the lease in an apartment unit and nothing more. Which was further discussed in the case of Mitra vs Comelec, where the SC reversed the finding of COMELEC en banc that Mitra was not able to change his residence. The SC said that the Comelec is using non-legal standards referring to it as subjective non-legal standards. As you could remember, Mitra wanted to run as governor of the province, he wanted to change his residence from



Puerto Princesa to a municipality. He bought an old fertilizer mill warehouse and in the mezzanine that is where he resided. And there are evidences to show that the residence or feed mill was devoid of any luxury which is consistent to his status as a Mitra. Walang ayos, walang furnitures, walang appliances consistent of his standing but the SC said those are non-legal standard which are subjective the law only requires three:

1) that there is a good faith intention to change his old residence,

2) the actual abandonment of the old to acquire a new one,

3) performance of acts indicating he is abandoning the old.

The SC took note of other evidences, that he bought the adjoining property and start building his house. There was a testimony from the barangay captain that he lives were the old mill was located and a new house is being constructed. He was actually going there and residing there. As compared to other barangay captains from the supposed town where (resides), he does not show himself to Palawan or in that municipality. So it is a matter of evidence but the thing is the SC said what the Comelec used were subjective. It does not require you to build a house appropriate of your social standing, what is important is you uprooted yourself from the old one and planted yourself to a new domicile.

Asistio vs. Aguire, a 2010 case, simply involved the question of if your certificate of candidacy indicated an address which is not legally existing does that mean you already changed your domicile already. Asistio is from Caloocan. The family are well known to be from there. What is indicated in the COC is not an existing address so what the primary respondent argued that he is not a legal resident of Caloocan. And he is not a resident because of a non-existing address. SC said that does not indicate that the person change his domicile because you can only change your domicile by compliance of the three requisites.

APPORTIONMENT/DISTRICTS

NAVARRO VS ERMITA 612 S 131. LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and

(2) Population or land area – Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

The creation of a new province shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners. (Emphasis supplied.)

It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

PARTY LIST SYSTEM ACT



ATONG PAGLAUM VS COMELEC 694 S 477. R.A. No. 7941 does not require national and regional parties or organizations to represent the "marginalized and underrepresented" sectors. Under the party-list system, an ideology-based or cause-oriented political party is clearly different from a sectoral party. A political party need not be organized as a sectoral party and need not represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must represent a "marginalized and underrepresented" sector. It is sufficient that the political party consists of citizens who advocate the same ideology or platform, or the same governance principles and policies, regardless of their economic status as citizens.

The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5 that are, by their nature, economically "marginalized and underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the "marginalized and underrepresented." The nominees of the sectoral party either must belong to the sector, or must have a track record of advocacy for the sector represented.

To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of parties under the party-list system, that "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 xxx to be elected to the House of Representatives.’ "However, the requirement in Ang Bagong Bayani, in its second guideline, that "the political party xxx must represent the marginalized and underrepresented," automatically disqualified major political parties from participating in the party-list system. This inherent inconsistency in Ang Bagong Bayani has been compounded by the COMELEC’s refusal to register sectoral wings officially organized by major political parties. BANAT merely formalized the prevailing practice when it expressly prohibited major political parties from participating in the party-list system, even through their sectoral wings.

We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying petitioners. In

following prevailing jurisprudence, the COMELEC could not have committed grave abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose and mandate the party-list system actually envisioned and authorized under the 1987 Constitution and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats, reversing the COMELEC's allocation which followed the then prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that the COMELEC committed grave abuse of discretion. Similarly, even as we acknowledge here that the COMELEC did not commit grave abuse of discretion, we declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to participate in the coming 13 May 2013 party-list elections.

Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any "marginalized and underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in "well-defined political constituencies." It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include labor,



peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack "well-defined political constituencies" include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the "marginalized and underrepresented" must belong to the "marginalized and underrepresented" sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack "well-defined political constituencies" must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the "marginalized and underrepresented," or that represent those who lack "well-defined political constituencies," either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must represent the "marginalized and underrepresented" sectors, and (2) all nominees must belong to the "marginalized and underrepresented" sector they represent. Petitioners may have been disqualified by the COMELEC because as political or regional parties they are not organized along sectoral lines and do not represent the "marginalized and underrepresented." Also, petitioners' nominees who do not belong to the sectors they represent may have been disqualified, although they may have a track record of advocacy for their sectors. Likewise, nominees of non-sectoral parties may have been disqualified because they do not belong to any sector. Moreover, a party may have been disqualified because one or more of its nominees failed to qualify, even if the party has at least one remaining qualified nominee. As discussed above, the disqualification of petitioners, and their nominees, under such circumstances is contrary to the 1987 Constitution and R.A. No. 7941.

COCOFED VS COMELEC 703 S 165. The Supreme Court (SC) has affirmed the disqualification of Coconut Producers Federation (Cocofed) in the party-list elections last May by the Commission on Elections (Comelec).

In a decision penned by Associate Justice Arturo Brion, the high court ruled that the Comelec was correct in canceling Cocofed’s certificate of registration for failure to submit names of at least five nominees.

The SC said that such requirement is “mandatory” since the law uses the word “shall.”

“Cocofed has shown that it is able to comply with the five-nominee requirement after the elections; it should have explained its inability to comply prior to the elections,” the high court said through a summary released by its public information office.

“A party is not allowed to simply refuse to submit a list containing ‘not less than five nominees’ and consider the deficiency as waiver on their part,” it added.

ABANG LINGKOD VS COMELEC 708 S133. The COMELEC En Banc cancelled ABANG LINGKOD's registration as a party list group. The COMELEC En Banc pointed out that ABANG LINGKOD failed to establish its track record in uplifting the cause of the marginalized and underrepresented; that it merely offered photographs of some alleged activities it conducted after the May 2010 elections. The COMELEC En Bane further opined that ABANG LINGKOD failed to show that its nominees are themselves marginalized and underrepresented or that they have been involved in activities aimed at improving the plight of the marginalized and underrepresented sectors it claims to represent.

The COMELEC affirmed the cancellation of ABANG LINGKOD's registration on the ground that it declared untruthful statement in its bid for accreditation as a party-list group in the May 2013 elections, pointing out that it deliberately submitted digitally altered photographs of activities to make it appear that it had a track record in representing the marginalized and underrepresented. Essentially, ABANG LINGKOD's registration was cancelled on the ground that it failed to adduce evidence showing its track record in representing the marginalized and underrepresented.



The flaw in the COMELEC's disposition lies in the fact that it insists on requiring party-list groups to present evidence showing that they have a track record in representing the marginalized and underrepresented.

Track record is a record of past performance often taken as an indicator of likely future performance.13 As a requirement imposed by Ang Bagong Bayani for groups intending to participate in the party-list elections, track record pertains to the actual activities undertaken by groups to uplift the cause of the sector/s, which they represent.

R.A. No. 7941 did not require groups intending to register under the party-list system to submit proof of their track record as a group. The track record requirement was only imposed in Ang Bagong Bayani where the Court held that national, regional, and sectoral parties or organizations seeking registration under the party-list system must prove through their, inter alia track record that they truly represent the marginalized and underrepresented, thus:

x x x

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 pat1y, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Secdon 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 interests, it has chosen or is likely to choose the interest of such sectors. (Emphasis ours)

Track record is not the same as the submission or presentation of "constitution, by-laws, platform of government, list of officers, coalition agreement, and other relevant information as may be required by the COMELEC," which are but mere pieces of documentary evidence intended to establish that the group exists and is a going concern. The said documentary evidence presents an abstract of the ideals that national,

regional, and sectoral parties or organizations seek to achieve.

In Atong Paglaum the Court has modified to a great extent the jurisprudential doctrines on who may register under the party-list system and the representation of the marginalized and underrepresented. For purposes of registration under the party-list system, national or regional parties or organizations need not represent any marginalized and underrepresented sector; that representation of the marginalized and underrepresented is only required of sectoral organizations that represent the sectors stated under Section 5 of R.A. No. 7941 that are, by their nature, economically marginalized and underrepresented.

There was no mention that sectoral organizations intending to participate in the party-list elections are still required to present a track record, viz:

x x x In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:

x x x x

4. Sectoral parties or organizations may either be marginalized and underrepresented or lacking in well-defined political constituencies. It is enough that their principal advocacy pertains to the special interests and concerns of their sector. The sectors that are marginalized and underrepresented include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack well-defined political constituencies'' include professionals, the elderly, women, and the youth. (Emphasis ours)

Contrary to the COMELEC's claim, sectoral parties or organizations, such as ABANG LINGKOD, are no longer required to adduce evidence showing their track record, i.e. proof of activities that they have undertaken to further the cause of the sector they represent. Indeed, it is enough that their principal advocacy pertains to the special interest and concerns of their sector. Otherwise stated, it is sufficient that the ideals represented by the sectoral organizations are geared towards the cause of the sector/s, which they represent.


http://www.lawphil.net/judjuris/juri2013/oct2013/gr_206952_2013.html#fnt13


If at all, evidence showing a track record in representing the marginalized and underrepresented sectors is only required from nominees of sectoral parties or organizations that represent the marginalized and underrepresented who do not factually belong to the sector represented by their party or organization.

BANAT VS COMELEC 2009. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the broadest possible representation of party, sectoral or group interests in the House of Representatives.”

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed:

1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.

3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.

SYNCHRONIZED TERMS OF OFFICE

ABUNDO VS COMELEC 688 S149.


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