Suarez 2011.pdf

POLITICAL LAW REVIEWER By ROLANDO A. SUAREZ LL.B., SAN BEDA COLLEGE Professor of Constitutional Law, Constitutional Law Review and Political Law Review Former professor of different law subjects in several colleges (i.e., San Beda College of Law, Adamson University, MLQ, Lyceum, University of Perpetual Help, PUP and University of Manila); Lecturer, Powerhaus Law Review Center, Center for Global Best Practices; IBP-MCLE; UM Review, Perpetual Help, Las Piñas & Biñan, MLQ Pre-week Founding & Managing Partner Suarez, Paredes, Zamora, Suarez and Luna Law Offices Author: Political Law Reviewer, Constitutional Law Reviewer; Six Months Before The Bar Outline/Reviewer; Principles, Comments and Cases in Constitutional Law, Vol. I; Principles, Comments and Cases in Constitutional Law Vol. II; Agrarian Reform and Social Legislation; Comparative Study; Roman Law and Philippine Law, First and Second Editions; Introduction to Law, First, Second, Third, and Fourth Editions; Notes and Comments, Proclamation No. 3 and The Provisional Constitution of the Philippines; Agrarian Reform, Cooperatives and Taxation; A Mile to Go for Genuine Land Reform in the Philippines; Statutory Construction, First and Second Editions; Torts and Damages; Legal Forms; The 1987 Constitution of the Republic of the Philippines Made Easy

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ROLANDO A. SUAREZ ISBN 978-971-23-5937-8 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same.

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PREFACE The first edition of my Political Law Reviewer was printed in 2002. In response to requests for an Outline/Reviewer in preparation for the bar examinations in 2009, and to be able to include new cases and review materials, I wrote a book entitled “Six Months Before The Bar Outline/Reviewer” in 2008. I am glad about the enthusiastic support given to the said book, which encouraged me to decide in preparing a second edition of my Political Law Reviewer in preparation for the bar examinations in 2011. Hence, this 2010 edition, which includes multiple choice questions to familiarize the students and reviewees, following the announcement of the Supreme Court that the 2011 Bar Questions will include multiple choice problems. I have always said that making use of this book will be more helpful and effective if the revieweee has already read the textbooks in his first or second year in the College of Law, and the reviewer two (2) years thereafter. This edition includes recent decisions of the Supreme Court on the different subjects of political law. Likewise, I included the subject of Public International Law in this book considering the increasing number of questions in the bar examinations about the subject. I hope that my modest effort and contribution will be of valuable help to the students, particularly the reviewees. That is more than enough to inspire me to improve this work and the revision of my other books. January 3, 2011, Parañaque City ROLANDO A. SUAREZ

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ACKNOWLEDGMENT I acknowledge the assistance rendered by the members of my present staff, Rosalie M. Ramoran and Hanna Marie M. Manila. I am grateful to my daughter, Rhina Rizza M. Suarez, for her valuable efforts and assistance to me in the printing, encoding and arrangement of the final layout of the manuscript, and to my son, Atty. Roland Rhonnel M. Suarez, also for his own contribution in particular cases. Their contributions are valuable. I also wish to thank the whole staff of Rex Printing for helping me throughout the entire printing process. Above all, I am immensely grateful to God for all the blessings, guidance and fortune that I have received and those still to come.

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DEDICATION To my wife, Nora, and children, Revelyn, Roland Rhonnel, Reina Ricci and Rhina Rizza; to my beloved and deceased parents, Marcelo A. Suarez and Elena Arevalo Suarez, my first teachers, who taught me the rudiments of writing and the value of hardwork; to my thoughtful and loving aunt, Cornelia Arevalo Vda. De Capul; to my kind and equally thoughtful mother-in-law, Niflea Lautchang Vda. De Manalese, who just passed away; to my deceased brothers and sisters, Buendegardo, Proserfina, Elvira, Manolo and Rodolfo, with whom I have shared the blessings of a modest home and hardworking parents; to all my former teachers who guided me in my quest for knowledge; to my townmates and friends who share my thoughts and aspirations for a better society; and above all to my dear God who is always generous to help me in any of my endeavors, I dedicate this humble work

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TABLE OF CONTENTS Preface ................................................................................................. Acknowledgment ................................................................................ Dedication ...........................................................................................

iii v vii

CONSTITUTIONAL LAW Introduction ......................................................................................... 1. Important Definitions ................................................................. 2. Basic Principles ......................................................................... 3. Nature, Classification, Essential Parts, Requisites of a Good Written Constitution .................................................. 4. Amendment or Revision of Constitution, Ratification of the same and Judicial Review of the Amendments made ...... 5. Basic Rules to remember in the interpretation of the Constitution ......................................................................... 6. The 1987 Constitution: Its historical background ..................... 7. Definition of Constitution, Difference between Constitution and Statute, Construction of a Constitution, Advantages and Disadvantages of a Written Constitution ............................................................... 8. The Philippines as a State .......................................................... 9. Fundamental and Inherent Powers of the State .........................

1 2 2 3 5 9 13

19 22 35

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES (From The Preamble to Article XVIII of the 1987 Constitution) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Preamble .................................................................................... Article I, National Territory ....................................................... Article II, Declaration of Principles & State Policies ............... Article III, Bill of Rights ........................................................... Article IV, Citizenship ............................................................... Article V, Suffrage ..................................................................... Article VI, Legislative Department ........................................... Article VII, Executive Department ........................................... Article VIII, Judicial Department .............................................. Article IX, The Constitutional Commission .............................. Article X, Local Government .................................................... Article XI, Accountability of Public Officers ............................ ix

42 45 67 113 354 374 376 478 533 593 637 715

13. Article XII, National Economy and Patrimony ......................... 14. Article XIII, Social Justice And Human Rights ........................ 15. Article XIV, Education, Science And Technology, Arts, Culture And Sports .................................................................... 16. Article XV, The Family ............................................................. 17. Article XVI, General Provisions ............................................... 18. Article XVII, Amendments or Revision .................................... 19. Article XVIII, Transitory Provisions .........................................

742 757 772 783 784 794 799

ADMINISTRATIVE LAW I. II. III.

General Principles ..................................................................... Administrative Agencies: Their nature, creation, establishment and abolition ....................................................... Powers of Administrative Agencies: (a) Quasi-legislative or rule making power; (b) Quasi-judicial power ....................... A.

818 819

Quasi-legislative or rule making power 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. B.

810

Kinds of administrative rules or regulations .......... Requisites of a valid administrative rule or regulation ........................................................... Requisites of administrative regulations with a penalty ................................................................. Powers and functions exercised in the course in exercising quasi-legislative powers ................... Notice and Hearing ................................................ When is it necessary? ............................................. Can legislative powers be delegated? .................... Test to determine whether a given power has been validly exercised by a particular department ..... Distinguish legislative power from quasi-legislative power ........................................... What is the guideline to observe in order to insure that there is a valid and lawful delegation of power? ................................................................ What is the classification of administrative regulations? ............................................................ Distinguish legislative regulations from interpretative regulation .........................................

819 819 827 830 832 832 833 834 835

835 836 836

Quasi-judicial power 1. Definition of quasi-judicial power ......................... 2. Why is quasi-judicial power granted to an administrative agency? ........................................... x

837 837

3. What is the limitation to the legislature whenever it grants quasi-judicial power to an administrative agency? ................................................................... 4. What is the main function of administrative agencies and the administrative officers in-charge of said boards, bureaus and offices? ....... 5. Powers included in the term “quasi-judicial” – (1) determinative power (2) summary power .............. 6. Different powers ..................................................... 7. What is the nature of the proceedings arising from the exercise of the said powers? .................... 8. Why do they partake of the nature of judicial proceedings? ........................................................... 9. Are the proceedings before administrative agencies adversarial in nature? ............................... 10. When are proceedings adversarial and when are they held ex-parte? ........................................... 11. Jurisdiction ............................................................. 12. Source of authority and jurisdiction of administrative boards, bureaus and offices ............ 13. Are the orders and the decisions of administrative boards, bureaus and offices final? .. 14. When is an administrative decision considered res judicata? ........................................................... 15. What is the doctrine of res judicata in administrative proceedings? ............................... IV. V. VI.

Important principles in administrative law ................................ Other ancilliary principles ......................................................... Is there a relief from within the administrative agency itself? ............................................................................. VII. Relief after the resolution of the highest level of authority in the administrative agency concerned .................................... VIII. Appeal from, or review of orders, actions, and decisions of the Different Executive Department, Bureaus and Offices ........ IX. Methods of review of administrative decision .......................... X. Administrative agencies created by the Constitution ................

837

837 838 838 839 839 839 839 840 841 841 842 842 844 869 874 875 878 890 893

LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS 1. Definition and general principles .............................................. 2. Characteristics of a public office ............................................... 3. Requirements for public office: (a) Appointment; (b) Designation; (c) Commission .............................................. xi

899 903 903

4. Classification of appointment: (a) Regular appointment; (b) Ad Interim appointment; (c) Permanent appointment; (d) Temporary appointment ....................................................... 5. Different steps in the process of appointment ........................... 6. What is the best evidence of an appointment? .......................... 7. Kinds of acceptance: (a) Express; (b) Implied .......................... 8. Distinction, appointment and election ....................................... 9. What is required for an office to be filled up either by an appointment or by election? ................................................. 10. Eligibility and qualification ....................................................... a. Meaning of the term “qualification” ................................ b. Qualifications are continuing requirements ..................... 11. Disqualifications ........................................................................ 12. Failure to qualify ....................................................................... 13. De facto officers; distinctions, de jure officer and de facto officer ........................................................................... 14. Commencement of official relations ......................................... 15. Eight (8) Important principles ................................................... 1) Appointment .................................................................... 2) Torio vs. CSC ................................................................... 3) The next-in-rank rule ....................................................... 4) De facto/De jure ............................................................... 5) Matters that fall within the exclusive jurisdiction of the CSC ........................................................................ 6) Kinds of Personnel Actions ............................................. 7) Modes of termination of official relationship .................. 8) Liability of Public Officers .............................................. 16. Eight (8) other ancilliary principles ........................................... 1) Preference for appointment to new position .................... 2) Can a person be compelled to accept an office? .............. 3) Presidential power of appointment .................................. 4) Authority to determine the kind or nature of appointment ................................................................. 5) Revocation of appointment by CSC ................................ 6) Meaning of the term qualification .................................... 7) Determination through competitive examination ............ 8) Hold-over rule ..................................................................

905 907 907 908 908 911 911 911 913 914 916 916 920 920 921 921 922 922 922 922 926 944 946 946 946 946 947 948 948 948 949

ELECTION LAW I.

GENERAL PRINCIPLES 1. 2.

Election ............................................................................ Two (2) kinds of election ................................................. xii

957 957

3. 4. 5.

Suffrage ............................................................................ Distinction: suffrage and election .................................... Suffrage is both a right and privilege under the Constitution ................................................................ Theory upon which suffrage is based .............................. Interpretation of election law ...........................................

958 958 960

COMMISSION ON ELECTIONS ........................................

961

III. STAGES, POINTERS AND PROCEDURES BEFORE, DURING AND AFTER ELECTION ...................

961

PART I. BEFORE THE ELECTIONS 1. Pointers ............................................................................ 2. Procedure ......................................................................... 3. Petition for Inclusion ....................................................... 4. Petition for Exclusion ......................................................

962 964 964 964

PART II. DURING THE ELECTIONS 1. Casting of votes ............................................................... 2. Records of challenges and oaths ...................................... 3. Minutes of voting and counting of votes .........................

980 984 984

PART III. AFTER THE ELECTIONS 1. Counting of votes ............................................................. 2. Ballots .............................................................................. 3. Appreciation of ballots .................................................... 4. Rules for appreciation of ballots ...................................... 5. Pre-proclamation controversy .......................................... 6. Partial proclamation .........................................................

985 988 989 990 1003 1006

6. 7. II.

IV.

957 958

DISTINCTION ........................................................................ Election Protest and Quo Warranto ........................................... Election protest ..........................................................................

1012 1014

CASES: Makalintal vs. Comelec, G.R. No. 157013, July 10, 2003 ................. Legarda vs. De Castro, P.E.T. Case No. 003, March 31, 2005 ........... Alan Peter Cayetano vs. Commission on Elections, et al., G.R. Nos. 166388 and 166652, January 23, 2006 ..................... Partido ng Manggagawa, et al. vs. Comelec, G.R. No. 164712, March 12, 2006 ............................................ Antonio F. Trillanes IV vs. Hon. Oscar Pimentel, Sr., in his capacity as presiding Judge, Regional Trial Court xiii

1029 1029 1030 1031

Branch 148, Makati City, et al., G.R. No. 179817, June 27, 2008 ............................................................................. Lambino vs. Commission on Elections, G.R. No. 174153, October 25, 2006 .......................................................................

1032 1034

PUBLIC INTERNATIONAL LAW PART I. Important Topics of Public International Law. 1. Distinction, Private International Law and Public International Law ...................................................................... 2. Distinction, Public International Law and Municipal Law ....... 3. Recognition of States. Kinds of recognition ............................. 4. De Facto and De Jure Government ........................................... 5. Succession of States, Succession of Government ..................... 6. Subjects and objects of Public International Law ..................... 7. Vatican City and the Holy See ................................................... 8. Doctrine of State Continuity ...................................................... 9. Act of State Doctrine ................................................................. 10. Belligerent and insurgent communities ..................................... 11. United Nations ........................................................................... 12. Fundamental Rights of States .................................................... 13. Jurisdiction of States ................................................................. 14. Exemptions from jurisdiction .................................................... 15. Fundamental Principles concerning treaties .............................. 16. Law of War ................................................................................ 17. Peaceful and Forcible Sanctions ................................................ 18. Belligerent occupation as distinguished from military occupation .................................................................... 19. Effect of belligerent occupation on the sovereignty of the legitimate government ..................................................... 20. Stateless persons ........................................................................ 21. Law of the Sea ........................................................................... 22. Air and Space Law ....................................................................

1039 1040 1044 1045 1047 1048 1049 1049 1050 1053 1054 1062 1083 1089 1103 1105 1118 1121 1121 1124 1125 1141

PART II. At a Glance (Terms/Phrases/Maxims/Principles in Public International Law) I. II. III. IV. V.

In connection with treaties ........................................................ In connection with the right of property and jurisdiction .......... In connection with the right of legation or diplomatic intercourse ................................................................................. In connection with diplomatic immunities and privileges ........ In connection with consular officials ......................................... xiv

1146 1148 1148 1149 1150

VI. VII. VIII. IX. X. XI. XII XIII. XIV. XV.

In connection with exemptions from jurisdiction ...................... In connection with war .............................................................. Conditional for jus ad bellum .................................................... In connection with termination of war ...................................... In connection with forbidden methods of warfare .................... In connection with peaceful and forcible sanctions .................. In connection with international custom ................................... In connection with modes of acquiring territories ..................... In connection with subjects of international law ....................... Other terms/phrases/principles/doctrines ..................................

1150 1151 1151 1151 1152 1152 1153 1153 1154 1154

PART III. Other Relevant Information 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

UN (United Nations)/LEAGUE OF NATIONS ........................ SEATO (Southeast Asia Treaty Organization) .......................... ASEAN (Association of South East Asian Nation) ................... NATO (North Atlantic Treaty Organization) ............................. AFTA (Asean Free Trade Area) ................................................. European Court of Human Rights ............................................. International Bill of Human Rights ........................................... Universal Declaration of Human Rights ................................... International Law of the Sea ..................................................... Baselines ....................................................................................

xv

1157 1159 1159 1159 1159 1159 1159 1160 1160 1161

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POLITICAL LAW REVIEWER INTRODUCTION Before we proceed to the principal coverage of this book (summary and discussion of the 1987 Constitution, from the Preamble to Article XVIII), it is of great help to the students, particularly the reviewees, to go over the important principles which have been imparted to them from first year. Whether it is in reference to the 1935, 1973 or 1987 Constitutions, the principles mentioned in the succeeding discussion are applicable and should therefore be deeply inculcated in the minds of law students. For the sake of brevity and orderly presentation, the said principles are discussed following this arrangement: 1. Important definitions 2. Basic principles 3. Nature, classification, essential parts and requisites of a good written constitution 4. Amendment or revision of Constitution, ratification of the same and judicial review of the amendments made 5. Basic rules to remember in the interpretation of the Constitution 6. The 1987 Constitution: Its historical background, nature, purpose and classification 7. The Philippines as a State, Cases and jurisprudence 8. Definition of Constitution, difference between Constitution and statute, construction of a Constitution, advantages and disadvantsges of a written constitution, purpose of the Constitution 9. The fundamental and inherent powers of the State

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POLITICAL LAW REVIEWER

DISCUSSION OF EACH TOPIC I. IMPORTANT DEFINITIONS POLITICAL LAW: It is that branch of jurisprudence which treats of the science of politics, or the organization and administration of government. (Black’s Law Dictionary, Sixth Edition, 1158) Our Supreme Court defined political law in more specific terms by saying that it is that branch of public law which deals with the organization and operation of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (People vs. Perfecto, 43 Phil. 887) CONSTITUTIONAL LAW: It is that department of the science of law which treats of the nature of constitutions, their establishment, construction and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law. (Black, Constitutional Law, 1) A more simple definition is that of Justice Isagani A. Cruz. According to him, constitutional law is the study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights. CONSTITUTION: It is a “body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” With particular reference to the Constitution of the Republic of the Philippines, it is a written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise and for the benefit of the body politic. (Malcolm and Laurel, Phil. Constitutional Law 6)

II. BASIC PRINCIPLES 1.

THE CONSTITUTION IS THE SUPREME LAW OF THE LAND A Constitution is a legislation direct from the people acting in their sovereign capacity, hence, it is more superior than an ordinary law or statue which is merely a legislation from the people’s representatives subject to limitations prescribed by the Constitution. No man-made laws, therefore, can prevail as against the Constitution.

2.

BEING THE SUPREME LAW OF THE LAND, IT IS THE SYMBOL AND MONUMENT OF THE PEOPLE’S WILL As such, it should be submitted for ratification of the people following the principle that “xxx sovereignty resides in the people and all

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government authority emanates from them.” (Section 1, Article II, 1973 and 1987 Constitutions) 3.

THE CONSTITUTION OUTLINES THE INFRASTRUCTURES OF THE GOVERNMENT It is through the Constitution that the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments of the government for their safe and useful exercise and for the benefit of the body politic. (Justice Malcolm’s description, Phil. Constitutional Law, p. 6)

4.

THE CONSTITUTION MUST BE OBEYED BY ALL It governs the poor and the rich, the governed and the governors, the mighty and the weak, and regardless of the color of one’s skin, his religion or his political persuasion.

5.

THE CONSTITUTION MAY BE MODIFIED EITHER BY AMENDMENT OR REVISION However, any amendment to or revision of the Constitution shall be valid only when ratified by the people.

6.

THE COURTS ARE THE ULTIMATE GUARDIANS OF OUR CONSTITUTION The difficult questions involving the interpretation of any provision of our Constitution will be resolved by the Supreme Court. This is a power allocated to the Supreme Court, and its decision shall be binding to all citizens of the Republic of the Philippines, including any and all officials of our Government, including the President of the Philippines.

III. NATURE, CLASSIFICATION, ESSENTIAL PARTS, REQUISITES OF A GOOD WRITTEN CONSTITUTION Q – How is a Constitution classified? A – A Constitution may be: (1) written or unwritten; (2) conventional or cumulative; or (3) rigid or flexible. Q – What is the classification of the Constitution of the Republic of the Philippines? A – It is written, conventional and rigid. CLASSIFICATION OF CONSTITUTION A Constitution may be written or unwritten, conventional or cumulative, and rigid or flexible.

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(a)

(b)

(c)

A written and unwritten constitution – A written constitution is one the provisions of which have been reduced to writing and embodied in one or more instruments at a particular time. Example: Philippine Constitution. An unwritten constitution is one which has not been reduced to writing at any specific time but it is the collective product of a gradual political development, consisting of unwritten usages and customary rules, judicial decisions, dicta of statesmen, and legislative enactments of a fundamental character written but scattered in various records without having any compact form in writing. The three most conspicuous historical instances of such constitutions are those of Athens, Rome, and England. The latter is almost the sole example of a progressive modern State retaining such a Constitution. (Malcolm and Laurel, Phil. Constitutional Law, pp. 9-13) Conventional or Cumulative – A Conventional constitution is enacted deliberately and consciously by a constituent body or ruler at a certain time and place. A cumulative constitution is a product of a gradual political development. Rigid or flexible – A rigid constitution is one which can be amended through a formal and difficult process. A flexible Constitution is one which can be changed by ordinary legislation.

Q – What are the qualities of a good written Constitution? A – It must be broad, brief and definite. EXPLANATION A good written Constitution must be broad because it is through it that the fundamental powers of government are established, limited and defined, and by which those powers are distributed among the several departments of government for their safe and useful exercise and for the benefit of the body politic. Its provisions have considered the experiences of the past; it serves to consider the realities of the contemporary times, and it looks to the future. It must be brief because it is not intended to go into details of organization. The details are left to Congress which will be in a better position to find out what specific legislation is needed from time to time. It must be definite because vagueness may cause incalculable harm, or it may lead to opposing interpretation which may bring about chaos and violence, instead of peace. Of course, there are constitutional provisions which are worded in general terms but they are such precisely to give a reasonable leeway for the courts to decide on what is best under the circumstances. The people should repose their faith and trust in the intelligence and wisdom of those in whose hands lies the solemn duty to do what is right and just.

INTRODUCTION

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Q – What are the three essential parts of a written Constitution? A – A good written Constitution has three essential substantive parts, to wit: 1. CONSTITUTION OF LIBERTY: This contains the fundamental civil and political rights of the citizens as well as the limitations on the powers of the government to secure the enjoyment of the rights of the citizens (i.e., Articles III, IV, V and XII of the 1987 Constitution). 2. CONSTITUTION OF GOVERNMENT: It contains provisions that enumerate the powers of government and outline its organization (i.e., Articles VI to XI of the 1987 Constitution). 3. CONSTITUTION OF SOVEREIGNTY: It contains the provisions on how changes in the Constitution may be made (i.e., Article XVII of the 1987 Constitution).

IV. AMENDMENT OR REVISION OF CONSTITUTION, RATIFICATION OF THE SAME AND JUDICIAL REVIEW OF THE AMENDMENTS MADE Q A Q A

– – – –

May our Constitution be changed? Yes. How can it be changed? It can be changed either by amendment or revision. This is referred to as formal amendment. A change may also be effected when our courts of justice interpret ambiguously worded provisions of the Constitution to make it conform with realities. This being not in accordance with the formal process of amendment, as called for, it is understood that in so doing, the Supreme Court is merely modifying its interpretation of the ambiguously worded constitutional provision involved and it does so in accordance with the principle that it has the last word in the construction of any law and even of the Constitution itself.

Meaning of revision and amendment Revision: It is the rewriting or overhauling of the entire instrument. Amendment: It is a change or alteration for the better, an amendment or change within the lines of the original instrument which will bring about improvement. Q – How may the 1987 Constitution be revised? A – There are two (2) modes of revising the Constitution, to wit:

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(a)

By the Congress, upon a vote of three-fourths of all its Members; or

(b)

By a Constitutional Convention.

If the Congress chooses to call a constitutional convention to revise the Constitution, it may either: (a) Call a Constitution Convention by a vote of two-thirds of all its Members; or (b) Submit to the electorate the question or calling such a body by a majority vote of all its Members. Q – How may the Constitution be amended? A – Amended may be affected: (a) By Congress, upon a vote of the threefourths of all its Members; (b) By a constitutional Convention; (c) By people’s Initiative. People’s Initiative: It is the power of the people to propose amendments to the Constitution, or to propose or enact legislations through an election called for the purpose. REQUIREMENTS AND LIMITATIONS TO PEOPLE’S INITIATIVE: 1. 2.

There must be a written petition; The petition must have at least twelve per centum (12%) of the total number of registered voters as signatories; 3. Of the twelve per centum (12%) total registered voters, at least every legislative district must be represented by three per centum (3%) of the registered voter therein. LIMITATIONS: (a) The power of initiative shall be exercised five years after the ratification of the 1987 Constitution; (b) The power may be exercised only once every years thereafter. THREE (3) SYSTEMS OF INITIATIVE 1. 2. 3.

Initiative on the Constitution – which refers to a petition proposing amendments to the Constitution. Initiative on Statutes – one referring to a petition to enact a national legislation. Initiative on Local Legislation – it refers to a petition proposing to enact a regional, provincial, city municipal or barangay law, resolution or ordinance.

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CONTENTS OF THE PETITION ON INITIATIVE The petition must state the following: 1. Contents or text of the proposed law sought to be enacted, approved, or rejected, amended or repealed, as the case may be. 2. The proposition. 3. The reason or reasons thereof. 4. That it is not one of the exceptions provided therein. 5. Signatures of the petitioners or registered voters. 6. An abstract of summary proposition is not more than one hundred words which shall be legibly written or printed at the top of every page of the petition. RATIFICATION WHEN SHOULD THE AMENDMENT TO OR REVISION OF THE CONSTITUTION BE SUBMITTED TO THE PEOPLE IN A PLEBISCITE? The amendment to or revision of the Constitution must be submitted to the people in a plebiscite called for the purpose not earlier than sixty (60) days nor later than ninety (90) days after the approval of such amendment or revision. Any amendment to the Constitution undertaken by virtue of the people’s right on initiative shall be submitted also within the same period after the certification by the Comelec of the sufficiency of the petition. (Section 4, Paragraph 2, Article XVII) CAN PROPOSED AMENDMENTS TO THE CONSTITUTION BE SUBMITTED AT A PLEBISCITE WHICH IS SCHEDULED ON THE SAME DAY AS THE REGULAR ELECTIONS? In Gonzales vs. Commission on Elections (21 SCRA 774), the petitioner questioned the validity of the submission of some proposed amendments to the Constitution at a plebiscite which is scheduled on the same day as the regular elections. It was the contention of the petitioner that it being the same day when the regular elections shall be held, the people would have more interest on the election issues rather than on the proposed amendments to the Constitution. The Supreme Court, however, did not uphold the said contention and held that “x x x The circumstamce that the previous amendment to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so, under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.”

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IS THE POWER TO AMEND OR REVISE THE CONSTITUTION INCLUDED IN THE GENERAL GRANT OF LEGISLATIVE POWER TO CONGRESS? The power to amend or revise the Constitution is not included in the general grant of legislative power to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a Republican State. It cannot be exercised by Congress unless expressly granted to it in the Constitution. Congress may propose amendments to the Constitution merely because the same expressly grants such power. Thus, when exercising the same, it is said that the Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution – they are the very source of all powers of government, including the Constitution itself. (Gonzales vs. Commission on Elections, 21 SCRA 774) IS AN AMENDMENT OR REVISION AND RATIFICATION OF THE CONSTITUTION A JUSTICIABLE QUESTION? It is a justiciable question. (Majority view in Javellana vs. Executive Secretary, et al., L-36142, March 31, 1973) In Sanidad vs. Comelec (supra), the Court held that the amending process, both as to proposal and ratification raises a justiciable question. Said the Court in Sanidad: The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. This is specifically true in cases where the power of the President to initiate the amending process by a proposal or amendment, a function normally exercised by the legislature, is seriously doubted.” CAN THE CONSTITUTION BE VALIDLY AMENDED BY “TRANSPOSITION”? No. The Constitution can only be validly amended by the three (3) modes explicitly enumerated in Sections 1 and 2, Article XVII. Amendment by transposition is not one of them, hence, impermissible. (Bautista vs. Salonga, 172 SCRA 160, April 13, 1989) IS IT POSSIBLE THAT THE PROCEDURAL REQUIREMENTS FOR AMENDMENT OR REVISION OF THE CONSTITUTION ARE NOT COMPLIED WITH, AND YET, IT IS CONSIDERED VALIDLY RATIFIED? The majority view in Javellana vs. Executive Secretary confirmed that this is possible. The dispositive portion of the decision in the said case states:

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Accordingly, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. (Underlining Supplied)

V. BASIC RULES TO REMEMBER IN THE INTERPRETATION OF THE CONSTITUTION 1.

THERE IS NO ROOM FOR INTERPRETATION WHEN THE WORDS OF THE CONSTITUTION ARE CLEAR When the words and language in the Constitution are clear and plain or readily understandable by an ordinary reader thereof, there is absolutely no room for interpretation or construction anymore. (Marina Port Services, Inc. vs. Iniego, 181 SCRA 304)

2.

THE INTENTION OF THE FRAMERS OF THE CONSTITUTION SHOULD BE GIVEN EFFECT It should be interpreted to give effect to the intention of the framers. This intention can be found either in the document itself, or through the use of extrinsic aids.

3.

THE CONSTRUCTION OPERATES PROSPECTIVELY To give a retroactive effect would have unsettling effect on the administration of justice. Likewise, liability of a retroactive operation will cause disturbance of prior vested rights. (Peralta vs. Director of Prisons, 75 Phil. 285)

4.

IN CASE OF DOUBT, THE CONSTITUTION SHOULD BE CONSIDERED SELF-EXECUTING RATHER THAN NOT SELFEXECUTING; MANDATORY RATHER THAN DIRECTORY; AND PROSPECTIVE RATHER THAN RETROSPECTIVE The provisions of the Constitution are to be considered as selfexecuting because if they are not treated as such, the legislature can ignore and practically nullify the direction of the fundamental law. Self-executing provisions are those which are immediately effective without the need of legislation. A provision is not self-executing when it merely indicates the principles without laying down rules giving them the force of law.

HOW SHOULD THE 1987 CONSTITUTION BE CONSTRUED? There is no provision in the 1987 Constitution which describes the rules

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or the manner it should be construed. The rules of construction are found in American and Philippine jurisprudence, thus: 1.

RULE OF LIBERALITY Unlike a statute, a Constitution is of a relatively permanent character and it is therefore expected to be effective for a longer period of time. In fact, the manner and the procedure to amend it is a difficult and tedious process. The provision of the Constitution should be liberally construed in order that it may accomplish the high objectives for which it was enacted and to carry out the general principles of government. A narrow and technical construction has no place in the construction of the Constitution which has been framed by the people for their own benefit. Furthermore, a Constitution is an organic law and has to deal with broader subject; of necessity it has to employ broader language if it is to lay down the principles of government. It cannot provide nor presume to provide with minute precision for all the rules of conduct it aims to. It does not venture into the fine details like legislative enactments or statutes. (Black, Interpretation of Laws, pp. 17-19)

2.

RULE OF UNIFORMITY Written Constitutions, like the 1987 Constitution of the Republic of the Philippines, are intended to last for a longer time than ordinary statutes. They contain provisions which have passed through rigid discussions, public hearing and debates and it is not conducive to stability if those provisions will be subject to change every so often or whenever opinion indicates a contrary view. The rule is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. (South Carolina vs. U.S. 437)

3.

RULE OF GIVING EFFECT TO INTENTION OF FRAMERS The intention of the framers of the Constitution should be given effect. This, in turn, could be discovered from the historical basis of the constitutional provision sought to be interpreted or construed, as reflected in the proceedings of the Constitutional Convention along with the different circumstances that may shed light on the intention of the framers. This is the same rule that is applied in order to discover the meaning and intention of the authors of the law. (Caltex [Phil.], Inc. vs. Palomar, L-19650, September 29, 1966) To this end, courts are even permitted to look into and investigate the antecedents or the legislative history of the statutes involved. (Zamora vs. Collector of Internal Revenue, L-15290

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and L-15280, and Collector of Internal Revenue vs. E. Zamora, L-15289 and L-15281, May 31, 1963) 4.

RULE OF PRACTICALITY The established practical construction of a Constitution should not be disregarded unless the terms of the provision furnish clear and definite support for a contrary construction. (Smiley v. Holm, 285 U.S. 355, 76 L. ed. 795)

5.

RULE OF CONSTRUING THE CONSTITUTION IN ITS ENTIRETY The Constitution should be construed as a whole in order to give effect to its great purposes. Effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which may make some idle and nugatory. (I Cooley, Const. Limitations, 8th ed., pp. 127-129)

6.

RULE OF FLEXIBILITY A technical and strained construction of the Constitution is not favored. This kind of construction will unduly impair the efficiency of the legislature in coping with its responsibility to take remedial measures corresponding to the needs of the times and changing conditions of society, whether this pertains to the political, social, economic and cultural life of the people.

7.

RULE OF HARMONY Whenever it is possible, the conflicting provisions of the Constitution should be harmonized. To this end, these rules should be remembered: If there are two conflicting provisions, one of which is general and the other is special, the latter shall prevail with respect to its subject matter, since it will be regarded as a limitation to the general grant. (Johnson vs. Duke, 180 Md. 434, 24A 2nd, 304) 1. The general provision is controlling only when the special provision does not apply. 2. When a provision cannot be considered as an exception to another, and they are repugnant to each other, that which is last in order of time and in local position shall be preferred because this is considered to be the latest expression of the will of the people. (Montenegro vs. Castaneda, 91 Phil. 882)

8.

RULE OF GIVING EFFECT TO EVERY PART No portion of the fundamental law shall be treated as superfluous unless there is some clear reason to the contrary. (Wright v. United States,

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582 L. ed. 439) Whatever is necessary to render effective any provision of a Constitution, whether the same be a prohibition or restriction, or the grant of the power, must be deemed implied and intended in the provision itself. (Black, Interpretation of Laws, 2nd Ed., pp. 29-30) 9.

RULE OF GIVING EFFECT TO PURPOSE The primary task in constitutional construction is to ascertain and thereafter assure realization of the purpose of the framers and the people in the adoption of the Constitution. (J.M. Tuason and Company, Inc. vs. Land Tenure Administration, L-20164, February 18, 1970) The true object of all interpretation is to ascertain the meaning and spirit of a constitutional provision in accordance with the time-honored rule that the spirit of the provision will prevail over the letter thereof. (Jarrolt v. Moberly, 103 U.S. 580)

10.

RULE OF CONSTRUING THE CONSTITUTION The provisions of a Constitution are also invariably mandatory. It is only in extremely plain cases or under the pressure of necessity that they can be construed as directory. It would be an extremely dangerous doctrine to hold that any constitutional provision may be obeyed or disregarded at the pleasure of the legislature, unless it is clearly beyond doubt that such was the intention of the framers of the Constitution. It would even amount to a lowering of the dignity befitting a fundamental law to say that it prescribes rules of order which may be followed or disregarded at pleasure. (Black, Interpretation of Laws, 2nd Ed., pp. 27-28)

11. RULE OF GIVING ORDINARY MEANING TO THE WORDS USED The words used in the Constitution are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. (J.M. Tuason and Company, Inc. vs. Land Tenure Administration, L-21064, February 18, 1970) 12.

RULE OF IMPLICATION Whatever is necessary to render effective every provision of a Constitution, whether the same be a prohibition or a restriction, or a grant of power, must be deemed implied in the provision itself. (Black, Interpretation of Laws, 2nd ed., pp. 27-28) The grant of power in general terms in the Constitution shall be understood to include such particular and auxiliary powers as are necessary to make it effectual. Where the means are not specified, any means may

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be resorted to which are fairly and properly adopted to accomplish the object of the grant, unless they necessarily interfere with existing interests or vested rights. (Ibid.) 13.

RULE OF PROSPECTIVITY As a rule, laws have a prospective effect unless: 1. The law itself provides for its retroactivity; 2. The law is remedial in nature; 3. The law is of an emergency nature and within the scope of the police power of the government; 4. The law is penal in nature, provided, it is favorable to the accused, and provided, that the latter is not a habitual delinquent; 5. If the law is curative, provided, it does not impair vested rights nor affect final judgments; 6. If a substantive right is declared for the first time, unless vested rights are impaired. The same general rule applies when a constitutional provision is construed prospectively unless a retroactive application is allowed based on the words used or unless it is the unmistakable intent of the framers to have a retroactive construction. (Black, Interpretation of Laws, 2nd ed., p. 26)

VI. THE 1987 CONSTITUTION: ITS HISTORICAL BACKGROUND HISTORICAL BACKGROUND WHAT ARE THE CONSTITUTIONS THAT GOVERNED THE PHILIPPINES SINCE THE ESTABLISHMENT OF THE COMMONWEALTH GOVERNMENT? 1. 2.

3.

4.

The Constitution adopted in 1935, otherwise known as the Commonwealth Constitution. The Constitution enforced during the Marcos regime, otherwise known as the 1973 Constitution, or Martial Law Constitution (because it was approved and ratified when the country was already under martial law). The Constitution enforced after the EDSA People Power Revolution, known as the Freedom Constitution (effective pending the adoption of the 1987 Constitution). The Constitution approved in a plebiscite which was held on February 2, 1987, otherwise known as the 1987 Constitution.

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COMMONWEALTH CONSTITUTION What led to the establishment of the Commonwealth Government of the Philippines in 1935? The Philippines was under Spanish rule for more than three hundred years. The Filipinos revolted against Spain on account of abuses committed both by the government and the friars. Andres Bonifacio started the revolution with the help and machinery of the organization he founded for such purpose and which is popularly known as the KATIPUNAN. A political feud, however, ensued in the process between the group of Andres Bonifacio and General Emilio Aguinaldo, and which resulted to the ascendancy of General Emilio Aguinaldo as the leader of the revolution. This power struggle, like any battle for internal supremacy, led to intense rivalry between the two functions, the Magdalo of Aguinaldo and the Magdiwang of Bonifacio. Still later, Andres Bonifacio was sentenced to death by a military court. On June 12, 1898, Philippine Independence was proclaimed by General Emilio Aguinaldo, who became the first President of the Philippine Republic. This republic was governed by the Malolos Constitution, the first democratic Constitution in Asia. This republic, however, was short-lived because six (6) months thereafter, or on December 10, 1898, the Philippines was ceded to the United States by Spain. There was resistance against American rule but it was not enough to stop the determined and more superior American military forces. In a short period, our military forces were subdued. A military government wasestablished and we yielded to American rule. Later, or on July 4, 1901, a civilian government was established in the Philippines. The Philippine Bill of 1902 created the Philippine Assembly in 1907. This was dissolved in 1916. On the same year, the Jones Law was promulgated, and it is this law which established a Philippine Legislature consisting of the Senate and House of Representatives. In 1935, the Tydings-McDuffie Act supplemented the Jones Law, and authorized the establishment of the Philippine Commonwealth which was inaugurated on November 15, 1935, with Manuel L. Quezon as first President and Sergio Osmeña as Vice-President. The Constitution that governed the Philippines at that time was the Constitution enacted by the Constitutional Convention of 1935, with Claro M. Recto as Chairman. On March 24, 1934, the U.S. Congress passed and approved the TydingsMcDuffie Law. Under this law, the people of the Philippine Islands were authorized to adopt a Constitution, subject to the following conditions and qualifications: (a) A Constitution shall be drafted and approved by a Constitutional Convention authorized to be called under the law;

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The President of the United States shall certify that the Constitution so drafted and approved conformed with the provisions of the law; and (c) That the said Constitution shall be ratified by the people of the Philippine Islands at an election or plebiscite called for ratifying or rejecting the Constitution. On July 30, 1934, the Constitutional Convention met for the purpose of drafting a Constitution, and the Constitution subsequently drafted was approved by the convention on February 8, 1935. The Constitution was submitted to the President of the United States on March 18, 1935, and on March 23, 1935, the President certified that the Constitution conformed substantially with the provisions of the Act of Congress approved on March 24, 1934. On May 14, 1935, the Constitution was ratified by the people. (People vs. Linsangan, 62 Phil. 646, 62 JF 697) The first President of the Philippine Republic is Manuel A. Roxas, followed by Elpidio R. Quirino on account of the untimely death of President Roxas. The succeeding Presidents are Ramon F. Magsaysay, Carlos P. Garcia, Diosdado P. Macapagal, Ferdinand E. Marcos, Corazon C. Aquino, Fidel V. Ramos, Joseph Ejercito Estrada, Gloria Macapagal-Arroyo and Benigno Simeon C. Aquino III, in that order. President Marcos served for more than twenty (20) years, instead of the regular four-year term, through the help of and by installing martial law on September 21, 1972, which paved the way for the ratification and approval of the 1973 Constitution. In a “snap” election held on February 7, 1986, Corazon C. Aquino and Salvador H. Laurel joined forces and ran as President and Vice-President, respectively, against the team of Ferdinand E. Marcos and Arturo M. Tolentino. The said election resulted in the proclamation of Ferdinand E. Marcos and Arturo Tolentino, but complaints of massive election irregularities and fraud led to protests and demonstrations in the four corners of the country. All these ignited the “People Power Revolution” or “Edsa Revolt,” as some people call it, which culminated to two historical events: (1) President Ferdinand E. Marcos and the members of his family, with some public officials who have remained loyal to him, left the country for Hawaii on February 24, 1986, at around 9:00 o’clock in the evening; and (2) Corazon C. Aquino and Salvador H. Laurel were proclaimed and installed President and Vice-President, respectively, by virtue of what is known as the “People Power.” The author, with his wife and his children, Revelyn and Rhonnel, who is now a lawyer, were among the first ones who entered Malacañang Palace fronting Mendiola Street on that night, and he was a personal witness to the outpouring of public hatred and anger of a great number of people who forced

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their way using their plain bodies and determination to come inside. The author saw the unconsumed food left on the table by the departing President and his entourage. Those memories of the four-day People Power Revolution remains vivid in the author’s mind for as long as he lives, leaving him one great lesson: THE REAL AND STRONGEST POWER THAT MAKES A NATION IS ITS PEOPLE. KINGS WILL REMAIN IN THE THRONE ONLY IF THE PEOPLE WANT THEM. 1973 CONSTITUTION On November 30, 1972, the draft of the 1973 Constitution was formally approved by the Constitutional Convention. It was subsequently submitted to the Citizen’s Assemblies for ratification on January 17, 1973, and thereafter, President Marcos announced that the 1973 Constitution has been ratified by an overwhelming majority of the people. The validity of the 1973 Constitution was questioned but all the cases where the issue was raised were dismissed by the Supreme Court. In Javellaña vs. Executive Secretary (50 SCRA 30), the issue that was submitted for resolution by the Supreme Court is, among others, the following: Is the proposed new or revised Constitution ratified conformably to Article XV of the Constitution? The petitioners in said case maintain the negative view, upon the ground: (1) that the President “is without authority to create the Citizens’ Assemblies” through which, respondents maintain, the proposed new Constitution has been ratified; (2) that said Assemblies “are without power to approve the proposed Constitution”; (3) that the President “is without power to proclaim the ratification by the Filipino people of the proposed Constitution”; and (4) that “the election held (in the Citizens Assemblies) to ratify the proposed Constitution was not a free election, hence null and void.” Apart from substantially reiterating these grounds in support of said negative view, the petitioners in Tan vs. The Executive Secretary (50 SCRA 30), contend: (1) that the President “has no power to call a plebiscite for the ratification or rejection” of the proposed new Constitution, or “to appropriate funds for the holding of the said plebiscite”; (2) that the proposed new or revised Constitution “is vague and incomplete,” as well as “contains provisions which are beyond the powers of the 1971 Constitution to enact,” thereby rendering it “unfit for xxx submission to the people”; (3) that “the period of time between November 30, 1972 when the 1972 draft was approved and January 11-15, 1973,” when the Citizens Assemblies supposedly ratified said draft, “was too short, worse still, there was practically no time for the Citizens Assemblies to discuss the merits of the Constitution which the majority of

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them have not read and which they never knew would be submitted to them for ratification until they were asked the question – “do you approve of the New Constitution?” during the said days of the voting”; and that “there was altogether no freedom of discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens Assemblies for ratification.” Petitioner in Monteclaro vs. The Executive Secretary (Two of the five [5] sequel cases decided jointly with Javellana vs. Executive Secretary, 50 SCRA 30) added, as arguments in support of the negative view, that: (1) “with a government-controlled press, there can never be a fair and proper submission of the proposed Constitution to the people”; and (2) Proclamation No. 1102 is null and void “inasmuch as the ratification process” prescribed “in the 1935 Constitution was not followed.” Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the petitioners in Dilag vs. The Honorable Executive Secretary (A sequel cased decided jointly with Javellana vs. Executive Secretary, 50 SCRA 30) argue that “the creation of the Citizens’ Assemblies as the vehicle for the ratification of the Constitution was a deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to either February 19 or March 5, 1973.” The conclusion of the Supreme Court is as follows: “ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. (Underlining Supplied) THE FREEDOM CONSTITUTION In 1985, President Ferdinand E. Marcos submitted himself to a “snap election” which was actually held on February 7, 1986. Apparently, he wanted a fresh mandate from the people as there were widespread rumors, here and abroad, about his failing health and the growing discontentment and social unrest happening in the Philippines. As it turned out, however, the results of the snap elections fueled more vehement public protests and demonstrations in the streets of Metro Manila and throughout the many parts of the country, amidst complaints of massive election fraud, graft and corruption, and other irregularities.

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All these led to what is known as the PEOPLE POWER REVOLUTION, called by many as EDSA REVOLUTION, led by then Defense Minister Juan Ponce Enrile and General Fidel V. Ramos. In a period of five (5) days, the EDSA REVOLUTION was over. Corazon C. Aquino and Salvador H. Laurel were proclaimed as President and VicePresident, respectively. President Corazon C. Aquino promulgated a FREEDOM CONSTITUTION, pending the approval of a new Constitution to be drafted by a Constitutional Commission. The new charter was submitted to and ratified in a plebiscite on February 2, 1987. THE 1987 CONSTITUTION The 1987 Constitution was drafted not by a Constitutional Convention, but by a 50-member Constitutional Commission. It was created under and by virtue of Proclamation No. 9 dated April 23, 1986, by President Corazon C. Aquino. There was no election of delegates to a Constitutional Convention. An issue was raised: When did it really take effect? Was it on February 2, 1987, the date when the plebiscite was called, or on February 11, 1987, when the results were made public pursuant to the presidential proclamation? Chief Justice Claudio Teehankee made this pronouncement in De Leon vs. Esguerra (153 SCRA 602, August 31, 1987), thus: “The record of the proceedings and debates of the Constitutional Commission fully supports the Court’s judgment. It shows that the clear, unequivocal and express intent of the Constitutional Commission in unanimously approving the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that the act of ratification is the act of voting by the people. So, that is the date of ratification and that the canvass thereafter (of the votes) is merely the mechanical confirmation of what was done during the date of plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite.” (Underlining Supplied) Justice Sarmiento dissented. His view is to the effect that the 1987 Constitution became effective on February 11, 1987, and not on February 2, 1987, because it was on February 11, 1987 when the true sovereign will of the people who ratified it became officially and publicly known through the issuance of Presidential Proclamation No. 58.

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VII. DEFINITION OF CONSTITUTION, DIFFERENCE BETWEEN CONSTITUTION AND STATUTE, CONSTRUCTION OF A CONSTITUTION, ADVANTAGES AND DISADVANTAGES OF A WRITTEN CONSTITUTION DEFINITION OF CONSTITUTION Reference has been made to the definition by Cooley that a Constitution is a “body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” With particular reference to the Constitution of the Republic of the Philippines, it is a written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise and for the benefit of the body politic. (Malcolm and Laurel, Phil. Constitutional Law 6) In Marcos vs. Manglapus (177 SCRA 668, September 15, 1989), the Supreme Court had an occasion to articulate the meaning of a Constitution and refers to it as a “law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times, and under all circumstances.” This is referred to as the Social Contract Doctrine. The Supreme Court said: “The Constitution x x x is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” (Marcos vs. Manglapus, 177 SCRA 668, September 15, 1989) DIFFERENCE BETWEEN CONSTITUTION AND STATUTE A Constitution is primary, being a command of the sovereign establishing the government machine and the most general rules for its operation. A statute is secondary, being a command of the sovereign having reference to the exigencies of time and place resulting from the ordinary working of a machine. A Constitution usually states general principles. A statute provides the details of which it treats. A Constitution is a legislation direct from the people acting in their sovereign capacity. A statute is a legislation from the people’s representatives subject to the limitations prescribed by the superior authority.

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A Constitution, unlike a statute, is intended not merely to meet existing conditions but also to govern the future. A Constitution can be abrogated, repealed or modified only by the power which created it, namely, the people. A statute may be repealed or changed by the legislature. THREE THEORIES OF A CONSTITUTIONAL CONVENTION 1.

2.

3.

The powers of the Constitutional Convention are in the nature of sovereign powers, hence, it is more supreme over the other departments of the government. The Constitutional Convention is inferior to the other departments of the government because it derived its powers from the legislature which created it. It is independent and co-equal with the other departments of government. (Cruz, Constitutional Law, pp. 14-15, 1998 Edition)

KINDS OF CONSTRUCTION OF A CONSTITUTION EXECUTIVE CONSTRUCTION – Is the construction and interpretation of laws or statutes by the various executive heads of the various departments of the government. (Gov’t. vs. Mun. of Binalonan, 32 Phil. 634) CONTEMPORANEOUS CONSTRUCTION BY EXECUTIVE OFFICERS – Construction placed by executive officers on a statute, whose duty is to enforce said statute. (In Re Allen, 2 Phil. 630) PROSPECTIVE CONSTRUCTION – Is a rule that all statutes are to be construed as having only prospective operation unless the purpose and intention of the legislature to give them retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the retrospective effect. (Lopez vs. Crow, 40 Phil. 997; Laurence vs. Rubio, 43 Phil. 1017; Segovia vs. Noel, 47 Phil. 430) DOCTRINE OF “STARE DECISIS” It means uniformity in judicial decisions. The principle is sometimes applied and sometimes ignored in the field of constitutional law. But it may be said that once an interpretation has been given the provision of the Constitution, it should not be abandoned without grave reasons, for the stability of many important institutions of society depends upon permanence. The rule applies only with respect to the point actually decided by the case. (Black, Const. Law, 44; Humphrey vs. U.S. 602)

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DIFFERENCE BETWEEN “STARE DECISIS” AND “RES JUDICATA” The first refers to rule of law, while the second refers to settled questions of fact. (Prall vs. Burckhart, 299, Ill. 19, 132 N.E. 280) ADVANTAGES AND DISADVANTAGES OF A WRITTEN CONSTITUTION ADVANTAGES 1. It serves as the best guide and reference of the people when their rights and liberties are transgressed and violated. 2. It provides stability to a nation and its people. 3. With a written law on their side, the people feel more secure and confident that they are well protected against abuse of authority. 4. In times of chaos and political uncertainties, it serves as a link and a bridge to pass over to better times. 5. In case of external aggression, it serves as the rallying point and inspiration of the people to protect their country against the invaders, or even against any form of foreign control. 6. It lays down in clear terms the principles of their political creed and aspirations, the policies that govern the State and its people, all of which protect them from frequent and violent fluctuations of public pulse. 7. Both in times of peace and war, it holds the people together. DISADVANTAGES 1. The rules, principles and policies upon which it is based are difficult to change even when they turn out at times to be inconvenient. 2. It is likely to encroach on the domain of ordinary legislation instead of confining itself to fundamental principles. 3. When there is an urgent need for a change, the prescribed rules or procedures to effect such change often results to bitter or, probably, violent, clashes or opinion. ADVANTAGES AND DISADVANTAGES OF UNWRITTEN CONSTITUTION An unwritten Constitution is advantageous in the sense that it is flexible and elastic. It is not advantageous in the sense that it is subject to perpetual change at the will of only a few number of people. PURPOSE OF CONSTITUTION The purpose of a Constitution is “to prescribe the permanent framework of a system of government, to assign to the different departments their

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respective powers and duties, and establish certain fixed principles on which government is founded.” (Malcolm and Laurel, Philippine Constitutional Law, 7) Likewise, it serves as a security and sanctuary of the rights of all citizens, rich or poor, weak or strong, lettered or unlettered, and regardless of religious and political persuasion. In times of peace and war, it holds the State together.

VIII. THE PHILIPPINES AS A STATE Q – What is a State? A – State “is a community of persons, more or less numerous, permanently occupying a fixed territory, possessing an organized government, independent of external control, to which a great body of inhabitants render habitual obedience.” (Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 3, citing Garner, Introduction to Political Science, 38-41) Q – What is a nation? A – A political group having a government and people distinct from all others, organized for the purpose of procuring mutual safety and advantage (Philippine Legal Encyclopedia, Jose Agaton R. Sibal) Justice Isagani A. Cruz, citing the observation of Hackworth, said that the term nation, strictly speaking, indicates a relation of birth or origin and implies a common race, usually characterized by community of language and customs. Q – Distinguish State from Nation. A – Primarily, the State is a legal or political concept, while nation is a racial or ethnical concept, nearly akin to “people.” A single state may embrace several different nations or peoples; a single nation will sometimes be so divided politically as to constitute several states. Q – Distinguish Government from State. A – The State itself is an ideal person, intangible, indivisible, and immutable. The government is an agent and within the sphere of the agency, a perfect representative; but outside of that it is a lawless usurpation. (Poindexter vs. Greenhouse, 114 U.S. 270) The term “government” is narrower than the term “State.” It refers to the person or group of persons in whose hands the organization of the State places for the time being the function of political control. The word is sometimes used to indicate the kind and composition of the controlling group. The ordinary citizens of a community are part of the State, but are not part of the government. The term, moreover, has no reference to territory. (Leacock, Political Science, 16-19)

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Q – What are the elements of a State? Explain each. A – (1) People; (2) Territory; (3) Government; (3) Sovereignty. (1) PEOPLE – As generally used in constitutional law, it refers to the entire body of those citizens of a state or nation who are invested with political power for political purposes. (Black’s Law Dictionary, 8th Edition, p. 1135, citing Lor Hjoa vs. Nagle, C.C.A. Cal. 13 F. 2d 80, 81) Is there a specific number of people who should occupy a State before one could be considered a State? No specific number is required, nor is there a legal requirement as to their number. In fact, the number of inhabitants in different states differ greatly, with some having millions and billions of people and some with only few hundred thousands of people. Writers on the same subject share the view that they must be numerous enough to be self-sufficient and to defend themselves and small enough to be easily administered. THE RIGHT OF THE PEOPLE TO SELF-DETERMINATION Under Article I of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the people, by virtue of the right of self-determination, has the following rights: 1) RIGHT TO INTERNAL SELF-DETERMINATION: They freely determine their political rights and freely pursue their economic, social and cultural development. This right, however, should not be understood as extending to a unilateral right of secession. This means that the pursuit of the people of its political, economic, social and cultural development should be within the framework of an existing state. 2) RIGHT TO EXTERNAL SELF-DETERMINATION: The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by the people, arises in only the most extreme cases and even then, under carefully defined circumstances, such as when a people is under colonial rule, and being such, it is subject to foreign domination or exploitation, and hindered to engage in a meaningful exercise of its right to internal self-organization. TERRITORY – Is a fixed area or surface of the earth where the inhabitants of a State live and where they maintain a government of their own. A territory has three components, namely: Terrestrial domain – which refers to the area of the land which the State occupies. Fluvial or maritime domain – which refers to the external and internal waters. Aerial domain – which refers to the air space above the land and the waters.

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How big should a territory be in order that it can be considered as an element of a State? Just as the number of inhabitants in different states differ greatly, the same is likewise true with respect to the area of the territory occupied by the inhabitants of the state. In fact, there are countries occupying a vast territory like China, Russia, Canada and Australia, and there are countries occupying a small territory like United Arab Emirates, Singapore and Brunei. On this basis, it can therefore be said that for the sake of practicality, a territory must neither be too big as to be difficult to administer and defend nor too small to as to be unable to provide for the needs of the population. GOVERNMENT – As an element of a State, a government is defined as “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. (U.S. vs. Dorr, 2 Phil. 332; Bacani vs. National Coconut Corporation, 53 O.G. 2798) Q – Distinguish de jure government from de facto government A – A de jure government is an organized government of a State which has the general support of its people. A de facto government is characterized by the fact that it is not founded upon the existing constitutional law of the State. (28 C.J. 75) Q – What are the different kinds of de facto government? A – (a) That government which gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by parliament and later by Cromwell as protector. (b) That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force, as in the cases of Castine, in Maine, which was reduced to British possession in the War of 1812, and of Tampico, Mexico, occupied during the war with Mexico by the troops of the United States. (c) That established as an independent government by the inhabitants of a country who rise in insurrection against the parent State, such as the government of the Southern Confederacy, in revolt against the Union during the war of secession. (Co Kim Cham [alias] Co Cham vs. Dizon and Tan Keh, 75 Phil. 113) Q – What are the characteristics of “de facto” government of paramount force? A – Its distinguishing characteristics are:

INTRODUCTION

(1)

Q –

A –

Q – A –

Q – A –

Q – A –

25

That its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2) That while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. (Ibid.) Corazon C. Aquino took her oath of office on February 25, 1986, the last day of a four-day “people power” revolt. This culminated in the ouster of President Ferdinand E. Marcos. Before she took her oath of office, she read Proclamation No. 1 wherein she declared that she and her Vice-President were “taking power in the name and by the will of the Filipino people.” Was the government under Corazon C. Aquino a revolutionary government? It is submitted that the provisional government that was established thereunder was revolutionary in character because it was installed by the direct action of the people or by “people power.” Hence, it derived its existence and authority directly from the people themselves, not from the 1973 Constitution which was then in existence. Was it a de jure government or a de facto government? Initially, the government was a de facto government because there was no constitutional basis of its creation, the same not having been sanctioned either under the 1935 or the 1973 Constitution. However, the de facto government at the start acquired a de jure status when it obtained the continuous public acceptance and support of the people and the recognition of practically all foreign governments. If the said government is a revolutionary government, what was its effect on the Bill of Rights under the 1973 Constitution? The Bill of Rights under the 1973 Constitution was not operative during the interval between February 28, 1986 and March 24, 1986 when the Freedom Constitution took effect by presidential proclamation. What are the characteristics of a presidential form of government, as distinguished from that of a parliamentary form of government? This form of government recognizes the principle of separation of powers, checks and balances and the blending of powers. Under the principle of separation of powers, “it operates to maintain the legislative powers to the legislative department, executive powers to the executive department,

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and those which are judicial in character to the judiciary. Through this allocation of powers, the persons entrusted with power in any of the departments of government shall not be permitted to encroach upon the power confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equality of the several departments. The completeness of their separation and their mutual independence does not, however, extend to the point that those in authority in one department can ignore and treat the acts of those in authority in the other, done pursuant to the authority vested in them, as nugatory and not binding in every other department. (pp. 96-97, Suarez, Principles, Comments and Cases in Constitutional Law, Volume I, citing Kilbourn vs. Thomson, 103 U.S. 168, 190, 25 L. ed. 377, 386; Abueva vs. Wood, 45 Phil. 612) In actual practice, blending of powers is actually a sharing of powers of the different departments of government whereby one department helps and coordinates with the other in the exercise of a particular power, function or responsibility. It is in this process of sharing and collaborating with each other that one department not only helps but also checks the other if for any valid reason it is deemed necessary for the public good. Notwithstanding the said sharing and collaborating by all the three principal departments of government of the different powers of government, the President of the Republic of the Philippines enjoys tremendous power of control “of all the executive departments, bureaus and offices” under Section 17, Article VII of the 1987 Constitution. And besides, this power was construed, much later, as the “power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former to the latter.” It is in this sense that our government from 1935 up to the present is a presidential form of government. Q – How about the government under Gloria Macapagal-Arroyo that was established after the ouster of President Joseph Estrada, is it de jure or de facto? A – The Supreme Court considered it a de jure government because President Joseph Estrada already gave up the presidency. The Supreme Court said: “xxx Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary.

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Q – A –

Q – A –

27

What leaps to the eye from these irrefutable facts is that both Houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court.” (Joseph Estrada vs. Aniano Desierto, et al., G.R. Nos. 146710-15, March 2, 2001) What are included in the terms “The Government of the Republic of the Philippines” or “Philippine Government”? They are terms broad enough to include municipal governments, chartered cities and other government-controlled corporations or agencies. (Central Bank of the Philippines vs. Court of Appeals, 63 SCRA 431) What are the functions of government? 1. Constituent functions – Those which constitute the very bond of society, and are, therefore, compulsory and not optional; such as – a. The keeping of order and providing for the protection of persons and property from violence and robbery. b. The fixing of the legal relations between man and wife and between parents and children. c. The regulation of the holding, transmission and interchange of property, and the determination of its liabilities for debt or for action. d. The determination of contract rights between individuals. e. The definition and punishment of crimes. f. The administration of justice in civil cases. g. The administration of political duties, privileges and relations of citizens. (Malcolm, Government of the Philippine Islands, 18-20) 2. Ministrant functions – Those undertaken only by way of advancing the general interests of society, and are, therefore, optional; such as – a. Public works b. Public education c. Public charity

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d. Health and safety regulations e. Regulation of trade and industry. (Ibid.) Is the said classification still followed? Basically, the concept still remains but there are instances when some services were considered as a governmental function or a nongovernmental function. Housing, for instance, on account of the pressing need of a growing number of people, both in cities and in the provinces, has become a governmental function. Supply of water, however, was considered a trade and not a governmental activity. (Spouses Fontanilla vs. Hon. Maliaman, G.R. Nos. 55963 and 61045, February 27, 1991) What is the doctrine of Parens Patriae? Literally, this means father of his country. It is a doctrine which refers to the inherent power or authority of the State to provide protection of the person and property of a person non sui juris. Under this doctrine, the State has the sovereign power of guardianship over persons under disability. Thus, the State is considered the parens patriae of minors. (Vasco vs. Court of Appeals, 81 SCRA 762)

SOVEREIGNTY – Is the supreme power in a State by which that State is governed (Moore, Digest of International Law), or the supreme, the absolute, uncontrollable power by which any State is governed. (Cooley’s, Constitutional Limit) Q – What are the four (4) kinds of sovereignty? A – There are four kinds of sovereignty, to wit: 1. Legal Sovereignty – represents the lawyer’s conception of sovereignty; that is, sovereignty as the supreme law-making power. The legal sovereign is that determinate authority which is able to express in legal form the highest commands of the State – that power which can override the prescriptions of the divine law, the principles of morality, the mandates of public opinion. (Garner, Political Science and Government, pp. 168-172) 2. Political Sovereignty – is that power behind the legal sovereign which is legally unknown, unorganized and incapable of expressing the will of the State in the form of legal command, yet without power to whose mandates the legal sovereign will in practice bow and whose will must ultimately prevail in the State. In a narrower sense, the electorate constitutes the political sovereign, and in a broader sense, the whole mass of population. (Ibid.) 3. Internal Sovereignty – implies the power of the State to make and alter its system of government, and to regulate its private affairs, as well as the rights and relations of its citizens, without any dictation,

INTRODUCTION

29

interference, or control on the part of any person or body or State outside the particular political community. (Black’s Constitutional Law, p. 17) 4. External Sovereignty – that the State spoken of is not subject to the control, dictation, or government of any other power. It necessarily implies the right and power to receive recognition as an independent power from other powers, and to make treaties with them on equal terms, make war or peace with them, send diplomatic agents to them, acquire territory by conquest or occupation, and otherwise to manifest its freedom and autonomy. (Ibid.) Q – What are the essential characteristics of sovereignty? Explain each. A – Sovereignty is permanent, exclusive, comprehensive, inalienable, imprescriptible and unified. 1. Permanence – it is the quality by virtue of which the sovereignty of the State continues without interruption so long as the State itself exists. It does not cease with the death or temporary dispossession of a particular bearer, or the re-organization of the State, but shifts immediately to a new bearer, as the center of gravity shifts from one part of a body to another when it undergoes external change. (Garner, Political Science and Government, p. 170) 2. Exclusiveness – it is that quality by virtue of which there can be but one supreme power in the State, legally entitled to the obedience of the inhabitants. To hold otherwise would be to deny the principle of “unity of State” and to admit the possibility of an “imperium in imperio.” (Garner, Political Science and Government, p. 170) 3. All-Comprehensiveness – it is the universality of sovereignty within the territorial limits of the State; that is, sovereign power extends over all persons, associations and things within such territorial limits except those over which the State has voluntarily consented to waive the exercise of its jurisdiction. (Ibid.) 4. Inalienability – it is an attribute of the State by virtue of which it cedes away any of its essential elements without self-destruction. (Ibid., 171) 5. Imprescriptibility – it is the principle exclusively of private law which can never run against the rights of the people and could in no case be invoked in support of an argument that the people had lost their sovereignty through the operation of such principle. (Ibid., 172) 6. Unity – it is the principle that sovereignty cannot be divided without producing several wills, which is inconsistent with the notion of sovereignty. (Ibid., 173)

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Q – If the Philippines is invaded by a superior military force belonging to another country, what will be its effect: (a) on our political laws; (b) on our municipal laws; (c) on judicial decisions? A – On Our Political Laws – Political laws immediately cease to have effect, except insofar as they are continued in force by the express consent of the new sovereign. On Our Municipal Laws – Our municipal laws which are not in conflict with the laws of the new sovereign may continue in force with the express consent of the new sovereign. On Judicial Decisions – The judicial decisions are valid during the occupation and even beyond except those of a political complexion which are automatically annulled as soon as the legitimate authority is restored. (Effect of military occupation, Co Cham vs. Valez Tan Keh, 75 Phil. 113) Q – What is the effect of belligerent occupation? A – There is no change in sovereignty. Political laws, except the law on treason, are suspended (Laurel vs. Misa, 77 Phil. 856); municipal laws remain in force unless repealed by the belligerent occupant. However, at the end of the belligerent occupation, when the occupant is ousted from the territory, the political laws which had been suspended during the occupation shall automatically become effective again, under the doctrine of jus postliminium. Q – Distinguish dominium from imperium. A – Dominium refers to the capacity to own or acquire property, including lands held by the State in its proprietary capacity while the imperium is the authority possessed by the State embraced in the concept of sovereignty. Q – What is the power and jurisdiction of the State (1) over persons and things within its territory; (2) over its nationals; (3) outside its territory? A – 1. Territorial power and jurisdiction – the State has power and jurisdiction over persons and things within its territory. Those who are exempt from this power and jurisdiction are the following: (a) Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; (b) Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities; (c) Acts of State; (d) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as arrival under stress; (e) Foreign armies passing through or stationed in its territory with its permission; and

INTRODUCTION

(f)

31

Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waive jurisdiction. CASE

CALLADO VS. INTERNATIONAL RICE RESEARCH INSTITUTE G.R. NO. 106483, MAY 22, 1995 PARTICULAR SUBJECT: IMMUNITY FROM SUIT PRINCIPLE: The International Rice Research Institute Inc., enjoys immunity from penal, civil and administrative proceedings. FACTS: Ernesto Callado was employed as a driver at the International Rice Research Institute (IRRI) from April 11, 1983 to December 14, 1990. On February 11, 1990, while driving an IRRI vehicle on an official trip to the Ninoy Aquino International Airport and back to the IRRI, petitioner figured in an accident. IRRI issued a notice of termination to Callado on December 7, 1990. Thereafter, Callado filed a complaint on December 19, 1990, before the Labor Arbiter for illegal dismissal, illegal suspension and indemnity pay with moral and exemplary damages and attorney’s fees. On January 2, 1991, IRRI, through counsel, wrote the Labor Arbiter to inform him that the Institute enjoys immunity from legal process by virtue of Article 3 of Presidential Decree No. 1620, and that it invokes such diplomatic immunity and privileges as an international organization in the instant case filed by Callado, not having waived the same. While admitting IRRI’s defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the Institute on August 13, 1991 to the effect that “in all cases of termination, IRRI waives its immunity, and, accordingly, considered the defense of immunity no longer a legal obstacle in resolving the case.” On October 31, 1991, the Labor Arbiter ordered to reinstate Callado and to pay him backwages. The NLRC found merit in IRRI’s appeal and, finding that IRRI did not waive its immunity, set aside the Labor Arbiter’s decision and dismissed the complaint. Callado contended that the immunity of the IRRI as an international organization granted by Article 3 of Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch as it waived the same by virtue of its Memorandum on “Guidelines on the handling of dismissed employees in relation to P.D. 1620.”

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It is also Callado’s position that a dismissal of his complaint before the Labor Arbiter leaves him no other remedy through which he can seek redress. He further states that since the investigation of his case was not referred to the Council of IRRI Employees and Management (CIEM), he was denied his constitutional right to due process. ISSUE: Is P.D. No. 1620 constitutional? Is IRRI immuned from the jurisdiction of the Department of Labor and Employment? HELD: Presidential Decree No. 1620, Article 3, provides: “Article 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives.” The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is the only way by which it may relinquish or abandon this immunity. On the matter of waiving its immunity from suit, IRRI had made its position clear. Through counsel, the Institute wrote the Labor Arbiter categorically informing him that the Institute will not waive its diplomatic immunity. In the second place, Callado’s reliance on the Memorandum with “Guideline in handling cases of dismissal of employees in relation to P.D. 1620” dated July 26, 1983, is misplaced. The Memorandum reads, in part: “Time and again the Institute has reiterated that it will not use its immunity under P.D. 1620 for the purpose of terminating the services of any of its employees. Despite continuing efforts on the part of IRRI to live up to his undertaking, there appears to be apprehension in the minds of some IRRI employees. To help allay these fears the following guidelines will be followed hereafter by the personnel/ legal office while handling cases of dismissed employees.” Callado’s allegation that he was denied due process is unfounded and has no basis. He was informed of the findings and charges resulting from an investigation conducted of his case in accordance with IRRI policies and procedures. He had a chance to comment thereon in a Memorandum he submitted to the Manager of Human Resource and Development Department. Therefore, he was given proper notice and adequate opportunity to refute the charges and findings, hereby fulfilling the basic requirements of due process.

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33

Callado was not denied due process, and this, notwithstanding the nonreferral to the Council of IRRI Employees and Management. IRRI correctly pointed out that Callado, having opted not to seek the help of the CIEM Grievance Committee, prepared his answer by his own self. He cannot now fault the Institute for not referring his case to the CIEM. OTHER CASES a.

b.

c. d.

In International Catholic Migration Commission vs. Hon. Calleja, et al., and the Kapisanan ng Manggagawa at TAC sa IRRI vs. Secretary of Labor and Employment and IRRI, 190 SCRA 130 (1990) – In this case, the constitutionality of P.D. No. 1620 was sustained. The court took into consideration that the Acting Secretary of Foreign Affairs wrote a letter to the Secretary of Labor and Employment. The Court stated that the opinion contained in the said letter constituted “a categorical recognition by the Executive Branch of the Government that IRRI enjoy immunities accorded to international organization,” which determination has been held to be a political question conclusive upon the courts in order not to embarrass a political department of government. In Southeast Asian Fisheries Development Center vs. NLRC, et al., G.R. No. 82631, February 23, 1995 – In this case, Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDECAQD), an international agency, enjoys diplomatic immunity. Lasco, et al. vs. UNRFNRE, etc., G.R. No. 109095, February 23, 1995 – In this case, the diplomatic immunity of respondent was sustained. In World Health Organization vs. Aquino, 48 SCRA 242 (1972) – In this case, the diplomatic immunity of World Health Organization was sustained. The Supreme Court justified its decision in this manner: “As a matter of State policy as expressed in the Constitution, the Philippine government adopts the generally accepted principles of international law. (1987 Constitution, Article II, Section 20) Being a member of the United Nations and a party to the convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force of law. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government. It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government,

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the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.” e. In Holy See vs. Rosario, G.R. No. 101949, December 1, 1994 – In this case, the diplomatic immunity of respondent was sufficiently established by the letter of the Department of Foreign Affairs recognizing and confirming the immunity of the UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine government was a party. 2. Personal jurisdiction – The State has power of jurisdiction over its nationals, which may be exercised by the State even if the individual is outside the territory of the State. 3. Extraterriorial jurisdiction – The State has power and jurisdiction beyond or outside its territory: (a) When it asserts its personal jurisdiction over its nationals abroad; or the exercise of its rights to punish certain offenses committed outside its territory against its national interests even if the offenders are non-resident aliens; (b) When the local state waives its jurisdiction over persons and things within its territory, such as when a foreign army stationed therein remains under the jurisdiction of the sending state; (c) When it establishes a colonial protectorate, or a condominium, or administers a trust territory, or occupies enemy territory in the course of war; (d) When it enjoys easements or servitudes (i.e., easement of innocent passage or arrival under stress; (e) When it exercises jurisdiction over its vessels in the high seas, or over pirates while doing a hot pursuit operation; (f) When it exercises limited jurisdiction over the contiguous zone and the patrimonial sea to prevent infringement of its customs, fiscal, immigration or sanitary regulations; (g) When it exercises the principle of exterritoriality (i.e., immunities of a head of state in a foreign country). Q – Distinguish legal sovereignty from political sovereignty A – Legal sovereignty – means the supreme authority to enact laws to issue final commands.

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35

Political sovereignty – on the other hand, means the sovereignty of the electorate; or in its general sense, the sovereignty of the whole body politic. The legislature represents the legal sovereign, the electorate or the whole people, the political sovereign. These distinctions, it must be borne in mind, do not imply the recognition of dual sovereignty, for sovereignty is not divisible; rather, they are manifestations of one and the same sovereignty. (Dicey, Law of the Constitution, 8th ed., pp. 71-72) Q – Distinguish sovereignty from independence. A – Sovereignty is the supreme power of the State by which the State is governed. It has two aspects: internal and external. In its internal aspect, sovereignty is the power inherent in the people or vested in its ruler by the Constitution to govern the State. Sovereignty does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. In its external aspect, sovereignty consists in the independence of one political society in respect to other political societies. The external sovereignty of any State requires the recognition by other States in order to render it perfect and complete. This external manifestation is what is called independence. (Malcolm, Constitutional Law) Q – Distinguish titular from actual sovereignty. A – Titular sovereignty is sovereignty fictitiously vested in a ruler who personifies the power and majesty of the State and in whose government is conducted, but the real sovereignty is vested in other hands. (Ibid.) Q – What is the doctrine of jus postlimini? A – When a territory which has been occupied by the enemy comes again into the power of the State during the progress of a war through conquest or otherwise, the legal state of the things existing prior to the hostile occupation is re-established. (Aruego, International Law)

IX. FUNDAMENTAL AND INHERENT POWERS OF THE STATE Q – What are the fundamental and inherent powers of the State? A – They are the following: (1) police power; (2) power of eminent domain; and (3) power of taxation. Q – Explain each. A – Police Power It is the sovereign power to promote and protect the general welfare. It is the “most pervasive and the least limitable of the three powers of the State (Ynot vs. Intermediate Court of Appeals, 148 SCRA 659), the most

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essential, consistent and illimitable which enables the State to prohibit all hurtful things to the comfort, safety and welfare of society. (Lozano vs. Martinez, 146 SCRA 323) It is also referred to as the law of overwhelming necessity. It is the power of the State to enact such laws or regulations in relation to persons and property as may promote public health, public morals, public safety, and the general welfare and convenience of the people. (Primicias vs. Fugoso, 80 Phil. 71) Power of Eminent Domain Eminent domain is the right of the State to acquire private property for public use upon payment of just compensation. This right can also be exercised by those to whom the said power has been lawfully delegated. Eminent domain is also defined as the right of the sovereign power to appropriate not only the public but also the private property of all citizens within the territorial sovereignty to public purpose. (Charles River Bridge vs. Warren Bridge, 11 Pet. 240 641 U.S. 1837) The power of eminent domain is inseparable in sovereignty, being essential to the existence of the State and inherent in government even in its most primitive forms. No laws therefore are ever necessary to confer this right upon sovereignty or quasi-sovereign power. Power of Taxation It is the inherent power of the State to raise revenues to defray the expenses of government or for any public purpose. The power to tax may include the power to destroy if it is used validly as an implement of the police power in discouraging and ultimately prohibiting in effect certain things or enterprise inimical to the public welfare. Q – Why are those powers inherent in the State? A – The birth of the State carries with it the authority to exercise those powers. They co-exist with the State and they are enduring and indestructible as the State itself. They are inherent and co-terminus with the life of the State itself. In fact, they need not be expressly conferred by the Constitution in favor of the State. SIMILARITIES OF THE THREE INHERENT POWERS OF THE STATE 1. They are the three methods by which the State interfere with private rights.

INTRODUCTION

2. 3. 4. 5.

37

They are inherent in the State and they may be exercised by the State without the need of express constitutional grant. They are not only necessary but also indispensable and indestructible as the State itself. They presuppose equivalent compensation. They are exercised primarily by the legislative.

Q – Distinguish the three powers from each other. A – Code: N-P-E-R N – ature (As to nature of compensation) P – roperty (As to nature of property) E – xercise of power (As to how the power is exercised) R – egulated (As to what is regulated) AS TO NATURE OF COMPENSATION In Police Power – The compensation of the person subjected to police power is the intangible altruistic feeling that he has contributed to the general welfare. In Eminent Domain and Taxation – The compensation is more concrete. In Eminent Domain – There is full and just compensation of the property taken. In Taxation – There is corresponding protection and public improvements for the taxes paid. AS TO NATURE OF PROPERTY In Police Power – Police power involves destruction and confiscation of property which are noxious. In Eminent Domain and Taxation – The property taken is for public use. AS TO HOW THE POWER IS EXERCISED In Police Power and Taxation – They are inherently exercisable only by the government. In Eminent Domain – It may be exercised by private entities upon valid delegation. AS TO WHAT IS REGULATED In Police Power – It regulates liberty and property. In Eminent Domain and Taxation – They are addressed to private rights only.

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SIMILARITIES 1. They exist independently of fundamental law, as a necessary attribute of sovereignty. 2. They underlie the Constitution and rest upon necessity because there can be no effective government without them. 3. They are enduring and indestructible as the State itself. 4. They constitute the three methods by which the State interferes with private property rights. 5. Each presupposes an equivalent compensation; by the police power, thru the maintenance of a healthy economic standard of society; by taxation, in the form of protection, and benefits from the government; and by eminent domain, thru the receipt of the market value of the property taken. MULTIPLE CHOICE QUESTIONS 1.

No man-made laws can prevail against the Constitution A. Because it is a legislation direct from the people acting in their sovereign capacity. B. Because it is more superior than an ordinary law or statute which is merely a legislation from the people’s representatives. C. Because it is the monument of the people’s will. D. Because it is the supreme law of the land.

2.

How the 1987 Constitution may be modified? The 1987 Constitution may be modified by: A. People’s Initiative B. Constituent Assembly C. Constitutional Convention D. Either by amendment or revision.

3.

The question of whether the amendatory process will be done by Congress or Constitutional Convention The question of whether the amendatory process will be done by Congress or Constitutional Convention, should be decided: A. By the people B. By the Supreme Court

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C. D.

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By the President By Congress

4.

Whether the power to amend the Constitution or to propose amendments to the Constitution is included in the general grant of legislative power The power to amend the Constitution or to propose amendments to the Constitution is not included in the general grant of legislative power, because: A. The power of the members of Congress is merely to legislate laws. B. The members of Congress should focus merely on what bill or law is needed at a particular time. C. The members of Congress are so busy not only with lawmaking but also with providing worthwhile projects to their constituencies. D. It is part of the inherent powers of the people as the repository of sovereignty in a Republican State.

5.

Can the people exercise the power to revise the Constitution? A. Yes, because the people are the very source of all powers of government including the Constitution itself. B. Yes, the authority of the people to do so does not emanate from the Constitution. Sovereignty resides in the people and all government authority emanates from them. C. The people, through their initiative, can propose amendments to the Constitution but they cannot propose revisions though their initiative. D. The right to revise the Constitution is exclusively reserved to Congress as a constituent assembly or to a Constitutional Convention, if one is called by Congress.

6.

Is it proper and wise that an amendment to or revision of the Constitution be simultaneously undertaken by both the Congress as a Constituent assembly and a Constitutional Convention? A. Yes, if Congress allows it. B. Yes, if this is granted by the Constitution to Congress. C. Yes, because Sections 1, 2 and 3 of Article XVII uses the word “or,” which is in the alternative. D. No, the same may cause confusion when two (2) bodies submit contradictory proposals, and besides, the ordinary electorate may not be intellectually prepared to understand and analyze the conflicting proposals submitted to them in a plebiscite.

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7.

The question of whether the government under Gloria MacapagalArroyo that was established after the ouster of President Joseph Estrada is a De Jure Government or De Facto Government The government under Gloria Macapagal-Arroyo that was established after the ouster of President Joseph Estrada is a de jure government because: A. She was sworn into office by then Chief Justice Hilario Davide. B. Congress has rejected President Estrada’s claim of inability. C. The Armed Forces of the Philippines are no longer supporting him. D. President Estrada’s claim of inability has already been laid to rest by Congress and the decision that Gloria Macapagal-Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by the Supreme Court.

8.

Effect on our municipal laws in case of invasion by a superior military force If the Philippines is invaded by a superior military force belonging to another country, our municipal laws are: A. Immediately suspended. B. Immediately nullified. C. Enforced except insofar as they are continued in force by the express consent of the new sovereign. D. Municipal Law which are not in conflict with the law of the new sovereign may continue in force with the express consent of the new sovereign.

9.

Search and seizure of the personal effects contained in several crates of an official of the World Health Organization (WHO) The Court issued a search and seizure of the personal effects contained in several crates of an official of the World Health Organization (WHO), allegedly for the reason that it contained contraband items. The WHO officials protested and the Secretary of Foreign Affairs advised the court that the WHO official concerned has diplomatic immunity. This was supported by the Solicitor General. The RTC denied the motion. A. The RTC’s denial is correct because the said search and seizure was issued in accordance with Sec. 2, Art. III of the 1987 Constitution. B. The RTC’s denial is correct because in case of conflict between a treaty and our Constitution, our Constitution should prevail. C. The RTC’s denial is correct because the question of whether or not a search and seizure is valid is a justiciable question.

INTRODUCTION

D.

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Diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government.

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CHAPTER I

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES (FROM THE PREAMBLE TO ARTICLE XVIII) PREAMBLE WE, THE SOVEREIGN FILIPINO PEOPLE IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION. COMMENT: 1. THE DIFFERENCE AT A GLANCE OF THE 1935, 1973 AND 1987 CONSTITUTIONS 1935

1973

1987

THE FILIPINO PEOPLE IMPLORING THE AID OF DIVINE PROVIDENCE, IN ORDER TO ESTABLISH A GOVERNMENT THAT SHALL EMBODY THEIR IDEALS, CONSERVE AND DEVELOP THE PATRIMONY OF THE NATION, PROMOTE THE GENERAL WELFARE, AND SECURE TO THEMSELVES AND THEIR POSTERITY THE BLESSINGS OF INDEPENDENCE UNDER A REGIME OF JUSTICE, LIBERTY, AND DEMOCRACY, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF DIVINE PROVIDENCE, IN ORDER TO ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS, PROMOTE THE GENERAL WELFARE, CONSERVE AND DEVELOP THE PATRIMONY OF OUR NATION, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF DEMOCRACY UNDER A REGIME OF JUSTICE, PEACE, LIBERTY, AND EQUALITY, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE

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PREAMBLE

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

2.

BRIEF BACKGROUND The preamble of the 1935 Constitution starts with the phrase “The Filipino People, etc.”, a third person approach, which will remind us about this factual background: That on March 24, 1934, the U.S. Congress passed and approved the Tydings-McDuffie Law, and that under this law, the People of the Philippine Islands were authorized to draft a Constitution, subject to the following conditions and qualifications: a) A Constitution shall be drafted and approved by a Constitutional Convention authorized to be called under the law; b) The President of the United States shall certify that the Constitution so drafted and approved conformed with the provisions of the law; and c) That the said Constitution shall be ratified by the people of the Philippine Islands at an election or plebiscite called for ratifying or rejecting the Constitution. The preamble of the 1973 and the 1987 Constitutions starts with the phrase “We, the sovereign Filipino people, a first person approach, which means that the authors of the 1973 and the 1987 Constitution are the Filipino people, and it is the Filipino people themselves who approved and ratified them in a plebiscite, without any participation whatsoever from the American government. 3.

MEANING OF PREAMBLE It is a formal expression of the ideals and sentiments of the Filipino people, and of the purpose and objectives of the government established under the Constitution. It serves two important ends: First, it indicates the source from which the Constitution comes, namely in the case of the Philippine Constitution, “We, the sovereign Filipino people.” Secondly, it sets forth the ends that the Constitution and the government established by it are intended “to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this Constitution.” 4.

IT IS NOT PART OF THE CONSTITUTION While it is not part of the Constitution, it possesses significance. It is to a Constitution what the enacting clause is to a statute. Strictly speaking, it may

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not justify the exercise of governmental power, or may not be relied upon for a claim of an individual right, but it serves an important purpose. 5.

IT IS NOT A SOURCE OF RIGHTS OR OBLIGATIONS It is merely an aid in ascertaining the meaning of ambiguous provisions in the body of the Constitution. 6.

PHRASES OR WORDS FOUND IN THE 1987 CONSTITUTION WHICH ARE NOT FOUND IN THE 1935 CONSTITUTION. WHAT IS THE REASON FOR THE CHANGE? 1. The preamble of the 1973 and 1987 Constitution starts with the phrase “We, the sovereign Filipino people,” a first person approach. REASON: The authors of the 1973 and the 1987 Constitution are the “sovereign Filipino people.” 2. The words “general welfare” now read “common good.” REASON: It promotes a just and dynamic social order, a just and humane society that will help not only the greater number of people but also all the people to enjoy the blessings of democracy. 3. The words “the patrimony of the nation” now read “our patrimony” to make it more emphatic. 4. The words “blessings of democracy” now read “blessings of independence and democracy” to underscore the importance of true independence even in the presence of democratic beliefs and practices. 5. The words “imploring the aid of Divine Providence” now appear as “imploring the aid of Almighty God” to make the reference to God more personal and direct. 6. The last portion of the preamble contains new words such as “rule of law,” “truth,” “justice,” “freedom,” and “love.” The words “rule of law” were introduced by former Chief Justice Roberto Concepcion and former Senator Ambrosio Padilla. It means that the authority of government officials is defined and prescribed by law and this authority continues only with the consent of the sovereign Filipino people. Truth emphasized the need to act on the basis of real facts and figures and avoid deception, distortion and misrepresentation. The word “freedom” was used instead of “liberty” because freedom covers also freedom from fear and freedom from want. The word “love” was used to assert the need for love in the face of divisions and discards on account of varying political and social beliefs, practices and persuasions.

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MULTIPLE CHOICE QUESTION PREAMBLE The Preamble indicates the source from which the Constitution comes, namely in the case of the Philippine Constitution, “the sovereign Filipino People.” A. It is therefore a part of the Constitution. B. It is a source of rights or obligations. C. It is not part of the Constitution. D. It is not part of the Constitution. Strictly speaking, it may not justify the exercise of governmental power, or may not be relied upon for a claim of an individual right but it serves an important purpose. ARTICLE I NATIONAL TERRITORY The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. Q – What is the scope of our national territory as defined in Article I? A – It includes: (a) The Philippine archipelago, with all the islands and waters embraced therein; (b) All other territories over which the Philippines has sovereignty or jurisdiction consisting of – (b.1) Its territorial, fluvial and aerial domains (c) The territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. (d) The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions. Q – The words “historic right or legal title” found in the 1973 Constitution were deleted. Have we abandoned our claim over Sabah on account of the said deleted words?

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A – Three legal luminaries have these opinions. 1. Former Senator Arturo M. Tolentino claims that on account of the said deletion, we have dropped our claim over Sabah and our right to our territorial waters covering 90 million hectares of water under the Treaty of Paris and related treaties. 2. Professor Jose N. Nolledo, a delegate to the 1986 Constitutional Commission, disagreed with the said observation and said that the definition of our territory, territorial and internal waters including the 200-mile economic zone as well as the islands over which we have historic right or legal title is provided for and duly protected under Republic Act 3046 as amended by Republic Act 5446, Presidential Decree No. 1596 and Presidential Decree No. 1559, all of which, pursuant to Section 3, Article XVII of this Constitution, shall continue to be valid and effective until amended or repealed. 3. Rev. Fr. Joaquin Bernas, who is also a delegate to the 1986 Constitutional Commission, said that the words “all other territories over which the Philippines has sovereignty or jurisdiction” do not include Sabah but do not exclude it either because of our adherence to the generally accepted principles of international law which enables the nation to acquire territory by cession, purchase and so forth. He added that if at some future time the Philippine government exercises jurisdiction over Sabah, it will be part of our territory. (Volume 1, pp. 229-321, Records of the 1986 Constitutional Commission) 4. It is respectfully submitted that the deletion of the words “all other territories belonging to the Philippines by historic right or legal title” does not mean that we have abandoned or dropped our claim over Sabah. If at all, they merely erased reference to the old treaties like the Treaty of Paris. We are not precluded to pursue our claim over Sabah despite the said deleted phrase. The absence of express or implied reference to the Treaty of Paris and other treaties that support our territorial boundaries, will not nullify the said treaties nor the Convention on the Law of the Sea and related rules. Q – What are the four points of reference to determine the Philippine territory as used in Article I of the 1935 Constitution? A – The four points of reference to determine the Philippine territory are as follows: 1. The territorial areas set forth in the Treaty of Paris of December 10, 1898. 2. Those set forth in the Treaty of Washington on November 7, 1900.

ARTICLE I NATIONAL TERRITORY

3.

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Those set forth in the Treaty between Great Britain and United States on January 2, 1930. 4. “All other territories over which the present Government of the Philippine Islands exercises jurisdiction.” Q – As used in Article I of the 1987 Constitution, what are covered? A – The following are covered: 1. The territorial areas and waters recognized in the Convention of the Law of the Sea of December 10, 1898. 2. The four points of reference mentioned earlier are included. Q – What is included by the phrase “all other territories belonging to the Philippines by historic or legal title”? A – 1. Any territory which presently belongs or might belong to the Philippines in the future through any of the internationally accepted mode of acquiring territory. 2. Those territories which under the 1973 Constitution belong to the Philippines “by historic right or legal title.” Q – Is the definition of our national territory binding against all other nations? A – No. The Constitution is a municipal law and its effectivity and enforcement is therefore limited only to its territorial jurisdiction as determined by the sovereignty upon which the authority to write and approve a Constitution is based. Nevertheless, there is a need to draw the lines so that the State and the inhabitants thereof, including the generations still to come, should be able to know the scope and extent of the territory over which their State exercises jurisdiction. For this purpose, and for historical reasons, the framers of our Constitution saw it fit and proper to make such a definition. In case of international conflicts, or when a territorial claim becomes an issue between two or more States, and the same is sought to be resolved by the United Nations, or by an international court of justice, recognized principles of international law will ultimately be the binding force that will resolve the dispute. Q – Why is there a need to draw the lines, the scope and the extent of our national territory? A – There is a need to draw the lines so that the State and the inhabitants thereof, including the generations still to come, should be able to know the scope and extent of the territory over which their State exercises jurisdiction. For this purpose, and for historical reasons, the framers of our Constitution saw it fit and proper to make such a definition.

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Q – What is the archipelago doctrine? A – Under this doctrine, the Philippine Archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. This assertion, together with the application of the “straight base line method,” is what is referred to as the Archipelagic Doctrine. By using this method, the outermost points of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. Q – On the strength of the said assertion, what are considered by the Philippines as part of its internal waters? A – On the strength of this assertion, the large bodies of water connecting the islands of the archipelago such as the Mindanao Sea, the Sulu Sea and the Sibuyan Sea, are considered by the Philippines as part of its internal waters, just like the rivers and lakes found within the islands themselves. Q – Under the Archipelagic Doctrine, what is our claim with respect to the waters around, between and connecting the islands of the archipelago? A – Our country claims them as part of the internal waters of the Philippines regardless of their breadth and dimensions, and they form part of the internal waters of the Philippines. Q – Authors of the same subject say that this is an affirmation and assertion of what we claim to be our national territory. What specifically is the provision in Article I which supports this assertion? A – 1. That part of the definition which provides that “The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein x x x”; and 2. “The waters around, between and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines.” BAR QUESTION (1996) Q – A law was passed dividing the Philippines into three regions (Luzon, Visayas, and Mindanao), each constituting as independent State except on matters of foreign relations, national defense and taxation, which are vested in the Central government. Is the law valid? A – It is submitted that the said law is not valid for being contrary to the following provisions of the 1987 Constitution, thus: a. The said law seeks to divide our country by dividing it into three independent states when it is precisely our goal, as provided in Article II, Section 3, “to secure the sovereignty of the State and the integrity of the national territory.”

ARTICLE I NATIONAL TERRITORY

b.

c.

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There should only be one democratic and republican State in the Philippines, as declared in Article II, Section 1, not three (3) independent states. When this happens, there shall no longer be one government authority, as provided in Section 1, but different and separate government authorities which are not unified and cohesive but divided in many respects. There is already an autonomous region in Muslim Mindanao and the Cordilleras and they already exist in line with, and within the framework of our national sovereignty and territorial integrity. The said law is therefore a violation of Section 15, Article X of the 1987 Constitution which already mandated the creation of an autonomous region in the said areas.

CREATION OF THE BJE (BANGSAMORO JURIDICAL ENTITY) The ARMM (Autonomous Region of Muslim Mindanao) was expanded into an entity known as the Bangsamoro Juridical Entity (BJE). In a Memorandum of Agreement by and between the GRP (Government of the Republic of the Philippines) and MILF (Moro Islamic Lideration Front), these provisions were stipulated: 1. The BJE is given the capacity to enter into economic and trade relations with foreign countries. 2. The BJE has the right to participate in Philippine Official missions involving negotiations of border agreements, environmental protection, sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain. 3. The GRP commits to ensure the participation of BJE in meetings and events in the ASEAN and the specialized UN agencies. 4. The GRP also continues to be responsible over external defense. The issue arises: Is the said memorandum of agreement valid and legal? Is the creation of the BJE conducive to national unity? The said memorandum of agreement is contrary to law and to our existing Constitution. Putting a portion of our national territory to a status which, in effect, is considered as a preparation for independence is not conducive to national unity. In this connection, it may be asked: Is the international law concept of “Association” recognized under the 1987 Constitution. Under such concept, two States of unequal power voluntarily establish durable links. One State, called as associate, delegates certain responsibilities to

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the other, while another state, called as the principal, maintains its international status as a State. Our present Constitution does not recognize this concept which implies powers that go beyond anything ever granted by the Constitution to any local or regional government, and which also implies the recognition of the associated entity as a State. Our 1987 Constitution does not contemplate any State in this jurisdiction other than the Philippine State, much less does it provide for transitory status that aims to prepare any part of Philippine territory for independence. (Province of North Cotabato, et al. vs. GRP, G.R. No. 183591, En Bank, October 14, 2008) CONSIDERING THE IMPORTANT ISSUES INVOLVED IN THIS CASE, THE AUTHOR HAS DEEMED IT NECESSARY TO EXPLAIN THE BACKGROUND, THE ISSUES AND THE RULINGS OF THE SUPREME COURT IN THE SAID CASE THE PROVINCE OF NORTH COTABATO, DULY REPRESENTED BY GOVERNOR JESUS SACDALAN AND/ OR VICE-GOVERNOR EMMANUEL PIÑOL, FOR AND IN HIS BEHALF VS. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ETC. G.R. NO. 183591, October 14, 2008 (In relation to other cases on the same subject, thus: G.R. NO. 183752, G.R. NO. 183893, G.R. NO. 183951, G.R. NO. 183962) FACTS: BACKGROUND 1. Before the scheduled signing of the MOA-AD (Memorandum of Agreement on the Ancestral Domain), there was a long process of negotiation and several prior agreements between the two parties since 1996; 2. On July 18, 1997, the GRP and MILF Peace Panel signed the Agreement on General Cessation of Hostilities. The parties are committed to pursue peace negotiations, protect and respect human rights, negotiate with sincerity and refrain from the use of threat or force; 3. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao, and in March, 2000,

ARTICLE I NATIONAL TERRITORY

4.

5.

6.

7.

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it took control of the town hall of Kauswagan, Lanao Del Norte. This resulted to the directive of President Joseph Ejercito for an “all-out war” against the MILF; The military offensive against the MILF was suspended when President Gloria Macapagal-Arroyo assumed office. Eventually, the parties decided to return to the negotiating table, upon the intercession of the Government of Malaysia; On March 24, 2001, the parties signed the Agreement on the General Framework for the Resumption of Peace talks between GRP and MILF. Thereafter, MILF suspended all its military actions; Formal peace talks were held in Tripoli, Libya from June 20-22, 2001. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed “that the same be discussed further by the parties in their next meeting.” In 2005, there were several exploratory talks between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which was set to be signed on August 5, 2008.

THE MAIN BODY AND THE MOA-AD IS DIVIDED INTO FOUR (4) STRANDS: (1) CONCEPTS AND PRINCIPLES; (2) TERRITORY; (3) RESOURCES; AND (4) GOVERNANCE CONCEPTS AND PRINCIPLES: (a) This strand begins with the statement that it is the “birthright of all Moros and all indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros.” It defines “Bangsamoro people” as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants, whether mixed or of full blood, including their spouses. (b) The concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands. (c) The MOA-AD proceeds to refer to the “Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.

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(d)

(e) (f)

(g)

(h)

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The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. The MOA-AD goes on to describe the Bangsamoro people as “the First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.” The term “First Nation” is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called “First Nation,” hence, all of them are usually described collectively by the plural “First Nation.” To that extent, the MOA-AD, by identifying the Bangsamoro people as “the First Nation”-suggesting its exclusive entitlement to that designation–departs from the Canadian usage of the term. The MOA-AD then mentions for the first time the “Bangsamoro Juridical Entity” (BJE) to which its grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. (Underlining Supplied)

TERRITORY (a) The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domain, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. (b) More specifically, the core of the BJE is defined as the present geographic area of the ARMM—thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite. (c) Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. (d) The BJE shall have jurisdiction over all natural resources within its “internal waters,” define as the extending fifteen (15) kilometers from the coastline of the BJE area, that the BJE shall also have “territorial waters,” which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the

ARTICLE I NATIONAL TERRITORY

(e)

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BJE and the “Central Government” (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources. Notably, the jurisdiction over the internal waters is not similarly described as “joint.” The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter,

RESOURCES (a) The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements. (b) The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to “take necessary steps to ensure the BJE’s participation in international meetings and events” like those of the ASEAN and the specialized agencies of the UN. (c) With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE. (d) The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. (e) The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the parties. (f) The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philip[pine Government, including those issued by the present ARMM. (Underlining Supplied). GOVERNANCE (a) The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact.

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THE “ASSOCIATIVE” RELATIONSHIP BETWEEN THE CENTRAL GOVERNMENT AND THE BJE The MOA-AD describes the relationship of the Central Government and the BJE as “associative,” characterized by shared authority and responsibility. And it states that the structure of the governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of the Comprehensive Compact and upon affecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. (Underlining Supplied) THE SIGNING OF THE MOA-AD DID NOT MATERIALIZE On motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. ISSUES: PROCEDURAL ISSUES (1) RIPENESS (2) LOCUS STANDI

(3) MOOTNESS

SUBSTANTIVE ISSUES: 1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initiated the MOA-AD? 2. DO THE CONTENTS OF THE MOA-AD violate our Constitution and our laws? HELD: 1. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. The people’s right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of the officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

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2. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for this concept presupposes that the associated entity is a state and implies that the same is on its way to independence. In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 3. THE CONCEPT OF ASSOCIATION IS NOT RECOGNIZED UNDER THE PRESENT CONSTITUTION: No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. 4. THE BJE IS A FAR MORE POWERFUL ENTITY THAN THE AUTONOMOUS REGION RECOGNIZED IN THE CONSTITUTION: It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it—which has betrayed itself by its use of the concept of association—runs counter to the national sovereignty and territorial integrity of the Republic. Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested Q – How about the clause in the MOA-AD that the provisions thereof inconsistent with the present legal framework will not be effective until the framework is amended?

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A – The same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From the President dated March 1, 2001, addressed to the government peace panel. (Ibid.) Q – What is the ruling of the Supreme Court regarding the issues of (1) Ripeness; (2) Locus Standi; and (3) Mootness? A. RIPENESS – The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. B. LOCUS STANDI – As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-inintervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. MacapagalArroyo. C. MOOTNESS – Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the “moot and academic” principle in view of: (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. (Ibid.) Q – Explain the meaning of the following terms: (1) Territorial sea; (2) Internal waters; (3) Archipelagic Waters; (4) Territorium nullius.

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A – Territorial sea or maritime belt is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control. Breadth or width of the territorial sea (During the 18th century – 3 nautical miles. REASON: Because at that time, the range of artillery was about 3 miles. Now, this is extended to 12 nautical miles from the low water mark, or in the case of archipelagic States, from the baselines. Internal waters are the waters on landmark side of the baselines from which the breath of the territorial sea is calculated. (These are completely within the territory.) (a) Rivers (b) Bays and gulfs (c) Straits (d) Canals Archipelagic Waters (2nd sentence of Section 1, Art. I, 1987 Constitution) – “The waters around, between and connecting the islands of the archipelago, regardless of the dimensions form part of the internal waters of the Philippines.” Territorium nullius means territory of no one, a territory which is the land of no State. Q – Can a ship or ships of other States enjoy the right of innocent passage through the territorial sea? How about in the internal waters? A – A ship or ships of other States enjoy the right of innocent passage through the territorial sea. (Article 11 of the Convention on the Law of the Sea) Foreign vessels have no right of innocent passage through the internal waters. BACKGROUND OF THE ADOPTION OF UNCLOS Adoption: The Convention, referred to as UNCLOS, was adopted by the UN Conference on the Law of the Sea on April 30, 1992 Open for signature: On December 10, 1982 at Montego Bay, Jamaica Entered into force: On November 16, 1994, pursuant to its Art. 301(1) When it received its 60th ratification on that date. The Philippines is a party to the Convention, having signed it on December 10, 1982, and ratified on May 8, 1984. 73 States have become parties to the Convention as of February 23, 1995. China and Japan signed it. On July 28, 1994: The US General Assembly adopted the Agreement relating to the implementation of Part XI of the Convention in its

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Resolution 48/263, with 120 States, including the Philippines, voting in favor. No negative vote, with 7 abstentions. 116 States, including the Philippines, have agreed to apply provisionally the agreement starting Nov. 14, 1994, the date of the Convention’s entry into force.

THE PHILIPPINE DECLARATION ON THE SIGNING OF THE CONVENTION ON THE LAW OF THE SEA Montego Bay, Jamaica Declaration of the Republic of the Philippines 10 December 1982 The government of the Republic of the Philippines hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:

1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 2. Signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty Between the Philippines and the United States of America of August 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty of agreement to which the Philippines is a party; 4. Such signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; 5. The Convention shall not be construed as amending in any manner or pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines; the Government of the Republic of the

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Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution; The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation; 8. The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty. For and on behalf of THE REPUBLIC OF THE PHILIPPINES (Sgd.) ARTURO M. TOLENTINO Minister of State for Foreign Affairs Chairman of Delegation

COMMENTS: Be it noted that based on the aforementioned Philippine Declaration, the Government of the Republic of the Philippines, through Former Senator and Vice-President Arturo Tolentino, signed and ratified the UNCLOS based on the understanding that: “1. The signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines”; 2. The signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America”; 3. The signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty Between the Philippines and the United States of America”; 4. The signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any

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territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto”; 5. The signing shall not be construed as amending in any manner the pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines”; 6. “The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security”; 7. “The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation”; 8. “The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty.” (Underlining Supplied) What are the implications of the foregoing reservations? 1. This means that sovereignty and jurisdiction shall be exercised over the territorial sea, as provided in Article I of the 1987 Constitution, thus: “The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. 2. The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and even in our previous Constitutions. 3. Despite the signing of the UNCLOS, Republic Act No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution.

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4. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. 5. The wording of the present Constitution (Article 1, 1987 Constitution, first sentence) is the same as Art. I of the 1973 Constitution, second sentence, thus: “The waters around, between and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.” 6. On this basis, it means that sovereignty and jurisdiction should be exercised over the territorial sea, the same principle and application of sovereignty that was observed when the 1973 and 1987 Constitutions was drafted and ratified. Under the UNCLOS, the following have become evident: 1. The internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers, and in permanent harbor works, which results to a drastic contraction of our territorial sovereignty. 2. The application of the UNCLOS rules on the maritime zones such as those governing the territorial sea, deprives the boundary line of the Treaty of Paris (international treaty limits) of any legal function. Assuming these lines or limits to be the boundaries of the Philippines, effect of the UNCLOS is to reorganize the entire territorial regime of the Philippines, resulting in the debasement of its territorial sovereignty. 3. The rights and duties of the Philippines in regard to the international community are those which pertain to the maritime zones, leaving the Treaty of Paris boundary lines without any legal purpose in terms of rights and duties. 4. The territorial sea of the Philippines extends no farther than 12 nautical miles, according to UNCLOS. Hence, it is only up to that limit that the Philippines enjoys sovereignty. Likewise, under the UNCLOS the internal waters of the Philippines are strictly limited to water in lakes, bays, gulfs, mouth of rivers and in permanent harbor works. This means a drastic contraction of its territorial sovereignty. Remember what I have discussed earlier in relation to the position of our government in relation to the archipelagic theory proposed by the Philippines in the U.N. Conference on the Law of the Sea, particularly our position with respect to the more than 7,000 islands comprising our terrestrial domain, thus: Q – (A) What is the “archipelagic theory” as proposed by the Philippines in the U.N. Conference on “The Law of the Sea,” and give its justification, legal or practical, from the standpoint of the Philippine position? A – (a) Under the archipelago theory, “the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and

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dimensions, form part of the internal waters of the Philippines and this is provided in Art. I, Sec. 1 of the 1973 Constitution, now Art. 1 of the 1987 Constitution. In this connection, our position is that the more than 7,000 islands comprising our terrestrial domain should be considered as one integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country. In effect, the conversion of our internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine State. THE THREE NAVIGABLE RIVERS There are three (3) divisions of the water of the earth, thus: 1. INLAND OR INTERNAL WATERS. They are within the land territory (i.e., Rivers, bays and gulfs, straits, lakes, canals) 2. TERRITORIAL SEA (This is also known as the maritime belt). It is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control. NOTE: Breadth or width of the territorial sea, as already discussed. 3. HIGH SEAS OR OPEN SEAS. They are part of the sea which is not included in the territorial sea or in the internal waters of any State. Q – Are the open seas included in the maritime zone of any State? A – No. By its very nature, the sea cannot be the property of any State. Q – What is the principle of “The Freedom of the Seas”? A – It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. Q – What then is the meaning of the statement that the open seas is not property of any State? A – This means that “it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NON ALIENUM LAEDAS. (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful

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business). Under Art. 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. Is this rule absolute? No. This may be regulated by a treaty. What is the freedom of navigation? It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. What is referred to as the contiguous zone? It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that customs laws, immigration and sanitary laws are properly and effectively enforced. What is referred to as the exclusive economic zone? It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. It was mentioned earlier that the area beyond the territorial sea is not part of the territory of a State. Does this mean that the coastal State has absolutely no rights over the said area? While it is true that the said area is not owned by any State, it does not mean that other States have absolutely no rights whatsoever to the use of the same. They may enjoy the following rights: 1. As already mentioned earlier, other States may enjoy the right of innocent passage through the said area on two conditions, as aforementioned. 2. The coastal State may exercise sovereign rights over economic resources of the sea, seabed, subsoil. 3. Other States shall have freedom of navigation and over-flight, to lay submarine cables and proper lines and other lawful uses. An example of the Philippine exclusive economic zone is the SCARBOROUGH SHOAL, which is situated about 135 kilometers from Iba, Zambales. What is referred to as the continental shelf? It is the sea-bed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

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Q – Can the coastal State enjoy the right of exploitation of oil deposits and other resources in the continental shelf? A – Yes. TO HAVE A CLEARER UNDERSTANDING OF JURISDICTION OF THE NAVIGABLE WATERS, TAKE NOTE OF THE FOLLOWING: 1. Internal waters Together, they comprise what is generally known as Territorial sea the territorial waters of a State. Q – Who has the jurisdiction over these waters? A – A State exercises sovereignty over these waters to the same extent as its land territory but foreign vessels have the right of innocent passage (Art. II of the Convention of the Law of the Sea) Q – Can ship or ships enjoy the right of innocent passage on the internal waters? A – Foreign vessels have no right of innocent passage through the internal waters. 2. High Seas They are international waters. or Open Seas Q – Are they subject to the sovereignty of any state? A – They are not subject to the sovereignty of any state. As I said earlier, “it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NON ALIENUM LAEDAS. (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Art. 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. THE WORD “ARCHIPELAGO” IN ARTICLE I It supports and strengthens the concept that the Philippines is an archipelago which, as said earlier, is considered as one integrated unit, instead of being fragmented into more than 7, 200, islands. Hence, the “waters around, between and connecting the island archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.”

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WHAT IS THE POSITION OF THE PHILIPPINE GOVERNMENT IN RELATION TO THE ARCHIPELAGO DOCTRINE? The three (3) mile limit, and even the twelve (12) mile limit, does not protect the interest of the Philippines. REASONS: 1. It will result to the dismemberment of our archipelago, the Sibuyan sea separating from the Visayas, and the Mindanao strait and Sulu isolating Palawan from the rest of the archipelago. 2. The said waters would cease to be Philippine waters. They would become international waters or high seas, and fishing vessels from all nations can enter to get the fish and other living resources of the sea which nature and Divine Providence intended for the Filipinos. 3. Warships of even unfriendly nations could enter these waters and stay there with perfect legal right to do so. 4. Likewise, we would lose a large part of our territory or both sides of the archipelago, towards the China Sea and the Pacific Ocean. This is the position of the Philippine Government during the International Convention of the Law of the sea held in Geneva in 1958. On August 15, 1971 then Solicitor Estelito Mendoza had this statement in Geneva: “x x x To suggest that each island has its own territorial sea and that base lines must be drawn around each island is to splinter into 7,000 pieces what is a single nation and a united State. One need only imagine a map of the Philippines with territorial seas around each island and with pockets of high seas in between islands to realize the absurdity of the resulting situation. Depending on the breadth of the very heart of the country may be such small areas of no more than 5 to 10 or 15 square miles. And yet, on account of this, on the pretext of going to those pockets of high seas, any vessel may intrude into the middle of our country, between, for example, the islands of Bohol and Camiguin which from shore to shore are separated by no more than 29 miles.” THE ARCHIPELAGO DOCTRINE AND THE EXCLUSIVE ZONE RIGHTS WAS FURTHER STRENGTHENED AND ARTICULATED IN THE UNCLOS This is shown by the express reservation of Former Senator and Vice President Arturo Tolentino, as stated earlier in my comments, thus:

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1. The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and even in our previous Constitutions. 2. Despite the signing of the UNCLOS, Republic Act No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution. 3. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. The wording of the present Constitution (Article I, 1987 Constitution, first sentence) is the same as Art. I of the 1973 Constitution, second sentence, thus: “The waters around, between and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.” On this basis, it means that sovereignty and jurisdiction should be exercised over the territorial sea, the same principle and application of sovereignty that was observed when the 1973 and 1987 Constitution was drafted and ratified. MULTIPLE CHOICE QUESTION Effect of the deletion of words “Historic Right or Legal Title” in the definition of our National Territory The words “historic right or legal title” found in the 1987 Constitution were deleted. A. Because of the deletion, we have dropped our claim over Sabah. B. We have dropped our claim over Sabah and our right to our territorial waters covering 90 million hectares of water under the Treaty of Paris and related treaties. C. The islands over which we have historic right or legal title is provided for and duly protected under Republic Act 3016 as amended by Republic Act 5446, Presidential Decree No. 1596 and Presidential Decree No. 1559, all of which, pursuant to Sec. 3, Art. VII of the Constitution, shall continue to be valid and effective until amended or repealed. D. The provision in the Constitution which states that all other territories belonging to the Philippines by “historic right of legal title,” does not mean that we have abandoned or dropped our claim over Sabah. If at all, they merely erased reference to the old treaties like the treaty of Paris. We are not precluded to pursue our claim over Sabah despite the said deleted phrase.

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ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES SIX PRINCIPLES MENTIONED IN SECTIONS 1 TO 6

1. 2. 3. 4. 5. 6.

S -overeignty resides in the people and all government authority emanates from them. R -enunciation of war as an instrument of national policy. C -ivilian authority is, at all times, supreme over the military. P -rime duty of the Government is to serve and protect the people. P -romotion of general welfare and maintenance of peace and order. S -eparation of church and State.

PRINCIPLE OF REPUBLICANISM (Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.) SECTION 1 DECLARES THE PRINCIPLE OF REPUBLICANISM Q – What is a republican government? A – A republican government is a government which is run by the people through their chosen representatives who, in turn, are accountable to the sovereign will of the people. They derive their mandate from the people who elect them for a period or a term that is fixed by law. They cannot, strictly speaking, go against the specific authority and sovereign will of the people for they are precisely the source of all government authority and are merely the trustees who are expected to act for and in their behalf and for their benefit. The basis for this is emphatically declared in Sections 1 and 4 of Article II, and Section 1, Article XI of our Constitution. Q – What are the characteristics of a republican government? A – (a) The people choose their representatives and public officials for a period fixed by law. (b) Said public officials are entrusted with the duty to serve the people who choose them. (c) The purpose of a republican government is to promote the common welfare of the people according to the will of the people. (d) This will is determined by the rule of the majority. (e) Under a republican system, no person is above the law, which means that it applies to everyone regardless of status in life, creed, political and religious persuasion and color of his skin. This affirms

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(f) (g)

the principle that our government is a government of laws and not of men. The principle of separation of powers and the system of checks and balances is observed. The legislature cannot pass irrepealable laws.

Q – One of the characteristics of a republican government is the observance of the doctrine of separation of powers. Explain the doctrine of separation of powers. A – SEPARATION OF POWERS: It operates to maintain the legislative powers to the legislative department, executive powers to the executive department, and those which are judicial in character to the judiciary. Through this allocation of powers, the person entrusted with power in any of the departments of government shall not be permitted to encroach upon the power confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equality of the several departments. The completeness of their separation and their mutual independence, does not, however, extend to the point that those in authority in one department can ignore and treat the acts of those in authority in the other, done pursuant to the authority vested in them, as nugatory and not binding in every other department. (Kilbourn vs. Thomson, 103 U.S. 168, 190, 25 L. ed. 377, 386; Abueva vs. Wood, 45 Phil. 612) In effect, therefore, there is no absolute separation of the three branches of government. EACH DEPARTMENT IS GIVEN CERTAIN POWERS BY WHICH EACH MAY RESTRAIN THE OTHERS FROM EXCEEDING THEIR CONSTITUTIONAL AUTHORITY. Q – Explain the basis of the doctrine of separation of powers. A – The basis of the doctrine is the Constitution itself which allocates powers to each of the said departments of government precisely on account of the principle that “the Philippines is a democratic and republican State.” Q – What are the major powers of our government? A – The major powers of the government are distributed by our Constitution to the three major departments – (1) The Executive Department; (2) The Legislative Department; and (3) The Judicial Department. The new Constitution also grants powers to the independent commissions created under Article IX, namely: The Civil Service Commission (Article IX[B], Section 1) The Commission on Elections; (Article IX[C], Section 1) and the Commission on Audit (Article IX[D], Section 1). The Fourth independent commission created under the new Constitution is the Commission on Human Rights (Article XIII, Section 17) which has its own powers and

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functions such as those enumerated in Article XII, Section 18, of the 1987 Constitution. What are the principles that are related to the doctrine of separation of powers? They are: (1) The principle of checks and balances; and (2) The principle of blending of powers. Explain each. 1. CHECKS AND BALANCES Under the system of checks and balances, one department is given certain powers by which it may definitely restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may question, if necessary, any act or acts which unlawfully interferes with its sphere of jurisdiction and authority. The following are actual examples: Example No. 1: The legislature enacts laws but these laws have to be presented to the executive department for its approval. The latter may veto or disapprove the acts of the legislature if in its judgment they are not in conformity with the Constitution, or if they will cause hardship to the people. Example No. 2: The courts, on the other hand, are authorized to determine, in actions brought to it for decision, the validity of the said legislative measures or executive acts. Example No. 3: The executive department, through the pardoning power, may also modify or set aside the judgment of the courts. Example No. 4: The legislature may amend or revoke decisions of the courts when in its judgment the interpretation given to a law by the courts is not in harmony with the general policy of the State. It may do this by enacting a new law or by amending the old law, THEREBY ATTAINING AN INTERPRETATION THAT WILL WIPE OUT THE DECISIONS OF THE JUDICIAL DEPARTMENT. Example No. 5: The legislature also checks executive action when it confirms or refuses to confirm presidential appointments. In example No. 1, the judicial arm of the government has no role to play yet. It is only called upon to interfere and to exercise its authority when an action is brought to it for decision, and only upon reaching this stage when the courts should apply, among others, these basic rules, to wit: 1.

When the law is clear, the court’s duty is to apply it, not to interpret it.

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2.

In applying the law, the court should discover the real intent and purpose of legislature. If that intent and purpose can be discovered within the law, it is the duty of the court to carry out that intention. If that intent and purpose cannot be found within the law, the court should resort to extrinsic aids. 3. When all other rules of statutory construction fail, it is presumed that the law-making body intended right and justice to prevail. In Example No. 3, the executive department is not in any way interpreting or constructing the law in its favor. It is a plain exercise of pardoning power which is expressly granted by the Constitution to the President. In Example No. 4, the legislature is not interpreting or constructing the law but attains the interpretation it desires by enacting a new law or by amending the old law. Example No. 5, Merely shows the counter-check measure that the legislature can take when it disagrees with the President on matters of appointment. 2.

BLENDING OF POWERS In actual practice, blending of powers is actually a sharing of powers of the different departments of government whereby one department helps and coordinates with the other in the exercise of a particular power, function or responsibility. It is in the process of sharing and collaborating with each other that one department not only helps but also checks the other if for any valid reason it is deemed necessary for the public good. 1.

The following are actual examples: The President and Congress help one another in the making of laws. Congress enacts the bill and the President approves the same. (Section 27, Article VI) “Section 27(1). Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names

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of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt hereof; otherwise, it shall become a law as if he had signed it.” 2.

The president prepares a budget and Congress enacts an appropriation bill pursuant to that budget. (Section 22, Article VII, in relation to Section 24, Article VI, 1987 Constitution) “Section 22, Article VII. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.” “Section 24, Article VI. All appropriation, revenue or tariff bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.”

3.

The President enters into a treaty with foreign countries and the Senate ratifies the same. (See Section 21, Article VII) “Section 21, No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

4.

The Supreme Court may declare a treaty, international or executive agreement, or law, as unconstitutional, and it has also the power to declare invalid any act done by the other departments of government. (See Section 4, Paragraph 2, Article VIII) “Section 4(2). “All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”

Q – If it is true that the powers of our government are established, limited and defined by our Constitution and distributed accordingly to the

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various organs of our government that they may be used for the benefit of the body politic, what accounts for their conflict in the exercise of certain powers which they claim to be within their domain of jurisdiction? A – When the department concerned honestly believes that what it seeks to do or perform is lawful and justiciable considering the facts of each case in their entirety, there will most likely be a suit or controversy not necessarily to prove that one department is superior over the other but to determine once and for all what is right under prevailing circumstances. When the power sought to be exercised is expressly conferred by the Constitution, there will likely be no problem or controversy on the basis of its exercise. However, there may be other questions that may be raised such as the following: (1) Is the act in question, or the exercise of said power performed in accordance with the rules laid down by the Constitution? (2) Is the question submitted to the court a political question, or a justiciable question? For if what is involved is not a political question; it is within the realm of judicial review. Q – Distinguish political question from justiciable question A – POLITICAL QUESTION – It is a question of policy. It refers to those questions which under the Constitution, are to be decided by the people in their sovereign authority, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. (Tanada vs. Cuenco, 100 Phil. 1101) Political questions are neatly associated with the wisdom, not the legality of a particular measure. (Sanidad vs. Commission on Elections, 73 SCRA 333) JUSTICIABLE QUESTION – Where the votex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. The Supreme Court explained this further in Sanidad vs. Commission on Elections (73 SCRA 333) thus: “What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution but the constitutional authority to perform such act or to assume the power of the constituent assembly. Whether the amending process confers on the President that power to propose amendments is, therefore, a downright justiciable question. Should the contrary be formed, the activation of the President would normally be a brutum fulmen. If the Constitution provides how it will be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not.”

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Examples: POLITICAL QUESTIONS

JUSTICIABLE QUESTIONS

1. The calling of “Snap” presidential elections on February 7, 1986, by the Batasang Pambansa is a political question. (Philippine Bar Association vs. Commission on Elections, G.R. No. 72915, December 20, 1986) 2. The calling of referendum is within the exclusive discretion of President Ferdinand E. Marcos and it is therefore a political question. (De la Llana vs. Commission on Elections, 82 SCRA 30) 3. The authority of the Senate to punish and detain a witness for contempt is within its discretionary power and authority and it is therefore a political question. For this reason, the Supreme Court refused to order the release of the witness. (Armault vs. Balagtas, 97 Phil. 358)

1. The determination of whether or not an appointee has the prescribed qualifications is a justiciable question. 2. The determination of the President’s authority to propose amendments and the regularity of the procedure adopted for submission of proposals to the people is a justiciable question. 3. The determination of whether or not a constitutional provision has been followed or not is a justiciable question. 4. The determination of whether or not a suspension for disorderly behavior is supported by the required 2/3 votes is a justiciable question. 5. The determination of whether or not the voting requirement prescribed by the Constitution was complied with is a justiciable question. 6. T h e d e t e r m i n a t i o n o f constitutionality or legality of an act.

Q – How about the issue of whether or not the country should honor its international debt, is this a political question or a justiciable question? A – It is political question. The Supreme Court said: “xxx As to whether or not the country should honor its international debt, more specifically the enormous amount that had been incurred by the past administration which appears to be the ultimate objective of the petition, is not an issue that is presented or proposed to be addressed by the Court. It is a political

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decision for Congress and the Executive to determine in the exercise of their wisdom and sound discretion.” (Guingona vs. Carague, etc., G.R. No. 9457, April 22, 1991) Q – How about a policy issue? Is this a political question or a justiciable question? A – A policy issue is within the domain of the political branches of government and the people themselves. It was ruled that if a law runs counter to the government policies, it is for the Executive Department to recommend to Congress its repeal or amendment. The Judiciary does not settle policy issues. The Court can only declare what the law is and what the law shall be. Under our system of government, policy issues are within the domain of the political branches of government and the people themselves as the repository of all state power. (Buno vs. Philippine Amusement and Gaming Corporation [PAGCOR], G.R. No. 91649, May 14, 19991) Q – Explain the principle of non-delegation of powers. A – The principle is based on the Latin Maxim of POTESTAS DELEGATA NON DELEGARI POTEST, the literal meaning of which is POWER DELEGATED CANNOT FURTHER BE DELEGATED. The classic statement of the rule is that of Locke, thus: “The legislative must not nor can transfer the power of making laws to anybody else or place it anywhere except where the people have. (Cited in People vs. Vera, 65 Phil. 56) This, in turn, is based on the principle that the delegate to whom a power is delegated has been chosen precisely because trust is reposed on him and if he delegates further to another the power delegated to him, that third person does not have the trust originally given to him. Moreover, the power delegated constitutes not only a right but also a duty to be performed by the delegate through the use of his own judgment and not through the judgment of another. Q – What is the reason for the said principle? A – The growing demands and complexities of public service arising from the many problems of the people in the four corners of the country, could no longer be efficiently and effectively handled by the three principal branches of government without the assistance of subordinates, bureaus and offices, local governments, and other administrative bodies. The legislature, for instance, which is involved not only in the law-making process but also on matters relative to investigation as an aid to legislation, and even in public service projects, does not have the monopoly of time, attention, competence and resources to be able to attend to minute details of laying down the rules of administrative bodies and local governments.

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The same thing is true with respect to the executive department. The President, with his hectic schedule from day to day, has to delegate some of his powers and functions to his cabinet secretaries and to other government bureaus and offices. This is both a matter of necessity and expediency depending on the circumstances of each case. Necessity, because the President thinks that the subordinate concerned has the expertise and has more time and attention that he can devote to accomplish the mission so assigned to him. Expediency, because the President thinks that through delegation, the problem on hand can be acted upon immediately and effectively. On the other hand, only the Supreme Court and no other has the power to render final judgment on a case referred or elevated to it for resolution. This cannot be delegated and what it declares to be the law that shall apply in a case submitted to it for decision is final and conclusive after the expiration of the reglementary period. Q – Can legislative powers be delegated? A – Legislative powers may be delegated in the following cases: 1. When authorized by the Constitution such as in the following cases: a. The Congress may by law grant emergency powers to be President. (Section 23[2], Article VI) b. Congress may by law grant tariff powers to the President. (Section 28[2], Article VI) 2. Legislative powers may be delegated to local governments: a. Police power has been expressly delegated by the legislature to the local law-making bodies; b. Eminent Domain. 3. Legislative powers may be delegated to the people at large: a. Referendum – a method of submitting an important legislative measure to a direct vote of the whole people; b. Plebiscite – a devise to obtain a direct popular vote on a matter of political importance. 4. Legislative powers may be delegated to administrative bodies (e.g., POEA, LTFRB, CAB, OWWA, BOI, BMI, etc.). Q – What is the test to determine whether a given power has been validly exercised by a particular department? A – FIRST TEST – The first test is to determine whether or not the power in question, regardless of its nature, is granted by the Constitution to the department which seeks to exercise such power. If it is granted by the Constitution, the exercise of the power is sustained. SECOND TEST – If the power sought to be exercised is not expressly conferred by the Constitution, can the power sought to be exercised be

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reasonably inferred from, or is it necessary to the proper exercise of, the express power granted to the department seeking to exercise said power? If it is, the exercise of the said power may be justified under the doctrine of implication which means that even in the absence of an express conferment, the exercise of a given power may be justified or reasonably inferred from the express power already granted, or that it may be necessary to the proper exercise of the express power granted to the department seeking to exercise the said power. EXAMPLE: 1.

Rules of procedure promulgated by the Electoral Commission were challenged because they were allegedly not expressly authorized by the 1935 Constitution. In Angara vs. Electoral Commission (63 Phil. 139), the Supreme Court upheld the promulgation of the said rules of procedure because they were found out to be necessary to the proper exercise of the express power of the Electoral Commission to hear and decide election contests involving members of the legislature. 2. The power of Congress to conduct legislative investigation may be implied from the express power of legislation. This power, however, is now subject to the following restraints: a. The legislative inquiry must be in aid of legislation; b. The conduct of the investigation must be strictly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; c. The rights of persons appearing in or affected by such inquiries shall be respected. (Section 21, Art. VI, 1987 Constitution) THIRD TEST – If the power sought to be exercised is not granted by the Constitution, either expressly or impliedly, can its exercise be justified as inherent or incidental? If they are, the exercise of said power may be sustained. FOURTH TEST – Assuming that the power or the act sought to be performed is expressly or impliedly granted by the Constitution, or that it is justified as inherent, the fourth test is whether or not the act or power in question has been performed in accordance with the rules laid down by the Constitution. A good example is the compliance required by Section 21, Article VI of the 1987 Constitution, which provides that the power to conduct legislative investigation, although implied from the power of legislation, is now subject to the restraints mentioned earlier. The other example is when the President extends an appointment to a person who does not possess the prescribed qualifications, the courts may exercise its power to intervene.

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Q – A law was passed by Congress giving the President standby authority to increase the rate of VAT from 10% to 12%. Is this an undue delegation of legislative power? A – It is not an undue delegation of legislative power but merely a delegation of the ascertainment of facts upon which enforcement and administration of the increased rate under the law is contingent. Q – What is the rule of the majority? A – Basically, the rule of the majority is the will of the greater number of people, whether referring to the citizens of the Philippines who choose their representatives, or to a number of people in a community or organization, who choose their officers. In the choice, however, of the President, VicePresident, Senators, Congressmen, and other public officials, the winners are those who may have received the highest number of votes, but this may not necessarily be a majority of the total votes cast. If at all, this vote is merely a plurality. This happened in the case of former President Fidel V. Ramos, who received the highest number of votes over other presidential contenders (Ambassador Eduardo Cojuangco, Mrs. Imelda R. Marcos, Senator Jovito Salonga, Speaker Ramon Mitra, former BID Commissioner Mirriam Defensor-Santiago, etc.), but the same is a mere plurality because the votes were divided among the many presidential contenders. Q – What are the different interpretations of what constitutes a majority? A – They are the following: 1. PROCLAMATION OF MARTIAL LAW OR SUSPENSION OF THE PRIVILEGE OF HABEAS CORPUS. (Section 18, Article VII, 1987 Constitution) “x x x The Congress, voting jointly, by a vote of at least a majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President x x x.” The said majority apparently refers to the majority vote of all the members of each House, voting jointly. This means one-half plus one of the total membership. 2. QUORUM OF EACH HOUSE. (Section 16[2], Article VI, 1987 Constitution) “A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day x x x.” The said majority also refers to the majority vote of all members of each House. 3. SUSPENSION OR EXPULSION OF A MEMBER. (Section 16[3], Article VI, 1987 Constitution) “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds of all its members,

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4.

5.

suspend or expel a member x x x.” This refers to two-thirds of all the members of each House. CONSTITUTIONALITY OF A TREATY, INTERNATIONAL OR EXECUTIVE AGREEMENT OR LAW. (Section 4[2], Article VIII, 1987 Constitution) “All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.” The said majority does not refer to the majority vote of the justices of the Supreme Court composed of fifteen members, but possibly only to five out of eight members, or three out of five members thereof, who actually took part in the deliberations on the issues in the case and who voted thereon, the said number being the majority of eight, or majority of five members who actually took part in the deliberations of the case and who voted thereon. A MAJORITY OF ONE. A dissenting vote of one Sandiganbayan Justice will prevent a decision of the two other members of the division as a unanimous vote is required for such decision. In that sense, the lone dissenting vote is considered as a “MAJORITY OF ONE.”

Q – Section 1 provides that “the Philippines is a democratic and republican state. Why is the word “democratic” added to the word “republican”? A – The essence of a republican state is indirect rule (where there is a government which is run by the people through their chosen representatives) who, in turn, are accountable to the sovereign will of the people), but our present Constitution (Article VI, Section 32, and Article XVII, Section 2) provides for some features of pure and direct democracy such as “initiative and referendum.” Q – What is constitutional authoritarianism? A – This was asked in the bar examinations of 1974. Through constitutional authoritarianism, President Ferdinand Marcos assumed extraordinary powers including legislative, judicial and even constituent powers. BACKGROUND: Before the declaration of Martial Law in the Philippines on September 21, 1972, the power to legislate laws is vested in the Congress of the Philippines which consists of the Senate and the House of Representatives. Upon the imposition of Martial law and after

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the dissolution of the Old Congress, the power to legislate laws is vested in the President of the Philippines. This is the reason why the President issued presidential decrees and letters of instructions. When the Batasang Pambansa was organized, legislative power is principally vested in this body although the President, under and by virtue of what is known as Amendment No. 6, continued to issue decrees when the exigency of the situation requires and in case of other emergencies. Among many others, this is one of the dictatorial acts that was severely questioned by several lawyers and critics of the past regime. Now, after the People’s Revolt on February 22-25, 1986, and in accordance with the wishes and the will of the sovereign Filipino people, the three branches of government operating under the doctrine of separation of powers are restored, with each department being committed to do its utmost share in bringing about a more democratic and efficient system of government that is responsive to the needs of the people. Q – Is constitutional authoritarianism compatible with a republican state? A – Strictly speaking, it is submitted that it is not compatible with a republican state (where all government authority emanates from the people and is exercised by representatives elected by the people). It is public knowledge that the deposed president had no legitimate and direct mandate of the Filipino people during the martial law regime and this is, in fact, the underlying reason why there was a People’s Revolt on February 22-25, 1986, which resulted to his exile in Hawaii. RENOUNCIATION OF WAR AS AN INSTRUMENT OF NATIONAL POLICY (Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.) Q – What particularly are the principles declared in Section 2? A – 1. The Philippines renounces war as an instrument of national policy 2. The Philippines adopts the generally accepted principles of international law as part of the law of the land. 3. The Philippines adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. Q – One day, the bomber planes of Red China attacked Mindanao and destroyed the war vessels deployed by the Philippine Navy in the area, particularly in the areas adjacent or near the Spratly Islands. Congress declared the existence of a state of war, and thereafter, our soldiers fought the Red Chinese soldiers scattered in the whole of Mindanao.

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Is this not a violation of Section 2 to the effect that we renounce war as an instrument of national policy? A – No. We are merely defending our territory, hence, it is a defensive war. What we renounce is an aggressive war, not a defensive war. PRINCIPLE OF CIVILIAN AUTHORITY (Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.) TWO (2) PRINCIPLES EXPRESSED IN SECTION 3 1. The principle of civilian supremacy 2. The principle that the Armed Forces of the Philippines is the protector of the people and the State. Q – Explain said principles. A – First Principle – This doctrine teaches the supremacy of the sovereign Filipino people in line with the principle that “sovereignty resides in the people and all government authority emanates from them,” and this supremacy is “at all times, supreme over the military.” Second Principle – The Armed Forces of the Philippines “is the protector of the people and the State.” This means that if the President of the Republic of the Philippines, or high government officials of the land, happens to be the ones who are committing abuses while in the performance of their duties, the Armed Forces of the Philippines is obliged, under Section 3, to protect the people of the State, against their abuses. In otherwords, the interest of the people is more supreme than the interest of the said officials. This duty under Section 3 is specially addressed to the Armed Forces of the Philippines. The duty under Section 4 refers to the prime duty of the government to serve and protect the people. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND PROTECT THE PEOPLE (Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.) Q – What is the prime duty of the government? A – The prime duty of the government is: (1) to serve the people; and (2) to protect the people. Q – How can the government comply with this duty? A – There are three (3) ways by which the government may be able to comply with its prime duty, thus:

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Q –

A –

Q – A –

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The government may call upon the people to defend the State. (Second sentence, Section 4) 2. The government may require all citizens, under conditions provided by law, to render personal military or civil service. (Second sentence, Section 4) 3. The government may use the Armed Forces of the Philippines to repel any threat to its security. (Section 4, Article XVI, apparently to support the provisions of Section 4, as aforementioned) Can a person refuse to register for military training, as required by the National Defense Act, on the reasoning that he is fatherless and had a mother and eight brothers to support, or that he has no interest or military training, or that it is contrary to his religious faith and political convictions? No. The government can require compulsory military service for the following reasons: 1. What justifies compulsory military service is the defense of the State, whether actual or whether in preparation to make it more effective in case of need. 2. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer for enlistment. (People vs. Lagman, 66 Phil. 13 [1938]) 3. The right of the Government to require military service is a consequence of its duty to defend the State and to protect life, liberty and property of the citizens. In the United States, a more radical view has been expressed by the Supreme Court. In Jacobson vs. Massachusetts (197 U.S. 11; 25 Sup. Crt. Rep. 385), the Supreme Court of the United States upheld the view that “without violating the Constitution, a person may be compelled, by force, if need be against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.” Is compulsory military service considered a deprivation of property without due process of law? The Supreme Court of the United States ruled in United States vs. Olson that this is without merit because, “in its just sense, there is no right of property to an office or employment. The circumstance that these decisions refer to laws enacted by reason of the actual existence of war does not make our case different, in as much as, in the last analysis, what justifies

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compulsory military service is the defense of the State whether actual or whether in preparation to make it more effective, in case of need.” (U.S. vs. Olson, 253 Fed. 233) Q – Can a person hire the services of another to take his place in the defense of the State? A – No. What is required of a person who is compelled to defend the State is “to render personal military or civil service.” This provision makes it possible to assign a person to non-combat duties, if it is against his religion or conviction to engage himself in war or to kill an enemy in the course of war. PROMOTION OF GENERAL WELFARE AND MAINTENANCE OF PEACE AND ORDER (Section 5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.) Q – What are essential for the enjoyment by all the people of the blessings of democracy? A – They are the following: 1. The maintenance of peace and order; 2. The protection of life, liberty and property; and 3. The promotion of the general welfare. SEPARATION OF CHURCH AND STATE (Section 6. The separation of Church and State shall be inviolable.) Q – Explain the doctrine of separation of church and State. A – Before answering the question, reference is made to the statement of His Holiness Pope Paul VI, in His Pastoral Constitution on the Church in the Modern World, thus: “The Church and the political community in their own fields are autonomous and independent from each other. Yet both, under different titles, are devoted to the personal and social vocations of the same men. The more that both foster sounder cooperation between themselves with due consideration for the circumstances of time and place, the more effective will their service be exercised for the good of all. For man’s horizons are not limited only to the temporal order; while living history, he preserves intact his eternal vocation. The Church, for her part, founded on the love of the Redeemer, contributes toward the reign of justice and charity without the borders of a nation and between nations. By

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preaching the truths of the gospel; and bringing to bear in all fields of human endeavor the light of her doctrine and of a Christian witness, she respects and fosters the political freedom and responsibility of citizens.” The separation, therefore, merely serves to delineate the boundaries between the two institutions thereby avoiding, as much as possible, any encroachment by one against the other. Each is independent within the sphere of their respective missions and prerogatives, but still governed, both in theory and in actual practice, by the principle of cooperation to attain the common good. After all, both institutions have common denominators, that of promoting peace and order, the protection of life, liberty and property and the promotion of the general welfare so that the people will enjoy the blessings of democracy. Justice Isagani A. Cruz had this explanation: “The rationale of the rule issummed up in the familiar saying, “Strong fences make good neighbors.” The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to “render therefore unto Caesar the things that are Caesar’s and unto God the things that are God’s.” “The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely ecclesiastical affairs; the Church is likewise barred from meddling in purely secular matters. And the reason is plain. A union of Church and State, as aptly remarked, “Tends to destroy government and to degrade religion.” It is also likely to result in a conspiracy, well-nigh irresistible because of its composite strength, against the individual’s right to worship.” 22 STATE POLICIES IN SECTIONS 7 TO 28 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Independent foreign policy (Sec. 7) Policy of freedom from nuclear weapons (Sec. 8) Promotion of a just and dynamic social order (Sec. 9) Social justice (Sec. 10) Full respect for human rights and dignity of every person (Sec. 11) Sanctity of family life (Sec. 12) Vital role of youth in nation-building (Sec. 13) Role of women in nation-building (Sec. 14) Promotion of right to health of the people (Sec. 15) Protection of the right to a balanced and healthful ecology (Sec. 16)

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11. Priority to education, science and technology, arts, culture and sports (Sec. 17) 12. Labor as a primary social economic force (Sec. 18) 13. Self-reliance and independent national economy (Sec. 19) 14. Encouragement of private enterprise and incentives to needed investments (Sec. 20) 15. Promotion of comprehensive rural development and agrarian reform (Sec. 21) 16. Promotion of the rights of indigenous cultural communities (Sec. 22) 17. Encouragement of non-governmental, community-based or sectoral organizations (Sec. 23) 18. Vital role of communication and information in nation-building (Sec. 24) 19. Autonomy of local governments (Sec. 25) 20. Equal access to opportunity for public service (Sec. 26) 21. Honesty and integrity in public service (Sec. 27) 22. Full public disclosure of all state transactions involving public interest (Sec. 28) INDEPENDENT FOREIGN POLICY (Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.) POLICY OF FREEDOM FROM NUCLEAR WEAPONS (Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.) Q – What are the two important policies mentioned in Sections 7 and 8? A – 1. Independent foreign policy 2. Policy of freedom from nuclear weapons in its territory Q – In pursuing the said policies, what are the paramount considerations that shall guide us? A – 1. National sovereignty 2. Territorial integrity 3. National Interest 4. Right to self-determination PROMOTION OF A JUST AND DYNAMIC SOCIAL ORDER (Section 9. The State shall promote a just and dynamic social order that will ensure

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the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.) SOCIAL JUSTICE (Section 10. The State shall promote social justice in all phrases of national development.) Q – Why should we promote a just and dynamic social order? A – It is the foundation of a strong and prosperous nation. Poverty and injustice are the root causes of public discontent which gives rise to chaos and disorder, and later, to a revolution. Q – What is social justice? A – It is “neither communism, nor atomism, nor anarchy” but the humanization of laws and the equalization of social and economic forces of the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of the society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of “salus populi est suprema lex.” (Calalang vs. Williams, 70 Phil. 726) Q – What, if any, is the expanded meaning of social justice under the 1987 Constitution? A – Social justice under the 1987 Constitution is broader than the concept of social justice under the 1935 and 1973 Constitution and, in fact, broader than the definition in Calalang vs. Williams. Social justice under the 1987 Constitution includes all phases of national development, instead of being merely limited to the removal of socio-economic inequities. Q – How can social justice be promoted? A – 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. 2. The State shall regulate the acquisition, ownership, use and disposition of property and its increments. 3. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

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Q – In National Service Corporation vs. NLRC, et al., G.R. No. 69870, November 29, 1988, citing Cult of Legalism by Dr. Jorge Bocobo, the Supreme Court said that the principle of social justice was not included in the fundamental law as a mere popular gesture. It was meant to be a vital, articulate and compelling principle of public policy. Does this mean that social justice champion division of property or equality of economic status? A – Social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, equitable sharing of the social and material goods on the basis of efforts exerted in their production. It is a command to devise social measures; but it cannot be used to trample upon the rights of others. (Guido vs. Rural Progress Administration, G.R. No. L-2089, October 31, 1949) Q – In Ondoy vs. Ignacio, GR No. L-436969, February 28, 1978, it was ruled that as between a laborer, usually poor and unlettered, and the employer, who has resources to secure able legal advice, the law has reason to demand from the latter stricter compliance. Is this not a violation of the principle enunciated in the aforementioned case? A – Social justice in this case is not equality but protection. (Ibid.) It is compassionate justice or an implementation of the policy that those who have less in life should have more in law. (Allied Investigation Bureau, Inc. vs. Ople, et al., G.R. No. L-449678, June 29, 1979) Q – Is it only equitable diffusion of wealth that should be promoted by the principle of social justice? A – Under the 1987 Constitution, social justice contemplates equitable diffusion not only of wealth but also of political power. (Sec. 1, Article XIII, 1987 Constitution) Q – Is compassion for the poor an imperative of every human society? A – Compassion for the poor is an imperative of every human society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be the refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have tainted the cause of labor with the blemishes of their own character. (Philippine Long Distance Co. vs. NLRC, et al., G.R. No. 8060, August 23, 1988; De Vera, et al. vs. NLRC, et al., G.R. No. 93212,

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November 22, 1990; Flores vs. NLRC, et al., G.R. No. 96969, March 2, 1993) Q – Since five (5) years ago, a growing number of squatters have constructed houses made of light materials in a creek in Barangay Matigas without authority from the government. Last year, the Office of the Mayor requested them to vacate the area and gave them sixty (60) days within which to remove their houses and to vacate the place. After the May 14, 2007 elections, the MMDA issued a formal notice to the residents in said area to vacate the place, or else the MMDA will demolish their houses within seven (7) days from receipt of notice. MMDA claims that the houses and structures in the creek cause flood, and besides, they pose a danger and a risk to the health and safety of the residents. The said residents, through counsel, filed a complaint in the Commission on Human Rights which immediately issued a cease and desist order. They claim that the said demolition, if implemented, will violate their human rights: (1) Is the contention of the resident valid and meritorious?; (2) If despite the cease and desist order, the MMDA proceeds with the said demolition on instructions of Chairman Bayani Fernando, can CHR declared Chairman Fernando in contempt? A – (1) The claim of the residents is not valid and meritorious. The houses and the structures were constructed illegally in the creek, and said structures pose danger to the health, safety and lives of the residents. (2) The cease and desist order is null and void. The CHR has no adjudicative power. FULL RESPECT FOR HUMAN RIGHTS AND DIGNITY OF EVERY PERSON (Section 11. The State values the dignity of every human person and guarantees full respect for human rights.) Q – What is guaranteed under Section 11? A – Full respect for human rights. Q – If this is guaranteed under Section 11, why is it that prisoners in Muntinlupa and other prison cells in Metro Manila who are less privileged are not afforded decent quarters and food which is considered at least acceptable to ordinary taste if not necessarily considered as palatable dishes? A – The government is trying its best to improve the quality of life of its citizens but like any poor government there are much needed improvements to do to reach the ideal enshrined in the Constitution. The deplorable conditions in our penitentiaries make us realize that while there is a crying need for improvement, there is equally a need for ample funds to make them

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possible. At least, there is an ideal that is enshrined in the Constitution and the attainment of such an ideal is not only a responsibility of government but likewise the collective responsibility of all citizens of our country. SANCTITY OF FAMILY LIFE (Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support of the Government.) Q – What are the three responsibilities of the State in connection with the constitutional guarantee recognizing the sanctity of family life? A – They are the following: 1. It shall protect and strengthen the family as a basic autonomous social institution. 2. It shall equally protect the life of the mother and the life of the unborn from conception. 3. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and support of the government. (Section 12, Article II of the 1987 Constitution). Q – What is the role of parents and the government in the rearing of the youth for civic efficiency and the development of moral character? A – Parents – The parents have the natural and primary right and duty in the rearing of the youth for civic efficiency and the development of moral character. (Section 12, Article II) Government – The government shall give aid and support to the parents. (Section 12, Article II) What is the aid and support that the government gives? The aid and support that the government gives is not in terms of actual cash that is given to the parents but it is expressed more in terms of services, protection, supervision, regulation and policy direction. The government is being criticized from time to time for ineffectiveness, and sometimes, for lack of support and funds to carry out its duties to support its citizens. Public perception should, however, be corrected. While the government may have a lot of shortcomings, the truth is that the “aid and support” it gives is so numerous, and more than this, it is providing them on a 24-hour basis and everyday throughout the year. Of course, there are always complaints and criticisms but the benefits we derive are well in place.

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Q – Why do you say that the family is a basic autonomous social institution? A – The principle of autonomy is learned and practiced at home before it is learned in school. It is a basic political unit of our society. The father, as the head of the family, is the President of the home, and the mother, is the Vice-President who takes over the function of governance in case of death or incapacity of her husband. The children and the household are members of the family, who are duty bound to follow the rules of the home. The family is a social institution because it forms part of the community. Without a family or a group of families, the community has no one to depend on for any project it wishes to carry out. The government in every community is the agency or instrumentality through which the wishes of the people are made known and implemented. All the governments, taken together, form part of the Republic of the Philippines. VITAL ROLE OF THE YOUTH IN NATION-BUILDING (Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.) Q – Article II, Section 13, of the 1987 Constitution recognizes the vital role of the youth in nation-building. What, if any, is the responsibility of the State as far as this is concerned? A – The State shall protect and promote their physical, moral, spiritual, intellectual and social well-being, because recognition alone without that protection is just a lip service. ROLE OF WOMEN IN NATION-BUILDING (Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.) Q – What is the rationale behind Section 14? A – The role of women in society is a moving force in the improvement not only of our homes but also of our communities, our government and the four corners of our country. Working mothers are growing in number. They are no longer confined in their homes. They are actively helping their husbands earn a living for their families. They have become leaders in their respective communities. Some have become barangay captains, councilors, mayors, governors, congresswomen, senators, justices, judges, prosecutors and cabinet members. We have produced two lady presidents. They have proven their leadership not only in the home but also in the affairs of the community and of our country. All of these contributions

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deserve the recognition, as provided in Section 14. Discrimination against women no longer holds true and can no longer be sustained. Q – What are the provisions of the 1987 Constitution that protect women? A – (1) Section 12, Art. II, second sentence, thus: “It shall equally protect the life of the mother and the life of the unborn from conception.” (2) Section 14, Art. II – “The State recognizes the role of women in nation building, and shall ensure the fundamental equality before the law of women and men.” (3) Section 14, Art. XIII – “The State shall protect working women conditions, taking into account their material functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.” PROMOTION OF RIGHT TO HEALTH OF THE PEOPLE (Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.) PROTECTION OF THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY (Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.) Q – What specifically is the responsibility of the State with respect to the right of the people to a balanced and healthful ecology? A – “Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.” “Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Q – What is now the growing challenge to the State, particularly to the government of the Republic of the Philippines, insofar as its sincerity and effectiveness in this field is concerned? A – The sincerity and effectiveness of the State insofar as this responsibility is concerned is now placed to a serious test on account of recent happenings related to rampant and illegal cutting of trees, compounded by destruction of our watersheds, that have necessarily caused worst floods in years; uncontrolled dumping of garbage and mineral and toxic wastes that have polluted our lakes and rivers; inefficient handling and maintenance of our dams that accounts for unsafe water supply; inefficient management and supervision of traffic and vehicles that aggravates pollution and causes burden and inconvenience to the commuting public; acute lack of government hospitals and medicines; uncontrolled influx of squatters,

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beggars, streetchildren, drug addicts and prohibited drugs; and many others which pose imminent danger to health and ecology. The creeks and rivers in Metro Manila and other urban centers are now invaded and inhabited not only by squatters and garbage but also by criminal elements and syndicates who are oftentimes tagged or involved in the perpetration of heinous crimes. Their number is getting more numerous as each day passes. Will the government allow this to worsen before it acts decisively? If this continues, the right of the people “to a balanced and healthful ecology” will just be good on paper. It is a right which is violated by the very government that is supposed to protect them. PRIORITY TO EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS (Section 17. The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.) Q – What is guaranteed under Section 17? A – The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. LABOR AS A PRIMARY SOCIAL ECONOMIC FORCE (Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.) Q – Why is labor considered as a primary social economic force? A – Labor, consisting of workers, employees, farmers, and all those involved in any kind of work or production, contribute greatly to social and economic upliftment. It is true that capital provides them with all the money and materials they need but it is their hands, their skill, time, effort and talent that makes that capital more productive and helpful to society. SELF-RELIANCE AND INDEPENDENT NATIONAL ECONOMY (Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.) ENCOURAGEMENT OF PRIVATE ENTERPRISE AND INCENTIVES TO NEEDED INVESTMENTS (Section 20. The State recognizes the indispensable role of the private enterprise, and provides incentives to needed investments.) COMPREHENSIVE RURAL DEVELOPMENT AND AGRARIAN REFORM (Section 21. The State shall promote comprehensive rural development and agrarian reform.)

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Q – Section 21, Article II of the 1987 Constitution provides that the State recognizes and promotes comprehensive rural development and agrarian reform. Explain the basis of this constitutional provision. A – Concentration of wealth and power only in the hands of the few have never been conducive to lasting peace and stability. On the contrary, history tells us that it is always the cause of discontent and unrest, and more than this, it sparks a revolution that results to more serious consequences and proportions. All these can destroy the entire nation. Bursts of anger and hatred are not expressed with the might of the words and the pen. They are expressed in bullet and cannons that kill by the thousands without saying a word nor an excuse. They kill not only the protagonists but also those innocent men, women and children who are, after all, willing to listen to wisdom and reason. They make thousands and millions starve not because they do not have money to buy the food they want but because there is no food, and there is no food because the lands are not tilled and because jobs and opportunities are given only to those who possess power and influence. This is the root cause of growing squatter families in the cities and urban centers. They left their farms in the hope of finding better lives and opportunities in the cities, only to realize that they are more exposed to hazards and dangers of city life. They end up often times as beggars, street children, squatters, criminals, and jobless with a hand-to-mouth existence. In their exasperation, they commit crimes to earn a living. They add more anger and misery, and later on, they aggravate social cancer and discontent which result to chaos, serious grievances and bitter fighting in the streets. When battle and chaos divide our people, lands in the countryside will no longer be used to plant the seeds that will give us food. They will serve as burial grounds of those who die for what they believe, or for not knowing what the battle is all about. Q – What is necessary in order that agrarian reform will succeed? A – Agrarian reform should be coupled with support services, education and information technology, including reformation of our political and social cultures. Q – How can this be made possible? A – The people should be vigilant and active members of the community who will make things happen instead of merely watching from the confines of their homes, classrooms and offices. They should not be carried away by political bandwagons which are propelled by the sheer force of money and power. They should be able to help in electing qualified, competent and honest people who do not mind to be in the minority in exchange for their honest convictions.

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One such conviction is the age-old cry for more rural development, genuine land reform and social justice, the need for cooperatives and the upholding of the principle of stewardship of talent and property. This can be made possible by succeeding to elect legislators who are not beholden to vested interest but only to the dictates of their conscience and to the principle of Salus Populi Est Suprema Lex. All these can only be made possible through an educated and enlightened citizenry. Q – Republic Act 6657 provides that private agricultural lands can be taken from their owners, subject to the prescribed retention limits. The constitutionality of the law was assailed. Is the said law constitutional? A – The constitutionality of Republic Act 6657 was upheld in Association of Small Landowners vs. Secretary of Agrarian Reform (175 SCRA 342 [1989]). The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights accruing to the owner in favor of the farmer beneficiary. This is within the power of the State to take and regulate private property for which payment of just compensation is provided. Although the proceedings in Section 16 of CARL are described as summary, the landowners and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. DAR’s determination of just compensation is not by any means final and conclusive upon the landowner or any interested party. DAR’s determination is only preliminary unless accepted by all parties concerned. Otherwise, the court of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. Regarding Section 18 thereof which requires the owners of expropriated properties to accept just compensation in less than money, the Supreme Court said: “This is not an ordinary expropriation where only a specific property is sought to be taken by the state from its owner for a specific and perhaps local purpose. WHAT WE DEAL WITH HERE IS A REVOLUTIONARY KIND OF EXPROPRIATION.” Such program will involve not merely millions but billions of pesos. “We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian reform as a top project of the government. There can be no doubt that they were aware of the financial limitation of the government and had no illusions that there would be

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enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers.” “We may assume their intention was to allow such manner of payment as provided by the CARP Law, conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, the title remains with the landowner. No outright change of ownership is contemplated.” The constitutionality of Sections 3(b), 10 and 11 of Republic Act 6657 was assailed in so far as they include lands devoted to the raising of livestock, swine and poultry within its coverage. What was the ruling of the Supreme Court? While Republic Act 6657 itself has been held constitutional, the Supreme Court in a subsequent case declared unconstitutional Secs. 3(b), 10 and 11 of the said law. (Luz Farms vs. Secretary of Agrarian Reform, 192 SCRA 51 [1990]) What happened after the unconstitutionality of Secs. 3(b), 10 and 11 was declared in the said case? The Congress enacted Republic Act 7881 (1995) amending the said provisions. The amendments adopted the doctrine in Luz Farms case by removing livestock, swine and poultry farms from CARP coverage. Section 18 of the CARP law providing for the content and manner of just compensation was also assailed as violative of the constitution. What was the ruling of the Supreme Court on this point? The Supreme Court declared that the content and manner of the just compensation provided for in Section 18 of the CARP Law does not violate the Constitution. Title to all expropriated properties shall be transferred to the State only upon full payment of compensation to their respective owners. All rights previously acquired by tenant-farmers under Presidential Decree No. 27 are retained and recognized. Landowners who were unable to exercise their rights of retention under Presidential Decree No. 27 shall enjoy the retention rights granted by Republic Act No. 6657 under the conditions therein described.

RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES (Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.) Q – What is the reason for Section 22? A – There should be national unity and development not only in the cities and urban centers but also in all communities in the rural areas. The indigenous

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cultural communities are, in fact, the places that deserve attention of the government, the same being the place where the trivial Filipinos lived since time immemorial. Their culture is a rich heritage. Their ancestral land should be preserved. What does the phrase “ancestral lands” include? For purposes of this Act, ancestral land of each indigenous cultural community shall include, but not be limited to, lands in the actual, continuous and open possession and occupation of the community and its members; provided, that the Torrens System shall be respected. (Sec. 9, paragraph 2, Republic Act 6657) What is the right of indigenous cultural communities with respect to their ancestral lands? The right of these communities to their ancestral lands shall be protected to ensure their economic, social and cultural well-being. In line with the principles of self-determination and autonomy, the systems of land ownership, land use, and the modes of settling land disputes of all these communities must be recognized and respected. What are the provisions of the 1987 Constitution that protect indigenous cultural communities? (1) Section 5, Art. II, 1987 Constitution “The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.” (2) Section 5, Art. XII, 1987 Constitution “The State subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. (3) Section 6, Art. XIII, 1987 Constitution “The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organization to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and support services.” (4) Section 17, Art. XIV, 1987 Constitution “The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.”

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ENCOURAGEMENT OF NON-GOVERNMENTAL, COMMUNITY BASED, OR SECTORAL ORGANIZATIONS (Section 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.) Q – What is the reason for Section 23? A – It serves to create or induce more participation from the said organizations, which, in turn, will help the government in finding out ways and means to improve them and their communities. VITAL ROLE OF COMMUNICATION AND INFORMATION IN NATION-BUILDING (Section 24. The State recognizes the vital role of communication and information in nation-building.) AUTONOMY OF LOCAL GOVERNMENTS (Section 25. The State shall ensure the autonomy of local governments.) EQUAL ACCESS TO OPPORTUNITY FOR PUBLIC SERVICE (Section 26. The State shall guarantee equal access to opportunities for public use, and prohibit political dynasties as may be defined by law.) Q – Does our Constitution guarantee equality of all the citizens of the Republic of the Philippines? A – Our Constitution does not guarantee equality of all the citizens of the Republic. What our Constitution guarantees is only equality of opportunity. It is true that Section 10, Article II of the 1987 Constitution, provides that “the State shall promote social justice in all phases of national development.” Be it remembered, however, that social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of opportunity, equality of political rights, equality before the law, equality between the values given and received, equitable sharing of the social and material goods on the basis of the efforts exerted in their production. It is a command to devise social measures; but it cannot be used to trample upon the rights of the others. (124 Guido vs. Rural Progress Administration, G.R. No. L-2089, October 31, 1949) The State in protecting the laborers should do so with a view to realizing social justice without impairing the rights of others and to giving to each and everyone what under the natural law, the statutes, or contract, is his. Social justice, therefore, must be founded on the recognition of the necessity of the interdependence among diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the State of promoting the health,

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comfort, and quiet of all persons, and of bringing about the greatest good to the greatest number. (Calalang vs. Williams, 70 Phil. 726) Q – What is intended by the framers of the Constitution in providing for a policy of social justice? A – Social justice contemplates equitable diffusion not only of wealth but also of political power. (Section 1, Article XIII, 1987 Constitution) But the policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best, it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be the refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy for it, like the workers which have tainted the cause of labor with the blemishes of their own character. (Philippine Long Distance Telephone Co. vs. NLRC, et al., G.R. No. 80609, August 23, 1988; De Vera, et al. vs. NLRC, et al., G.R. No. 93212, November 22, 1990; Flores vs. NLRC, et al., G.R. No. 96969, March 2, 1993) HONESTY AND INTEGRITY IN PUBLIC SERVICE (Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.) FULL PUBLIC DISCLOSURE OF ALL STATE TRANSACTIONS INVOLVING PUBLIC INTEREST (Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions.) Q – What are the three basic principles emphasized by Section 27 and 28, Article II, of the 1987 Constitution? A – 1. Public office is a public trust: Under this principle, public officials in all the ladders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. Their offices are not their own, nor can they be treated as private properties which they can manage or dispose of at their whim and caprice. 2. Our government is a government of laws and not of men: The law should be applied equally without fear or favor. No one in this

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Republic, not even the President of the Philippines, is above the law. 3. Transparency in public service: Because public officials are mere trustees of the people, they should observe loyalty and fidelity to the people who have entrusted to them specific duties for a specific tenure. The lessons that we have learned during the twenty years of martial rule teach us that graft and corruption, abuse of power and authority, and oppression of the rights of the people, can cause chaos and revolution. Until now, the after effects of the massive graft in the last thirty years continue to be the subject of bitter accusations and litigations, and at the rate they are going on, they may expose in due time the crimes that have been committed by those in power and their cronies who, as many people say, have looted our government and our country pervasively. It can even be said that, if proven to be true, the public officials who were involved in this grand deception and conspiracy should deserve the highest penalty allowed by our laws, in order to deter others from committing the same crimes they have committed. The recent conviction of President Joseph Estrada for plunder is another example. After almost seven (7) years of trial, he was convicted for the said crime by proof beyond reasonable doubt, the first in the history of our republic. And yet, he was granted pardon by President Gloria Macapagal Arroyo, another first in the history of our republic. My comments on this matter are discussed in connection with the topic of pardon, Article VII of the Constitution. Q – What are the provisions of the 1987 Constitution that provide a policy of transparency in matters of public interest? A – 1. Section 28, Article II, 1987 Constitution “Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” 2. Section 7, Article III, 1987 Constitution “Section 7. The right of the people to information on matters of public concern shall be recognized. Access to financial records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” 3. Section 20, Article VI, 1987 Constitution “Section 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with

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law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses for each Member.” Section 17, Article XI, 1987 Constitution “Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.” Section 21, Article XII, 1987 Constitution “Section 21. Foreign loans may only be incurred in accordance with law and the regulations of the monetary authority. Information on foreign loans obtained or guaranteed by the government shall be made available to the public.” OTHER PRINCIPLES AND DOCTRINES (Not mentioned in Article II, Sections 1 to 6 and Sections 7 to 28)

1. 2. 3. 4. 5. 6. 7. 8.

Doctrine of incorporation in political law Doctrine of State Immunity Act of State Doctrine Potestas Delegata non Delegari Potest Doctrine of judicial supremacy Doctrine of Parens Patriae The principle of the right of revolution Doctrine of Stare Decisis

EXPLANATION OF EACH PRINCIPLE/DOCTRINE 1.

DOCTRINE OF INCORPORATION IN POLITICAL LAW Under this doctrine, a State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, the same being considered as part of its own laws. In consonance with this doctrine, the Philippines is bound by any resolution which is duly approved by the United Nations General Assembly

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or by any treaty, commitment, or agreement, reached in an international convention, especially when the Philippines is a party or a signatory to the said agreement or treaty. But even if it is not a signatory, the Philippines is bound by the Hague Convention because it embodied the generally accepted principles of international law binding upon all States. 2.

DOCTRINE OF STATE IMMUNITY The specific provision upon which this doctrine is based is found in Section 3, Article XVI of the 1987 Constitution, which provides as follows: “Section 3. The State may not be sued without its consent.” Q – What is the rationale of Section 3? A – (1) A State has the inherent right to exist and to protect itself and its citizens from any act or acts which will defeat the greater interest of the people which it is obligated to serve. This includes the right to protect itself against indiscriminate suits which will necessarily require its attention, time and resources. All these could otherwise be used more for the benefit and interest of the general welfare, in line with the provisions of Sections 4 and 5, Article II of the 1987 Constitution. (2) At a time when our country and the citizenry are confronted with serious problems arising not only from economic depression but also from rampant criminality, kidnapping, drug-related crimes, massacres, agrarian unrest, labor strikes, and many others, the interest of public welfare demands that the time and resources of the State should better be used for more pressing matters instead of indiscriminate suits. To a greater number of people, this basis is perhaps more understandable than what Justice Holmes said that “there can be no other legal rights against the authority which makes the law on which the right depends.” Q – Is the doctrine of State immunity available to member States if they are sought to be sued in the court of the local State? A – It is not conducive to harmony and peace in the community of nations if one State can assert jurisdiction over another State. The better view is to uphold the principle of sovereign equality of States under the time-honored principle of “PAR IN PAREM IMPERIUM NON HABET.”

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Q – Can the government of the Republic of the Philippines be sued? Explain. A – As a rule, the government of the Republic of the Philippines cannot be sued without its consent. The consent of the State to be sued may be given expressly or impliedly. Express consent may be manifested either through a general law or special law. When is there an express consent? There is express consent when a law expressly grants authority to sue the State or any of its agencies. Another example of express consent is the special law enacted by the Philippine Legislature authorizing an individual to sue the Philippine Government for injuries he had sustained when his motorcycle collided with a government ambulance. (Merit vs. Government of the Philippine Islands, 34 Phil. 311) When is there an implied consent? (1) When the State enters into a private contract, unless the contract is only incidental to the performance of a government function. (Santos vs. Santos, 92 Phil. 281) (2) When the State enters into an operation that is essentially a business operation, unless the business operation is only incidental to the performance of a governmental function (i.e., arrastre service). (Mobil Philippines vs. Customs Arrastre Service, 18 SCRA 1120 [1966]) (3) When the State sues a private party, the defendant can file a counter-claim against he State, unless the suit is entered into only to resist a claim. (Lim vs. Brownell, 107 Phil. 344 [1969]) Q – What is the procedure to prosecute the claim of government? A – Under C.A. No. 327, as amended by P.D. No. 1445, a claim against the government must first be filed with the Commission on Audit, which must act upon it within sixty days. If the claim is rejected, the claimant is authorized to elevate the matter to the Supreme Court on certiorari and in effect sue the State with its consent. (P.D. No. 1445, Secs. 49-50) Q – Can the express consent of the State be given by a mere counsel of the Government?

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A – In Republic vs. Purisima (78 SCRA 470), the Supreme Court ruled that the waiver made by the lawyer of the Rice and Corn Administration is not binding upon the State. The express consent of the State to be sued should, therefore, be provided by law. Q – Can the agencies of the Government of the Republic of the Philippines be sued? A – It depends on whether the government agency to be sued is incorporated or unincorporated. If it is incorporated, the rule is that it is suable if its charter says so and regardless of the functions it is performing. If it is unincorporated, the rule is that it is suable if it is performing proprietary functions, and not suable if it is performing governmental functions. NOTE: The old cases are Meritt vs. Government of the Philippine Islands, 34 Phil. 311; Rosette vs. Auditorial General, 81 Phil. 453 and Palafox vs. Ilocos Norte. Q – Briefly, what is the decision of the Supreme Court in the said cases? A – In Meritt vs. Government, the driver of the ambulance of the Philippine General Hospital was not considered as an agent and the said hospital is not therefore liable for the negligence of the ambulance driver. In Rosette vs. Auditor General, it was held that the officers of the Emergency Control Administration did not act as special agents of the government in storing gasoline in the warehouse of the Emergency Control Administration. Hence, the government is not responsible for the damages caused through such a negligence. In Palafox vs. Province of Ilocos Norte, the latter was not liable for the acts of the driver of the truck because he was not a special agent of the government as the term was used in Article 1903 of the Spanish Civil Code. The judgment of the lower court dismissing the complaint of plaintiff’s father on the ground that the province was not engaged in industry and therefore not liable under Article 103 of the Penal Code (where the employer’s liability is subsidiary), was affirmed by the Supreme Court.

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FONTANILLA VS. MALIAMAN, ET AL. G.R. NO. 55963; NATIONAL IRRIGATION ADMINISTRATION VS. FONTANILLA, ET AL., G.R. NO. 610-45, DECEMBER 1, 1989 FACTS: NIA, a government agency, owns and operates a pick-up, and it is officially driven by Hugo, the one employed by NIA as its regular driver. Said pick-up bumped a bicycle ridden by Francisco, son of petitioners. Because of the impact, Francisco was thrown 50 meters away from the point of impact, while Restituto, another passenger, was thrown a little bit further. Francisco died. Hugo was a licensed professional driver and he passed the written and oral examinations on traffic rules and maintenance given by NIA. The parents of Francisco sued NIA for damages. NIA’s contention: NIA alleged that it does not perform solely or primarily proprietary functions, and that it is an agency of the government tasked with governmental functions. It cannot therefore be held liable for damages for injuries caused by its employees to a third person. ISSUE: Is NIA liable for damages? HELD: The NIA is an agency of the government exercising proprietary functions, by express provision of Republic Act 3601. Indubitably, it is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body performing nongovernmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee. In this case, the NIA assumes the responsibility of an ordinary employee and as such, it becomes answerable for damages. This assumption of liability, however, is predicated upon the existence of negligence of supervision. The matter of due diligence on the part of NIA is a crucial issue in determining its liability since it is a government agency performing proprietary functions and as such assumes the posture of an ordinary employer which, under paragraph 5 of Article 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision of the driver.

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Q – A –

Q – A –

Q – A –

Evidently, there was negligence in the supervision of the driver for the reason that they were traveling at a high speed within the city limits and yet the supervisor of the group failed to caution and make the driver observe the proper and allowed speed within the city. Under the situation, such negligence is aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and recklessness on the part of both the driver and the group supervisor. Therefore, NIA may be held liable for damages caused by the negligent act of its driver who was not its special agent. Can a public officer be sued in his official capacity without obtaining first the consent of the State to be sued? This is allowed in cases where said public officer is merely being required to do or perform a duty which is required by law, or if he is merely being restrained to do or perform an act which is alleged to be illegal or unconstitutional, or if he is being sued to be able to recover from him the possession of a property which is under his custody in his official capacity as a public officer. However, if in the enforcement of a judgment rendered in connection with said cases, an appropriation of public funds will be needed to satisfy the judgment, the State should be included in the suit as party defendant. In other words, the State need not be a party defendant if such claim can be satisfied and complied with by the said public officer. Can a public officer who claims to have exercised an act in the performance of his official duties incur personal liability? It is not enough that a public officer complies with his official duties. He should perform his duties in accordance with law and he should act within the scope of his authority and jurisdiction. Hence, if a public officer acts without jurisdiction or in excess of jurisdiction, any injury caused by him is his personal liability and cannot be imputed to the State. When the State gives its consent to be sued, does it also consent to the execution of the judgment against it? This question was raised in Republic of the Philippines vs. Villasor (54 SCRA 84). In this case, a writ of execution was issued by the court against the funds of the Armed Forces of the Philippines to satisfy a judgment rendered against the Philippine Government. It was ruled that public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and even if the State liability has been adjudged. This

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ruling upholds the view that when the State give 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 proceedings anterior to the stage of execution and that the power of Courts ends when the judgment is rendered. In other words, judgment is one thing and disbursement of public funds to satisfy the said judgment is another. The first is well within the scope of the power and authority of the court. The seconds depends on whether or not there is a corresponding appropriation, as required by law, to satisfy the judgment of the court. Are there instances when funds belonging to government corporations and deposited in a bank, were garnished? In Philippines National Bank vs. Pabalan (83 SCRA 595), a writ of execution was issued against PVTA (Philippine Virginia Tobacco Administration. Its funds on deposit with PNB were garnished. Here the funds belong to a government corporation whose charter provides that it can sue and be sued. In National Housing Authority vs. Heirs of Quirelondo, G.R. No. 154411, June 19, 2003, it was held that funds belong to a government owned or public corporation which is clothed with a personality of its own, hence, the same are not exempt from garnishment. Here, the NHA was considered like any other corporation because it has entered into a commercial transaction, and for which reason, it has abandoned its sovereign capacity. There is another case where the City Government approved and passed an ordinance, allocating a certain amount to be able to pay back salaries. Here, there is already an appropriated amount intended to be used and to satisfy the said obligation. (City of Caloocan vs. Allarde, G.R. No. 107271, September 10, 2003) Suppose there is already a final money judgment against a municipality but despite this, the later still fails and refuses to pay the same, what coercive measure, if any, can be availed of to compel the payment of the said judgment? The claimant may file a petition for mandamus to compel the enactment and approval of the necessary appropriation ordinance and the corresponding disbursement of municipal funds. (Municipality of Makati vs. Court of Appeals, 190 SCRA 206) One of the functions of TESDA (Technical Skills Development Authority), an unincorporated instrumentality of the government attached to DOLE, is to develop and establish a national system of skills standardization, testing and certification

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in the Philippines. For this purpose, TESDA sought to issue security-printed certification and/or identification polyvinyl (PVC) cards to trainees who have passed the certification process. Hence, it entered into a contract with PROVI for the printing and encoding of PVC cards. PROVI claims that in the course of its undertaking under the said contract, TESDA has incurred a liability to it in the amount of P35,735,500.00, allegedly the outstanding balance left after deducting PROVI’s payment of P3,739,500.00. Despite demand, TESDA failed to pay the same, and for this reason, PROVI filed a complaint for sum of money with damages against TESDA. PROVI’s CONTENTION: Since its contract with TESDA is to provide identification PVC cards with security seal which TESDA will thereafter sell to the trainees of TESDA, it follows that TESDA has engaged in commercial transactions not incidental to its governmental functions. TESDA’s CONTENTION: TESDA claims that it is not engaged in business and that while it is true that it will charge the trainees a corresponding fee for the PVC cards, the same is only intended to recover the costs, and not intended for profit. ISSUE: Is TESDA immune from suit? HELD: 1. TESDA is immune from suit. Being an unincorporated instrumentality of the government, the test for its suability is on the function that it performs. The fact that TESDA sells the PVC cards to its trainees for a fee does not characterize the transaction as industrial or business. The sale, cannot be considered separately from TESDA’s general governmental functions, as they are undertaken in the discharge of these functions. 2. Assuming that TESDA entered into a proprietary contract with PROVI and thereby gave its implied consent to be sued, TESDA’s funds are still public in nature and, thus, cannot be the valid subject of a writ of garnishment or attachment. TESDA funds, being sourced from the Treasury, are money’s belonging to the government, or any of its departments, in the hands of public officials. (Professional Video, Inc. vs. TESDA, G.R. No. 155504, June 26, 2009)

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ACT OF STATE DOCTRINE Under this doctrine, the foreign court chooses to uphold and respect the foreign State’s act done within its territory on the reasoning that if it will not do so, it would “imperil the amicable relations between governments and vex the peace of nations.” The doctrine was applied in the case of Banco Nacional de Cuba vs. Sabatino (376 U.S. 398 [1964]), which upheld the nationalization of sugar produced in Cuba. This was criticized and for which reason, the U.S. Supreme Court adopted the position formulated in “Sabatino Amendment” (22 U.S. C.A 2370[e][1]), to the effect that no court in the U.S. should decline because the Act of State doctrine seems to make a determination on the validity of a confiscation of property by a foreign State in violation of the principles of international law. Since then, the Act of State Doctrine was abandoned by the courts. In First National City Bank vs. Banco Nacional de Cuba (406, U.S, 759 [1965]), the U.S. Supreme Court held that the doctrine should not be applied where the Executive Branch expressly represents to the court that the application of the doctrine would not advance the interests of American foreign policy. This doctrine was the subject of discussion and controversy in Philippine National Bank vs. U.S. District Court of Hawai, No. 04-71843 (D.C. No. MDL-00840-MLR, Feb. 4, 2005) and Credit Suesse vs. U.S. District Court for the Central District of California, 130 F.3d 1342,134748 (9th Cir. 1997). ACT OF STATE DOCTRINE AS APPLIED IN CREDIT SUISSE VS. U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 130 7.3d 342, 1347-48 In relation to PNB vs. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. NO. MDL- 00840-MLR) February 4, 2005 In this case, the Swiss assets of the Marcos estate had been frozen by the Swiss government at the request of the Republic of the Philippines, which seeks to recover them. The class plaintiffs obtained an injunction from the U.S. District Court of Hawaii requiring the Swiss Banks to hold the assets for the benefit of the class plaintiffs. The U.S. 9th Circuit Court of Appeals issued a writ of mandamus and held that the injunction violated the Act of State doctrine, which precludes

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American Courts from declaring “invalid” a foreign sovereign’s official act, that is, the freeze order of the Swiss government. The Swiss government released the funds frozen in Switzerland for transfer to the Philippine National Bank in escrow pending a determination of proper disposal by a competent court in the Philippines. The said funds were deposited by the PNB in Singapore. Thereafter, the assets were forfeited to the Republic of the Philippines following the decision of the Philippine Supreme Court. The U.S. District Court of Hawaii ruled and ordered as follows: 1.

The Philippine Supreme Court had violated “due process by any standard” and that its judgment was entitled to no deference. 2. “Any such transfer, without first appearing and showing cause in this court as to how such transfer might occur without violating the Court’s injunction shall be considered contempt of the Court’s earlier order. Any and all persons and banking institutions participating in such transfers are hereby notified that such transfer would be considered in contempt of the Court’s injunction. 3. PNB, which was not a party to the litigation in the district court, was required to show why it should not be held in contempt for violating the court’s injunction against transfer of assets by the estate. Hence, PNB filed a petition for mandamus in the U.S. 9th Circuit Court of Appeals to restrain the District Court from enforcing its “Order to Show Cause” and from pursuing discovery against the Bank officer. This case is: PNB vs. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. No. MDL-00840-MLR) [FEBRUARY 4, 2005] PNB contended that the entire proceeding against it for its transfer of funds to the Republic of the Philippines violated the “Act of State Doctrine,” and that the transfer of funds was made in accordance with the judgment of the Philippine Supreme Court. ISSUE: Are the orders of the U.S. District Court of Hawaii a violation of the “Act of State Doctrine.” HELD: 1.

The U.S. 9th Circuit Court of Appeals held that the orders of the U.S. District court of Hawaii had violated the “ Act of State Doctrine and reasoned out as follows:

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A)

B)

C)

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To obtain assets from PNB, or to hold PNB in contempt for the transfer of those assets to the Republic of the Philippines, the District Court necessarily held invalid the forfeiture judgment of the Philippine Supreme Court. Regarding the argument of class plaintiffs that the Act of State Doctrine is directed at the executive and legislative branches of foreign governments and did not apply to judicial decisions; the U.S. 9th Circuit Court of Appeals said: (b.1) A judgment of a court may be an Act of State. (b.2) There was no question that the judgment of the Philippine Supreme Court gave effect to the public interest of the Philippine Government. The forfeiture action was not a mere dispute between private parties. It was an action initiated by the Philippine Government pursuant to its “statutory mandate to recover property allegedly stolen from the treasury. (In re Estate of Ferdinand E. Marcos – Human Rights Litigation, 94 F. 3d at 546) (b.3) The U.S. 9th Circuit Court of Appeals had earlier characterized the collection efforts of the Republic of the Philippines to be governmental. (b.4) The subject matter of the forfeiture action thus qualified for treatment as an Act of State. Regarding the other argument of class plaintiffs that the Act of State Doctrine was “inapplicable” because the judgment of the Philippine Supreme Court did not concern matters within its own territory, the U.S. 9th Circuit Court of Appeals ruled, thus: “The act of the Philippine Supreme Court was not wholly external. Its judgment which the district court declared invalid, was issued in the Philippines and much of its force upon the Philippine National Bank arose from the fact that the Bank is a Philippine Corporation. (Callejo vs. Bancomer, S.A. 764 F. 2d 1101, 1121-25 [5th Cir. 1985]) “Even if we assume for purposes of decision that the assets were located in Singapore, we conclude that this fact does not preclude treatment of the Philippine

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D)

judgment as an act of State in the extraordinary circumstances of this case.” Further agreements of the U.S. 9th Circuit Court of Appeals: (a) The interest of the Republic of the Philippines in the enforcement of its laws does not end at its boarders. The fact that the escrow funds were deposited in Singapore does not preclude the application of the Act of State Doctrine. xxx” (b) The Republic of the Philippines did not simply intrude into Singapore in exercising its forfeiture jurisdiction. The presence of the assets in Singapore was a direct result of events that were the subject of the decision in Credit Suisse, supra, where the U.S. 9th Circuit Court of Appeals upheld as an Act of State a freeze order by the Swiss government, enacted in anticipation of the request of the Philippine government to preserve the Philippine government’s claims against the very assets in issue today.” (Credit Suisse, 130 F. 3d at 1346-47)

4.

POTESTAS DELEGATA NON DELEGARI POTEST The literal meaning of which is POWER DELEGATED CANNOT FURTHER BE DELEGATED. The classic statement of the rules is that of Locke, thus: “The legislative must not nor can transfer the power of making laws to anybody else or place it anywhere except where the people have. (Cited in People vs. Vera, 65 Phil. 56) This is, in turn, based on the principle that the delegate to whom a power is delegated has been chosen precisely because trust is reposed on him and if he delegates further to another the power delegated to him, the third person does not have the trust originally given to him. Moreover, the power delegated constitutes not only a right but also a duty to be performed by the delegate through the use of his own judgment and not through the judgment of another.

5.

DOCTRINE OF JUDICIAL SUPREMACY It is the assertion of the solemn and sacred obligation assigned to the Judiciary by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an

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actual controversy the right which that instrument secures and guarantees to them. (Angara vs. Elec. Com., 63 Phil. 139) 6.

DOCTRINE OF PARENS PATRIAE Literally, this means father of his country. It is a doctrine which refers to the inherent power or authority of the State to provide protection of the person and property of a person non sui juris. Under this doctrine, the State has the sovereign power of guardianship over persons under disability. Thus, the State is considered the parens patriae of minors. (Vasco vs. Court of Appeals, 81 SCRA 762)

7.

THE PRINCIPLE OF THE RIGHT OF REVOLUTION It is the inherent right of a people to cast out their rulers, change their polity, or effect radical reforms in their system of government or institutions, by force or a general uprising, when the legal and constitutional methods of making such changes have proved inadequate, or are so obstructed as to be unavailable. (Black’s Const. Law, 10)

8.

DOCTRINE OF STARE DECISIS Means the uniformity in judicial decisions. The principle is sometimes applied and sometimes ignored in the field of constitutional law. But it may be said that once an interpretation has been given the provision of the Constitution, it should not be abandoned without grave reasons, for the stability of many important institutions of society depends upon permanence. The rule applies only with respect to the point actually decided by the case. (Black, Const. Law, 44; Humphrey vs. U.S. 602) MULTIPLE CHOICE QUESTIONS

1.

Separation of Powers Separation of powers operates to maintain legislative powers to the legislative department, executive powers to the executive department, and those which are judicial in character to the judiciary. A. This means that each department is free and independent from each other. B. The three departments are co-equal branches of government and each department is free to perform the powers vested upon it. C. They are independent from each other but one department may treat the acts of the other department as nugatory and not binding to it whenever it deems necessary.

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D.

This means that there is merely an allocation of certain powers to each department but there is no absolute separation of powers of the three branches of government. Each department is given certain powers by which each may restrain the others from exceeding their constitutional authority.

2.

Rule of Majority Out of thirty million voters, X won by 100,000 votes over his nearest presidential contenders. A. X won the support of the majority of the registered voters. B. X received the highest number of votes and therefore won by majority. C. X won and although he won merely by 100,000 votes, that is a majority. D. X won but considering that he won merely by 100,000 votes, he won merely by plurality.

3.

Social Justice A. Under the 1987 Constitution, social justice has still the same meaning. B. Social Justice means that the State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. C. Social Justice is compassionate justice both for the poor and the rich. D. Social Justice now includes all phases of national development instead of being merely limited to the removal of socioeconomic equities, including diffusion of wealth and political power.

4.

Constitutionality of Agrarian Reform Law In Association of Small Landowners vs. Secretary of Agrarian Reform, the constitutionality of Republic Act 6657 was upheld. A. The taking contemplated under Republic Act 6657 is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights.

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C.

D.

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The taking contemplated is considered an ordinary expropriation where a specific property is sought to be taken by the State from its owner for a specific and perhaps local purpose. The proceedings in Sec. 16 of Republic Act 6657 is described as summary and the landowner concerned is required to surrender his land and the physical possession of the land in excess of the retention limit. The taking is not an ordinary expropriation where only a specific property is sought to be taken by the State from its owner for a specific or perhaps local purpose. What we deal with here is a revolutionary kind of expropriation, but the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or deposit by the DAR of the compensation in cash or LBP Bonds with an accessible bank. Until then, the title remains with the landowner. ARTICLE III BILL OF RIGHTS

Q – What is the Bill of Rights and what is its purpose? A – The bill of rights is the sanctuary of protection for all persons, citizens or non-citizens, against any and all kinds of abuses of power and authority by the government, or any of its officials and employees, or even against any unwarranted violation of such rights by any other person. In other words, the Bill of Rights serves not only as a limitation but also as a deterrent to further violations of fundamental liberties which is the essence of constitutional democracy. As against the wide latitude of power and authority of the government, the Bill of Rights serves also as a leverage, a countervailing shield which the people can have against any form of injustice. Q – What is the difference between the guarantees of the Bill of Rights and the guarantees provided in Article XIII regarding social justice and human rights? A – Even in the absence of implementing legislation, the guarantees in the Bill of Rights are self-implementing, whereas the guarantees in Article XIII regarding social justice and human rights, require implementing legislation.

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Q – Are all the powers of the government limited by the Bill of Rights? A – Yes. REASON: The Bill of Rights serves as a leverage, a countervailing shield which the people can have against any form of injustice. Q – What are these powers? A – All powers of government such as but not limited to: (a) police power; (b) power of eminent domain; and (c) power of taxation. DISCUSSION OF EACH (A) POLICE POWER; (B) POWER OF EMINENT DOMAIN; AND (C) POWER OF TAXATION POLICE POWER Q – What is the test to determine the validity of police power? A – In order to determine whether or not the exercise of police power is valid or invalid requires the concurrence of the following: 1. The subject matter of the law must be lawful, which means that public interest, as distinguished from those of a particular interest, requires the interference of the State. 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. (NTC vs. Philippine Veterans Bank, 192 SCRA 257) Example: 1. A municipal ordinance providing, among others, that children between 7 and 12 years of age should only be charged half the value of movie tickets. It was held that said ordinance is unduly oppressive and unreasonable. The means employed to attain the purpose of the ordinance is unreasonable, confiscatory and oppressive because the theater owners suffer a loss in revenue besides being penalized for failure to comply with the said ordinance. (Balacuit vs. CFI of Agusan Del Norte, 163 SCRA 187) 2. NTC (National Telecommunications Commission) granted a franchise to Express Telecommunications, Co., Inc. (ETCI) to operate and maintain a cellular mobile telephone service and paging system in Metro Manila and Southern Luzon. NTC granted a provisional authority to ETCI provided that ETCI and PLDT shall enter into an interconnection agreement with PLDT and that said agreement should be jointly submitted to NTC approval. PLDT claims that NTC has no jurisdiction to grant ETCI a certificate of public convenience and necessity or interconnection with PLDT. The Supreme Court upheld the authority of NTC to compel PLDT to allow ETCI to interconnect on the ground that although there is an

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4.

5.

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intervention with property rights, it is nevertheless dictated by the objective of the government to promote the rapid expansion of telecommunication services in the Philippines and to maximize the use of telecommunication facilities. (PLDT vs. NTC, 190 SCRA 717) Color coding system and supplementary rules to minimize traffic of the riding public. Is this arbitrary and oppressive? No, following the decision in Bautista vs. Junio (127 SCRA 329). Law requiring government official and employees to file annually a detailed statement of their assets and liabilities. Is this an invasion of privacy? No. It is justified under the police power of the State to minimize graft and corruption and maintain a high standard of honesty in the government service. (Marfe vs. Mutuc, 22 SCRA 424) Ordinance confining prostitutes within prescribed limits. Is this justified under the police power of the State? Yes, to protect public health and morals. (L’Hotel vs. New Orleans, 177 U.S. 587) This is different from the case of Villaviciencio vs. Lucban where the Mayor of Manila shipped prostitutes to Davao to clean the City of Manila. In this case, the Supreme Court ruled that there is a violation of liberty of travel and abode.

OTHER CASES WHEN POLICE POWER WAS CONSIDERED AS VALIDLY EXERCISED 1. Law prohibiting slaughter of work animals like carabaos. REASON: To preserve carabaos which are considered as tractors of Filipino farmers. (U.S. vs. Tonbio, 15 Phil. 85) 2. Law fixing fees of recruitment agencies. REASON: The business is impressed with public interest. (Olsen vs. State of Nebraska, 313 U.S. 236) 3. Ordinance prohibiting theaters to sell tickets beyond their sitting capacity. REASON: To promote convenience, comfort and safety of the viewing public under the police power. (People vs. Chan, 65 Phil. 611) 4. DOLE’s order to suspend temporarily deployment of Filipino domestic workers to a certain country. REASON: To insure that our overseas workers are adequately protected while away from home. (Phil. Association of Service Exporters, Inc. vs. Drilon, 163 SCRA 386) 5. Law requiring compulsory vaccination of people against small pox, cholera, and sterilization of insane and idiots. REASON: The purpose of the law is to protect and ensure the health of the people. (People vs. Abad Lopez, 62 Phil. 835) 6. Confinement of lepers. REASON: Leprosy is an infectious disease and their exclusion from society will prevent the spread of disease. (Lorenzo vs. Director of Health, 50 Phil. 595)

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FROM THE AFOREMENTIONED SUPREME COURT DECISIONS, HERE IS A SUMMARY OF THE IMPORTANT POINTS TO REMEMBER 1. The test to determine the validity of a police measure is as follows: a. The subject of the police measure in issue must be within the scope of the police power. b. Even if the said police measure is within the scope of police power, the means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. 2. If the above exists or are complied with, the enjoyment of private rights, or the conduct of private affairs or activities, may be subordinated to the interest of the greater number on the time honored principle of Salus Populi Est Suprema Lex. 3. Police power is resorted to in order to protect public welfare. 4. Public welfare is protected and promoted by restraining and regulating the use of liberty and property. Q – If the State, through police power, can interfere and invade private affairs and activities, what are the remaining areas of human activity that are not within the reach of police power? A – a. A person is still free to choose the religion he likes but if the religion he chooses conducts a ritual or activity that is contrary to law, morals and public policy, the State can interfere with and arrest those who are involved in such illegal activity. b. A person may or may not work as he chooses but if he works to carry out an illegal recruitment, sale or disposition of prohibited drugs, or other illegal activities, the State can also interfere with and make him liable according to his participation. c. A person is free to choose his attire, or the color of his skirts, pants, blouse or underwear, and up to that point, the State will not interfere, but if a woman, for instance will choose to walk along Roxas Boulevard only with a panty covering her body, the State can take appropriate action to stop her from doing so to avoid public scandal. d. A person may construct a residential structure in his lot and the State will not interfere if such house is big or small, but the local government unit can require him to submit a corresponding building permit to insure compliance with engineering requirements and other specifications. e. A person may acquire a house and lot in a subdivision of his choice but he cannot use it as his base of operation for prohibited drugs.

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g.

h.

i.

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A person is free to sing in his private bathroom and the State is not concerned at all if he sings well or not, but if he sings at the top of his voice at 1:00 o’clock a.m., in the sala of a boarding house thereby bothering the peace and silence of his boardmates, he subjects himself to criminal and civil sanctions. A person who owns several cars is free to use any of his cars but he cannot choose to drive a car and use it to and from his office if the said car cannot be used on a particular day and time because of color coding. A person is free to decorate his bedroom or sala the way he likes, fill it with pictures and flowers as he chooses, and the State is not concerned at all if the same is beautiful or not, but if he uses his bedroom as the place to store prohibited drugs, the State can interfere, through appropriate action, to protect innocent men and women of tender age. Rodman, the famous basketball player of Chicago Bulls, had his hair colored with green, pink, gold, etc., and the State did not even interfere at all with his choices, but if he unlawfully hurts his adversaries inside the basketball court, the State can interfere with and punish him accordingly. There will still be a long list of acts that may or may not be done by private individuals. In any and all of the said cases, the interference of the State, or the validity of the said interference, will depend on the circumstances of each particular case, using the following tests: 1. The subject matter of the law must be lawful which means that public interest, as distinguished from those of a particular interest, require the interference of the State; 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. Without compliance with the above criteria, the power of the State to interfere in the private business or affairs of an individual, may likely resort to abuse, and hence, this will result to unlawful and unwarranted intrusion into individual property and property rights.

POLICE POWER OF LOCAL GOVERNMENT UNITS While the exercise of police power is principally lodged in the legislature, the President and local government units may exercise such power. In fact, the Local Government Code of 1991 explicitly grants to the local government units the power to enact laws that will promote the welfare of the people.

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CASES: 1. An ordinance of the City of Manila prohibits any operator of any barbershop to conduct the business of massaging customers in any adjacent room or rooms of said barbershop. Is this ordinance valid? The ordinance is valid. REASON: To arrest the commission of possible immorality that may arise if a separate room for the massage of customers is constructed. (Velasco vs. Villegas, 120 SCRA 568) 2. How about an ordinance which prohibits the establishment and operation of sauna parlors, nightclubs, cabarets. Is this valid? The ordinance is valid. Under Section 458(4)(VII) of the Local Government Code, because City Councils may now prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. BRIEF DISCUSSION OF THREE (3) CASES 1. 2. 3.

Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991 Magtajas vs. Pryce Properties, G.R. No. 111097, July 20, 1994 Lim, etc. vs. Judge Pacquing, etc., et al., G.R. No. 115044, January 27, 1995; Guingona, Jr., et al. vs. Judge Reyes, et al., G.R. No. 117263, January 23, 1998

SUMMARY OF DECISIONS 1. Cabrera vs. Court of Appeals – Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. 2. Magtajas vs. Pryce Properties – It is a heresy to suggest that the LGUs can undo the acts of Congress, from which they have derived their power, and negate by mere ordinance the mandate of the statute. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reason it may consider sufficient. The Supreme Court has no authority to review, much less reverse such choices. 3. Lim vs. Pacquing – Congress did not delegate to the City of Manila the power “to franchise” wagers or betting, including Jai-Alai, but retained for itself such power “to franchise.” What Congress delegated to the City of Manila under R.A. 409, with respect to wagers or betting, was the power “to license, permit, or regulate.” This means that a license or permit issued by the City of Manila, would not amount to something

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meaningful UNLESS THE HOLDER OF THE PERMIT OR LICENSE WAS ALSO FRANCHISED BY THE NATIONAL GOVERNMENT TO SO OPERATE. NEW CASE SOCIAL JUSTICE SECRETARY (SJS), ET AL. VS. HON. JOSE L. ATIENZA, JR., ETC., ET AL. G.R. NO. 156052, FEBRUARY 13, 2008 TOPICS INVOLVING POLITICAL LAW: (1) POLICE POWER (2) EMINENT DOMAIN; (3) EQUAL PROTECTION OF THE LAW FACTS: 1.

2. 3.

4.

5.

The City of Manila and the DOE (Department of Energy) entered into a MOU (Memorandum of Understanding) with the oil companies on June 26, 2002. They agreed that “the scaling down of the Pandacan Terminals was the most viable and practicable option.” Said MOU was ratified by the Sangguniang Panlungsod through Resolution No. 97. It provided that the MOU was effective for six (6) months starting July 25, 2002. Said period was extended to April 31, 2003, through Resolution No. 97, which authorizes the Mayor of Manila to issue special permits to the oil companies. Petitioners, in an original petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent Hon. Jose L. Atienza, then Mayor of the City of Manila to enforce Ordinance No. 8027, which was enacted by the Sangguniang Panlunsod of Manila. •

6.

ORDINANCE NO. 8027 Under this ordinance, a certain area described therein was reclassified from industrial to commercial and directed the owners and operators of businesses disallowed under the reclassification to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so called “PANDACAN TERMINALS” of the oil companies On March 7, 2007, the Supreme Court ruled: (a) That the respondent had the ministerial duty under the Local Government Case to “enforce all laws and ordinances relative to the governance of the City, including Ordinance 8027.

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(a)

7.

The Supreme Court also ruled that “we need not resolve the issue of whether the said MOU and the subsequent resolutions passed by the Sanggunian could amend or repeal Ordinance No. 8027 since the Resolutions which ratified the MOU and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. (b) The Supreme Court concluded that there was nothing that legally hindered respondent from enforcing Ordinance No. 8027. fter the said decision on March 7, 2007, the oil companies and the DOE sought to intervene and filed the instant motions for reconsideration in intervention.

ISSUES: The issues involving political law and constitutional law are the following: 1. Is ordinance No. 8027 a valid police measure? 2. Is the contention of the oil companies (that Ordinance No. 8027 not only regulates but also prohibits them from conducting operations in the City of Manila), correct? 3. Is Ordinance No. 8027 violative of the equal protection of the law? HELD: 1. ORDINANCE NO. 8027 IS A VALID POLICE MEASURE. (a) The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just a particular class. (b) The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as there is a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. (c) The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the area where the depot is situated from industrial to commercial. (1) A zoning ordinance is defined as a local city or municipal legislation which logically arranges; prescribes, defines and apportions a given political subdivision into specific land users as present and future projection of need. (2) As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted.

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(3)

(d)

The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality. Ordinance No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those affected cannot just be unjust.

2.

THE CONTENTION THAT ORDINANCE 8027 IS UNFAIR AND OPPRESSIVE IS WITHOUT MERIT. (a) The oil companies are not prohibited from doing businesses in other appropriate zones in Manila. The City of Manila merely exercised its power to regulate the businesses and industries in the zones it established. (b) The contention of the oil companies that their forced closure will result in huge losses in income and tremendous costs in constructing new facilities is without merit. REASONS: In the exercise of police power, there is a limitation or restriction of property interest to promote public welfare which involves no compensable taking. Compensation is necessary only when the State’s power of eminent domain is exercised. The restriction imposed to protect lives, public health and safety from danger is not taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public.

3.

ORDINANCE 8027 DOES NOT VIOLATE GUARANTEE OF EQUAL PROTECTION OF THE LAW: The Supreme Court said: “The law may treat and regulate one class differently from another class provided there are real and substantial differences to distinguish one class from another. Here, there is a reasonable classification. We reiterate that what the ordinance seeks to prevent is a catastrophic devastation that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-value terrorist target. Any damage caused by fire or explosion occurring in those areas would be nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The enactment of the ordinance which provides for the cessation of the operations of these terminals removes the threat they pose. Therefore, it is germane to the purpose of the ordinance. The classification is not limited to the conditions existing when the ordinance was enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and industries in the area it delineated.”

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AUTHORITY AND POWER TO FRANCHISE The power to license, permit and regulate wagers or betting Jai-Alai was removed from local governments, including the City of Manila. The authority granting franchises for the operation of Jai-Alai prontons is in Congress, while the regulatory function is vested in the GAB. Q – It was alleged that this is a violation of non-impairment and equal protection clauses of the Constitution. Decide. A – The said contention is not valid. REASON: The franchise is not in a strict sense a simple contract but rather it is, more importantly, a mere privilege specially in matters which are within the government’s power to regulate and even prohibit through the exercise of police power for public welfare. (Lim, etc. vs. Judge Pacquing, etc., et al., G.R. No. 115044, January 27, 1995; Guingona, Jr., et al. vs. Judge Reyes, et al., G.R. No. 117263, January 27, 1998) POWER AND AUTHORITY TO PROHIBIT GAMBLING Q – Can the government of Cagayan De Oro City prohibit gambling and prohibit PAGCOR from operating a casino in Cagayan De Oro City? A – The Supreme Court said: The local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local governments units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. The Supreme Court also ruled, through Justice Isagani Cruz, that: “In the exercise of its own discretion, the legislative power may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting, and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. That is the prerogative of the political departments. It is settled that questions regarding wisdom, morality and practicability of statutes are not addressed to the judiciary but may be resolved only by the executive and legislative departments, to which the function belongs in our scheme of government.” Talks regarding the supposed vanishing line between right and privilege in American constitutional law has no relevance in the context

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of these cases. On the other hand, jai-alai is not a mere economic activity which the law seeks to regulate. It is essentially gambling and whether it should be permitted and, if so, under what conditions are questions primarily for the lawmaking authority to determine, taking into account national and local interests. Here, it is the police power of the State that is paramount. RIGHT TO ACCESS TO EVIDENCE IN THE HANDS OF GOVERNMENT Q – Does an extradite have a right of access to the evidence in the hands of the government? A – He does not have said right during the executive phase of an extradition proceeding but he has that right during the judicial phase of the proceedings. (Secretary vs. Judge Lantion, G.R. No. 139465, October 17, 2000) EMINENT DOMAIN Q – Can LGU’s exercise the power of eminent domain? A – Local government units have no inherent power to exercise eminent domain. It must be explicitly delegated as, in fact, it is so provided by Section 19 of the Local Government Code of 1991, thus: “Section 19. Eminent domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. x x x” Q – What are the limitations on the exercise of said power under Section 19 of the Local Government Code (R.A. 7160)? A – The power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted. (Ibid.) Q – Can the LGU immediately take possession of the property subject of eminent domain? A – Yes, upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated. (Ibid.) Q – Who determines the amount to be paid for the expropriated property? A – The proper court, based on the fair market value at the time of the taking of the property. (Ibid.)

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Q – What is the difference between the power of eminent domain, as exercised by Congress, and the power of eminent domain, as exercised by LGU’s? A – The power of eminent domain, so exercised by Congress, is plenary. It can reach every form of property which may be needed by the State for public use. In fact, it can reach even private property already dedicated to public use, or even property already devoted to religious worship. (Barlin vs. Ramirez, 7 Phil. 41) On the other hand, the power of eminent domain as exercised by Local Government Units is not, strictly speaking, a power of eminent domain but merely a power of inferior domain which means that local government units can only exercise such power which is delegated to it. Q – Can a land be expropriated by the Municipality of Parañaque on the basis of a resolution passed by the Sangguniang Bayan? A – What is required by law is an ordinance, not a resolution. The requirement therefore of Section 19 of the LGC was not complied with. (Municipality of Parañaque vs. V.M. Realty Corporation, 292 SCRA 676) Q – What is the difference between a resolution and an ordinance? A – Ordinance

1. It is a law.

2. An ordinance has to undergo three readings before it is finally approved into law.

Resolution

1. It is merely an expression of a sentiment or opinion of a lawmaking body on a specific matter. 2. This is not required unless decided otherwise by a majority of the members of the Sangguniang Bayan.

CLOSURE AND OPENING OF ROADS Q – What is the power of LGUs regarding closure and opening of roads, alley, park or square within its jurisdiction? A – They may, pursuant to an ordinance, close or open the same, permanently or temporarily. (Section 21, R.A. No. 7160) Q – What are the requirements in case of permanent closure? A – 1. Said ordinance must be approved by at least 2/3 of all the members of the Sanggunian, and when necessary, it shall provide an adequate substitute. 2. Adequate provision for the maintenance of public safety must be made.

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3.

Q – A – Q – A – Q –

A –

The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. When can the same be temporarily closed? During an actual emergency, fiesta celebrations, public rallies, etc. Can the City Mayor of Manila, by himself, withdraw Padre Rada as a public market? The same can only be made possible by joint action of the Sanggunian and the Mayor. (Cruz vs. Court of Appeals, 153 SCRA 142) Can a person who allegedly suffered damage and inconveniences on account of a street which was ordered closed, recover compensation for the said closure? No. REASON: (1) He has still a reasonable access to the general system of the streets; (2) Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. (Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991)

TAXATION Q – What is taxation? A – It is the process by which the government, through its legislative branch, imposes and collects revenues to defray the necessary expenses of government, and to be able to carry out, in particular, any and all projects that are supposed to be for the common good. Q – What are the similarities and distinctions of police power, taxation and eminent domain? A – SIMILARITIES 1. They exist independently of fundamental law, as a necessary attribute of sovereignty. 2. They underlie the Constitution and rest upon necessity because there can be no effective government without them. 3. They are enduring and indestructible as the State itself. 4. They constitute the three methods by which the State interferes with private property rights. 5. Each presupposes an equivalent compensation; by the police power, thru the maintenance of a healthy economic standard of society; by taxation, in the form of protection, and benefits from the government;

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and by eminent domain, thru the receipt of the market value of the property taken. DISTINCTIONS Police Power

Taxation

Eminent Domain

The compensation of the individual is not immediate or, possibly apparent, and because, in the application of certain laws or regulations enacted pursuant to the police power, annoyance and financial loss may even be caused to the citizens, leaving the reward of the individual to be reaped thru his altruistic recognition that the just restraint is for the public good.

The compensation of the individual is immediate and apparent in the form of protection and benefits.

The individual receives the market value of the property taken.

Q – What is the power of taxation? A – The power to tax may include the power to destroy if it is used validly as an implement of the police power in discouraging and ultimately prohibiting in effect certain things or enterprise inimical to the public welfare. Q – When can the power to tax be attacked? A – It can be successfully attacked if it becomes confiscatory. Hence, when the power to tax is used solely for the purpose of raising revenues, it cannot be allowed to confiscate or destroy. Q – What is the nature of the power of taxation? A – 1. The power to tax is primarily vested in the legislature. This power, however, may now be exercised by local legislative bodies, no longer by virtue of a valid delegation as before, but pursuant to a direct authority conferred by Article X, Section 5 of the 1987 Constitution. 2. The power to tax is subject to the limitations imposed by the Constitution. a. It is subject to the requirement of due process. b. It is subject to the general requirement of the equal protection clause. c. Constitutional – those expressly found in the Constitution or implied from its provisions.

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d.

3.

Inherent – those which restrict the power although they are not embodied in the Constitution. The power of taxation is inherent in the State and the State therefore can still exercise this power even if the constitution had not mentioned about it.

SUMMARY OF RIGHTS GUARANTEED UNDER THE BILL OF RIGHTS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

Due process of law and equal protection of the laws (Sec. 1) Search and seizure (Sec. 2) Privacy of communication and correspondence (Sec. 3) Freedom of speech and of press (Sec. 4) Freedom of religion (Sec. 5) The liberty of abode and travel (Sec. 6) Right to information (Sec. 7) Right of association (Sec. 8) Taking of private property for public use (Sec. 9) Prohibition against impairment of obligation of contracts (Sec. 10) Free access to Courts and quasi-judicial bodies and adequate legal assistance (Sec. 11) Right to remain silent and to have competent and independent counsel (Sec. 12) Right to bail (Sec. 13) Due process in criminal proceedings (Sec. 14) Habeas corpus (Sec. 15) Speedy disposition of cases before all judicial, quasi-judicial or administrative bodies (Sec. 16) Right against self-incrimination (Sec. 17) Freedom of political belief and freedom against involuntary servitude (Sec. 18) Right against excessive fines, degrading or inhuman punishment (Sec. 19) Right against imprisonment for debt or non-payment of a poll tax (Sec. 20) Double jeopardy (Sec. 21) Right against ex post facto law and bill of attainder (Sec. 22)

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DUE PROCESS OF LAW AND EQUAL PROTECTION OF LAWS (Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.) Q – Is there an exact definition of due process? A – There is no exact definition of due process. This has been left to the best judgment of our judiciary considering the peculiarity and the circumstances of each case. In a litany of cases that have been decided in this jurisdiction, the common requirement to be able to conform to due process is “fair play,” respect for “justice” and respect “for the better rights of others.” In accordance with the said standards of due process, any court at any particular time, will be well guided, instead of being merely confined strictly to a precise definition which may or may not apply in every case. Q – What then is the definition given to due process? A – Through the years, several definitions have been written about due process of law. In Darmoth vs. Wordward (4 Wheat, 518 L. ed. 629 [1819]), it was defined as a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. In the old case of U.S. vs. Lin Su Fan (10 Phil. 104), due process was interpreted to mean: 1. That there is a law prescribed in harmony with the general powers of the legislative department of the Government. 2. That the law is reasonable in its operation. 3. That the law is enforced according to the regular methods of procedures prescribed. 4. That the law is applicable alike to all people of the State or to all of a class. In the famous case of Aquino, Jr. vs. Military Commission (63 SCRA 546), the Supreme Court made a more articulate statement and definition of due process of law, viewed in its procedural aspect, thus: “Due process of law does not necessarily mean a judicial proceeding in the regular courts. The guarantee of due process, viewed in its procedural aspect, requires no particular form of procedure. It implies due notice to the individual of the proceedings, an opportunity to defend himself and the problem of the propriety of the deprivation, under the circumstances presented, must be resolved in a manner consistent with essential fairness. It means essentially a fair and impartial trial and reasonable opportunity for the preparation of the defense.” (Underlining Supplied) Q – It is said that due process is elastic and flexible and beyond quantification and definition. Why?

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A – This is so because the due process clause can adopt itself to various contingencies and situations. Q – What is the purpose of due process? A – The due process clause is a guaranty against any kind of abuse and arbitrariness, by anyone in any of the branches of government. More specifically, the purpose of due process clause is: 1. To prevent undue encroachment against the life, liberty and property of individuals. 2. To secure the individual from the arbitrary exercise of powers of government, unrestrained by the established principles of private rights and distributive justice. 3. To protect property from confiscation by legislative enactments from seizure, forfeiture, and destruction without a trial and conviction by the ordinary modes of judicial procedures. STANDARDS OF DUE PROCESS IN ALL CASES OF TERMINATION OF EMPLOYMENT I.

FOR TERMINATION OF EMPLOYMENT BASED ON JUST CAUSES (ARTICLE 282, LABOR CODE) The following standards of due process shall be substantially observed 1. Written Notice Served on the Employee – specifying the grounds of termination and giving to said employee reasonable opportunity within which to explain his side. 2. Hearing or Conference – During which the employee concerned, with the assistance of counsel, if the employee so desires, is given the opportunity to respond to the charge, present his evidence or rebut the evidence presented against him. 3. Written Notice of Termination Served on the Employee – Indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. In case of termination, the foregoing notices shall be served on the employee’s last known address.

II.

IF THE DISMISSAL IS BASED ON AUTHORIZED CAUSES UNDER ARTICLES 283 AND 284  The employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation.

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FOUR (4) POSSIBLE SITUATIONS

EFFECT

1.

(a) Dismissal for just cause under Art. 282, or for an authorized cause under Art. 283 (b) Dismissal for authorized cause (i.e., for health reasons) under Art. 284 AND DUE PROCESS WAS OBSERVED.

1.

The dismissal is valid and the employer will not suffer any liability

2.

Dismissal is without just or authorized cause BUT D U E P R O C E S S WA S OBSERVED.

2.

Dismissal is illegal. Article 279 mandates: (a) That the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of appearances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement.

3.

Dismissal is without just or authorized cause AND THERE WAS NO DUE PROCESS.

3.

Dismissal is illegal. Article 279 mandates: (a) That the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of appearances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement.

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4.

Dismissal is for just or authorized cause BUT DUE P R O C E S S WA S N O T OBSERVED.

4.

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Dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for non-compliance with the procedural requirements.

BACKGROUND OF JURISPRUDENCE PRIOR TO WENPHIL CASE 1.

Prior to 1989, or prior to Wenphil Ruling – Dismissal or termination is illegal if the employee was not given any notice WENPHIL CORP. VS. NLRC G.R. NO. 80587, FEBRUARY 9, 1989

2.

In Wenphil Corp. vs. NLRC, it was held that the dismissed employee, although not given any notice and hearing, was not entitled to reinstatement and backwages. REASONS: a. b. c.

d.

e.

f.

Because the dismissal was for grave misconduct and insubordination which is a just ground for termination under Article 282. The employee had a violent temper and caused trouble during hours, defying superiors who pacified him. Reinstatement of the employee and awarding backwages may encourage him to do even worse and will render a mockery of the rules of discipline that employees are required to observe. Even then, it remains that the employer committed an infraction of the second requirement (and that refers to the employer’s failure to extend to the respondent the right to an investigation before causing his dismissal). Hence, the employer was ordered to indemnify the employee the amount of P1,000.00. This is referred to as the WENPHIL DOCTRINE or belated due process rule. (There was a valid reason to dismiss an employee but the employer did not follow the due process requirement.) Ruben Serrano vs. NLRC, G.R. No. 117040, January 27, 2000 – In this case, it was held that the violation of the employer of the

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notice requirement in termination for just or authorized causes, was not a denial of due process that will nullify the termination. However, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just and authorized cause. AGABON VS. NLRC The doctrine in Serrano was revisited in Agabon vs. NLRC, 442 SCRA 53 (2004). In this case, petitioners Jenny Agabon and Virgilio Agabon committed a grave offense of abandonment. Their dismissals were for cause but the twin requirements of notice and hearing were not observed. The better rule, the court said, is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this court should be able to secure a fair result by dispensing justice not just to employees, but to employers as well. REASONS: 1. The employer should not be compelled to continue employing a person who is admittedly guilty of misfeasance or malfeasance and whose continued employment is patently inimical to the employer. 2. Justice in every case should only be for the deserving party. 3. Where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights and the indemnity to be imposed should be stiffer to discourage the abhorrent practice of dismiss now pay later, which was being deterred in Serrano. AN EXTRADITEE HAS NO RIGHT TO NOTICE AND HEARING DURING THE EVALUATION STAGE OF THE EXTRADITION PROCESS SECRETARY OF JUSTICE VS. LANTION G.R. NO. 139465, OCTOBER 17, 2000 FACTS: 1. A warrant of arrest was issued by a U.S. District Court against Mark Jimenez for alleged tax evasion, fraud by wire, radio or television, false statement or entries and illegal election contributions.

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2.

3.

4.

5.

6.

7. 8.

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Invoking the provisions of the RP-US Extradition Treaty and P.D. 1069 which implements the said treaty, the United States sought the extradition of Mark Jimenez The grand jury indictment and the documents to support the request for extradition were sent by the Department of Foreign Affairs to the Department of Justice for evaluation. Pending evaluation of the said extradition documents, Mark Jimenez, through counsel, wrote a letter to the Department of Justice containing these requests: a. Request for copies of the official extradition request from the U.S. Government, and all extradition documents; b. Request to be given ample time to comment on the request for extradition; c. Request that the extradition proceedings be held in abeyance in the meantime. This request was denied by the Secretary of Justice for the following reasons: a. It is premature to grant the request at the evaluation stage of the extradition proceedings. b. Mark Jimenez will only be entitled to said documents after the case shall have been filed in court. c. The request for extradition contained jury information and documents which are covered by strict secrecy rules. Mark Jimenez filed a petition for mandamus, certiorari and prohibition against the Secretary of Justice, Secretary of Foreign Affairs and the NBI Director praying (a) that he be given copies of the extradition documents; and (b) that said officials be enjoined from performing any act directed to his extradition. A TRO was issued by the lower court, and the Secretary of Justice elevated the matter to the Supreme Court. The said petition was dismissed and the petitioner was ordered to furnish private respondent copies of the extradition request and its supporting papers. The basis of the dismissal of the petition are the following arguments: a. The “accused” (referring to Mark Jimenez) faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. Hence, the prejudice is blatant and manifest, and for this reason, the requirement

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of notice and hearing, as part of administrative due process, cannot be dispensed with. The dismissal of the petition was subject of a motion for reconsideration which was granted. RESOLUTION OF THE SUPREME COURT ON THE MOTION FOR RECONSIDERATION DURING THE EVALUATION STAGE OF THE EXTRADITION PROCEEDINGS, THE EXTRADITEE IS NOT ENTITLED TO THE RIGHT TO NOTICE AND HEARING

REASONS: 1. Presidential Decree No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. 2. The extraditee’s right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. 3. The temporary hold on private respondents privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition. 4. There is no provision in the RP-US Extradition Treaty and P.D. No. 1069 which gives an extraditee the right to demand from the Secretary of Justice copies of the extradition request from the US Government and its supporting documents and to commit thereon while the request is still pending evaluation. (343 SCRA 377 [2000]) Q – Is an extradition proceeding a criminal proceeding? A – No. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the State where he will be extradited.

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DIFFERENCES BETWEEN AN EXTRADITION PROCEEDING AND A CRIMINAL PROCEEDING EXTRADITION PROCEEDING

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It is summary in nature The rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. Our courts may adjudge an individual extraditable but the President has the final discretion to extradite him

CRIMINAL PROCEEDING

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It involves a full blown trial This requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima facie case.” The judgment becomes executory upon its finality.

COURTS HAVE THE POWER TO INTERPRET TREATIES BUT THE MEANING GIVEN TO TREATIES BY THE DEPARTMENTS OF GOVERNMENT CHARGED WITH THEIR NEGOTIATION AND ENFORCEMENT IS ACCORDED GREAT WEIGHT. WHY? The reason for this is because a treaty is a joint executive and legislative act which enjoys the presumption that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in the country. EXPLANATION OF THE WORDS “PERSON,” “LIFE,” “LIBERTY,” “PROPERTY,” “DUE PROCESS OF THE LAW” AND “EQUAL PROTECTION OF THE LAW” Q – What is a person? A – In Roman Law, a person is one who is capable to exercise ownership and legal rights and to incur and contract obligation. Under this concept, a slave is not considered a person, he being merely regarded as a chattel, a thing that can be sold or disposed of at the discretion of the master. Hence, a slave does not have the legal capacity to exercise ownership and to incur and contract obligations. Under the New Civil Code, a person may be a natural or a juridical person. A natural person refers to a human being and a juridical person refers to any of the following: 1. The State and its political subdivisions; 2. Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law;

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Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (Article 44, New Civil Code) Under our Constitution, natural and artificial persons are covered and protected by the due process clause. Is the protection to artificial persons absolute? Natural persons are covered and protected by the due process clause, except that with respect to artificial persons, the protection is only insofar as their property is concerned. (South Bell & Co. vs. Natividad, 40 Phil. 136) What must be the reason why the life and liberty of a natural person is covered by the protection, whereas, the protection to the artificial persons is only insofar as their property is concerned? The life and liberty of natural persons are not derived from any statute nor from any act of Congress. Artificial persons, on the other hand, come into being by creation and operation of law, and as such, they are subject to the rules and restrictions of the legislature. Are all persons, whether citizens or aliens, protected under the due process clause? All persons, whether citizens or aliens, without regard to any differences of race, religion, color or nationality, are protected under the due process clause. Private corporations legally existing within the Philippines are “persons” within the scope of the guaranty insofar as their property is concerned. (South Bell & Co. vs. Natividad, 40 Phil. 135; Malcolm, Phil. Constitutional Law, p. 319) Is deprivation per se unconstitutional? Deprivation per se is not necessarily unconstitutional. What is prohibited is the deprivation of life, liberty and property without due process of law. For as long as there is due process of law, there will be a lawful justification to take away one’s life, liberty and property. Example: The life of a convict is important and precious but if he is tried, convicted and accordingly sentenced to death for the heinous crimes he committed, his life can be taken away from him. This holds true for a father who raped his four daughters; for a policeman who killed and burned his victims; for a Barangay Captain who massacred all the members of a family, including innocent children, in his community; for a Mayor or politician who raped, killed and tortured his victim and the latter’s male companion; for an illegal recruiter who victimized hundreds and thousands of poor people who sold their lands and animals just to be able to pay his fees; for big-time drug pushers who have destroyed the lives of many

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young men and women of this Republic; and for any and all offenders who violated the laws of our land. In all the said instances, the life, liberty, and property of the culprits can be taken away to answer whatever may be the judgment, for as long as they were accorded due process of law. Give an example of a valid restriction on the liberty and use of property. Liberty and use of property may also be restricted if there are valid and compelling reasons for its imposition. Two hundred hectares belonging to A was subjected to agrarian reform to comply with the mandate and lawful objectives of Republic Act 6657. A’s contention that he inherited the same from his father is of no moment, agrarian reform being a constitutional mandate. What is the “right to life”? The right to life is not merely a right to the preservation of life but also the security of the limbs and organs of the human body against any unlawful harm. This constitutional guarantee includes the right of an individual to pursue a lawful calling or occupation; to express, write or even paint his ideas for as long as he does not unlawfully transgress the rights of others; to exercise his freedom of choice, whether this is in the area of politics, religion, marriage, philosophy and employment, or even in the planning of his family; and, in general, to do and perform any lawful act or activity which, in his judgment, will make his life worth living. Under the new Constitution, what may be included in the right to life? Under the new Constitution, the right to life may further be construed to mean and to include an “improved quality of life”(Section 9, Article II); “full respect for human rights” and the “dignity of every human person” (Section 11, Article II); “just and dynamic social order” to ensure “the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all” (Section 9, Article II); “the right to health” and “balanced and healthful ecology in accord with rhythm and harmony of nature (Sections 15 and 16, Article II); the right to “social justice”(Section 10, Article II); the “right of workers” and the promotion of their welfare (Section 18, Article II); and “equal access to opportunities for public service.” (Section 26, Article II) All these are declared principles and state policies the promotion and enforcement of which are guaranteed by the express provision of Article II of the 1987 Constitution. In that sense, they could reasonably

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be claimed as part of the right to life. To hold otherwise would, in effect, render nugatory the very assurance and undertaking of the State to promote and guarantee the same to all citizens alike, without discrimination. Miss A who is suffering from a serious illness is about to give birth. The parents of Miss A and the doctors attending to her are confronted with a situation which requires their best judgment and determination. The specific question that besets them is “Whose life will be sacrificed to save the other”? If the life of either one is sacrificed in favor of the other, is this not considered a violation of the constitutional protection to the life of the unborn, as provided in Section 12, and to the life of the mother as provided in Section 1? If the sole and legitimate purpose of sacrificing the life of one is to be able to save the life of the other and this is determined according to the best judgment of the doctors and the parents after a careful analysis of the situation, it is respectfully submitted that it is not a violation of the constitutional protection to the life of either one. If the purpose, however, is to abort the fetus in order to avoid public scandal and shame, then there is a violation of the constitutional protection to the life of the unborn. What is the meaning of liberty? It is not only the right of a citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the engagement of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above-mentioned. (Allegeyer vs. Louisianna, 165 U.S. 578) What else is included in the term “liberty”? Liberty refers to something which is more than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment, within the bounds of law. (Munn vs. Illinois, 94 U.S. 143) A person is free to do anything he wants provided he does not violate the law and the better rights of others. This freedom, however, should be construed as freedom to do right, and never wrong, according to Apolinario Mabini, hence, in exercising this freedom, one should be “guided by reason and the upright and honorable conscience of the individual; commanding obedience to those rightfully placed in power and acknowledged as the most fit to guide.”

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Examples: 1. One has the right to choose his religious belief but if the religious belief he has chosen believes in a ritual which requires the offering of the life of some of its members and he participates in the said ritual, the government may arrest him and anyone who participated in the commission of the said crime. 2. Juan has a right to sing but he cannot sing at the top of his voice at 2:00 o’clock in the morning, while his fellow boarders in his dormitory are already sleeping. His liberty should yield to the greater right of his board mates. 3. Freedom of expression is guaranteed to us by our Constitution but we cannot abuse the same by unlawfully maligning the integrity of others. 4. Freedom of association is also guaranteed to us by our Constitution but we cannot join an organization that espouses rebellion and the overthrow of our government. Q – Is the liberty of an individual limited only to the positive aspect of doing or performing an act? A – The liberty of an individual does not only refer to the positive aspect of doing or performing an act but also to the negative aspect of not doing or performing an act, if that is what he chooses to do. One may therefore choose not to work, or not to go to school, or not to vote, or not to marry, if that is what he chooses, and up to that point, he does not violate any law. However, if one who is gainfully employed chooses not to file his income tax return and to pay his income tax, this time he commits a violation of the Internal Revenue Code. If one who filed a complaint repeatedly fails to attend the trial, his complaint will be dismissed for non-suit. If a defendant in a civil complaint for damages failed to answer the same within the reglementary period, he will be declared in default. If one refuses to register for military training as required by the National Defense Act, he can be charged and convicted for violation of said law, and his claim that the said law is unconstitutional cannot be sustained. (People vs. Zosa, 38 O.G. 1676; Jacobson vs. Massachusetts, 197 U.S. 11, 25 Sup. Ct. Rep. 385) If a Jehovah’s witness refuses to participate in the flag ceremony on the ground that it is contrary to his religious belief, he may be deprived of the benefits of public education. (Gerona vs. Secretary of Education, 106 Phil. 2). NOTE: This ruling in Gerona was reversed by the ruling in Ebralinag vs. The Division Superintendent of Schools of Cebu, which sustained the contention of petitioners who are also Jehovah’s Witnesses, that they

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should not salute the flag it being their belief that the same is an “image and it is against their religious conviction to do so.” (219 SCRA 256) In all the aforementioned situations, the individual concerned opted not to do or perform an act which ordinarily is his liberty, only that in doing so, there is a specific law, or rule, or jurisprudence that was violated. Q – What is the meaning of property? A – Property refers to things which are susceptible of appropriation and which are already possessed and found in the possession of man. (Castan, 8th ed., Part II, pp. 367-369) It could either be immovable or real property, as enumerated in Articles 416 and 417 of the Civil Code. All those properties, including the right to own and possess the same, as well as the right to acquire, or use it for any lawful purpose and by any lawful means, the right to earn a living, the right to the fruits of one’s employment or profession (Century Textile Mills, Inc. vs. NLRC, 161 SCRA 528), the rights arising from a perfected mining claim, or a perfect homestead, or a final judgment, are protected and cannot be taken away from the owner without due process of law. Q – What are not regarded as property or property rights? A – They are the following: 1. One who is elected or voted upon by the people to any public position has no vested right in his office following the doctrine that public office is a public trust. It is not his private property which he can sell or dispose of to anyone. He cannot treat it as his personal possession, legacy, or gift. He cannot transfer it to anyone of his choice. IT IS A PUBLIC TRUST, built and founded by the people themselves. Trust, as it connotes, is reposed only to those who deserve the trust. Just as the people is the creator of the trust, so must the people have the right to withdraw it when there is no more reason for its continuity. 2. One does not have a vested property right in a certificate of public convenience to operate and maintain a jeepney or jeepneys. The same can be withdrawn, or revoked, by the authority that granted it if there are valid and lawful reasons to do it. 3. One does not have a vested property right in his license to operate Jai-alai or a cockpit. It can also be withdrawn or revoked by the authority that granted it. 4. One does not have a vested property right in his license to operate a lotto outlet. It can also be withdrawn or revoked by the authority that granted it. 5. One does not have a vested property right in his driver’s license. It can also be withdrawn or revoked by the authority that granted it.

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There is no vested property right in the continuing operation of a law. It may be amended by the legislature that makes the law. There is no vested property right in the continuance of any doctrine or jurisprudence laid down by the Supreme Court. What may be a majority view today may be a minority view in the future and viceversa for the simple reason that a particular set of justices may have its own view, analysis or position in a case than those of another set of justices for a variety of reasons, depending on their evaluation of the facts and the applicability of laws and jurisprudence in each case.

QUESTIONS AND ISSUES REGARDING ALLEGED RIGHTS ARISING FROM THE FOLLOWING: 1.

2.

3.

THE RIGHT TO BEAR ARMS CANNOT BE CLASSIFIED UNDER THE 1987 CONSTITUTION RIGHT ARISING FROM ISSUANCE OF PERMITS TO CARRY FIREARM OUTSIDE OF RESIDENCE (PTCFOR) LICENSES ARE NOT PROPERTY OR PROPERTY RIGHT FRANCISCO I. CHAVEZ. VS. HON. ALBERTO G. ROMULO, ETC., ET AL. G.R. NO. 157036, JUNE 9, 2004

FACTS: 1.

2. 3.

On January 31, 2003, General Hermogenes E. Ebdane, Jr., issued the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations of P.D. No. 1866 dated June 29, 1983 and of the directive of President Arroyo. It revokes all PTCFORs (Permit to Carry Firearms Outside of Residence). It prohibits all holders of licensed or government firearms from carrying firearms outside their residence “except those covered with mission/letter orders and duty detail orders issued by competent authority” pursuant to Sec. 5 of P.D. No. 1866, provided that the exception “shall pertain only to organic and regular employees.” It enumerates the persons authorized to carry firearms outside of residence and the requirements for the issuance of new PTCFORs.

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It outlines the procedure for acquisition of permits and states the restrictions in the carrying of firearms. Francisco I. Chavez, a licensed gun owner with PTCFOR, requested the DILG to reconsider the implementation of the Guidelines. His request was denied. He filed a petition for prohibition and injunction before the Supreme Court against PNP Chief Ebdane, Secretary Romulo and Chief of the PNP Firearms and Explosives Division Gerry L. Barrias.

ISSUES: Among others, Francisco I. Chavez invoked the following arguments: (a) Petitioner disputes President Arroyo’s declaration of a nationwide gun ban, arguing that “she has no authority to alter, modify, or amend the law on firearms through a mere speech.”; (b) Petitioner argued that his PTCFOR is a constitutionally protected property right, relied heavily on Bell vs. Burson wherein the U.S. Supreme Court ruled that “once a license is issued, continued possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus involves state action that adjudicates important interest of the licensees”; and (c) Petitioner argued that PTCFOR constitutes a property right protected by the Constitution. HELD: 1. THE RIGHT TO BEAR ARMS CANNOT BE CLASSIFIED UNDER THE 1987 CONSTITUTION: Our Constitution contains no provision similar to the Second Amendment, as we aptly observed in the early case of United States vs. Villareal. “The only contention of counsel which would appear to necessitate comment is the claim that the statue penalizing the carrying of concealed weapons and prohibiting the keeping and the use of firearms without a license, is in violation of the provisions of Section 5 of the Philippine Bill of Rights.” Possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof provides:

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“Section 9. Any person desiring to possess one or more firearms for personal protection, or for use in hunting or other lawful purposes only, and ammunition therefore, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such application, and before receiving the license, the applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for such firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and organized at the time of the passage of this Act, who at such time have a license to possess firearms, shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly executed by such person in accordance with existing law shall continue to be security for the safekeeping of such arms.” The foregoing provision was restated in Section 887 of Act No. 2711 that integrated the firearm laws. P.D. No. 1866 – This was issued by President Ferdinand Marcos. It codified the laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be considered an inalienable or absolute right. 2.

RIGHT ARISING FROM ISSUANCE OF PERMITS TO CARRY FIREARM OUTSIDE OF RESIDENCE (PTCFOR): Both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue licenses for the possession of firearms and explosions in accordance with law, and to issue detailed implementation of policies and instructions as may be necessary to effectively carry out the functions, powers and duties of the PNP. The Supreme Court refers to the following historical background: a) Act No. 1780, delegated upon the Governor-General (now the President) the authority (1) to approve or disapprove applications of any person for a license to deal in firearms or to possess the same for personal protection, hunting and other lawful purposes;

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b) c)

3.

and (2) revoke such license any time. Further, it authorized him to issue regulations which he may deem necessary for the proper enforcement of the Act. Under Act No. 2711, the “Revised Administrative Code of 1917,” the laws on firearms were integrated. The Act retained the authority of the Governor-General provided in Act No. 1780. Subsequently, the growing complexity in the Office of the Governor-General resulted in the designation of his authority to the Chief of Constabulary. On January 21, 1919, Acting GovernorGeneral Charles E. Yeater issued Executive Order No. 8 authorizing and directing the Chief of Constabulary to act on his behalf in approving and disapproving applications for personal, special and hunting licenses. This was followed by Executive Order No. 61 designating the Philippine Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives. Executive Order No. 215, issued by President Diosdado Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove applications for personal, special and hunting license, but also the authority to revoke the same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866 perpetuate such authority of the Chief of the Constabulary. Section 2 specifically provides that any person or entity desiring to possess any firearm “shall first secure the necessary permit/license authority from the Chief of the Constabulary.” With regard to the issuance of PTCFOR, Section 3 imparts: “The Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence.” These provisions are issued pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations for the effective implementation of the decree. At this juncture, it bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines and it was issued by President Ferdinand E. Marcos in the exercise of his legislative power.

LICENSES ARE NOT PROPERTY OR PROPERTY RIGHT: In evaluating due process claim, the first and foremost consideration must be whether life, liberty or property interest exists. The bulk of jurisprudence is that a license authorizing a person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of Foresty, we ruled

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that “ license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right.” In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr. that: “Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution.” U.S. CASES MENTIONED BY THE SUPREME COURT IN THE DECISION EARLY CASES IN THE U.S. 1. United States vs. Miller: Here, the indictment charged the defendants with transporting an unregistered “Stevens shotgun” without the required stamped written order, contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the indictment on the ground that the National Firearms Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the collective right of those comprising the Militia – a body of citizens enrolled for military discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” 2.

Cases vs. United States: Here the Circuit Court of Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It ruled that: “While [appellant’s] weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a

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comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state.” It is not right to assume that the US Constitution grants upon the American people the right to bear arms. In a more explicit language, the United States vs. Cruikshank decreed: “The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument.” Likewise, in People vs. Persce, the Court of Appeals said: “Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state.” REQUIREMENTS OF DUE PROCESS Q – What are the requirements of due process? A – The due process clause should be interpreted both as a substantive and as a procedural guarantee. Hence, the requirements of due process are: (1) Substantive due process; and (2) Procedural due process. Q – What is the difference between substantive due process and procedural due process? A – Substantive Due Process – is a guarantee that life, liberty and property shall not be taken away from anyone without due process of law. If a law is invoked to take away one’s life, liberty and property, the more specific concern of substantive due process is not to find out whether said law is being enforced in accordance with procedural formalities but whether or not the said law is a proper exercise of legislative power. This will necessarily require the following: 1. There must be a valid law upon which it is based. 2. The law must have been passed or approved to accomplish a valid governmental objective.

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3. 4.

The objective must be pursued in a lawful manner. The law as well as the means to accomplish the objective must be valid and not oppressive. Procedural Due Process – refers to the regular methods of procedure to be observed before one’s life, liberty or property can be taken away from him. Simply stated, it means that the procedure to be observed must be fair. Procedural due process therefore is a guarantee to obtain a fair trial in a court of justice according to the mode of proceeding applicable to each case. Now, this includes not only any court of justice but also any and all administrative boards, bodies or tribunals. Q – What are the two aspects of procedural due process? A – These are the following: 1. Procedural due process in judicial proceedings 2. Procedural due process in administrative proceedings. Q – What are the requirements of procedural due process in judicial proceedings? A – The requirements of due process in judicial proceedings, as laid down in Banco Filipino vs. Palanca (37 Phil. 921), are as follows: 1. There must be an impartial court or tribunal clothed with judicial power to hear and determine the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant and over the property which is the subject matter of the proceeding; 3. The defendant must be given an opportunity to be heard; and 4. Judgment must be rendered upon lawful hearing. Q – What are the requirements of procedural due process in administrative proceedings? A – The requirements of due process in administrative proceedings, as laid down in Ang Tibay vs. Court of Industrial Relations (69 Phil. 635), are as follows: 1. The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof; 2. The tribunal must consider the evidence presented; 3. The decision must have something to support itself; 4. The evidence must be substantial; 5. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;

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The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; and The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. TOMAS G. VELASQUEZ, ETC., ET AL. VS. HELEN B. HERNANDEZ, G.R. NO. 150732 AND CIVIL SERVICE COMMISSION VS. HELEN B. HERNANDEZ G.R. NO. 151095, AUGUST 31, 2004

Administrative due process cannot be fully equated to due process in its strict judicial sense: A respondent in an administrative case is not entitled to be informed of the findings and recommendations of an investigation committee created to inquire unto the charges filed against him. He is entitled only to the administrative decision based on substantial evidence made of record. FACTS: (1) Upon receipt by Tomas G. Velasquez, OIC of the Office of the School Superintendent, of the letter of the Asst. School Superintendent of the DECS-Cordillera Administrative Region, informing him of alleged infractions of respondent, he convened a fact-finding committee. During this meeting of the committee, more than twenty teachers executed sworn statements stating that respondent demanded and/or received money in various amounts from them in consideration of their appointment, promotion, and transfer from one school or another. Three (3) out of the 23 original complainants, desisted from prosecuting the respondent. (2) On November 15, 1996, the committee recommended the filing of administrative and criminal complaints against respondent. (3) On March 14, 1997, a formal charge for grave misconduct, conduct prejudicial to the best interest of the service, and violation of Sec. 22(k) of the Omnibus Rules Implementing Book V of EO 292 and other related laws was filed against respondent. (4) Respondent denied the charges. She alleged that it was part of a campaign to discredit her and that the 23 counts of irregularity leveled at her resulted from statements taken by coercion and fraud. (5) Respondent and Luzviminda dela Cruz were indicted for violation of Sec. 3(b) of Republic Act 309, but this was modified later by the Deputy

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Ombudsman for Luzon which recommended that respondent be charged of direct bribery. Much later, the Deputy Ombudsman ordered the withdrawal of the informations for direct bribery. (6) On the otherhand, the Civil Service Commission (CSC) issued a resolution finding respondent guilty of the charges against her and ordered her dismissal from the service. (7) Respondent moved to reconsider the same but the same was denied. She appealed to the Court of Appeals. The latter reversed the resolution of the CSC on the ground that since the CSC and the Office of the Ombudsman have concurrent original jurisdiction over administrative cases, petitioners should have informed the CSC that another case had been filed against the respondent before the Deputy Ombudsman who ordered the withdrawal of the criminal complaints against the respondents. (8) The action filed before the CSC-CAR is administrative in nature, dealing as it does with the proper administrative liability, if any, which may have been incurred by the respondent for the commission of the acts complained of. The case filed before the Office of the Deputy Ombudsman for Luzon, which was not filed by the herein petitioners but by the complainant teachers, deals with the criminal responsibility of the respondent for violation of RA 3019. (9) Separate appeals, through a petition for review, were filed by Velasuez, et al., in the CSC and in the Supreme Court, which were consolidated ISSUE: Is respondent’s guilt in the administrative case sufficiently established, and is dismissal from the service warranted? HELD: (1) The sworn complaints of the twenty (20) remaining complainants coupled with the positive testimonies in the proceedings below, more than adequately complied with the standard of proof required in administrative cases. (2) The desistance executed by three (3) out of the twenty-three (23) original complainants is of no moment since administrative actions cannot be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. (3) All told, the court holds that respondent’s guilt in the administrative case has been sufficiently established and pursuant to Civil Service Rules and Regulations, her dismissal from the service is warranted. (4) In this case, the Supreme Court had occasion to articulate on two (2) important doctrines, thus: a) Notice of administrative decision is sufficient – The essence of due process is that a party should be afforded a reasonable opportunity to be heard and to present any evidence he may have in support of his defense or simply an opportunity to be heard; or as applied to administrative proceedings,

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an opportunity to seek a reconsideration of the action of or ruling complained of. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably than oral argument, through pleadings. Technical rules of procedure and evidence are not even strictly applied to administrative proceedings, and administrative due process cannot be fully equated to due process in its strict judicial sense. In fact in Pefianco vs. Moral, the Court had the occasion to rule that a respondent in an administrative case is not entitled to be informed of the findings and recommendations of any investigating committee created to inquire into charges against him – he is entitled only to the administrative decision based on substantial evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against him during the hearing of the investigation committee. It is the administrative resolution, not the investigation report, which should be the basis of any further remedies that the losing party in an administrative case might wish to pursue. (Underlining and empasis supplied) b) Substantial Evidence Rule: Administrative proceedings are governed by the “substantial evidence rule.” A finding of guilt in an administrative case would have to be sustained for as long as it is supported by substantial evidence that the respondent has committed the acts stated in the complaint or formal charge. As defined, substantial evidence is such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. This is different from the quantum of proof required in criminal proceedings which necessitates a finding of guilt of the accused beyond reasonable doubt. The Ombudsman, in ordering the withdrawal of the criminal complaints against the respondent was simply saying that there is no evidence sufficient to establish her guilt beyond reasonable doubt which is a condition sine qua non for conviction. Ergo, the dismissal of the criminal case will not foreclose administrative action against respondent. NEW CASE ATTY. ROMEO L. ERECE VS. LYN B. MACALINGAY, ET AL. G.R. NO. 166809, APRIL 22, 2009 In administrative proceedings the essence of due process is simply the opportunity to explain one’s side. Due process of law in administrative cases is not identical with “judicial process” for a trial court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular

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form of procedure and its requirements are not technical. Thus, the right to cross-examine is not an indispensable aspect of due process. Nor is an actual hearing always essential. FACTS: 1. A complaint-affidavit was filed by the respondent employees of the commission on Human Rights (CHR), Region 1, against the petitioner; 2. The complaint is as follows: (1) They were allegedly denied the use of the office vehicle assigned to the petitioner; (2) The petitioner still claimed transportation allowance even if he was using the said vehicle; (3) That petitioner certified that he did not use any government vehicle, when, in fact, he did, in order to collect transportation allowance; 3. The petitioner claimed management supervisory prerogative as the official to whom the management receipt was issued for the vehicle. He said he claimed the use of the vehicle because of the poor road conditions in Mountain Province and the Halsema Highway/Mountain trail; 4. The complaint was filed with the Civil Service Commission (CSC). After a fact finding investigation, the CSC charged the petitioner with dishonesty and grave misconduct. The CSC directed him to immediately transfer “to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle still in your name.” 5. Per resolution No. 020124, the CSC found petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service. 6. Petitioner filed a petition for review of the said resolution to the Court of Appeals. The CA affirmed the resolution of the CSC. Petitioner filed a petition for review on certiorari with the Supreme Court, claiming, among others, that he was denied due process when he failed to cross-examine the complainants and the witnesses. Records show, that he was given the said opportunity and to present his evidence. ISSUE: Is petitioner’s contention correct? HELD: 1. In administrative proceedings, the essence of due process is simply the opportunity to explain one’s side. The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. Citing Velez vs. De Vera, the Supreme Court said: “Due process of law in administrative cases is not identical with “judicial process” for a trial court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in

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administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires.” 2. With reference to the pertinent conclusion of the CSC which reads: “At the outset, it must be stated that the entitlement to transportation allowance by certain officials and employees pursuant to RA 6688 presupposes that they are not assigned government vehicles. This was clarified by the Supreme Court in the case of Aida Domingo vs. COA, G.R. No. 112371, October 7, 1998, where it ruled, as follows: ‘The provision of law in point is found in Section 28 of Republic Act No. 6688, otherwise known as the General Appropriations Act of 1989, to wit: Sec. 28. Representation and Transportation Allowances. The transportation allowance herein authorized shall not be granted to officials who are assigned a government vehicle or use of government motor transportation, except as may be approved by the President of the Philippines. Unless otherwise provided by law, no amount appropriated in this Act shall be used to pay representation and/or transportation allowances, whether commutable or reimbursable, which exceed the rates authorized under this section. Previous administrative authorization not consistent with the rates and conditions herein specified shall no longer be valid and payment shall not be allowed. xxx In the case of Bustamante vs. Commission on Audit, 216 SCRA 134, decided by this Court on November 27, 1992, COA also disallowed the claim for transportation allowance of the legal counsel of National Power Corporation because he was already issued a government vehicle. Involving the circular aforementioned and almost the same facts as in this case, it was therein held that COA Circular No. 75-6 is categorical in prohibiting the use of government vehicles by officials receiving transportation allowance and in stressing that the use of government motor vehicle and claim for transportation allowance are mutually exclusive and incompatible.

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The issue need no longer be belabored for no less than this Court ruled in the aforesaid case that a government official, to whom a motor vehicle has been assigned, cannot, at the same time, claim transportation allowance. (Underscoring supplied) It is clear from the records that director Edmundo S. Ancog, CHR-Central Office (Field Operations office), issued a Memorandum dated February 27, 1998 addressed to all CHR Regional Directors in respect to Transportation Allowance. The memorandum states that transportation allowance shall not be granted to Regional Directors whenever a government vehicle or use of government motor transportation is already assigned to them. It further emphasized that should they want to “avail regularization of their RATA,” the Regional Directors must immediately transfer the vehicle to any of their staff/lawyer. Records show that Erece was issued a government vehicle since August 10, 1997 and he did not transfer the vehicle to any of his staff. Notwithstanding this fact and the said memorandum, he received transportation allowance particularly for the months of April and September 1998, as reflected in the Certification/s signed by him. This clearly resulted in undue prejudice to the best interest of the service. The foregoing facts logically lead to the conclusion that the act of Erece in certifying that he has not used any government vehicle and consequently collecting Transportation Allowance despite the fact that a government vehicle was assigned to him constitutes the offenses of Dishonesty and Conduct Prejudicial to the Best Interest of the Service. 3. Since petitioner did not assign the subject vehicle assigned to him to someone else, he is not entitled to transportation allowance. The above conclusion, as well as the Memorandum dated February 27, 1998 issued by Director Ancog to the CHR Regional Directors, are both very clear. Once a vehicle is assigned to a Regional Director, like petitioner, he is no longer entitled to transportation allowance unless he assigns the vehicle to another staff/lawyer. 4. Contrary to the argument of petitioner, there is no qualification that the assigned vehicle should be for the exclusive use of the service vehicle of the regional director alone to disqualify him from receiving transportation allowance. Since the records show that petitioner collected transportation allowance even if a government vehicle had been assigned to him, the CA did not err in sustaining the decision of the CSC finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service. Q – What is the purpose of procedural due process? A – Procedural due process seeks to avoid a situation where after rendition of judgment, the defaulted party complains that he was denied due process of law. If one has already given notice and opportunity to be heard, and for

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reasons of his own, he ignores the same, it is unreasonable to expect any court or administrative body to wait for him, or for his reply, for the court is expected to perform its functions and its duties without being placed at the mercy or disposition of any litigant. This is especially true in criminal cases where a party under detention may invoke his constitutional right to speedy trial. Another purpose of procedural due process is to give basis to the appellate courts to render proper judgment if and when a person allegedly deprived of his life, liberty or property, will later on appeal a judgment for the reason that he was deprived of due process of law. An investigating committee was created to inquire into the charges against Mr. A. Is he entitled to be informed of the findings and recommendations of the investigating committee? No, but Mr. A is entitled to meet the charges and the evidence presented against him during the hearing of the investigation committee. (Pefianco vs. Moral, G.R. No. 132248, January 19, 2000) Regarding rates prescribed by administrative agencies, when is prior notice and hearing required and when is it not required? When the administrative agency prescribes the rates in the exercise of its legislative functions, prior notice and hearing to the affected parties is not a requirement of due process. However, when said rates are prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of said rates. (Philippine Consumers Foundation, Inc. vs. Secretary of Education, Culture and Sports, 153 SCRA 622) What is the specific concern of substantive due process? The concern of the first requirement is whether or not life, liberty, or property is taken away without due process of law. What is the specific concern of procedural due process? The specific concern of procedural due process is whether or not the said deprivation is being done in accordance with the procedures laid down by law. What specifically is procedural due process? The second requirement refers to the proper procedure to be observed. The guarantee of due process, however, viewed in its procedural aspect requires no particular form of procedure. It implies due notice to the individual of the proceedings, an opportunity to defend himself and the problem of the propriety of the deprivations, under the circumstances presented, it must be resolved in a manner consistent with essential fairness. It means essentially a fair and impartial trial and reasonable opportunity for the

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preparation of the defense. (Aquino, Jr. vs. Military Commission, No. 2, 63 SCRA 546) Procedure is merely a means to an end, and rules of procedure must be construed liberally so as to afford litigants a speedy and inexpensive means of resolving their controversy. On the other hand, the principle of due process, in general, means simply that before a party may be held bound by court proceedings, he must have been impleaded therein or notified thereof and thus given an opportunity to defend his rights. (Torres vs. Calauag, 17 SCRA 808) Q – What is the common requirement of procedural due process in judicial or administrative proceedings? A – The common elements are: (1) Notice; and (2) Opportunity to be heard. For as long therefore as the defendant, or anyone similarly situated, is given a notice and an opportunity to be heard, he cannot later on complain that he was declared in default or that the decision has been rendered against him in his absence, for he has already been notified and given the opportunity to be heard. Section 3, Rule 9 of the Rules of Civil Procedure, as amended, provides as follows: “Section 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.” Q – Is it enough to say that the law is vague in order that it can be raised as a ground of unconstitutionality? A – A law must be utterly vague on its face in order that it can be considered as unconstitutional. In other words, it cannot be clarified either by a saving clause or by a construction, or that it lacks comprehensible standards that men “of common intelligence must necessarily guess as to its meaning and differ as to its application.” (People vs. Nazario, 165 SCRA 186 [1988]) Q – What is the effect of a law which is unconstitutional on the ground that it is vague? A – It is repugnant to the Constitution for the following reasons: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

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Q – When is a law considered unconstitutional on the ground that it is vague? A – It must be utterly vague on its phase which means that it cannot be clarified by either a saving clause or by a construction. (People vs. Nazario, 165 SCRA 186 [1988]) Q – What is the void-for vagueness rule? A – When it is not possible for men of common intelligence to determine what acts or omissions are punished or made punishable by a statute, the law is deemed void. Such a kind of statute violates the first essential of due process of law, because it denies the accused the right to be informed of the charge against him. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001) Q – Is a statute void merely because general terms are used therein and because of the employment of terms without defining them? A – No. The legislature is not required to define each word in the enactment. Q – Is the Plunder Law under which President Joseph Estrada is being prosecuted, vague? A – It is not vague. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001) DISTINCTION, VOID-FOR VAGUENESS DOCTRINE AND OVERBREADTH DOCTRINE VOID FOR VAGUENESS DOCTRINE

When a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as its meaning and differ as to its application, that law is deemed void. Such kind of statute violates the first essential of due process of law because it denies the accused the right to be informed of the charge against him. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001)

OVERBREADTH DOCTRINE

Under this doctrine, a governmental purpose may not be achieved by means which sweep unnecessarily and broadly and thereby invade the area of protected freedoms. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001)

APPLICABILITY OF THE SAID DOCTRINES The law can be challenged on both grounds (void for vagueness doctrine and overbreadth doctrine), and the right to do so is permanent in free speech

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cases because of the possible chilling effect on free speech. However, this rationale does not apply to penal statutes. If the facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. (Ibid.) APPLICABILITY OF THE SAID DOCTRINES The law can be challenged on both grounds (void for vagueness doctrine and overbreadth doctrine), and the right to do so is permanent in free speech cases because of the possible chilling effect on free speech. However, this rationale does not apply to penal statutes. If the facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. (Ibid.)

REVIEW OF OLD CASES Q – A law was passed which created reservations for Mangyan Tribes and prescribed the confinement of the Mangyans in the said reservations as well as penalties for violation of law. Were the Mangyan Tribes deprived of their liberty without due process of law? A – There was no deprivation of liberty without due process of law. The law was upheld on the grounds of general welfare and public interest the purpose of the law being precisely to improve and uplift the lives and conditions in the Mangyan areas. (Rubi vs. Provincial Board of Mindoro, 39 Phil. 660) Q – In their desire to clean the City of Manila of prostitutes, the Mayor and the Chief of Police of the City of Manila gathered some one hundred seventy women of ill repute in the City and shipped them to Davao. The same was assailed as illegal. Decide. A – The Supreme Court sustained the prayer for a writ of habeas corpus and ordered the return of the said prostitutes. It also upheld the power of the courts to safeguard individual liberty and to punish official transgressors. (Villavicencio vs. Lukban, 39 Phil. 778, 780, 787) Q – A City Ordinance was passed imposing license fees, registration requirements for guests, official inspection, compliance with requirement as to facilities and non-acceptance of persons less than eighteen years of age, and automatic cancellation of license for violation of the said ordinance. The constitutionality of the ordinance was challenged and the issue of alleged violation of the right against self-incrimination was raised. Decide.

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A – The Supreme Court sustained the constitutionality of the questioned ordinance. (Ermita Malate Hotel and Motel Operators, Inc. vs. City of Manila, 20 SCRA 849) Q – The Municipal Board of Manila passed an ordinance which declared a state of emergency with respect to housing accommodations and regulation of rentals of lots and buildings for residential purposes. Its constitutionality was questioned on the ground that it did not fix the period of its effectivity. Decide. A – The Supreme Court declared the said ordinance unreasonable and unconstitutional. Regulations adopted to meet a state of emergency may adversely affect or interfere with individual rights but such interference must be co-extensive or co-terminus with the existence of a state of emergency which, but its very nature, is temporary in character. The questioned ordinance, however, did not fix a period at all. (Homeowners Association of the Philippines, Inc. vs. Municipal Board of Manila, L-23979 August 30, 1968) Q – A ceiling was prescribed to the effect that electric power franchise holders receiving at least fifty percent of its electric power from National Power Corporation, shall not realize a net profit of more than 12% annually of their investments plus two-month operating expenses. The requirement was assailed as confiscatory. Decide. A – Like in the case of Ermita Malate Hotel and Motel Operators, Inc. vs. City of Manila, the Supreme Court adhered to the principle of presumed constitutionality. The presumption of validity was allowed to prevail, in effect, denying the claim of petitioner that it is confiscatory. (Alalayan vs. National Power Corporation, L-24896, July 29, 1968) Q – An ordinance was passed in the City of Manila which required laundry receipts to be made in duplicate in English and Spanish. The petitioner questioned the validity of the said ordinance on the ground that it is a class legislation since the laundrymen and employees of the forty Chinese do not speak, read and write English and Spanish. Decide. A – The Supreme Court sustained the validity of the ordinance for the following reasons: (1) The ordinance applies to all public laundries without exception, hence, it is neither discriminatory nor unreasonable; and (2) The receipts may be printed in English or Spanish with the corresponding Chinese equivalent below said text. (Kuong Sing vs. City of Manila, 41 Phil. 103)

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Q – Section 9 of Ordinance No. 6118, passed by the Quezon City Council, requires memorial operators within the City to set aside 6% of the total area of their memorial park cemetery for charity burial of deceased pauper who have been residents of Quezon City for at least five (5) years prior to their deaths. Does this law deprive a person of his private property without due process of law? A – The Supreme Court ruled that Section 9 of said ordinance is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law and without compensation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. The said ordinance is actually a taking without charges of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. (City Government of Quezon City vs. Ericta, 122 SCRA 759) Q – Ordinance No. 13, Series of 1952, of the Municipal Council of Virac prohibits the construction of a warehouse near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from the said block of houses to avoid loss of lives and properties by accidental fire. On March 18, 1966, the residents of Bo. Sta. Elena lodged a complaint before the municipal government of Virac against the disturbance caused by the operation of an abaca bailing machine owned and maintained by Celestino Tatel. They complained that it affected the peace and tranquility of the neighborhood due to the smoke, obnoxious odor, and dust emitted by the machine. Celestino Tatel contends that it is contrary to due process and equal protection clause and null and void for not having been passed in accordance with law. Decide. A – The questioned ordinance does not violate the due process and equal protection clause. It was likewise held that said ordinance was passed in accordance with the procedure prescribed by law and complies with the requisites for the validity of an ordinance, to wit: 1. It must not contravene the Constitution or any statute; 2. It must not be unfair or oppressive; 3. It must not be partial or discriminatory; 4. It must not prohibit but may regulate; 5. It must be general and consistent with policy; and

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It must not be unreasonable. (Tatel vs. Municipality of Virac, 207 SCRA 1579) Ordinance No. 6537 of the City of Manila makes it unlawful for non-Filipino citizens to be employed or to be engaged in any kind of trade, business or occupation within the City of Manila, without securing an employment permit from the Mayor of Manila. Hiu Chiong Tsai Pao Hao sought to enjoin its enforcement. Is the said ordinance void and unconstitutional? Decide. Said ordinance was declared void and unconstitutional. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The ordinance amounts to a denial of the basic right of the people of the Philippines to engage in the means of livelihood. (Mayor Villegas vs. Hiu Ching Tsai Pao Hao, 86 SCRA 270) A law was passed providing a thirty day vacation with pay both before and after confinement on account of a pregnancy. Is the said law a violation of the freedom to contract? Decide. The Supreme Court declared the statute as a violation of the freedom to contract. The right to contract about one’s affairs is a part of the liberty of an individual which is protected by the due process clause. (People vs. Pomar, 46 Phil. 440) A letter of instruction issued by the President requiring the use of “early warning devices” (EWD) and the regulations implementing the letter are challenged as violative of due process for being arbitrary. Petitioner claims that he is the owner of a car already equipped with blinking lights which makes the EWD unnecessary. Is the said Letter of Instruction a violation of the due process for being arbitrary? Conjectural claims of petitioner as to number of nighttime vehicular collisions cannot be a basis for setting aside a requirement of law that was promulgated after a careful study by the Executive Department. The Letter of Instruction is issued in the exercise of police power for traffic safety. Furthermore, there is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. (Agustin vs. Edu, 88 SCRA 195) R.A. No. 1180, otherwise known as the Retail Trade Nationalization Act, was enacted by Congress. Said Act, among 6.

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others, provides for a prohibition against persons, not citizens of the Philippines, from engaging directly or indirectly in the retail trade. Petitioner attacks the constitutionality of the Act, contending, among others, that the Act violates the due process clause and the equal protection clause. Decide. A – When the constitutionality of R.A. No. 1180 was assailed then in the Supreme Court, it was ruled that there is no violation of the due process clause and that the enforcement of the said law is a valid exercise of police power. The State is entitled to take adequate steps to free the national economy from alien control and dominance. The said decision, however, no longer holds true because under the new law, otherwise known as the Retail Trade Liberalization Act of 2000, Republic Act No. 8762, foreign individuals or corporations can now engage in retail trade subject to the conditions and limitations prescribed in the said law. Q – A leading case involving the subject of due process is the case filed by Senator Benigno Aquino, Jr., against Military Commission No. 2, The Chief of Staff and the Armed Forces of the Philippines. In the said case, the following issues were raised by Senator Benigno Aquino, Jr.: 1. Is the proclamation of Martial valid and constitutional? 2. Is Military Commission No. 2 lawfully constituted and validly vested with jurisdiction to hear cases against civilians including the petitioner? 3. The third issue, which is related to the present subject matter, is actually a conglomeration of the following assertions of petitioner: a. That it is only thru a judicial proceeding before the regular courts can his right to due process be preserved; b. That his trial before the Military Commission will not be fair and impartial; c. That Administrative Order No. 355 actually “strips him of his right to due process”; and d. That his constitutional right to due process has been impaired when the anti-subversion charges filed against him with the military commission were not investigated preliminarily in accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by Presidential Decree No. 39, as amended by Presidential Decree No. 77.

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Q – What was the resolution of the Supreme Court on all the foregoing issues? A – In relation to the first and second issues, the Supreme Court said: 1. The Court has previously declared that the proclamation of Martial Law (Proclamation No. 1081) on September 21, 1972, by the President of the Philippines is valid and constitutional and that its continuance is justified by the danger posed to the public safety. 2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 (September 27, 1972), the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases “of military personnel and such other cases as may be referred to them.” In General Order No. 12 (September 30, 1972), the military tribunals were vested with jurisdiction “exclusive of the civil courts,” among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. In order to ensure a more orderly administration of justice in the cases triable by the said military tribunals, Presidential Decree No. 39 was promulgated on November 7, 1972, providing for the “Rules Governing the Creation, Composition, Jurisdiction, Procedure and Other Matters Relevant to Military Tribunals.” The four issues/questions, related to the subject of due process, were resolved in favor of the government. The resolution is as follows: 3. As to petitioner’s contention that it is only thru a judicial proceeding before the regular courts can his right to due process be preserved: — The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily mean a judicial proceeding in the regular courts. The guarantee

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of due process, viewed in its procedural aspect, requires no particular form of procedure. It implies due notice to the individual of the proceedings, an opportunity to defend himself and “the problem of the propriety of the deprivations, under the circumstances presented, must be resolved in a manner consistent with essential fairness.” It means essentially a fair and impartial trial and reasonable opportunity for the preparation of defense. The Supreme Court cited the following Philippine and American jurisprudence to support its decision, thus: “Due process of law does not necessarily mean a judicial proceeding — the proceeding may be adapted to the nature of a case — but it does necessitate an opportunity for a hearing and a defense.” (Ballard v. Hunter, 1907, 204 U.S. 241, 255, 27 S. Ct. 261, 51 L. ed. 461; Simon v. Craft, 1901, 182 U.S. 427, 437, 21 S. Ct. 836, 45 L. ed. 1165; In re Bryant, 1885, 3 Mackey 489. See Logue v. Fenning, 1907, 29 App. D.C. 519, 525; cf. Matter of Lambert, 1901, 134 Cal. 626, 66 P. 851, 55 L.R.A. 856,86 Am. St. Rep. 296; In re Wellman, 1896, 3 Kan. App. 100, 45 P. 726; State v. Billings, 1894, 55 Min. 467, 57 N.W. 206, 794, 43 Am. St. Rep. 525; Allgor v. New Jersey State Hospital, 1912, 80 N.J. Eq. 386, 84 A. 711; In re Allen, 1909, 82 Vt. 365, 73 A. 1078, 26 L.R.A., N.S. 232.” (Barry v. Hall, 98 F. 2d 222) As to petitioner’s contention that his trial before the Military Commission will not be fair and impartial, as the President had already prejudged petitioner’s cases and the military tribunal is a mere creation of the President, and “subject to his control and direction”: — We cannot, however, indulge in unjustified assumptions. Prejudice cannot be presumed, especially if weighed against the great confidence and trust reposed by the people upon the President and the latter’s legal obligation under his oath to “do justice to every man.” Nor is it justifiable to conceive, much less presume, that the members of the military commission, the Board of Review and the Secretary of National Defense, with their corresponding staff judge advocates, as reviewing authorities, through whom petitioner’s hypothetical conviction would be reviewed before reaching the President, would all be insensitive to the great principles of justice and violate their respective obligations to act fairly and impartially in the premises.

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As to petitioner’s contention that Administrative Order No. 355 actually “strips him of his right to due process” is negated by the basic purpose and the clear provisions of said Administrative Order: — It was precisely because of petitioner’s complaint that the President created a Special Committee to reinvestigate the charges filed against him in the military commission. The Committee is to be composed of a retired Justice of the Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively by the accused, the President of the Integrated Bar, the Secretary of Justice and the Secretary of National Defense, all of whom, according to Administrative Order No. 355 “must be learned in the law, reputed for probity, integrity, impartiality, incorruptibility and fairness. It is intended that the Committee should conduct the investigation with “utmost fairness, impartiality and objectivity” ensuring to the accused his constitutional right to due process, to determine whether “there is reasonable ground to believe that the offenses charged were in fact committed and the accused is probably guilty thereof.” As to petitioner’s contention that his constitutional right to due process has been impaired when the anti-subversion charges filed against him with the military commission were not investigated preliminarily in accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by Presidential Decree No. 39, as amended by Presidential Decree No. 77: — It is asserted that under the aforesaid Presidential Decrees, he is precluded from cross-examining the prosecution witnesses and from being assisted by counsel. Contrary to petitioner’s contention, Section 1(b) of Presidential Decree No. 77 specifically grants him the right to counsel, and Presidential Decree No. 328 amended Presidential Decree No. 39, precisely to secure the substantial rights of the accused by granting him the right to counsel during preliminary investigation. Under Section 5 of Republic Act No. 1700, the accused shall have the right “to cross-examine witnesses against him” and in case the offense is penalized by prision mayor to death, the preliminary investigation shall be conducted by the proper Court of First Instance. As to whether or not the denial to an accused of an opportunity to cross-examine the witness against him in

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the preliminary investigation constitutes an infringement of his right to due process, we have to advert to certain basic principles. The Constitution “does not require the holding of preliminary investigations. The right exists only, if and when created by statute. (San Diego vs. Hernandez, 24 SCRA 109, 114) It is “not an essential part of due process of law.” (Luna vs. Plana, 26 SCRA 310, 321, citing People vs. Olandag, 92 Phil. 286, 289) The absence thereof does not impair the validity of a criminal information or affect the jurisdiction of the court over the case. (Bustos vs. Lucero, 81 Phil. 128; Abrera vs. Muñoz, 108 Phil. 124) As a creation of the statute it can, therefore, be modified or amended by law. It is also evident that there is no curtailment of the constitutional right of an accused person when he is not given the opportunity to “cross-examine the witnesses presented against him in the preliminary investigation before his arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer concerned.” (Supra, pp. 650-651) Q – Another issue that was submitted for resolution, and which is also related to due process, is the question of whether or not an accused can waive his right to be present at his trial. What was the resolution of the Supreme Court on this issue? A – On this point, the Supreme Court ruled as follows: “Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the absence of the accused. It is now provided that “after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified.” On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia, the issue has been raised whether or not petitioner could waive his right to be present at the perpetuation of testimony proceedings before respondent Commission. As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. The personal presence of the accused from the beginning to the end of a trial for felony, involving his life and liberty, has been considered necessary and vital to the proper conduct of his defense. The “trend of modern authority is in favor of

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the doctrine that a party in a criminal case may waive irregularities and rights, whether constitutional or statutory, very much the same as in a civil case.” There are, for instance, certain rights secured to the individual by the fundamental charter which may be the subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed of the nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to face, as well as the right against unreasonable searches and seizures, are rights guaranteed by the Constitution. They are rights necessary either because of the requirements of due process to ensure a fair and impartial trial, or of the need of protecting the individual from the exercise of arbitrary power. And yet, there is no question that all of these rights may be waived. Considering the aforecited provisions of the Constitution and the absence of any law specifically requiring his presence at all stages of his trial, there appears, therefore, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right, like the others aforestated, was conferred upon him for his protection and benefit. (Underlining Supplied) SUBSEQUENT CASES Q – At around noon on March 18, 1997, spouses A and B were charged with the “trumped up charge” of Slight Physical Injuries before the 6th Municipal Trial Court of LorenteHernani, Eastern Samar. At about 2:00 P.M., they were arrested by policemen and brought to the municipal jail. They were not accorded the right to present controverting evidence by means of counter-affidavit but instead issued a warrant for their arrest. Were the said spouses deprived of their liberty without due process of law? A – The said spouses were deprived of their precious liberty. The respondent judge committed grave abuse of authority when he hastily issued a warrant of arrest against the complainant. His premature issuance of a warrant of arrest against the complainants on the same day, March 18, 1998, that the information for slight physical injuries was filed against complainants spouses was in gross violation of the

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summary procedure rule that the accused should first be notified of the charges against them and given the opportunity to file their counter-affidavits and other countervailing evidence. It cannot be justified on the ground that respondent judge has information that the spouses would escape. Nothing in the records validates the content, source, and extent of that information. There is no gainsaying the fact that the premature issuance of the warrant of arrest against complainant spouses caused them great prejudice as they were deprived of their precious liberty. We reiterate the rule that although a judge may not always be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in prerogatives. If judges wantonly misuse the powers vested in them by law, there will not only be confusion in the administration of justice but even also oppressive disregard of the basic requirements of due process. (Avelino and Asteria Daiz vs. Judge Protasio G. Asadon, A.M. No. MTJ-98-1152, June 2, 1998, 94 SCAD 707) Q – Juvielyn Punongbayan, a minor of 16 years, filed a complaint for rape against Mayor Bayani M. Alonte. Subsequently, the latter filed a petition for change of venue with the office of the court administrator, Supreme Court. While the petition was pending, said minor, assisted by her parents and counsel, executed an affidavit of desistance. For this reason, Mayor Alonte moved to dismiss the petition for change of venue which the Supreme Court granted. Subsequently, the rape case was raffled to Branch 53, Regional Trial Court of Manila, which was presided by the respondent judge. During the arraignment, Mayor Alonte pleaded not guilty. The parties manifested they were waiving pre-trial. During the hearing, complainant affirmed the validity and voluntariness of her affidavit of desistance and said that she had no intention anymore to prosecute the case. The parents consented to the desistance of their daughter. Prosecutor Marilyn Compomanes manifested that for this reason, she is moving for the dismissal of the case against the accused. The respondent judge said that “the case was submitted for decision.” Mayor Alonte filed a motion to admit bail but despite several motions for resolution, the respondent judge did not act thereon. On December 18, 1997, respondent judge promulgated a decision finding both Alonte and Concepcion guilty of the crime of rape and each was sentenced to suffer reclusion perpetua,

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or imprisonment for twenty (20) years and 1 day to 40 years. Mayor Alonte moved for reconsideration but without waiting for the resolution of his motion, he filed a petition for certiorari, prohibition, habeas corpus, bail and recusation of respondent judge. Concepcion also filed a petition for certiorari and mandamus in the Supreme Court. Mayor Alonte alleged that the said judgment of conviction is patent nullity as it was rendered without trial and in violation of his right to due process of law. What was the decision of the Supreme Court on this issue? A – Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. “(1) No person shall be held to answer for a criminal offense without due process of law. “(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of the witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.” The said postulates are mandatory and indispensable. The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. (Bayani M. Alonte vs. Hon. Maximo A. Savellano, et al., G.R. No. 131652; Buenaventura

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Concepcion vs. Hon. Savellano, et al., G.R. No. 13728, March 9, 1998, 92 SCAD 307) Bar question last September, 2001 Q – The Philippine Ports Authority (PPA) General Manager issued an administrative order to the effect that all existing regular appointment to harbor pilot positions shall remain valid only up to December 31 of the current year and that henceforth all appointments to harbor pilot positions shall be only for a term of one year from date of effectivity subject to yearly renewal or cancellation by the PPA after conduct of a rigid evaluation of performance. Pilotage as a profession may be practiced only by duly licensed individuals, who have to pass five government professional examinations. The harbor pilots association challenged the validity of said administrative order on the argument that it violated the harbor pilots’ right to exercise their profession and their right to due process of law and that the said administrative order was issued without prior notice and hearing. The PPA countered that the administrative order was valid as it was issued in the exercise of its administrative control and supervision over harbor pilots under PPA’s legislative charger; and that in issuing the order as a rule or regulation, it was performing its executive or legislative, and not a quasi-judicial function. Due process of law is classified into two kinds, namely, procedural due process and substantive due process of law. Was there or was there no violation of the harbor pilots’ right to exercise their profession and their right to due process of law? A – This is actually the case of Roberto Corona, et al. vs. United Harbor Pilots Association of the Philippines, et al. (G.R. No. 111953, December 12, 1997, 89 SCAD 607), reported and discussed in p. 82-86, Principles, Comments, and Cases in Constitutional Law II by Rolando A. Suarez. The Supreme Court ruled that: It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past they enjoyed a certain sense of security knowing that after passing five examinations and undergoing years of on-the-job training they would have a license which they can use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance,

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they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly faced with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a “rigid evaluation of performance” which is conducted only after the license has already been cancelled. Hence, the use of the term “renewal.” It is this pre-evaluation cancellation which primarily makes PPA-AO 04-92 unreasonable and constitutionally infirm. In a true sense, it is a deprivation of property without due process of law. Q – On November 24, 1987, Philippine-Singapore Transport Services, Inc. (PSTS) hired Winefredo N. Estrada as master of the vessel Sea Carrier I for its foreign principal, Intra-Oil Supplied (Intra-Oil). Barely two months after his appointment, Estrada was relieved from his employment and repatriated to the Philippines. No reason was given for his relief. He was compelled to relinquish his post when someone took over as captain of Sea Carrier I. When he came back to the Philippines, he was informed that he was dismissed for incompetence. Estrada filed a complaint for illegal dismissal with claims for unpaid wages, leave pay, reimbursement of his plane fare and salaries for the unexpired portion of his contract. PSTS insisted on the validity of the dismissal and said that Estrada was grounded on incompetency in handling the vessel for any tow or even in approaching the oil drilling platforms and that it had no choice but to consent to the dismissal of Estrada by the charterer because it is the latter that is in the best position to determine his qualification. Was Estrada dismissed for cause in violation of Article 279 in relation to Article 282 of the Labor Code, as amended, and without due process? A – Petitioner’s imputation of incompetence on the part of the private respondent due to his lack of foresight to anticipate the number of mooring ropes to be used is unworthy of being given credence. As explained by private respondent, the Sea Carrier I was sufficiently furnished with mooring ropes prior to the voyage. It so happened that the ropes would later on “suffer extreme wear and tear” during its voyage from Singapore to Bombay especially along jetties and quays, and in navigational channels. Before an employee can be dismissed, the Labor Code requires the employer to furnish the employee a written notice containing a

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statement of the causes for termination and to afford said employee ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires. If the employer decides to terminate the services of the employee, the employer must notify the worker in writing of the decision to dismiss him, stating clearly the reasons therefor. These requirements were not complied with in this case. (Philippine-Singapore Transport Services, Inc. vs. NLRC, et al., G.R. No. 95449, August 18, 1997, SCAD 880) Is R.A. 6657 a violation of due process? This is answered and discussed in connection with Article XIII, Section 6, 1987 Constitution. (Association of Small Landowners in the Philippines vs. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989) During the prosecution of the crime allegedly committed by Luis Tabuena and Adolfo Peralta, the Sandiganbayan actively took part in the questioning of defense witness and of the accused themselves. Was the active participation of the Sandiganbayan Justices in the trial, violative of the constitutional right of the accused to due process? Yes. The “cold neutrality of an impartial judge” requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. A trial judge has the right to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking clarificatory questions, the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. In this case, these limitations were not observed. (Tabuena vs. Sandiganbayan, G.R. Nos. 103501-03, February 17, 1997, 79 SCAD 582) Petitioners prayed that the respondent judge inhibit herself from hearing the case on the ground of bias and prejudice, to wit: 1. Prior to the arraignment of the petitioners, the respondent judge allegedly told the media that “failure of the accused to surrender following the issuance of the warrant of arrest is an indication of guilt” and that the accused Webb “should not expect the comforts of home,” pending the resolution of his motion to be committed to the custody of the Philippine National Police at Camp Ricardo Papa, Bicutan, Parañaque.

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She denied petitioner ’s Webb’s Urgent Motion for Hospitalization. 3. During the hearing on petitioner’s petition for bail, she sustained the objections of the prosecution against the attempt of the defense counsel to impeach witness Alfaro’s credibility with regard to: (a) the inconsistencies of her April 8 affidavit vis-à-vis with her May 21 affidavit; (b) Alfaro’s motive in testifying against petitioners; and (c) Alfaro’s educational attainment. 4. Over the objection of the petitioners, she ordered an ocular inspection of the former Webb residence in BF Homes, Parañaque City, to verify Gaviola’s testimony about a secret door through which she peeped to see petitioner Webb. In the meantime, the hearing on petitioner’s petitions for bail continued. 5. Moreover, she denied petitioner Webb’s motion for deposition of witnesses residing in the United States who shall testify on his presence in the United States on the date of the commission of the crime for the reason that petitioner Webb failed to allege that the witnesses do not have the means to go to the place of the trial. 6. She admitted only ten (10) out of the one hundred forty-two (142) exhibits formally offered as evidence by petitioner. 7. She denied petitioner’s petitions for bail. 8. During the trial on the merits, she allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused although the defense had not put his character in issue: disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him because such statement was immaterial; and that respondent judge struck off from the records the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre after ruling that the proffer was improper on cross-examination. Should respondent judge inhibit herself from hearing the case on the ground of bias and prejudice in order to honor the petitioners’ right to a fair trial by an impartial judge? A – As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice

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or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judge’s integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice. (Webb, et al. vs. People of the Philippines, G.R. No. 127262, July 24, 1997, 85 SCAD 66) A complaint for illegal dismissal was filed by petitioner against private respondents. During the scheduled cross-examination of one of the complainants, the counsel of Lhuillier was absent. According to the Labor Arbiter, the private respondents can no longer present its evidence as it has waived its right to crossexamination. Consequently, the NLRC reversed the ruling of the Labor Arbiter on the ground that while private respondents have waived their right to cross-examination, they have still the right to present their evidence. Were private respondents deprived of due process of law by the Labor Arbiter? Private respondents were not deprived of due process of law for they were able to file their respective position papers and supporting documents all of which were duly considered by the Labor Arbiter. The holding of an adversarial trial is not a matter of right but discretionary on the part of the Labor Arbiter. The NLRC and the Labor Arbiter have authority under the Labor Code to decide the case on the basis of position papers and supporting documents. (Leiden Fernandez, et al. vs. NLRC, Marguerite Lhuillier and/or Agencia Cebuana Lhuillier, G.R. No. 105892, January 28, 1998, 90 SCAD 793) A complaint for illegal dismissal was filed by private respondent in the POEA Adjudication Office against petitioner. Both the POEA and the NLRC ruled in favor of the respondent. But petitioners claim that the NLRC committed a grave abuse of discretion in upholding the decision of the POEA. At the same time, the petitioners claim that a hearing is an indispensable condition before rendering judgment. Is the contention of petitioners tenable? Due process does not necessarily require a hearing but merely an opportunity or right to be heard. Petitioners were given a chance to be heard and their answers, position papers and supporting documents have become parts of the records and were considered

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accordingly by the POEA commission and by the NLRC. Likewise, the court held that the NLRC have not committed a grave abuse of discretion. (Vinta Maritime Co., Inc. vs. NLRC and Basconcillo, G.R. No. 113911, January 23, 1998, 90 SCAD 606) NEW CASES CITY OF MANILA VS. LAGUIO, JR. G.R. NO. 1118127, APRIL 12, 2005 THE PETITIONERS CANNOT ORDER THE CLOSURE OF ENUMERATED ESTABLISHMENTS WITHOUT INFRINGING THE DUE PROCESS CLAUSE. THESE LAWFUL ESTABLISHMENTS MAY BE REGULATED BUT NOT PROHIBITED FROM CARRYING ON THEIR BUSINESS. FACTS: 1. The City Council of Manila enacted Ordinance No. 7783 which prohibited the establishment or operation of business “providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, among the inhabitants and adversely affect the social and moral welfare of the community.” 2. Owners and operators concerned were given three (3) months to wind up their operations or to transfer to any place outside the Ermita-Malate area, or to convert said business to other kinds of business which are allowed. 3. A penalty of imprisonment and/or fine was imposed if the said ordinance is violated. 4. The MTDC (Malate Tourist Development Corp), which is engaged in the business of operating hotels, motels, hostels and lodging houses and the company that built and opened Victoria Court in Malate had these arguments: a) The said ordinance is invalid and unconstitutional, alleging that the City Council had no power to prohibit the operation of motels. b) The said ordinance violates PD 499 which specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions. c) The said ordinance constitutes an improper exercise of police power; it is an ex-post facto law; and it violates its constitutional rights because it is confiscatory and an invasion of its property rights.

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d) It is also constitutes a denial of equal protection of the law. The City of Manila had these arguments: a) The City Council had the power “to prohibit certain forms of entertainment in order to protect the social and moral welfare of the community.” b) The power of regulation included the power to control, and to govern and restrain places of exhibition and amusement. c) There is no inconsistency between PD 499 and Ordinance No. 7783 because the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain as a commercial zone. Judge Laguio declared the ordinance null and void and enjoined the petitioners from implementing it. HELD: 1) Granting for the sake of argument that the object of the ordinance (which is to protect the social and moral values of the community) are within the scope of the City Council’s police powers, the means employed to accomplish the same are unreasonable and unduly oppressive; 2) While the object is commendable, the petitioners unwittingly punish even proprietors and operators of “wholesome,” “innocent” establishments. In the instant case, there is clear invasion of personal or property rights, personal in the case of those individuals desiring of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those who are employed therein. If the City of Manila desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits, it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. 3) The petitioners cannot order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated but not prohibited from carrying on their business. This is a sweeping exercise of police power which amounts to interference into personal and private rights which the court will not countenance. 4) The questioned ordinance violates the equal protection clause. In the courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights

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conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. The standard “where women are used as tools for entertainment” is also discriminatory as prostitution – one of the hinted ills the Ordinance aims to banish – is not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to important government objectives. Thus, the discrimination is invalid. The argument that the City Council is empowered to enact the said ordinance under and by virtue of the general welfare clause of the Code and of Article 3, Section 18(kk) of the Revised Charter of Manila, is without merit. The petitioners cannot take cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It cannot be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention. GLOBE TELECOM, INC. VS. NATIONAL TELECOMMUNICATIONS COMMISSION 435 SCRA 110 (2004)

PARTICULAR SUBJECT: Due regard for the constitutional rights of party litigants is a requirement of due process. PRINCIPLE: A fine is a sanction, regulatory and even primitive in character. In the instant case, the NTC imposed a primitive measure for a reason Globe was not made aware of, and in a manner that contravened provisions of law. For this reason, the fine imposed by NTC on Globe is also invalid.

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FACTS: 1.

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Globe and Smart are authorized to operate CMTS (Cellular Mobile Telephone System) by utilizing the Global System for Mobile Communication (GSM) technology. SMS (Short Message Services), or texting, as it is popularly known, is one of the services supported by GSM network. On account of the inability of the two CMTS providers to effect interconnection, Smart filed a complaint with interconnection of their GSM networks, especially the texting services. Smart alleged that Globe refused to grant Smart’s request for the interconnection of texting services. NTC ruled that since texting services falls within the definition of “value added service” the implementation of the same is mandatory and it declared likewise that both Smart and Globe have been providing said services without its authority. NTC, however, did not issue a show cause order and a cease and desist order. Instead, it directed Smart and Globe to secure the required authority to provide SMS within 30 days subject to the payment of fine of P200.00 from the date of violation and for every day that there is a violation. The Court of Appeals, upon the petition of Globe, issued a TRO. Later, it affirmed the NTC order on November 22, 1999, but on the same day, Globe and Smart agreed to interconnect their respective SMS systems. However, Globe later moved for partial reconsideration of the portion of the decision which says that Globe lacked authority to provide SMS. Smart and NTC filed their comments and said that Globe has no authority to provide SMS. Globe replied that: (1) the more important issue is whether NTC complied with its own rules and procedures before making a finding of lack of authority and imposing the fine; (2) that it has been operating its SMS system since 1994 and that SMS being a deregulated special feature of the telephone network, it may operate the same without prior approval of NTC. The said motion was denied. Thereafter, Globe elevated the case to the Supreme Court and raised the following issues: a. Administrative sanction and a fine cannot be imposed without prior notice and hearing as this is a violation of the due process requirement. b. Globe contends that it was treated differently from the other carriers providing SMS (Globe, in its Memorandum in the Court of Appeals made reference to the earlier decision of NTC regarding the application of Isla Communication Co., Inc. (Islacom) to provide

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SMS, that SMS is a deregulated special feature of the telephone network, hence, it does not require the prior approval of NTC. For this reason, Globe contends that NTC’s departure from its ruling in Islacom case constitutes a denial of equal protection of the law.

ISSUE: Is there a violation of the due process requirement? Was there a violation of the equal protection of the law? HELD: 1. The assailed order of NTC was issued in the exercise of its quasi-judicial functions. Therefore, all the requirements of due process attendant to the exercise of quasi-judicial power apply to the present case. Among them are the seven cardinal primary rights in justiciable cases before administrative tribunals, as enumerated in Ang Tibay vs. CIR. NTC violated several of these cardinal rights due Globe in the promulgation of the assailed order, thus: a. The NTC order is not supported by substantial evidence. Nevertheless it sufficiently explains the reasons for the decision rendered. The Court made this explanation. “Our earlier discussion pertained to the lack of clear legal basis for classifying SMS as VAS, owing to the failure of the NTC to adopt clear rules and regulations to that effect. Muddled as the legal milieu governing SMS already is, NTC’s attempt to apply its confusing standards in the case of Globe and Smart is even more disconcerting. The very rationale adopted by the NTC in its Order holding that SMS is VAS is short and shoddy. Astoundingly, the Court of Appeals affirmed the rationale bereft of intelligent inquiry, much less comment. 2. The NTC order does not explain why the NTC treated the VHS offerings of Globe and Smart differently from that of Islacom, to whom a different regulatory treatment was given. In fact, NTC has not offered any sensible explanation up to this day why Islacom was accorded a less onerous regulatory treatment, nor have they compelled Islacom to suffer the same burdens as Globe and Smart. The reasons why the previous standards no longer apply is needed to provide a rational basis for the decision. In its absence, the inconsistent decision may be struck down as being arbitrary, and a decision with absolutely nothing to support it is a nullity. 3. The NTC order is discriminatory and arbitrary and it was issued with grave abuse of discretion and it must be set aside. NTC may not legally require Globe to secure its approval for Globe to continue providing SMS. This

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does not imply though that NTC lacks authority to regulate SMS or to classify it as VAS. However, the move should be implemented properly, through unequivocal regulations applicable to all entities that are similarly situated, and in an even-handed manner. The assailed order of the NTC dated July 19, 1999 was set aside. REPUBLIC OF THE PHILIPPINES VS. CAGANDAHAN, G.R. NO. 166676, SEPTEMBER 12, 2008 Due Process; Intersexuality and sexual preference; where the person is biologically or naturally intersex, the determining factor in his gender classification would be what the individual thinks of his/ her sex upon reaching the age of majority. Where the person has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation.

FACTS: On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate before the RTC, Branch 33 of Siniloan, Laguna. She alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The RTC granted respondent’s petition and ordered that the Civil Register of Pakil make the following corrections in the birth certificate of Jennifer Cagandahan: a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and b) By changing the gender from female to MALE.

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The Court likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other pertinent records are hereby amended to conform to the foregoing corrected data. The Office of the Solicitor General seeks for the reversal of the ruling of the RTC. The issues raised by petitioner are: 1. The Trial Court erred in granting the petition considering that the requirement of Rules of Court have not been complied with; and 2. Correction of entry under Rule 108 does not allow change of “sex” or “gender” in the birth certificate, while respondent’s medical condition, i.e., CONGENITAL ADRENAL HYPERPLASIA does not make her a “male.” On the other hand, respondent counters that he has substantially complied with the requirements of Rules 103 and 108 for the Local Civil Registrar was furnished with all the necessary pleadings although not formally named a party. ISSUE: Whether the trial Court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CONGENITAL ADRENAL HYPERPLASIA (CAH). HELD: Republic’s petition is denied. Respondent undisputedly has CAH. This condition causes the early or “inappropriate” appearance of male characteristics. Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. The Court held that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics.

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In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. As for respondent’s change of name under Rule 103, the Court held that a change of name is not a matter of right but of judicial discretion, and considering that that respondent’s change of name merely recognizes his preferred gender, the Court granted the petitioner’s change of name. PEOPLE VS. SILVERIO G.R. NO. 174689, OCTOBER 22, 2007 Due Process: A change of name is a privilege not a right. A person’s first name cannot be changed on the ground of sex reassignment FACTS: Petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate. The petitioner is a male transsexual who underwent sex reassignment surgery. The RTC of Manila rendered a decision in favor of petitioner. On August 18, 2003, the Republic of the Philippines thru the Office of Solicitor General filed a petition for Certiorari in the Court of Appeals contending that there is no law allowing the change of either name or sex in the birth certificate on the ground of sex reassignment through surgery. The Court of Appeals ruled in favor of the republic and ordered for the dismissal of the petition of petitioner Silverio. Petitioner filed for reconsideration and contends that the change of his name and sex in his birth certificate is allowed under Articles 407 to 411 of the Civil Code; Rules 103 and 109 of Rules of Court and Republic Act 9048. ISSUE: Can a person’s first name be changed on the ground of sex reassignment? HELD: The Court held that the petition must fail. Article 376. No person can change his name without judicial authority. This Civil Code provision was amended by Republic Act 9048 (Clerical Error Law). R.A. 9048 now governs the change of first name and it does not

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sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts and judicial decrees. These acts, events, and judicial decrees produce legal consequence that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly ANONYMOUS VS. RADAM A.M. NO. P-07-2333, DECEMBER 19, 2007 Due Process: Administrative liability; To hold the respondent liable for a totally different charge of which she was totally unaware violates her right to due process.The essence of due process in an administrative proceeding is the opportunity to explain one’s side, whether written or verbal and this presupposes that one has been previously apprised of the accusation against him or her. FACTS: Respondent Ma. Victoria Radam, a utility worker in the Office of the Clerk of Court of the Regional Trial Court of Alaminos City in Pangasinan, was charged with immorality by an unnamed complainant. The complainant alleged that the respondent was unmarried but got pregnant and gave birth sometime in October 2005. The investigating Judge, after a discreet investigation recommended that the respondent be held liable for IMMORAL CONDUCT or Act Unbecoming of a Court Employee. After reviewing the recommendation, the Office of the Court Administrator (OCA) absolved the respondent of the charge of immorality because her alleged misconduct did not affect the character and nature of his position as a utility worker. However, the OCA held her administratively liable for the entry in the birth certificate in which she claimed that the father of her child was “unknown” to her. ISSUE: 1.

Whether or not the OCA is correct in absolving the respondent from the charge of immorality?

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Whether or not the OCA is correct in holding the respondent administratively liable for a charge for which she was not previously informed.

HELD: The administrative complaint against respondent Ma. Victoria P. Radam is hereby DISMISSED. 1. The OCA correctly exonerated respondent from the charge of immorality. However, its recommendation to hold her liable for a charge of which she was not previously informed was wrong. 2. For purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral under civil service laws. For such conduct to warrant disciplinary action, the same must be “grossly immoral,” that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. 3. For a particular conduct to constitute “disgraceful and immoral” behavior under civil service laws, it must be regulated on account of the concerns of public and secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on “cultural” values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority. Under these tests, two things may be concluded from the fact that an unmarried woman gives birth out of wedlock: (1) If the father of the child is himself unmarried, the woman is not ordinarily administratively liable for disgraceful and immoral conduct. It may be a not-so-ideal situation and may cause complications for both mother and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief systems irrespective of dogmatic origins. (2) If the father of the child born out of wedlock is himself married to a woman other than the mother, then there is a cause for administrative sanction against either the father or the mother. In such a case, the “disgraceful and immoral conduct” consists of having extramarital relations with a married person. The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, judicial employees have been sanctioned for their

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dalliances with married persons or for their own betrayals of the marital vow of fidelity. In this case, it was not disputed that, like respondent, the father of her child was unmarried. Therefore, respondent cannot be held liable for disgraceful and immoral conduct simply because she gave birth to the child Christian Jeon out of wedlock. Respondent was indicted only for alleged immorality for giving birth out of wedlock. It was the only charge of which she was informed. Judge Abella’s investigation focused solely on that matter. Thus, the recommendation of the OCA that she be held administratively liable in connection with an entry in the birth certificate of Christian Jeon came like a thief in the night. It was unwarranted. Respondent was neither confronted with it nor given the chance to explain it. To hold her liable for a totally different charge of which she was totally unaware will violate her right to due process. The essence of due process in an administrative proceeding is the opportunity to explain one’s side, whether written or verbal. This presupposes that one has been previously apprised of the accusation against him or her. Here, respondent was deprived of both with regard to her alleged unbecoming conduct in relation to a certain statement in the birth certificate of her child. Another minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side, or his defenses against the shanges leveled against him. EQUAL PROTECTION OF THE LAWS Q – What is the constitutional guarantee under Section 1, Article III of the 1987 Constitution? A – The phrase “nor shall any person be denied the equal protection of the laws” is what known as the equal protection clause. It is a constitutional guarantee that all persons are equal before the law which means that what the constitution guarantees is not absolute equality of all individuals but only equality of opportunity, or protection given by law to persons or classes of persons who are similarly situated and who therefore belong to a certain classification made by law. It is this classification which determines whether the equal protection clause has been violated or not. The rule then and up to now is that the classification made by law must be valid and reasonable, and not arbitrary, to insure that equal protection of the laws is not violated by any law or legislative measure. Q – What are the requirements of a valid and reasonable classification? A – The classification, to be reasonable, must conform to the following requirements:

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It must rest on substantial distinctions. It must be germane to the purpose of the law. It must not be limited to existing conditions only. It must apply equally to all members of the same class. (People vs. Cayat, 68 Phil. 12) Explain the first requirement that “The classification must be based on substantial distinctions.” The constitutional guarantee of equal protection is not violated by any reasonable classification which is based on substantial distinctions, not on distinctions which are merely out of convenience or caprice to favor a person or a group of persons more than the others who are similarly situated. It must be a valid distinction founded on good and justifiable reasons. Otherwise, it may be considered arbitrary and unreasonable. Explain the requirement that the classification must be germane to the purpose of the law. The classification must not only be based on substantial distinctions but should also be relevant to the purpose which the law seeks to achieve. Example: A clear example will be a law that will require all members of the Philippine National Police (PNP) to undergo and pass the following examinations: (1) Psychotest; (2) Drug Test; (3) Physical Examination Test; and (4) Police Examinations similar to the bar examinations for lawyers. The first three requirements including the findings, shall be conducted and certified true and correct by the Department of Interior and Local Government and the fourth requirement will be given and supervised by the Professional Regulation Commission. The purpose of the law is to be able to establish and maintain a qualified, efficient, competent and responsible police force in the entire country. Any subsequent amendment in the law that will impose a requirement, for instance, that any member of the PNP (1) should be duly certified graduates of a four year course leading to Bachelors Degree in Police Administration and (2) should have passed the Police Examinations given and supervised by the Professional Regulations Commission; together with the additional requirement or provision, that any member or officer of the PNP who is confirmed to be involved in the use or disposition of prohibited drugs, after appropriate examinations, or who is confirmed by final court judgment to be involved in any organization or syndicate, or in conspiracy with any person or group of persons engaged in the sale, disposition or proliferation of prohibited drugs, shall automatically forfeit any and all monetary benefits from the government, is considered germane or relevant to the purpose of the law. The requirements and the penalty provided in the law are all intended to comply with the purpose of the law

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to establish and maintain a qualified, efficient, competent and responsible police force in the entire country. In accomplishing this objective, the strong clamor of the people to attain peace and order in their respective communities will be attained; the drive against lawlessness and criminality will succeed; and the thrust of government to weed out undesirables and criminals in the police service will be effective. Explain the requirement “that the classification must not be limited to existing conditions only.” This means that the classification will continue to be valid and effective for as long as the conditions sought to be addressed or corrected by the law continue to exist. Explain the requirement “that the classification must apply equally to all members of the class.” The equal protection clause does not guarantee absolute equality. What it guarantees is merely legal equality, or equality of all persons before the law, which means that the law should not treat a person differently from another who is similarly situated. The Supreme Court had a more elaborate statement of the principle, thus: “No person or class of persons shall be deprived of the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstance.” (Tolentino vs. Board of Accountancy, 90 Phil. 83, 90) In the more recent case of Himagan vs. People of the Philippines and Judge Hilario Mapayao (G.R. No. 113811, 56 SCAD 156, October 7, 1994), the Supreme Court said: “The equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. In short, a law can make a classification but once a classification is made, all those covered by the classification are to be treated equally. HIMAGAN VS. PEOPLE OF THE PHILIPPINES AND JUDGE HILARIO MAGPAYAO G.R. NO. 113811, OCTOBER 7, 1994 56 SCAD 156

FACTS: Petitioner, a policeman, was implicated in the murder of Benjamin Machitar, Jr., and the attempted murder of Bernabe Machitar. After the information for murder and attempted murder were filed with the RTC, the trial court issued an order suspending the petitioner until the termination of the case on the basis of Section 47, R.A. No. 6975, otherwise known as the Department of Interior and Local Government Act of 1990.

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Petitioner claims that as a member of the PNP, he is covered by the Civil Service Law, particularly Section 42 of P.D. No. 907 of the Civil Service Decree and that his suspension should be limited to 90 days. He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. ISSUES: Whether or not the imposition of preventive suspension for over 90 days under Section 47 of R.A. No. 6975 violates the suspended policeman’s constitutional right to equal protection of law. HELD: The imposition of preventive suspension for over 90 days under Section 47 of R.A. No. 6975 does not violate the suspended policeman’s constitutional right to equal protection of the laws. The legislative intent is to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds 6 years of imprisonment and which suspension continues until the case against him is terminated. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policeman carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them. The equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Thus, the equal protection clause does not absolutely forbid classifications, such as the one which exists in the instant case. If the classification is based on real and substantial differences; is germane to the purpose of the law; applies to all members of the same class; and applies to current as well as future conditions, the classification may not be impugned as violating the Constitution’s equal protection guarantee. The petitioner misapplies Section 42 of P.D. No. 807. A meticulous reading of the section clearly shows that it refers to the lifting of preventive suspension in pending administrative investigations, not in a criminal case, as in this case. LIM VS. PACQUING 58 SCAD 880, 240 SCRA 649 FACTS: P.D. No. 771 revoked all franchises issued by the local governments to operate Jai-alai.

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ISSUE: Does P.D. No. 771 violate the equal protection clause of the Constitution? HELD: ADC cannot allege violation of the equal protection clause simply because it was the only one affected by the decree. ADC was not singled out when all Jai-alai franchises were revoked. The decree revoked all franchises issued by the local governments without qualification or exceptions. REVIEW OF OLD CASES Q – A law was passed prohibiting members of non-Christian tribes from drinking liquor because they are more susceptible to its effect on account of their unfamiliarity with said wine, as compared to their more civilized countrymen. Is that law based on a valid classification? A – The law was upheld by the Supreme Court. The law is based on valid classification which is not arbitrary and unreasonable. (People vs. Cayat, 68 Phil. 12) Q – The petitioner sought to enjoin the enforcement of the Retail Trade Nationalization Act on the ground, among others, that the said law denies to alien residents the equal protection of the law. Does the said law violate the equal protection clause? A – No. The validity of the Retail Trade Nationalization Act was upheld when the constitutionality of Republic Act No. 1180 was assailed, on the ground that the secret manipulations of stock commodities and prices, their utter disregard of the welfare of their customers show the existence of real and actual positive and fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail measure. The said decision no longer holds true because under the new law, otherwise known as the Retail Trade Liberalization Act of 2000, Republic Act No. 8762, foreign individuals or foreign corporations can now engage in retail trade subject to the conditions and limitations prescribed in the said law. Q – Section 11 of the Probation Act provides as follows: “This act shall apply only in those provinces in which their respective provincial boards have provided for the salary of a probation officer at rates not lower than those provided for provincial fiscals. Said probation officer shall be appointed by the Secretary

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of Justice and shall be subject to the direction of the Probation Office.” Is the said law a violation of the equal protection clause? The challenged law was sustained. The resultant inequality may be said to flow from the unwarranted delegation of the legislative power. One province may appropriate the necessary fund to defray the salary of the probation officer, while another province may refuse or fail to do so. In such a case, the probation would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another similarly situated in another province would be denied those same benefits. (People vs. Judge Vera and Mariano Co Unjieng, 65 Phil. 56) Ordinance No. 6537 of the City of Manila makes it unlawful for a person not a citizen of the Philippines to be employed in any place of employment or to be engaged in any kind of trade, business or occupation within the City of Manila without securing an employment permit from the Mayor of Manila. The said ordinance permits the collection of P50.00 upon all aliens desirous of obtaining employment in the City of Manila. The constitutionality of the said ordinance was challenged the same being unreasonable because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Is the said ordinance unreasonable and a violation of the equal protection clause? The Supreme Court ruled that the first part of the ordinance which requires the alien to secure an employment permit involves the exercise of discretion and judgment in the processing, approval and disapproval of applications. It is, therefore, regulatory in character. The second part which requires the payment of P50.00 as a fee is not regulatory but a revenue measure. It is unreasonable not only because it is excessive but also because it fails to consider valid substantial differences among individual aliens who are required to pay it. The said fee is being collected from every employed alien, whether he is casual or permanent, part-time or full time or whether he is a lowly employee or a highly paid executive. (Mayor Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA 270) An ordinance of Ormoc City imposed a municipal tax equivalent to 1% per export sale to U.S. and other foreign countries on any and all productions of centrifugal sugar milled at the Ormoc Sugar Co., Inc. The latter contends that the said ordinance

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violates the equal protection clause. Is the said ordinance a violation of the equal protection clause? A – The Supreme Court ruled that it is a violation of the equal protection clause and cited the following reasons: 1. One of the conditions in order that a classification can be considered reasonable is that it applies not only to present conditions but also to future conditions which are substantially identical to those of the present. At the time of the enactment of the said ordinance, appellant company was the only sugar central in Ormoc City. And yet, by the terms of the ordinance, it is singular and exclusive as to exclude any subsequently established sugar central of the same class as the plaintiff, for the coverage of the tax. 2. Even if a similar company is set-up later, it cannot be subject to the tax because the ordinance expressly points only to the appellant company as the entity to be levied upon. (Ormoc Sugar Co., Inc. vs. Treasurer of Ormoc City, 22 SCRA 603) REVIEW OF OTHER CASES Q – A subpoena duces tecum was issued by the Ombudsman in connection with its investigation of an anonymous letter alleging that funds representing savings from unfilled positions in the EIIB (Economic Intelligence and Investigation Bureau) has been illegally disbursed. The petitioner moved to quash the said subpoena on the issue, among others, that it violates the right to equal protection of the law. Petitioner complained that “in all fora and tribunals,” verified complaints and sworn statements are necessary whereas in proceedings before the Office of the Ombudsman, anonymous letters suffice to start an investigation. Is this a violation of the equal protection clause? A – The Supreme Court ruled that there is no violation of petitioner’s right to equal protection of law since in the first place the procedure of the proceedings before the Office of the Ombudsman is provided in the Constitution itself. Second, it is apparent that in permitting the filing of complaints “in any form and in any manner,” the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrong-doings. The Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government

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because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them. (Almonte vs. Vasquez, G.R. No. 95367, May 23, 1995, 61 SCAD 274) On account of murder charges against the petitioner, the trial court issued an order suspending him for more than 90 days under Section 47 of R.A. No. 6975 (Local Government Act of 1990). Petitioner claims that under Section 42 of P.D. No. 907, his suspension should be limited to 90 days, and the preventive suspension of over 90 days violates his constitutional right to equal protection of the law. Is the contention of the petitioner tenable? The contention of petitioner was rejected by the Supreme Court citing the following reasons: 1. The legislative intent is to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment and which suspension continues until the case against him is terminated. 2. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law can be used to harass or intimidate witnesses against them. (Himagan vs. People of the Philippines and Judge Hilario Mapayao, G.R. No. 113811, October 7, 1994, 56 SCAD 156) The President vetoed special provisions in the appropriation for State Universities and Colleges. The vetoed provisions refer to the authority to the use of income and the creation, operation and maintenance of revolving funds. The petitioners claimed that in doing so, the President acted with grave abuse of discretion. Was there a grave abuse of discretion? This was rejected on the reasoning that if some government agencies were allowed to use their income and maintain a revolving fund for that purpose, it is because those agencies have been enjoying such privilege before by virtue of special laws authorizing such practices as exception to the “one-fund policy.” (Philippine Constitution Association vs. Enriquez, G.R. No. 113108, August 19, 1994, 54 SCAD 561)

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Q – Petitioner questioned the constitutionality of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, for discrimination against males and females, as it does not apply to all Filipino workers but only to domestic helpers and females with similar skills. One issue in this case is whether or not said order is based on a valid classification. A – The Supreme Court dismissed the petition and ruled that there was a valid classification. The Filipino female domestics working abroad were in a class by themselves because of the special risks to which their class was exposed. There is no question that said order applies only to female contract workers but it does not thereby make an undue discrimination between sexes. (Pasei vs. Drilon, 163 SCRA 386) Q – Petitioner, an incorporated association of licensed Filipino manning agencies, and its co-petitioners, are licensed manning agencies which hire and recruit Filipino seamen for and in behalf of their respective foreign shipowner-principals. They seek to annul Resolution No. 1, Series of 1994, of the POEA and Memorandum Circular No. 5, Series of 1994. Resolution No. 1 fixes the rates affecting death and workmen’s compensation of Filipino seamen working in oceangoing vessels, while Memo. Circular No. 05 adjusts the rate of compensation and other benefits provided in Resolution No. 1. Petitioners claimed that there was a discrimination against foreign shipowners and principals employing Filipino seamen and in favor of foreign employers employing overseas Filipinos who are not seamen. Is petitioners’ claim valid? A – Petitioner’s claim was rejected. It is a well-established principle of constitutional law that the guaranty of equal protection of the law is not violated by legislation based on reasonable classification. There can be no dispute about the dissimilarities between land-based and sea-based Filipinos overseas workers in terms of among other things, work environment, safety dangers, and risks to life and limb and accessibility to social, civic, and spiritual activities. (The Conference of Maritime Manning Agencies, Inc. vs. POEA, 60 SCAD 674, 243 SCRA 666) Q – A law provides that a 65-year old election local official who has retired from a provincial, city or municipal office and has received retirement benefits and who shall have reached that age at the commencement of term of office is disqualified to

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run for the elective local office from which he has retired. Is the disqualification valid? The Supreme Court sustained the validity of the disqualification provided for by law and ruled that there is reason to disqualify him from running for the same office from which he has retired. (Dumlao vs. Commission on Elections, 95 SCRA 392) P.D. No. 771 revoked all franchises issued by the local governments to operate Jai-alai. Does P.D. No. 771 violate the equal protection clause of the Constitution? ADC cannot allege violation of the equal protection clause simply because it was the only one affected by the decree. ADC was not singled out when all Jai-alai franchises were revoked. The decree revoked all franchisers issued by the local government without qualification or exceptions. (Lim vs. Pacquing 58 SCAD 880, 240 SCRA 649) In Emilio M.R. Osmeña and Pablo Garcia vs. Comelec, the petitioners filed a petition for prohibition and raised the issue that the ban on political advertising has not only failed to level the playing field but actually worked to the disadvantage of the poor candidates depriving them of a medium which they can afford to pay for while their most affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and hardbills. Was there a suppression of political ads? Is there a substantial or legitimate interest to justify exercise of the regulatory power of the Comelec? There is no suppression of political ads but only a regulation of the time and manner of advertising. There is a substantial or legitimate government interest justifying the exercise of the regulatory power of the Comelec. Comelec take-over of the advertising page of newspapers on the commercial time of radio and TV stations, and allocating those to the candidates, is valid. Article IX-C, Section 4, is not the only constitutional provision that mandates political equality. Article XIII, Section 1, requires Congress to give the “highest priority” to the enactment of measures designed to reduce political inequalities. Article II, Section 26, declares as a fundamental principle of our government “equal opportunities for public service.” (Emilio M.R. Osmena and Pablo Garcia vs. COMELEC, G.R. No. 132231, 93 SCAD 233, March 31, 1998)

NOTE: This practice no longer holds true. See next question.

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Q – As of now, can the Comelec still procure space and time in the media and allocate the same, free of charge to the candidates? As of now, can the Comelec take over the advertising page of the newspapers or the commercial time of radio and TV stations and allocate these to the candidates? A – Before the elections on May 14, 2001, a law was passed allowing candidates to procure space and time in broadcast and print media. The old practice turned out to be an advantage to those who are already popular and had wide media exposure prior to their candidacy. In other words, the objective then to insure political equality turned out to defeat the very purpose for which the Electoral Reform Law of 1987 was passed and approved. Q – Informations for murder in connection with the Kuratong Baleleng cases were filed against petitioner and several police officers. In eleven informations filed with the Sandiganbayan, petitioner was charged as an accessory. Thereafter, RA 7975 took effect which provides that the Sandiganbayan shall have jurisdiction on all cases where one or more of the “principal accused” are government officials with a salary grade of 27 or PNP officials with a rank of Chief Superintendent or higher. Petitioner questioned the jurisdiction of the Sandiganbayan over his person on the ground that he was not charged as principal and that it is the regular courts that have jurisdiction over the case. Subsequently, the cases were transferred to the Quezon City Regional Trial Court. On February 25, 1997, a law was passed amending RA 7279 by deleting the word “principal” in the phrase “principal accused.” Moreover, the said law applies to all cases in any court over which the trial has not begun as of the time of the approval of the law. Section 4 of RA 8289 (which deleted the word “principal” to confer jurisdiction to the Sandiganbayan over his case) was assailed as unconstitutional as it violates the right of petitioner to equal protection of the law because it was particularly directed only to due process, and moreover, it is an ex-post facto law. Are the said contentions correct? A – (1) On the contention that it violates the right of petitioners to equal protection of the law: – This contention is not correct. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under RA

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8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. Evidence against them were not yet presented, whereas in the latter, the parties had already submitted their respective proofs, examined witness and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to constitutional limitations, it can be reasonably anticipated that an alteration of jurisdiction could necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. The transitory provision does not only cover cases which are in the Sandiganbayan but also those in “any court.” It just happened that Kuratong Baleleng cases are one of those affected by law. On the contention that it is an ex post facto law: – RA 8249 is not a penal law but a substantive law on jurisdiction which is not penal character. The retroactive application thereof of RA 8249 is not unconstitutional. (Panfilo Lacson vs. The Executive Secretary, et al., G.R. No. 128096, January 20, 1999, En Banc) NEW CASE

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO, ET AL. VS. GLAXO WELLCOME PHILIPPINES, INC. G.R. NO. 162994, SEPTEMBER 17, 2004 THE EQUAL PROTECTION CLAUSE – ERECTS NO SHIELD AGAINST MERELY PRIVATE CONDUCT, HOWEVER, DISCRIMINATORY OR WRONGFUL. THE ONLY EXCEPTION OCCURS WHEN THE STATE IN ANY OF ITS MANIFESTATIONS OR ACTIONS HAS BEEN FOUND TO HAVE BECOME ENTWINED OR INVOLVED IN THE WRONGFUL PRIVATE CONDUCT. FACTS: After undergoing training and orientation, Pedro Tecson signed a contract of employment which stipulates, among others, that he agrees to study and abide by existing company rules; to disclose to management any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug companies and should management find that such relationship poses a possible conflict of interest, to resign from the company.

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The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management of any existing or future relationship by consanguinity or affinity with co-employee or employees of competing drug companies. If management perceives a conflict of interest or a potential conflict between such relationship and the employee’s employment with the company, the management and the employee will explore the possibility of a “transfer to another department in a non-countercheking position” or preparation for employment outside the company after six months. Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte Sales area. Later, Tecson had a romantic relationship with Bettsy an employee of Astra Pharmaceuticals (Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She supervised the district managers and medical representatives of her company and prepared marketing strategies for Astra in that area. Before they got married, Tecson received several reminders from his District Manager regarding the conflict which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in September 1998. In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of interest. Tecson’s superiors reminded him that he and Bettsy should decide which one of them would resign from their jobs, although they told him they wanted to retain him as much as possible because he was performing his job well. ISSUE: Does GLAXO have the right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry? Is the prohibition against personal or marital relationship with employee’s of competitor companies upon Glaxo’s employee reasonable under the circumstances because relationship of that nature might compromise the interests of the company? Can an equal protection clause be invoked as shield against private conduct? HELD: (1) Exercise of management prerogative; Glaxo’s policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative – The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides: 10. You agree to disclose to management any existing or future relationship you may have, either by consanguinity or

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affinity with co-employees or employees of competing drug companies. Should it pose a possible conflict of interest in management discretion, you agree to resign voluntarily from the Company as a matter of Company policy. The same contract also stipulates that Tecson agrees to abide by the existing company rules of Glaxo, and to study and become acquainted with such policies. In this regard, the Employee Handbook of Glaxo expressly informs its employees of its rules regarding conflict of interest: 1. Conflict of Interest Employees should avoid any activity, investment relationship, or interest that may run counter to the responsibilities which they owe Glaxo Wellcome. Specifically, this means that employees are expected: a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or other businesses which may consciously or unconsciously influence their actions or decisions and thus deprive Glaxo Wellcome of legitimate profit. b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to advance their outside personal interests, that of their relatives, friends and other businesses. c. To avoid outside employment or other interests for income which would impair their effective job performance. d. To consult with Management on such activities or relationships that may lead to conflict of interest. 1.1. Employee Relationships Employees with existing or future relationships either by consanguinity or affinity with co-employees of competing drug companies are expected to disclose such relationship to the Management. If management perceives a conflict or potential conflict of interest, every effort shall be made, together by management and the employee, to arrive at a solution within six (6) months, either by transfer to another department in a non-counter checking position, or by career preparation toward outside employment after Glaxo Wellcome. Employees must be prepared for possible resignation within six (6) months, if no other solution is feasible. No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative.

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Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry. The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. (2)

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Right to protect economic interests; Prohibition against such relationship is a legitimate business practice to guard business confidentiality. – That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth. Indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play. Equal protection clause; The commands of the equal protection clause are addressed only to the state or those acting under the color of its authority. – The challenged company policy does not violate the equal protection clause of the Constitution as petitioners erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to the State or those acting under color of its authority. Corollarily, it has been held in a long array of U.S. Supreme Court decisions that the equal protection clause erects no shield against merely private conduct, however, discriminatory or wrongful. The only exception occurs when the state in any of its manifestations or actions has been found to have become entwined or involved in the wrongful private conduct. Obviously, however, the exception is not present in this case. Significantly, the company actually enforced the policy after repeated requests to the employee to comply with the policy. Indeed, the application of the policy was made in an impartial and even-handed manner, with due regard for the lot of the employee. (Underlining Supplied) Conflict of interest; It is clear that Glaxo does not impose an absolute prohibition against relationships; What the company merely seeks to avoid is a conflict of interest. – In any event, from the wordings of the

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contractual provision and the policy in its employee handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. As succinctly explained by the appellate court, thus: The policy being questioned is not a policy against marriage. An employee of the company remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs only to the individual. However, an employee’s personal decision does not detract the employer from exercising management prerogatives to ensure maximum profit and business success. . . The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s Employee Code of Conduct and of its contracts with its employees, such as that signed by Tecson, was made known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, the stipulations therein have the force of law between them and, thus, should be complied with in good faith. He is therefore estopped from questioning said policy. Constructive dismissal; The record does not show that Tecson was demoted or unduly discriminated upon by reason of such transfer. – The Court finds no merit in petitioners’ contention that Tecson was constructively dismissed when he was transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao CityAgusan del Sur sales area, and when he was excluded from attending the company’s seminar on new products which were directly competing with similar products manufactured by Astra. Constructive dismissal is defined as a quitting, an involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. None of these conditions are present in the instant case. The record does not show that Tecson was demoted or unduly discriminated upon by reason of such transfer. As found by the appellate court, Glaxo properly exercised its management prerogative in reassigning Tecson to the Butuan City sales area.

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Impartial and disinterested implementation of policy. – As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the conflict of interest brought about by his relationship with Bettsy. When their relationship was still in its initial stage, Tecson’s supervisors at Glaxo constantly reminded him about its effects on his employment with the company and on the company’s interests. After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employ because of his satisfactory performance and suggested that he ask Bettsy to resign from her company instead. Glaxo likewise acceded to his repeated requests for more time to resolve the conflict of interest. When the problem could not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to a sales area different from that handled by his wife for Astra. Notably, the Court did not terminate Tecson from employment but only reassigned him to another area where his home province, Agusan del Sur, was included. In effecting Tecson’s transfer, Glaxo even considered the welfare of Tecson’s family. Clearly, the foregoing dispels any suspicion of unfairness and bad faith on the part of Glaxo.

DOCTRINE OF RELATIVE CONSTITUTIONALITY OR PRINCIPLE OF ALTERED CIRCUMSTANCE A statute may be valid at one time as applied to a set of facts but it may become void at another time because of altered circumstance. Example: Republic Act 7653 exempted the BSP Officers from the salary standardization law, but did not exempt rank and file employees. There was a valid measure of legislative power, but subsequently, there was a law exempting all rank and file employees of all government financial institutions from the Salary Standardization Law. Hence, the law which was valid initially becomes void for being a violation of the equal protection clause. (Central Bank Employees Association, Inc. vs. Banko Sentral ng Pilipinas, 446 SCRA 299) SEARCH AND SEIZURE (Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.)

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Q – What are the rights mentioned in Section 2, Article 3 of the Constitution? A – There are actually three (3) rights mentioned in Section 2, Article 3 of the Constitution, thus: 1. One is the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purposes. This right is “inviolable.” 2. No search warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 3. No warrant of arrest sshall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Compressed in the second sentence of Section 2 which says, “and no search warrant or warrant of arrest shall issue except upon probable cause x x x.”) Q – Who are protected under Section 2? A – All persons, including aliens are protected under Section 2, whether accused of a crime or not. (Moncado vs. People’s Court, 80 Phil. 1) Artificial persons, like corporations, are also protected but they may be required to open their books of accounts for examination by the State in the exercise of the police power or the power of taxation. (Stonehill vs. Diokno, 20 SCRA 383) Q – What is protected by the phrase “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature”? A – It is a protection of: (1) the sanctity and privacy of a person himself; and of (2) the inviolability of a person’s home and his possessions. Q – The second portion of the right protected by Section 2 is as follows: “No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” Is this rule absolute? A – No. There are exceptions to this rule (People of the Philippines vs. Rosa Aruta, etc., G.R. No. 120915, 93 SCAD 387, April 13, 1998) and they are as follows: 1. Warrantless search incidental to a lawful arrest;

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2.

3.

4. 5. 6. 7.

Seizure of evidence in “plain view,” the elements of which are: a. a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b. the evidence was inadvertently discovered by the police who had the right to be where they are; c. the evidence must be immediately apparent; and d. “Plain view” justified mere seizure of evidence without further search. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; Consented warrantless search; Customs search; Stop and frisk; and Exigent and emergency circumstances.

NOTE: The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionality guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. Probable cause refers to the existence of such facts and circumstances which should lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. (Ibid.) Q – What is probable cause? A – It has been defined generally as “such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his actions, and the means in presenting it, are legally just and proper.” (Corro vs. Lising, 137 SCRA 541) Q – If there is a finding of probable cause, does this mean that the person being charged can already be convicted for the crime imputed to him? A – A finding of probable cause does not ensure a conviction, or a conclusive finding beyond reasonable doubt. REASON: The accused has yet to present evidence to prove his innocence and to rebut the finding of the probable cause.

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Q – What, if any, is the effect of such finding of probable cause? A – The allegations adduced by the prosecution will be put to test in a fullblown trial where evidence shall be analyzed, weighed, given credence or disproved. (Drilon vs. Court of Appeals, et al., G.R. No. 15825, 71 SCAD 712, July 5, 1996) Q – Is it absolutely necessary that the judge should personally examine the complainant and his witnesses? A – No. (Lim vs. Felix 87 SCRA 292 [1991]) Q – If the Fiscal has already conducted the investigation and has, in fact, a certification that he has personally taken the evidence; that he has personally examined the complainant and his witnesses; and that he has already conducted a preliminary investigation proper, is it still necessary for the judge to conduct his own investigation? A – Yes, if the judge would like to be sure about the certification and investigation report of the prosecutor. 1999 – In Lim vs. Felix (187 SCRA 788 [1990]), the Supreme Court reiterated the ruling in Soliven vs. Makaisar and People vs. Inting. The Court added that the judge does not have to personally examine the complainant and his witnesses. The prosecutor can perform the same functions as a commissioner for the taking of evidence. However, there should be a report and necessary documents supporting the Fiscal’s bare certification. All these should be before the judge. To be sure, the judge must go beyond the Prosecution’s certification and investigation report whenever necessary. He should call for the complainant and the witnesses themselves to answer the court’s probing questions when the circumstances of the case so require. Q – A search warrant described the things to be confiscated in the following manner: “Accounting and business records; check booklets, check stubs; check return slips; ledgers; records of bank deposits; records of withdrawals; and records of remittances from banks in foreign country, covering the years 1999 to 2000.” Does the said search warrant comply with the requirement of Section 2, Article III of the 1987 Constitution with respect to “particularity” as required? Explain. A – No. REASON: It is a general warrant which is outlawed in this jurisdiction. It covers every considerable document which may be found without determination whether the papers are legal or not. Q – What is the basis of probable cause? A – The basis is no less than the personal knowledge of the complainant or his witnesses of the facts upon which the issuance of the search warrant may be justified. (Silva vs. RTC of Negros Oriental, G.R. No. 81756, October 21, 1991)

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Q – Is the affidavit of the complainant and his witnesses sufficient? A – Mere affidavits of the complainant and his witnesses are not sufficient. The examining judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. (Mata vs. Bayona, 128 SCRA 388) Q – What is required in determining the existence of probable cause? A – The following are required in determining the existence of probable cause. 1. The judge must, before issuing the warrant, personally examine the complainant and the witnesses in the form of searching questions and answers; 2. The examination must be under oath; 3. The examination must be in writing; 4. The complainant and the witnesses must be examined on facts personally known to them; and 5. The judge must attach to the record the sworn statements of the complainant and the witnesses together with any affidavit submitted. (Section 4, Rule 126 of the New Rules on Criminal Procedure) Q – What is the importance of the finding or opinion of the judge conducting the examination? A – The existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination. (Luna vs. Plaza, G.R. No. L-27511, November 29, 1968) However, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. (Erle Pendon vs. Court of Appeals, 191 SCRA 429) Q – What is the nature and procedure of the examination? A – The nature and procedure of the examination are the following: 1. An application for a search warrant is neither a trial nor a part of the trial. It is heard ex parte. (La Chemise Lacoste, SA vs. Fernandez, 129 SCRA 373) 2. It is an examination or investigation under oath and may not be in public. It may even be held in the secrecy of the chambers. (Mata vs. Bayona, supra) 3. It must be in writing. (Ibid.) 4. The application must be acted upon expeditiously because time is of the essence. (La Chemise Lacoste, SA vs. Fernandez, supra)

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The examination must not only be routinary but which must be thorough as to elicit the required information. (Mata vs. Bayona, supra) VALID WARRANTLESS SEARCH AND SEIZURE

Q – When can there be a valid warantless search and seizure? A – There can be a valid warantless search and seizure in the following instances: 1. A person caught in flagrante delicto selling prohibited or regulated drugs may be searched as an incident of the arrest. (People vs. Juatan, 73 SCAD 251, 260 SCRA 532; People vs. Lua, 70 SCAD 433, 256 SCRA 539) This is called as a valid search and seizure incident to a lawful arrest. 2. An unlicensed firearm may be seized from a person arrested as an incident of the arrest. (People vs. Salazar, 78 SCAD 300, 266 SCRA 607) 3. The search and seizure of a prohibited article in plain view of an officer may be effected as an incident to a lawful arrest. (People vs. Figueroa, 64 SCAD 722, 248 SCRA 679) 4. A moving vehicle may be searched without a warrant. (People vs. Balingan, 58 SCAD 861, 241 SCRA 277) 5. A warrantless search may be done with the consent of the accused. (People vs. Cuizon, 70 SCAD 277, 256 SCRA 329) CASES VALID SEARCH AND SEIZURE INCIDENT TO A LAWFUL ARREST Q – A police officer posed as a buyer and bought marijuana from the accused in her store. Thereafter, he arrested the accused without a warrant. The other police officer seized a plastic container on the table inside the store from which the accused took the marijuana. Six marijuana stocks were found in the plastic container. The accused was charged with selling marijuana. Is the warrantless seizure of marijuana legal? A – The search, being an incident to a lawful arrest, needed no warrant for its validity. The accused having been caught in flagrante delicto, the arresting officers were duty bound to apprehend her immediately. The warrantless search and seizure, as an incident to a lawful arrest, may extend to include

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the premises under the immediate control of the accused. The accused may not successfully invoke the right against a warrantless search, even as regards the plastic container with dried marijuana leaves found on the table in her store. (People vs. Salazar, 78 SCAD 300, 266 SCRA 607) PROHIBITED ARTICLE IN PLAIN VIEW Q – The police officers were serving a warrant for the arrest of the accused. While doing the same, the police officers searched the house of the accused and while searching, they found a pistol, a magazine, and seven rounds of ammunition. The accused was later charged with illegal possession of the pistol, the magazine and the ammunition. Is the warrantless seizure illegal? A – The search and seizure may be effected as an incident to lawful arrest and objects in the plain view of an officer are subject to seizure. The police officers had the right to be in the position to have that view of the prohibited article. (People vs. Figueroa, 64 SCAD 722, 248 SCRA 679) SEARCH OF A MOVING VEHICLE Q – An unknown informant called the Baguio City Police Station to relay the information that the accused was going to Manila with a bag filled with marijuana. Acting on the said information, the police officers placed the accused under surveillance. When the accused boarded a bus bound from Manila carrying a piece of luggage, the team leader instructed the checkpoint to stop the bus. As soon as the bus reached the checkpoint, a police officer opened the luggage of the accused and found marijuana inside. Is the warrantless seizure of the marijuana illegal? A – The search of a moving vehicle is one of the exceptions to the requirement that a search must be supported by a search warrant. There was probable cause for the search. (People vs. Balingan, 58 SCAD 861, 241 SCRA 277) SEARCH CONSENTED TO BY THE ACCUSED Q – The NBI formed a team to intercept the accused and his wife who were arriving from Hong Kong with a big quantity of methamphetamine hydrochloride. As they were leaving the airport, the accused and his wife handed four bags to their co-accused, who proceeded to a hotel. The NBI agents followed them and entered their room and the accused gave them written permission to search their bags. The bags contained methamphetamine hydrochloride. The co-accused were charged with transportation of methamphetamine hydrochloride. A – The co-accused freely gave their consent to the search of their bags. Therefore, the drugs which were discovered on account of the search is

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admissible in evidence. (People vs. Cuizon, 70 SCAD 277, 256 SCRA 329) On the basis of an information that a certain “Aling Rosa” will be arriving from Baguio City the following day with a large volume of marijuana, Lt. Abello and his men went to Olongapo City and waited for the arrival of a bus. The informant is supposed to identify “Aling Rosa” and this is actually what he did upon the arrival of a Victory Liner Bus. He pointed to “Aling Rosa” as the one carrying a travelling bag, and having ascertained that accused-appellant was “Aling Rosa,” the team of Lt. Abello approached her and introduced themselves as NARCOM agents and subsequently asked on the contents of the bag. Then and there, “Aling Rosa” handed it to the team. The bag contained dried marijuana leaves packed in a plastic bag marked “Cash Katutak.” The said bag was confiscated and later, accusedappellant was brought to the NARCOM office for investigation. Accused-appellant was later convicted. The legality of the search and seizure was questioned by the defense, hence, this issue was raised by the defense. Was the search and seizure legal? To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said person had an actual intention to relinquish the right” (citing People vs. Barros, 49 SCAD 879, 231 SCRA 557 [1994]) – To constitute a waiver, there should be an actual intention to relinquish the right. In an attempt to further justify the warrantless search, the Solicitor General argued that the police officers would have encountered difficulty in securing a search warrant as it could be secured only if accused-appellant’s name was known, the vehicle identified and the date of its arrival certain, as in the Aminundin case where the arresting officers had forty-eight hours within which to act. This argument is untenable. In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than twenty-four (24) hours to do so. Obviously, this is again an instance of seizure of the “fruit of the poisonous tree,” hence, illegal and inadmissible in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant? No. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it

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cannot be left to the discretion of the police officers conducting the search. REASON: To allow that would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. (People of the Philippines vs. Asfar Hussain, G.R. No. 126379, June 26, 1998) Q – Is the setting up of checkpoints a violation against an individual right against unreasonable search? A – In Valmonte vs. De Villa, the Supreme Court ruled that the setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as to thwart plots to destabilize the government in the interest of public security. NOTES: 1. 2.

Justice Isagani Cruz and Justice Sarmiento dissented on the ground that checkpoints are violative of the Constitution. The Supreme Court made the following clarification in its resolution on the motion for reconsideration on May 24, 1990, thus: (a) For as long as the vehicle is neither searched nor its occupants subjected to body search, and the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. (b) If vehicles are stopped and extensively searched, it is because of some probable cause which justify a reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense. (Underlining Supplied) (c) Warrantless search and seizures at the checkpoints are similar to searches and seizures accompanying warrantless arrests during the commission of a crime or thereafter. (d) A warrantless search of incoming and outgoing passengers at the arrival and departure areas of an international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety and necessity. WARRANTLESS SEARCH MADE 30 MINUTES AFTER THE TIME OF ARREST

Q – Budol Tigas, a suspected terrorist from Indonesia and also a suspect in the murder of Congressman A, who, for sometime, but unknown

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to police authorities, has stayed in a hideout at Room 408 Josefina Apartment, Ermita, Manila, was finally arrested in Zamboanga City. Six hours after his arrest, a warrantless search was conducted in his room in Josefina Apartment where his live-in partner is reportedly staying. During the search, the search team found and seized the following: (1) chemical materials used in making time bombs; (2) two armalite rifles; (3) one 45 caliber pistol; and (4) several documents and three (3) books about espionage. Question: Is the said search and seizure legal or illegal or can it be justified as an incident of a valid arrest? A – No. REASON: Six hours have elapsed after his arrest when the search and seizure was conducted. A warrantless search is limited to the search of a person arrested at the time of the incident to his arrest. SEARCH MADE AT THE BEHEST OR INITIATIVE OF THE PROPRIETOR OR A PRIVATE ESTABLISHMENT FOR ITS OWN AND PRIVATE PURPOSES, AND WITHOUT THE INTERVENTION OF POLICE AUTHORITIES Q – Purciano Forwarders is engaged in a cargo forwarding business which is owned by Mr. A It received a package delivered by Mr. F, a foreigner, which is intended to be sent to F’s friend. Mr. A requested that said package be subject to inspection but Mr. F refused. Before the said package was delivered to the Bureau of Customs, Mr. A made an inspection of the said package and he found marijuana therein. Thereafter, NBI agents arrived, and Mr. A informed the latter that he found marijuana leaves in Mr. F’s package. Charges were filed against Mr. F, and subsequently, he was convicted. Mr. F claimed that his conviction is wrong on the ground that the contraband was obtained in violation of his constitutional right against unreasonable search and seizure. Questions: (1) (2) (3)

Is Mr. F’s right violated because the search was conducted by Mr. A, a private person? Was there an illegal search because the search was conducted by the mere presence of NBI agents? Does the Bill of Rights govern the relationship between individuals?

Answer: 1.

There is no violation of Mr. F’s right. REASON: Restraint against arbitrary and unreasonable exercise of power could only be invoked

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against the State against whom said restraint is imposed. If the search is made at the behest or initiative of the owner of a private establishment for its own and private purpose, and without the intervention of the police authorities, the right against unreasonable search and seizure cannot be invoked because only the act of the private individual, not the law enforcers, is involved. 2. No. REASON: Just to observe and look at that which is in plain sight is not a search. Where the contraband articles are identified without a trespass on the part of the arresting officer, there is no illegal search. 3. No. REASON: The Bill of Rights governs the relationship between the individual and the State. Q – Section 2 also states that “No warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” Is this rule absolute? A – No. Section 5, Rule 113 of the New Rules on Criminal Procedure provides for the exceptions to the said rule. “Section 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has in fact just been committed, and he has personal knowledge of fact indicating that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)” Q – Section 2, Article III, clearly provides that the probable cause must be determined personally by the judge. Despite this provision, however, there are conflicting decisions on who should determine probable cause before a warrant of arrest is issued. Are Fiscals authorized to determine probable cause, as contended by the petitioners in Placer

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vs. Villanueva, and as upheld in Amarga vs. Abbas, or is it still the judge? A – The trend of the decisions from 1988, up to now, show that the Supreme Court has settled down to the following rules: 1988 – In Soliven vs. Makasiar (187 SCRA 393 [1988]), the Supreme Court ruled that the judge shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and on the basis thereof, issue a warrant of arrest, or (b) if on the basis thereof, he finds no probable cause, may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause. 1990 – In People vs. Inting (187 SCRA 788 [1990]). This is the same ruling in Agcaoili vs. Molina (65 SCAD 231, 249 SCRA 482), the Court emphasized the following: (a) The determination of probable cause is a function of the judge. It is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination. (b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what the prosecutor presents to him. (c) By itself, the prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge in his determination of probable cause. (d) Judges and prosecutors should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. The determination of probable cause for the warrant is made by the judge. The preliminary investigation proper is a function of the prosecutor. 1999 – In Lim vs. Felix (187 SCRA 788, [1990]. This is the same ruling in Agcaoili vs. Molina, 65 SCAD 231, 249 SCRA 482), the Supreme Court reiterated the ruling in Soliven vs. Makasiar and People vs. Inting. The Court added that the judge does not have to personally examine the complainant and his witnesses. The prosecutor can perform the same functions as a commissioner for the taking of evidence. However, there should be a report and necessary documents supporting the Fiscal’s bare certification. All these should be before the judge. To be sure, the judge must go beyond the Prosecution’s certification and investigation report

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whenever necessary. He should call for the complainant and the witnesses themselves to answer the court’s probing questions when the circumstances of the case so require. Who should be present during the search of a house? The search of the house must be done in the presence of the lawful occupants and it is only in the absence of the former that the two witnesses of sufficient age and discretion residing in the same locality may be called to witness the search. Police officers accompanied by barangay tanods, went to a house to implement a search warrant which authorized the search and seizure of shabu and paraphernalias therein. At the time of the search, appellant was with her grandmother, the registered owner of the house, and her brother, in the living room. They were told not to move and to just sit down while the search is being conducted. Was there a violation of the constitutional right of the defendant against unreasonable search and seizure? Yes. REASONS: 1. It is true that the appellants and the other occupants of the house were present during the search, but they were not allowed to actually witness the search of the premises. They were in the sala where they were seated while the search was being conducted in the upper and lower portions of the house. 2. They should be the ones that should have accompanied the police officers while the search was being conducted. They cannot be substituted by the Barangay Tanods. 3. If the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, the same is a violation of the letter and spirit of the law. (People vs. Castillo, G.R. No. 153254, September 30, 2004) Same example. After preparing the inventory, the police officers presented it to the appellant for his signature without any showing that appellant was informed of his right not to sign without the assistance of counsel and without being told that the same could be used as evidence against him. Is the receipt/inventory signed by the appellant admissible in evidence? No. The procedure is irregular and a violation of Section 12, Article III. (People vs. Castillo, Ibid.) Acting on the application of the NBI, the RTC of Manila issued a search warrant concerning the first and second floors of a building and for the seizure of the items hereinbelow: for violation of R.A. No. 8203:

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1.

Finished or unfinished products of UNILAB, particularly Revicon multi-vitamins; (2) Sundry items. After the implementation of the search warrant by the NBI agents, the findings are as follows: (1) There were no fake Revicon multivitamins, but there were sealed boxes at the first and second floors of the said building. (2) The sealed boxes contained 792 bottles of Disidrin and 30 boxes Inoflox. 2. The respondents filed an Urgent Motion to Quash the Search warrant or to Suppress Evidence, on the ground that the seized Disidrin and Inoflox products were not included in the list of properties to be seized. The petitioners argued that the seizure is justified under the plain view doctrine. Is the said contention valid? A – No. REASONS: 1. The officers of the law should seize only those things that are particularly described in the search warrant. Seizure of objects or things not described in the warrant cannot be presumed as seized “in plain view.” 2. Under the plain view doctrine, the following elements must be present, and the NBI agents must prove the same, thus: a. a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b. the evidence was inadvertently discovered by the police who had the right to be where they are; c. the evidence must be immediately apparent; and d. “plain view” justified mere seizure of evidence without further search. 3. It is not enough that the sealed boxes were in the plain view of the NBI agents. Evidence should have been adduced to prove the existence of all the said essential requirements. (United Laboratories vs. Isip, G.R. No. 163858, June 28, 2005) Q – Distinguish probable cause to hold a person for trial and probable cause to issue a warrant of arrest. A – PROBABLE CAUSE TO HOLD A PERSON FOR TRIAL

PROBABLE CAUSE TO ISSUE A WARRANT OF ARREST

Probable cause to hold a person for trial refers to the finding of the investigating prosecutor after the conduct of a preliminary investigation, that there is sufficient

The determination of probable cause to issue a warrant of arrest is a judicial function. A judge cannot be compelled to issue a warrant of arrest if he or she

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ground to hold a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. Based on such finding, the investigating prosecutor files the corresponding complaint or information in the competent court against the accused. (People vs. Court of Appeals, G.R. No. 126008, 102 SCAD 375, January 21, 1999)

believes honestly that there is no probable cause for doing so. (People vs. Court of Appeals, G.R. No. 126008, 102 SCAD 375, January 21, 1999)

Q – Can a warrant of arrest be issued by administrative agencies of the government? A – This is allowed only for the purpose of carrying out a final finding of a violation of law, such as an order of deportation, or an order of contempt, and not for the sole purpose of investigation or prosecution. (Gatchalian vs. Board of Commissions, 197 SCRA 854) In this connection, it was ruled that the arrest contemplated by Section 37(b) of the Immigration Act of 1940, refers to the arrest for the purpose of carrying an order for deportation and not the arrest prior to the proceedings to determine the right of the alien to stay in the country. (Djumantan vs. Domingo, 58 SCAD 612, 240 SCRA 746; Moreno vs. Vivo, 20 SCRA 562) Hence, the order of deportation is purely administrative. Its purpose is merely to return the alien to his country for violating the conditions of the local state. The said order of deportation is different from the order of the Secretary of Labor under Article 38 of the Labor Code regarding the arrest, detention, search and seizure of documents, paraphernalia, properties and other implements of any unlicensed recruiter for overseas employment. It was ruled that the above-cited provision of the Labor Code is unconstitutional, and that the Secretary of Labor, not being a judge, may no longer issue a search or arrest warrants. The ruling in Moreno vs. Vivo relied upon by the Solicitor General was rejected on the reasoning that the said case involved an arrest in a deportation proceeding, and the purpose of which is merely to carry out a final decision of deportation. Q – What is the distinction, both in principle and as a matter of procedure, before a search warrant is issued and before a warrant of arrest is issued? A – There is a distinction, both in principle and as a matter of procedure before their issuance, of a search warrant and the issuance of a warrant of arrest.

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BEFORE ISSUANCE OF A WARRANT OF ARREST

BEFORE ISSUANCE OF A SEARCH WARRANT

PROBABLE CAUSE: The probable cause to be determined before issuing a warrant of arrest refers to the facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

PROBABLE CAUSE: The probable cause to be determined before issuing a search warrant refers to the facts and circumstances which would lead a reasonably discreet and prudent man to believe (1) that an offense has been committed and (2) that the objects sought in connection with the offense are in the place sought to be searched.

SUBJECT OF WARRANT: A warrant of arrest involves the seizure of a person.

SUBJECT OF WARRANT: A search warrant involves the search and seizure of property.

EFFECT OF EXECUTION: Execution or service of warrant of arrest has the effect of taking the person into custody “in order that he may be bound to answer for the commission of an offense.” Once arrested, it shall be the duty of the officer executing the warrant of arrest “to deliver” the person arrested “to the nearest police station.” In other words, it is merely the person of the accused who is subject to restraint and custody. The report, affidavits and all other supporting documents behind the prosecutor’s certification assist the judge in his determination of probable cause. (People vs. Inting, supra) (Underlining Supplied)

EFFECT OF SERVICE OF SEARCH WARRANT: Under a search warrant, one’s privacy is intruded on, his affairs pried into, his secrets discovered, his papers and personal documents may be ransacked and taken to court and later may be used against him in a criminal prosecution. Papers and documents and articles seized thereunder once taken to court are beyond his reach. Hence, he cannot prevent their being utilized as evidence against him. In other words, this is linked to the fundamental right of a citizen not to be compelled to testify against himself. (Justice Montemayor’s dissenting opinion in Amarga vs. Abbas, 98 Phil. 739) In determining probable cause, the judge must personally conduct an examination of the complainant and the witnesses, if any, and it is not enough in such

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examination for the judge to merely adopt questions and answers asked by a previous investigator. It is required that the examination must be probing. (Prudente vs. Judge Dayrit, 180 SCRA 69; Mata vs. Bayona, 128 SCRA 388) (Underlining Supplied)

Q – What is the rationale beyond strict compliance with the Constitution and the statutory provisions? A – In issuing a search warrant, the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A literal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. (Mata vs. Bayona, 128 SCRA 388) “It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of a statute is of sufficient importance to justify indifference to the basic principles of government.” CASES WARRANTLESS ARREST BUT WHICH WAS CONSIDERED A VALID ARREST Q – Robin Padilla hit a person while his car was running fast along the highway of Angeles City. Two persons witnessed the incident. The vehicle left the victim and fled. One of the witnesses chased the fleeing vehicle and called the attention of the PNP and told them the plate number of the fleeing vehicle. The police caught upon the fleeing vehicle and Robin Padilla was asked to alight from the vehicle to which he complied. Upon alighting from the vehicle, a gun tucked on his waist was revealed. Another gun was seen tucked in Padilla’s back, and another gun was seen lying horizontally at the front of the driver’s seat. The police officer moved to confiscate the gun but Padilla claimed that the gun was covered by legal papers. He was subsequently arrested.

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Padilla claims that his arrest was illegal and the firearms and ammunitions therefore that were taken in the course thereof are inadmissible in evidence under the exclusionary rule. Is the warrantless arrest of Robin Padilla legal and proper? A – Yes. REASONS: 1. It is true that no warrant was issued for his arrest but it does not mean that his arrest is illegal. A person may be arrested by a peace officer even without a warrant when an offense has, in fact, been committed and the peace officer has personal knowledge of the facts indicating that a person to be arrested has committed it. 2. There was no supervening event or an undesirable lapse of time between the hit and run and the actual apprehension. After responding to the information of witnesses, the police had stationed themselves at possible exits of Padilla and they saw for themselves the approaching vehicle and its plate number. Those formed part of the arresting officer’s personal knowledge of the facts indicating that Padilla’s vehicle was indeed the vehicle involved in the incident. 3. The seizure of the firearms and ammunitions was justified for they came within the plain view of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner’s waist and back pocket when he raised his hands after alighting from his car. The same justification applies to the confiscation of the armalite rifle which was immediately apparent to the policemen as they took a casual glance at the car and saw said rifle lying horizontally near the driver’s seat. 4. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of the petitioner, their seizure without a search warrant can still be justified under a search incidental to a lawful arrest. 5. The search satisfied the requisites of an incidental search, thus: a. The item to be searched was within the arrestee’s custody or area of immediate control; and b. The search was contemporaneous with the arrest. Another justification is a search of a moving vehicle. A warrantless search is constitutionally permissible when the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. (Robin Padilla vs. CA and People, G.R. No. 121917, March 12, 1997, 80 SCAD 353)

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WARRANTLESS ARREST WHICH WAS DECLARED ILLEGAL ARREST Q – A team of police officers conducted a patrol upon receiving a report that a group of Moslems would explode a grenade. While conducting the patrol, the police officers saw the petitioner and his companion trying to detonate a grenade and they chased them. They were not able to catch up with them but the police officers saw petitioner and his companions two days later at a corner of a street. They fled when the police officers approach them. One in the group, however, was caught by a police officer who found a grenade tucked inside his waistline. Petitioner was arrested and charged with illegal possession of a hand grenade. Is the warrantless arrest legal? A – The warrantless arrest of petitioner was illegal. The police officers had no personal knowledge of an overt physical act on the part of the petitioner indicating that he was committing a crime. Hence, the warrantless search conducted on petitioner was not incidental to a lawful arrest. (Malacat vs. Court of Appeals, G.R. No. 123595, December 12, 1997, 89 SCAD 720) Q – The bio-data sheet of the accused was found by a police officer at the scene were the crime of robbery with homicide was committed. The police officer found the accused in the house of his brother. Thereafter, he asked the accused to go with him to the police station where he was investigated. Later, he was charged in court. Is the arrest of the accused legal? A – The arrest of the accused was illegal. The police officer had no personal knowledge of the facts indicating the guilt of the accused. The fact that the bio-data sheet of the accused was found at the scene of the crime did not indicate that he committed the crime. (People vs. Sequino, 76 SCAD 63, SCRA 79) STOP-AND-FRISK SITUATION Q – The Anti-Narcotics Unit of Caloocan City received an information that drug addicts were roaming the area in front of the Caloocan City cemetery. Based on this information, they conducted a surveillance. Upon reaching the City cemetery, they chanced upon the accusedappellant who had reddish eyes, swaying while walking and appeared to be high on drugs. The police officers approached him and asked him what he was holding in his hands. The accused-appellant showed his wallet and allowed the officer to examine the same. The police officers found marijuana inside his wallet. Manalili was charged with and convicted of illegal possession of prohibited drugs. He appealed and raised the issue that the drugs found in his possession should not have been admitted in evidence against him as they were products of

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an illegal search. Is the said evidence admissible and was the search valid? A – The search was valid, as it was akin to stop-and-frisk. The interest of effective crime prevention allows a police officer to approach a person in appropriate cases for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. The police officers observed that the accused had reddish eyes and was wobbling like a drunk in a place which was a popular hang-out of drug addicts. The police officers had sufficient reason to investigate him. Based on experience of Patrolman Espiritu’s and his companions as members of the Anti-Narcotics Unit of the Caloocan City Police, such a suspicious behavior was a characteristic of drug addicts who were “high.” The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in petitioner’s possession. (Manalili vs. Court of Appeals, G.R. No. 113447, October 9, 1997, 87 SCAD 873) PEOPLE OF THE PHILIPPINES VS. EDEN DEL CASTILLO G.R. NO. 153254, SEPTEMBER 30, 2004 THIS IS AN EXAMPLE OF A CASE WHERE THE SUPREME COURT DISCUSSED THE PROCEDURE TO BE OBSERVED WHEN POLICE OFFICERS ENFORCE A SEARCH AND SEIZURE ORDER. HAVING FAILED TO OBSERVE THE CORRECT PROCEDURES, THE ACCUSED WAS ACQUITTED. FACTS: The raiding team divided themselves into two searching groups: FIRST GROUP: Composed of Bauzon, Toring and one barangay – searched the upper portion of the house and found three large plastic packs of white crystalline substance. SECOND GROUP: Composed of Baclayon and Borinaga – searched the ground floor and found eight medium heat-sealed plastic packs of white crystalline substance and fifty-three heat-sealed plastic packets of white crystalline substance; two disposable lighters, one pair of scissors, one tooter, one puller and an improvised hacksaw. Servando voluntarily surrendered five small packs of white crystalline substance. Appellant was arrested and informed of her constitutional rights, specifically, the right to counsel to which she replied that she has a lawyer who will represent her. Petallar then prepared an inventory of the seized articles and appellant was made to sign the same. PO3 Bauzon and PO3 Petallar explained that the inventory receipt was dated July 24, 2000 although the raid

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was conducted on July 31, because their office had earlier prepared the blank form. A copy of the inventory was given to a tanod and thereafter appellant and Servando were brought to the police station while the items seized were brought to the Philippine National Police (PNP) Crime Laboratory for examination. P/Insp. Mutchti Salinas, chemist of the PNP Regional Crime Laboratory Office, who conducted the laboratory test on these substances confirmed that the specimens submitted for testing were positive for the presence of methamphetamine hydrochloride known as shabu. The defense presented the following witnesses: Elena R. Garcia, Jaime Garcia and appellant herself who testified to establish the following facts: The house subject of the search on July 31, 2000 was owned by Elena, appellant’s grandmother, and her late husband, Jose Garcia, that only Brent Lepitan, Elena’s grandson, was living in the house while appellant was living with his parents in San Vicente Village, Wireless, Mandaue City, a distance of about five kilometers from Elna’s place. On July 31, 2000, Elena, who was in the upper portion of the house with her son, Jaime, who happened to sleep in her house the night before because he had a drinking spree with some friends, went downstairs because of the thudding sound from their door. Appellant, who was in the house to visit her grandmother, was having breakfast when the door was opened. Several men entered the house and instructed them to sit down. Two of these men carrying an envelope went upstairs and woke up General Jaime Garcia. Jaime then went downstairs and these two men without the envelope followed two minutes later. Appellant and the other occupants were told to wait for the arrival of the tanods. Then, the same two men who earlier went upstairs went up again with a tanod and when they came down, they had with them an envelope, the contents of which were spread on the table and were listed down. Appellants were then asked to sign a paper where a listing of the contents of the envelope was made but she requested to contact her lawyer which was denied. She was forced to sign otherwise she would be handcuffed. The list of the inventory was neither read to her nor did they leave a copy for her or to any of the occupants. Appellant declared that the search warrant was served on her but she never read it nor was it read to her. The trial court found appellant guilty of violation of Sec. 16 Art. III of R.A. No. 6425, otherwise known as Dangerous Drugs Act of 1872 as amended and imposed on her the penalty of reclusion perpetua. Hence, this appeal. ISSUE: Was there compliance with the procedures on search and seizure? HELD: (1) While it is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued, however, there must be sufficient showing that the property is under appellant’s control or possession. The evidence of the prosecution failed to establish by

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competent evidence that appellant is the owner or at least shared the ownership of the house where the shabu was found. PO3 Petallar testified that based on their own casing operation, appellant frequented the subject house to eat meals; that they were not sure that the house was owned by appellant but only believed that she had belongings therein since she frequented the same. PO2 Borinaga testified it was a public knowledge that appellant was living in the subject house since she was a child. Thus, there is no competent evidence that appellant had control and dominion over the place where the shabu was found. The claim of appellant that she has her residence in San Vicente Village, Wireless, Mandaue City and that she was only a visitor in the house that belongs to her grandmother at the time of the search was not rebutted by convincing evidence. While it is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued, however, there must be sufficient showing that the property is under appellant’s control or possession. The prosecution likewise failed to prove appellant’s possession of the shabu at the time of her arrest. It bears stressing that at the time the raiding team conducted the search, appellant and the other occupants were asked to stay in the living room. PO3 Petallar did not find any drugs on appellant’s body nor was there anything unusual or suspicious noted in her person. Notably, the policemen testified that they found the shabu in the upper portion of the house, however, it was not shown at all in whose room it was found. In fact, the defense evidence showed that at the time the two policemen went upstairs, Jaime Garcia, appellant’s uncle, was asleep and was awakened by the policemen who asked him to go down. This was corroborated by PO2 Borinaga who testified on cross-examination that while he was downstairs, there was a person upstairs who came down. Moreover, it was appellant’s grandmother and the latter’s grandson, Brent, who were staying in the upper portion of the house. Also, the shabu found at the ground floor of the house does not conclusively establish that it belongs to appellant since it was not found together with the other things of appellant. To reiterate, she was not the only person who had access to the entire house. In fact, it was also shown by the prosecution that a certain Servando, appellant’s brother, voluntarily surrendered five small plastic pack of white crystalline substance. We find that the prosecution failed to prove convincingly that the seized shabu belonged to appellant. Moreover, the manner in which the search was conducted on the subject house failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, which provides: (Underlining Supplied) SEC. 8. Search of house, room, or premises, to be made in the presence of two witnesses – No search of a house, room, or any other premises shall be

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made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. Clearly, the search of the house must be done in the presence of the lawful occupants and it is only in the absence of the former that two witnesses of sufficient age and discretion residing in the same locality may be called upon to witness the search. While appellant and the other occupants of the house were present during the search, they were not allowed to actually witness the search of the premises. They were in the words of the policemen “pressed,” i.e., they were asked to stay put in the sala where they were seated while the simultaneous search was on-gong in the upper and lower portions of the House. They should be the ones that should have accompanied the policemen while the search was being done and not substituted by the barangay tanods in their stead. (Underlining Supplied) (2) Raiding team failed to comply with the procedures on search and seizures provided under Secs. 11 and 12 Rule 126 of the Rules of Criminal Procedure. – Clearly, the detailed receipt of the inventory must be given to the lawful occupant. In this case, however, PO3 Petallar admitted that the inventory receipt was given to the barangay tanod despite the presence of the appellant and her grandmother which is a violation of the rule. Likewise, the police officers failed to deliver the seized items to the court which issued the search warrant. It was commanded in the search warrant that the seized articles be brought to the court which issued it to be dealt with as the law directs. Under the rule, the seized property must be delivered by the officer to the judge who issued the warrant. It must be accompanied with a true inventory thereof duly verified. The police officers all testified that the confiscated shabu was brought to the PNP Crime Laboratory for examination. Moreover, the inventory receipt was not certified under oath by any of the members of the raiding team as required by the rule but was signed only by appellant and her brother. The trial court erred in relying on the receipt of confiscated articles to establish that the raiding team had actually seized the listed items therein. First, it is highly irregular that the inventory receipt was dated July 24, 2000 when the actual raid was conducted on July 31, 2000. We find the explanation unacceptable given that the receipt was already prepared earlier than the search. Such discrepancy affects the integrity of the inventory receipt. Second, appellant signed the receipt without the assistance of the counsel. It was established that at the time she signed the receipt, she was already under custodial investigation. (3) The Constitution, requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused.

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– Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and intelligent. To insure that a waiver is voluntary and intelligent, the Constitution requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. There is no such written waiver in this case, much less was any waiver made in the presence of the counsel since there was no counsel at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory receipt without the assistance of counsel which is violation of her right under the Constitution. (Underlining Supplied) In all criminal cases, it is appellant’s constitutional right to be presumed innocent until the contrary is proved beyond reasonable doubt. DISPOSITION: Decision appealed from was reversed and set aside on the ground that the prosecution failed to establish the guilt of appellant. She was acquitted of the crime charged against her. PEOPLE OF THE PHILIPPINES VS. HUANG ZHEN HUA AND JOGY LEE, G.R. NO. 139301, SEPTEMBER 29, 2004 FACTS: Confidential information was received by PARAC (Public Assistance and Reaction Against Crime), an office in the DILG (Department of Local Government), that the accused, both aliens, are engaged in drug trafficking. Subsequently, PARAC secured search warrants. When this was implemented, the policemen found two kilos of shabu, paraphernalia for its production and machines and tools apparently used for the protection of fake credit cards. The operatives searched the master’s bedroom, others went to the other bedroom where one of the accused is sleeping. The police woke him up and identified himself as a policeman. The accused was surprised. The accused claims that there are certain irregularities in the issuance and implementation of the search warrant such as the following: 1. The police operatives who implemented the search warrant failed in their duty to show to her the said warrant, to inform her of their authority and to explain their presence in the condominium unit; 2. The police operatives gained entry into the condominium unit by force while she was sleeping; 3. Articles and personal effects owned by her and her companion were taken and confiscated by the policemen, although not specified in the search warrant. ISSUE: Is the Constitutional guarantee against unreasonable search and seizure violated?

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HELD: There is no violation. Unannounced intrusion into the premises is permissible in the following instances: 1. A party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; 2. When such person in the premises already knew of the identity of the officers and of their authority and persons; 3. When the officers are justified in the honest belief that there is an imminent peril of the life or limb; and 4. When those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Furthermore, the Supreme Court said: In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had a search warrant for the premises, and also explained to her that the officers were going to search the condominium unit. The evidence on record shows that the police officers knocked on the outer door before entering the condominium unit, and after a while, the appellant opened the door and allowed the policemen and Pangan to enter. The appellant failed to prove that the policemen broke open the door to gain entry into the condominium unit. She could have asked the court for an ocular inspection to show the door which was allegedly broken into by the policemen, or at least adduce in evidence pictures showing the said breakage. The appellant failed to do so. The testimony of the appellant is even belied by Pangan, who was a witness for the appellant, who certified, along with three other security guards, that nothing was destroyed and that the search was conducted in a peaceful and orderly manner. The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet. The appellant’s defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted

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regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will. ARSENIO VERGARA VALDEZ VS. PEOPLE OF THE PHILIPPINES G.R. NO. 170180, NOVEMBER 23, 2007 Petitioner’s arrest is unlawful. The Tanod did not have probable cause to justify petitioners warrantless arrest. The search most permissible for the Tanod to conduct was a stop and frisk to allay any suspicion they have been harboring based on petitioner’s behavior. Where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a judgment of conviction. FACTS: 1.

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Petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165. On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of San Benito Norte, Aringay, La Union, namely Rogelio Bautista (Bautista), Netor Aratas (Aratas) and Eduardo Ordoño (Ordoño), who arrested petitioner. Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union, together with Aratas and Ordoño when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that the petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioner’s bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation. Aratas and Ordoño corroborated Bautista’s testimony on most material points.

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On cross-examination, however, Aratas admitted that he himself brought out the contents of petitioner’s bag before petitioner was taken to the house of Mercado. Nonetheless, he claimed that at Mercado’s house, it was petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoño testified that it was he who was ordered by Mercado to open petitioner’s bag and that it was then that they saw the purported contents thereof. The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the marijuana was taken from the petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on the inside of the cellophane wrapping the marijuana leaves.

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The charges were denied by petitioner. As the defense’s sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then proceeded to walk to his brother’s house. As he was walking, prosecution witness Ordoño, a cousin of his brother’s wife, allegedly approached him and asked where he was going. Petitioner replied that he was going to his brother’s house. Ordoño then purportedly requested to see the contents of his bag and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he was restrained by the tanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination.

12.

Petitioner maintained that at Mercado’s house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper, which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of his bag at his friend’s house, he averred that it was one of the tanod who did

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so at Mercado’s house and that it was only there that they saw the marijuana for the first time. Finding that the prosecution had proven petitioner’s guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years or reclusion temporal medium as maximum and ordered him to pay a fine of P350,000.00. Petitioner appealed to the CA. CA affirmed the decision of the trial court. Hence, this appeal.

ISSUE: Is the arrest of petitioner valid and lawful? Is there probable cause to justify petitioner’s warrantless arrest? HELD: 1.

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Petitioner asserts that his guilt of the crime charged had not been proven beyond reasonable doubt, that the warrantless arrest effected against him by the barangay tanod was unlawful, that the warrantless search of his bag that followed was likewise contrary to law, and that the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. Petitioner maintains that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captain’s house. Even casting aside petitioner’s version and basing the resolution of this case of the general thrust of the prosecution evidence, the unlawfulness of petitioner’s arrest stands out just the same. Sec. 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant. It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense. The tanod did not have probable cause to justify petitioner’s warrantless arrest. (Underlining and italics supplied) Petitioner’s waiver of his rights to question his quest notwithstanding, the marijuana leaves allegedly taken during the search cannot be admitted in evidence against him as they were seized during a warrantless search which was not lawful.

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Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal, activity enough to validate his warrantless arrest. If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-and frisk to allay any suspicion they have been harboring based on petitioner’s behavior. However, a stop-and frisk situation, following Terry v. Ohio, must precede a warrantless arrest, be limited to the person’s outer clothing, and should be grounded upon a genuine reason, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. When the petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. The non-presentation, without justifiable reason, of the police officers who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Notably the admissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken from petitioner’s bag. In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2) presentation in court of the corpus delicti or the illicit drug as evidence. The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime. In a line of cases, we have ruled as fatal to the prosecution’s case its failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused. There can be no crime of illegal possession of a prohibited drug. The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. Concededly, the evidence of the defense is weak and uncorroborated. This “cannot be used to advance the cause of the prosecution as its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.” Moreover, where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of

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guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainly and is inadequate to support a judgment of conviction. In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitioner’s exoneration from criminal liability.

SEARCH AND SEIZURE OF THE PERSONAL EFFECTS OF AN OFFICIAL OF THE WORLD HEALTH ORGANIZATION (WHO) Q – The Court issued a search and seizure of the personal effects contained in several crates of an official of the World Health Organization (WHO), allegedly for the reason that it contained contraband items. The WHO officials protested and the Secretary of Foreign Affairs advised the court that the WHO official concerned has diplomatic immunity. This was supported by the Solicitor General. The RTC denied the motion. Decide. A – The diplomatic immunity of World Health Organization was sustained. The Supreme Court justified its decision in this manner: “As a matter of state policy as expressed in the Constitution, the Philippine government adopts the generally accepted principles of international law. (1987 Constitution, Article II, Section 20) Being a member of the United Nations and a party to the convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force of law. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government. It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.” (Diplomatic immunity was sustained in WHO

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vs. Aquino, 48 SCRA 242 [1972]) The same ruling was reached in Lasco, et al. vs. UNRFNC, etc., G.R. No. 109095, February 23, 1995. PRIVACY OF COMMUNICATION AND CORRESPONDENCE (Section 3. [1] The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.) Q – What right is protected by Section 3? A – Section 3 protects the privacy of communication and correspondence. Q – What specific protection is guaranteed by Section 3? A – The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Q – What is the effect if privacy of communication and correspondence is violated? A – Any evidence obtained in violation of Section 3 or the preceding section shall be inadmissible for any purpose in any proceeding. Q – May the right to privacy of communication and correspondence be validly violated? A – The right to privacy of communication and correspondence may be validly violated in any of the following circumstances: 1. Upon lawful order of the Court; or 2. When public safety or order requires otherwise as prescribed by law. Q – Upon what grounds may a court allow intrusion into privacy of communication and correspondence? A – The Constitution is silent on this matter but since Section 3, like in Section 2, guarantees the right of privacy, the requirement of Section 2 as to what constitutes probable cause may guide the court accordingly in issuing the said intrusion. In other words, the sound discretion of the court as to what is deemed justified in each case, considering the requirements of probable cause, would be a yardstick in determining whether or not the court has committed grave abuse of authority or discretion. Q – What is the coverage of the guarantee? A – The constitutional protection to privacy or communication and correspondence includes tangible or intangible objects. Example: Tangible Objects – Includes letters, telegrams, signals, cables, telephone, client’s file and other documents.

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Hence, a lawyer’s file containing the records of his client cannot be confiscated on the basis of a search warrant, nor can the cabinet where it is kept, be ordered opened through a warrant. To allow this would amount to compelling the lawyer to disclose or divulge matters belonging to his client, hence, a breach of the confidentiality of lawyer-client, relationship. (People vs. Sy Juco, 64 Phil. 667) Intangible Objects – Under Republic Act No. 4200, it is illegal for any person, not authorized by all the parties to any private communication, to secretly record such communication by means of tape recorder. (Ramirez vs. Court of Appeals, 64 SCAD 636, 248 SCRA 590) What is R.A. No. 4200 and what is specifically prohibited under this law? Republic Act No. 4200 is what is known as the Anti-Wire Taping Act. It prohibits “any person not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other devise or arrangement, to secretly overhear, intercept or record” the same, or to communicate the content thereof to any person. Is the use of the said records absolutely prohibited? The use of the said records may be permitted in the following instances: 1. They may be permitted only in civil or criminal proceedings involving certain specified offenses principally affecting national security. 2. They may be permitted only upon previous authorization by the court, which may be issued under the following conditions: a. The constitutional requirements for the issuance of a warrant should be complied with; and b. The said authority shall be effective only for sixty (60) days. What is the effect of violation of said law? Any evidence obtained in violation of the said law is also not admissible in any proceedings. Is the use of a telephone extension in order to be able to listen to a private conversation prohibited as a tap? It is not prohibited for the reason that telephone extension was not among the devises covered by R.A. No. 4200. The Supreme Court held that the word “TAP” as used in Section 1 of R.A. No. 4200 means that there must be a physical interception through a wire tap or the deliberate installation of a devise or arrangement in order to overhear, intercept or record spoken words. The use of a telephone extension line cannot be considered as tapping because the extension line is installed not for

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the purpose of deliberately tapping the line but is, an ordinary office or home use, hence, there is no violation of the privacy of conversation and correspondence. When can a court authorize wire tapping? Court authorized taps may be allowed only under certain conditions for the crimes of “treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping.” (Section 3 of Republic Act 4200) Atty. A sent letters to the individual justices of the First Division of Supreme Court containing disparaging remarks concerning the performance of their judicial functions. Due to the contumacious character of the said letter, the First Division referred the matter to the Court en banc. It was invoked that the same is private in character and therefore covered by the privacy of communication clause of the Constitution. Is the contention of Atty. A correct? The said letters became part of the judicial record and have become a matter of concern for the entire Court. (In re Wenceslao Laureta, 148 SCRA 382) It is not covered by the constitutional guarantee. Mr. B received a letter from Mr. C, an accused. Mr. B produced the said letter and identified the same during the trial of the case of Mr. C. Is the said letter produced by Mr. B admissible in evidence? It is admissible in evidence because it was not a product of an unlawful invasion to privacy nor of an unlawful search.

THE HELLO GARCI CONTROVERSY AND THE HELLO GARCI TAPE Senator Panfilo Lacson moves to re-open the “Hello Garci” controversy and to have the tapes played, in an effort to probe President Gloria MacapagalArroyo’s alleged involvement in electoral fraud as purportedly shown by wire tapped phone conversations. Some senators, however, have opposed the said move on the ground that the planned investigation would be a violation of the Anti-Wiretapping Law, or Republic Act No. 4200 and that to play the said tapes will violate the civil rights of President Arroyo. Two retired justices of the Court of Appeals added the following arguments: (1) “xxx the dubious investigation/inquiry/hearings will escalate into a continuing violation, if not a flaunting disregard or defiance, of the Constitution, including the serious infringement of the constitutional rights of those involved, affected or invited as resource speakers as well as a violation of RA 4200; (2) The Anti-

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Wiretapping Law prohibits wiretapping as well as the mere possession and use of wiretapped materials; (3) Even the discussion of the transcripts or contents of illegally recorded conversations is not allowed; (4) The Constitution sternly provides that an illegal wire-tap shall be inadmissible for any purpose in any proceeding; (5) The use of evidence obtained in violation of a person’s right to privacy is also banned under the Constitution. Senators supporting Senator Panfilo Lacson argued that all they want is to find out the truth and unless and until the truth is known, the controversy will have no closure. Senator Rodolfo Biazon said: “All we need to do is to establish that there is a tape and find out who were responsible for those tapes so we can establish what the ISAFF was doing at the time.” Which, of the conflicting arguments, should prevail? Before I state my opinion on this matter, I find it relevant to emphasize the following background: First: In a television broadcast after the 2004 elections, President Gloria Macapagal-Arroyo made a pubic apology in relation to the said “Hello Garci Tape”, and said: “I am Sorry”; Second: The “Hello Garci” tapes were heard in Congress. Third: Members of Congress and those in attendance at the time, heard the tapes. They were mentioned repeatedly in television broadcasts and millions of televiewers in and outside of the country, heard the broadcasts. With this factual background, many people ask, and I ask too, the following questions: 1. Does the said apology of President Gloria Macapagal-Arroyo, particularly the “I am Sorry” statement, refer to the same tape which contains the alleged private conversation between her and Commissioner Virgilio Garciliano? 2. If it is, is it the same tape that Senator Panfilo Lacson wants to be played in the Senate? 3. If it is, President Gloria Macapagal-Arroyo and Commissioner Virgilio Garciliano objecting that the tape be played? 4. If they themselves do not object that the said tape be played in the Senate, are they waiving their right to privacy? My observations to all of these questions are as follows: 1. If the said apology refers to the same tape which contains the alleged private conversation between President GMA and Commissioner Garcillano, it is clear that the President already admitted that she is indeed the one who was talking to Commissioner Garcillano and it is clear likewise that she knows of the illegal and immoral implications of her conversation with Commissioner Garcillano. It is

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precisely for this reason that she made a public apology on television and said “I am sorry.” If it is not the same tape, why are senators sympathetic to President Gloria Macapagal-Arroyo, objecting. The very persons involved, assuming there are other persons involved, are not objecting. Can they object for those persons whose identities, following their scenario, are not known? If it is the same tape that Senator Panfilo Lacson wants to be played in the Senate, it is clear that until now, both the President and Commissioner Garcillano have not objected that the tapes be played. It is likewise clear that although some senators are objecting that the same be played, the said objection is merely their own, and not by the very persons who are allegedly the parties in the private conversation. And their being no objection from them, there is no barrier to hear the tape. The alleged right of privacy, under such a situation, cannot be said to have been violated. And assuming that they actively object, it is too late in the day that the objection is made after the tapes are already played. Separate and apart from the foregoing observations, it is my opinion, with due respect to contrary view, that in weighing the scales between the alleged right of privacy and the right of the sovereign people to information on matters not only of public concern but also of public importance, the latter should be made to prevail. It is already the right of the sovereign people which is at stake. This point, in addition to the right of the people to know the truth, overwhelms any other consideration. After all, truth, farness and justice, coupled with the right of the sovereign Filipino people to be liberated from the bondage of ignorance and fear, is higher than a mere alleged right of privacy, which benefits only one or a few, especially so if what is sought to be known is the truth that will set the people free.

INCIDENTALLY, FORMER COMELEC COMMISSIONER VIRGILIO GARCILLANO PRAYED FOR ISSUANCE OF A WRIT OF INJUNCTION TO PROHIBIT THE HOUSE COMMITTEES FROM PLAYING THE TAPE RECORDINGS, ETC. IT WAS DENIED. In Garcillano vs. House of Representatives Committee on Public Information, et al., En Banc, G.R. No. 170338, December 23, 2008, former Comelec Commissioner Virgilio Garcilliano prayed for issuance of a writ of injunction to prohibit the House Committees from playing the tape recordings,

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from including the same in their report, and likewise, he prayed that the said tapes be striken off the records of the House of Representatives. The said petition was denied. REASONS: (1) The act complained of has already been accomplished. In fact, the said tapes have already been played and heard by the members; (2) The reports on the “Hello Garci” inquiry, have already been completed and submitted to the House in plenary; (3) Hence, the petition is already moot and academic. FREEDOM OF SPEECH AND OF PRESS (Section 4. No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.) Q – What is the meaning of freedom speech and of the press? A – Freedom of speech and that of the press implies the right to freely utter and publish whatever the citizen may please, and to be protected from any responsibility for so doing, except so far as such publication, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing reputation or pecuniary interests of individuals. (Cooley’s Const. Limitations, 8th ed., 886; U.S. vs. Sotto, 38 Phil. 666) Q – What is included in the freedom of expression? A – It includes the following: (1) Free speech and free press; (2) Freedom of assembly; (3) Freedom of petition; (4) Freedom of religion; (5) Right of association or the right to form associations; and (6) Right to religious freedom. Q – What is included in the terms “speech” and “expression”? A – The term includes the following: 1. They include the right to freely utter, print and publish any statement without previous censorship of the government. (U.S. vs. Sotto, 38 Phil. 666) 2. They include the right of peaceful picketing. (Cafeteria Employees Union vs. Angeles, 64 Supp. Crt. 126) 3. They include the right to a lawful strike. 4. They include the right to disseminate information concerning the facts of a labor dispute. 5. They include expression by means of radio, television, and motion picture. 6. They include the right to express grievances against the government; to criticize the affairs of government.

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They include the right to display poster, notices, flags and banners. They include any form of expression, whether oral, written, tape, text, including any symbol of speech such as but not limited to wearing of black shirts and blouses to symbolize death of democracy. What is included in the term “press”? They include newspapers, magazines, journals, books and any sort of publication. Is freedom of expression absolute? It is not absolute. It is always subject to some regulation of the State and to the police power of the State. The first is premised on the need to protect society or the community from injurious exercise of the said freedom. The second is premised on the need to promote or protect public welfare, public safety, public morals and national security.

Examples: 1. Censorship of immoral and indecent pictures is not a violation of the freedom. (Mutual Film Corporation vs. Industrial Commission of Ohio, 276 U.S. 230) 2. Seditious speeches are not covered by the freedom of expression. (People vs. Feleo, 57 Phil. 450) 3. Slanderous words or libelous words or statements may be penalized because they are not also covered by freedom of expression. (U.S. vs. Burleson, 255 U.S. 407) 4. Exclusion from the mails or newspapers containing seditious or libelous articles is valid. (Ibid.) 5. A basketball fan has no right to shout at the height of a closely contested match and yell “fire” just to have the fun of causing panic and confusion. Q – What is the purpose of protecting freedom of speech and of the press? A – Freedom of speech and of the press is protected for the following purposes: 1. To protect and preserve the right of the people to information on matters of public concern. (Section 7, Article III, 1987 Constitution) 2. To enable every citizen to bring the government and any person in authority to the bar of public opinion. 3. To insure free and general discussion of public matters. Experience shows that a timid and subservient press allows those in government to abuse their powers, and even to the extent of violating human rights or tolerating human rights violations. The closure then of Manila Times, for instance, has been viewed by some sectors as a violation of press freedom for it is contended that were it not for its critical stance against the

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administration, it would not have been subjected to the pressure of being sold to another group. Viewed as agent of the people, the most important function of the press is to inform and it cannot do so if it is uninformed, and to keep the people above the cloud of ignorance. (In re: Emil P. Jurado, 260 SCAD 364, 243 SCRA 299) The people then may use such information to fairly criticize any official conduct of any public officer. Such criticism is referred to as a “scalpel that relieves the abscesses of officialdom. (U.S. vs. Bustos, 37 Phil. 731) FOUR (4) ASPECTS OF THE FREEDOM OF THE PRESS 1. 2. 3. 4.

Freedom from prior restraint Freedom from subsequent punishment Freedom of access to information Freedom of circulation

EXPLANATION OF EACH: FREEDOM FROM PRIOR RESTRAINT—Prior restraint or censorship is a curtailment of the freedom of expression and of the press made through restrictions or conditions in advance of actual publication or dissemination. This means that the exercise of the said freedom or expression or of the press depends upon the prior approval of the government. Examples: 1. 2. 3.

Requirement to obtain a speaker’s permit before one can deliver his speech. Requirement to submit the said speech for approval before it is delivered. Requirement to secure clearance from a government censor before an article or book is published. PRIOR RESTRAINT AS DEFINED IN FRANCISCO CHAVEZ VS. RAUL M. GONZALES, ETC., ET. AL. G.R. NO. 168338, FEBRUARY 15, 2008

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from governmental censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal

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to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. FREEDOM FROM SUBSEQUENT PUNISHMENT — This refers to freedom from any punishment as a consequence of or in connection with a speech, utterance or writing. The phrase “subsequent punishment” means that in order to make the freedom of expression clause of the Constitution more meaningful, there must be an assurance that after making any utterance or publication, the author is not subjected to any form of punishment. If the State would impose punishment as a condition for such exercise, it would negate the right and make the freedom of expression a mockery and a delusion. (Judge Cooley, Constitutional Limitations 8th ed.) FREEDOM OF ACCESS TO INFORMATION — This includes the rights guaranteed in Sec. 7, Article III namely: (1) Right to information on matters of public concern; and (2) Right to access to official records and to documents, and papers pertaining to officials acts, transactions or decisions, as well as to government research data used as basis for policy development. A person who is unlawfully deprived of the right to information, or the right to access to officials records may file a petition for mandamus. (Legaspi vs. civil Service Commission, 150 SCRA 530 [1987]) He may also file a civil action for damages under Article 19 or 27 of the New Civil Code. FREEDOM OF CIRCULATION — The freedom to circulate is actually the dissemination of what has been written, whether this refers to an expression of a view, thought or ideas, as to any information which complements the larger right of free discussion and expression, “For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft–quoted words of Thomas Jefferson, we cannot both be free and ignorant.” Q – Does the search of a newspaper publication, or closure of a publication, on the basis of a suspicion that it is involved in the publication and dissemination of subversive ideas, a denial of the freedom of expression? A – Yes, it is a prior censorship and a virtual denial of the freedom of expression. The closure of the publication is patently unauthentic to a democratic framework where a free, alert, and even militant press is

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essential for the political enlightenment and growth of the citizenry. (Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800) Is a Comelec order prohibiting the use of taped jingles, a violation of the freedom of expression? Yes, it is “a palpable abridgement of the freedom of expression.” (Mutuc vs. Comelec, 36 SCRA 228) Is the stoppage of the publication of an article entitled “History of the US Decision-Making Process on Vietnam Policy” on the ground that its continuous publication poses a threat to US security, a violation of the people’s right to expression and information? The majority view is to the effect that the stoppage of the publication of the article curtails the right of the people to be informed of matters of public concern. It amounts to prior censorship (New York Times vs. U.S., 403 U.S. 713) A specific area in Malacañang Palace was designated for the exclusive use of newspapermen or media representatives. In addition, the latter are required to secure identification cards from the Office of the Press Secretary. Is this a curtailment of the freedom of the press? It is submitted that there is nothing in the said requirement which curtails press freedom, or which restricts freedom of information, or which restricts the movement to obtain news or to report on matters of public concern. In response to reports contained in newspapers and aired on radio and television, that tabloids containing obscene pictures and articles and pornographic materials are being mailed to the provinces, the Bureau of Posts, upon the instruction of the President during his weekly program “MAY GLORIA ANG BUKAS,” excluded all newspapers and tabloid containing said obscene pictures and articles from the mails. Does this violate freedom of speech and of the press? It is submitted that the act of excluding the said newspapers and tabloids is merely a legitimate exercise to protect the State, particularly, its citizens, especially the young, from the ill and adverse effects arising from its publication and proliferation. It is not therefore a violation of the freedom of speech and of the press. A Senator delivered a privilege speech in the Senate in connection with the alleged ill-gotten wealth of X as well as on the latter’s accounts in foreign banks. In the course of his speech, he uttered libelous remarks against the family of X. Is he liable for such remarks? He is not liable, the same having been made in the Senate through a privilege speech, but he may be subject to corresponding punishment which the Senate may impose under Section 16(3), Article VI, 1987 Constitution, which provides as follows: “Each House may determine the

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rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.” How do we determine the liability of a person for ideas expressed by him? There are three (3) standards or tests that may be used in judging whether the author of a publication or speech or writing may be held liable, to wit: 1. The clear-and-present danger rule. 2. The dangerous tendency rule. 3. The balancing-of-interest rule. What is the clear-and-present danger rule? It is a “working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before the utterance can be punished.” (Gonzales vs. Comelec, 27 SCRA 835, April 18, 1969) This rule was used in the early case of Primicias vs. Fugoso (80 Phil. 71), a 1948 case, later in Navarro vs. Villegas (31 SCRA 730, February 18, 1970), a 1970 case, and in Reyes vs. Bagatsing (125 SCRA 553) a 1983 case. In the United States, the rule was used in Schenck vs. United States (249 U.S. 47), and in Dennis vs. United States. Further, it should also be noted that the danger created must have casual connection between the expression and the evil which the state has the right to prevent. (Gonzales vs. Comelec, 27 SCRA 835)

BRIEF SUMMARY OF OLD CASES 1.

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Schenck vs. U.S., 249 U.S. 47 – For violation of the Espionage Act of 1917, involving specific charges of insubordination, obstructing enlistment and recruitment services, the accused was convicted. It was held that the said acts created a clear and present danger to national security. Dennis vs. U.S. 341 US. 494, 509 (1951) – That the attempt itself of the revolutionists to overthrow the government by force is already a sufficient evil for Congress to prevent. In effect, the government need not wait too long until it is too late to repel the aggression.

AS A RULE, PRIOR RESTRAINTS ON SPEECH ARE INVALID. HOWEVER, THERE ARE PRIOR RESTRAINTS WHICH MAY BE PERMITTED BY THE CONSTITUTION, THUS: 1. CONTENT-NEUTRAL REGULATION — When the speech restraints take the form of a content neutral regulation, only a substantial government interest is required for its validity. Regulations of this type are not

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designed to suppress any particular message, hence, they are not subject to the strictest form of judicial scrutiny. It is subject only to an INTERMEDIATE APPROACH. INTERMEDIATE APPROACH TEST — Through this test, the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant government interest that is unrelated to the suppression of expressions. More specifically, said test has been formulated in this manner: A GOVERNMENT REGULATION IS JUSTIFIED — (1) If it is within the constitutional power of the government; (2) If it furthers an important or substantial government interest; (3) If the government interest is unrelated to the suppression of free expression; and (4) If the incident restriction on alleged freedom of speech and expression is no greater than is essential to the furtherance of that interest. 2. CONTENT-BASED REGULATION — A government action that restricts freedom of speech or of the press based on content is given the strictest security in the light of its inherent and invasive impact. ONLY WHEN THE CHALLENGED ACT HAS OVERCOME THE CLEAR AND PRESENT DANGER WILL IT PASS CONSTITUTIONAL MUSTER, WITH THE GOVERNMENT HAVING THE BURDEN OF OVERCOMING THE PRESUMED CONSTITUTIONALITY. Unless the government can overthrow this presumption, the content based restraint will be struck down. TESTS ON RESTRICTIONS TO FREE SPEECH Restraints on freedom of speech and expression are evaluated by either or a combination of three (3) tests: This permits limitations on speech once a 1. Dangerous Tendency rational connection has been established Doctrine between the speech restrained and the danger contemplated. 2.

Balancing of Interest test

Used as a standard when the courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interest observable in a given type of situation.

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Clear and Present Danger Rule

Speech may be restrained because there is a substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be serious and the degree of imminence extremely high.

(NOTE: In Chavez vs. Raul M. Gonzales, The Supreme Court said: “More recently, we have concluded that we have generally adhered to the clear and present danger test.”) PHILOSOPHICAL BASIS OF PRESS FREEDOM Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps the most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos: The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The production of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. Q – To be truly meaningful, what is the meaning of the freedom of speech and of the press? A – It should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derived by others; or through such view which induces a condition of unrest, creates dissatisfaction with conditions as they are, or stirs people to anger. To paraphrase Justice Holmes, it is

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freedom for the thought that we hate, no less than for the thought that agrees with us. (Francisco Chavez vs. Raul M. Gonzales, etc., et al., ibid.) Q – What is the scope of the freedom of expression? A – It is so broad that it extends to nearly all forms of communication, thus: 1. It protects speech, print and assembly regarding secular as well as political causes, and it is not confined to any particular field of human interest. 2. The protection covers myriad matters of public interest or concern embracing all issues, about which informations is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. 3. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends. (REASON: Because the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.) (Francisco Chavez vs. Raul M. Gonzales, ibid.) NEW CASE FRANCISCO CHAVEZ VS. RAUL M. GONZALES, ETC., ET AL. G.R. NO. 16838, FEBRUARY 15, 2008 TOPICS INVOLVED: FREEDOM OF EXPRESSION; ITS SCOPE; ITS LIMITATIONS FACTS: 1.

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On June 5, 2005, then Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audio-type, through wire-tapping, of a mobile phone conversation allegedly between President Arroyo and a high ranking COMELEC official. Later, Secretary Bunye produced two versions of the tape (a complete version and a spliced, “doctored,” or altered version). The altered version allegedly suggested that the President had instructed the COMELEC official to manipulate the election results in favor of the President. Secretary Bunye who had admitted that the voice was that of the President, made a retraction. Two days later, Atty. Alan Paguia, former counsel of President Estrada, released an allegedly authentic tape that included purported conversations of the President, the First Gentleman, Commissioner Garcilliano and the late Senator Barbers.

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On June 8, Secretary Raul Gonzales warned reporters that those who had copies of the CD and those broadcasting its contents, including Secretary Bunye and Atty. Paguia, could be liable under the Anti-Wiretapping Law, allegedly a continuing offense. The following day, Secretary Gonzales ordered the NBI to go after the media organizations found to have circulated, played, or printed contents of the tape. On June 11, 2005, the NTC issued a press release warning radio and television owners and operators to observe the Anti-Wiretapping Law and pertinent circulars on program standards. On June 14, 2005, the NTC had a dialogue with the Board of Directors of KBP, where the NTC allegedly assured the KBP that its press release did not violate the constitutional freedom of speech, of expression, and of the press and the right to information. The NTC and the KBP issued a joint press statement, stating, among others, that the alleged wiretapped tapes would be treated with sensitivity and handled responsibly. Petitioner filed a petition for certiorari and prohibition “to annul proceedings and to prevent the unlawful, unconstitutional and oppressive authority by the respondents.” Respondents said they have not violated the Constitution, and questioned the legal standing of the petitioner to file the petition.

ISSUES: Several issues involving constitutional law are the following: 1. Whether the petitioner has locus standi to file the petition; 2. Whether the acts of the respondents abridge freedom of speech and of the press. 3. Compliance with the clear and present danger test, and whether the official statements made by respondents (warning the media on airing the alleged wiretapped conversation between President Arroyo and other personalities), constitute as unconstitutional prior restraint on the exercise of freedom of speech and of the press. HELD: 1.

Locus Standi: The Supreme Court said: “It would seem that petitioner had not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.” However, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our

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society, we brush aside technicalities of procedure and take cognizure of the petition, seeing that there is a challenge to the most exalted of all the civil rights, the freedom of expression, and the extent of the right of information of the public. Press statement of government officials: Undoubtedly, respondent Gonzales made his statements as Sec. of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for in behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. It is sufficient that the press statements were made by respondents while in the exercise of official functions. Hence, the press statements to bar all acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. (a) Compliance with the clear and present danger test: On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press, failed to hurdle the clear and present danger test. It appears that the great evil which the government wants to prevent is the airing of the tape recording in alleged violation of the anti-wiretapping law. However, the records of the case are confused and confusing, and respondents’ evidence fall short of satisfying the clear and present danger test for the following reasons: 1. The various statements of the Press secretary obfuscate the identity of the voices in the tape recording; 2. The integrity of the taped conversation is also suspect because the Press Secretary showed two versions of the taped conversation; 3. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case; and 4. Given all these unsettled facts of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. (b) The official statements made by respondents constitute unconstitutional prior restraint on the exercise of freedom of speech and of the press. Hence, the Supreme Court granted the petition and nullified the said official statements. The Supreme Court said: “x x x They are patent invasions of a constitutionally protected right, we should be swift in striking down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.”

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RIGHT TO ASSEMBLY AND PETITION Q – Is the right to assembly and petition subject to any prior restraint? A – No. The exercise thereof should not be made to depend upon the issuance of any permit. However, it may be subject to regulation, not prohibition by the State, as to when and where it should be held. BRIEF SUMMARY OF OLD CASES 1.

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Primicias vs. Fugoso, 80 Phil. 71 – In Primicias vs. Fugoso, the refusal of Mayor Fugoso to allow the Nacionalista Party to hold a meeting at Plaza Miranda was based on his fears that speeches may likely result in some violence considering the tension and the bitterness of the losing candidates as well as their leaders and followers. The Supreme Court ruled against the claim of Mayor Fugoso and said that the fact that the speech is likely to result in some violence or in the destruction of property is not enough to justify its suppression. There must be probability of serious injury to the State. Even imminent danger cannot justify resort to prohibition of those functions essential to effective democracy, unless the evil apprehended is relatively serious. (Primicias vs. Fugoso, citing Whitney vs. California, 276 U.S. 357) Navarro vs. Villegas, 31 SCRA 730 – In Navarro vs. Villegas, an application for a permit to hold a rally at Plaza Miranda was filed by certain student groups. Mayor Antonio Villegas refused to issue a permit but offered an alternative place. His refusal is based on his fear that a public disorder may ensue as a result of speeches to be delivered during the meeting. Unlike in Primicias vs. Fugoso, the Supreme Court sustained Mayor Villegas. Reyes vs. Bagatsing, 125 SCRA 553 – A similar application for issuance of a permit to hold a rally was also filed in Reyes vs. Bagatsing. Unacted upon, Justice JBL Reyes filed a petition on behalf of the Anti-Bases Coalition to compel the issuance of a permit to hold a rally at the Luneta, and thereafter, to march to the U.S. Embassy. Like in the two cases aforementioned, Mayor Bagatsing denied the issuance of the permit on account of his fear that subversive elements may infiltrate the meeting. Instead, he suggested another place like Rizal Coliseum. During the hearing of the said case, another argument was invoked to the effect that the rally will be a violation of a City Ordinance which requires the receiving state to protect foreign embassies. The Supreme Court ruled that the denial of the permit was not valid there being no clear and present danger that might arise on account of the meeting. The use of public streets could not be prohibited by the authorities. What they can do is only to regulate the proper use of the streets. The issue regarding Ordinance No. 7295 was not passed upon

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there being no proof that the rally will be held within five hundred feet of the U.S. Embassy. NEW CASE BAYAN KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP) VS. EDUARDO ERMITA, ET AL. G.R. NO. 169838, APRIL 25, 2006 FACTS: In the last quarter of year 2005, there were massive rallies against President Gloria Macapagal-Arroyo’s administration. It was at this time when Executive Secretary Eduardo Ermita issued a policy via press release. The policy pertains to the strict implementation of Batas Pambansa 880 also known as the Public Assembly Act of 1985, and it provides for the strict enforcement of “no permit no rally policy,” and arrest of all persons violating the laws of the land, and dispersal of unlawful mass actions. ISSUE: 1. 2.

Is BP Blg. 880 unconstitutional on the ground that it violates the constitutionally guaranteed right to peaceful assembly? Is the CPR Policy (Calibrated Preemptive Response) legal?

HELD: 1.

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Batas Pambansa Blg. 880 is CONSTITUTIONAL. BP Blg. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedom; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, “maximum tolerance” is for the benefit of the rallyists, not the government. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard. CPR Policy is illegal. In view of the maximum tolerance policy mandated by BP Blg. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance, and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means “the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.” In this connection, the court ruled as follows: a. However, there is need to address the situation adverted to by petitioners where Mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not

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produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. Furthermore, the Court went even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under BP Blg. 880. If, after that period, no such parks are so identified in accordance with Section 1 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the Mayor’s office to allow proper coordination and order activities.

Q – In a letter of the National President of IBP, he requested for a permit to rally at the foot of Mendiola Bridge on June 22, 2006, from 2:30 P.M. to 5:30 P.M. The expected participants are the members and officers of IBP, Law Students and Multi-Sectoral Organizations. Mayor Joselito Atienza issued a permit allowing the IBP to stage a rally on the given date, but instead of granting the venue, as requested, he indicated that the rally be held in Plaza Miranda. The IBP claims that the partial grant of its request is contrary to the Public Assembly Act and therefore violative of the constitutional right of the members of IBP to freedom of expression and public assembly. Is the contention of IBP valid and tenable? A – Yes. Respondent Mayor Atienza committed a grave abuse of discression for failure to inform immediately the IBP about the change of venue. The IBP should have been given the opportunity to be heard first on the Mayor’s alleged perception of imminent danger of substantive evil that led to the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. (IBP vs. Atienza, G.R. No. 175241, February 24, 2010)

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Q – What is the dangerous tendency rule? A – Under this rule, a person could be punished for words uttered or for ideas expressed which create a dangerous tendency, or which will cause or bring about a substantive evil which the State has a right to prevent. This was applied during the period of American rule in the Philippines apparently to prevent rebellion against the administration, or even against any utterance or statement which will stir up the people against the government. A definite act of force or violence need not be advocated. It is enough that such acts be advocated in general terms. The remark, for instance that “The Filipinos like myself must use bolos for cutting off Wood’s head (Referring to then Governor General Leonard Wood) for having recommended a bad thing for the Filipinos, for he has killed our independence,” was already considered seditious and Perez who made that remark was penalized. By making that statement, Perez, according to the Supreme Court, was already suggesting and inciting rebellious conspiracies. He was considered to have made a statement and done an act which tended to stir up the people against the lawful authorities and which, at the same time, tended to disturb the peace of the community and the safety or order of the Government. (People vs. Perez, 45 Phil. 599) The Filipino people, and all freedom loving people of the world for that matter, do not deserve to be treated under the said rule. It kills outright the opportunity to be heard and to express an idea which after all, may be of great help to the survival of a nation, especially during a time of crisis. The idea of People’s Power did not start in EDSA. It started from the Israelites and the Plebeians, and repeated in many countries of the world, and they ended up always in liberation from tyranny and oppression. Q – What is balancing-of-interest rule? A – While liberty is given greater protection under the clear and presentdanger rule, and the authority, safety or order of the government, on the other hand, is the concern more preferred under the dangerous tendency rule, the balance-of-interest rule is a principle which requires a Court to consider the circumstances in each particular case, and thereafter, it shall settle the issue of which right demands greater protection – the right to privacy as asserted by the respondent or the freedom of expression as invoked by the petitioner, or as between the exercise of the freedom of expression and the need to protect national security, which shall be preferred?

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Example: 1. In Lagunzad vs. Sotto Vda. De Gonzales (92 SCRA 476, August 6, 1979), the court gave greater protection to privacy than to freedom of expression. The Court ruled, thus: “While it is true that petitioner had purchased the right to the book entitled “The Moises Padilla Story,” that did not dispense with the need for prior consent and authority from the deceased’s heirs to portray publicly episodes in said deceased’s life and in that of his mother and members of his family. As held in Sheyler vs. Curtis, a privilege may be given the surviving relatives of a deceased person to protect memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased.” 2. In People vs. Perez, as cited earlier, the authority, safety or order of the government was apparently given more protection than the freedom of expression. The reason is obvious. In applying the dangerous tendency rule, rebellion against the American administration was discouraged. 3. In Marcos vs. Manglapuz (177 SCRA 668 [1989]), former Chief Justice Marcelo Fernan, in voting against the petition for habeas corpus, said: “x x x And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to public order and safety.” “Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which albeit, at first blush appears to be extra-legal, constitutes a valid justification for disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the unprecedented “people’s power” revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to the people’s will.” “Failing in legal arguments for the allowance of the Marcoses’ return, appeal is being made to sympathy, compassion and even Filipino tradition. The political and economic gains we have

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achieved during the past three years are however too valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and safety be sacrificed for an individual’s wish to die in his own country. Verily, in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.” (Underlining Supplied) What is the controlling rule in this jurisdiction? On the basis of the foregoing pronouncements by the Supreme Court, it seems that there is more an inclination to apply the clear-and-presentdanger rule. In weighing the scales, the Supreme Court considers the peculiar circumstances, of each case, the conditions prevailing at the time, and such other considerations which will guide it on what is best to protect or maintain “public peace, order and safety” and what is good for the country and the people. A television program called as “The Inside Story” then produced and hosted by Loren Legarda, was aired on television, ABS-CBN. An episode of said television program called “PROSTITUITION,” depicted female students moonlighting as prostitutes to help them pay for their tuition fees. During the program, student prostitutes, pimps, customers and faculty members were interviewed. Some of the students involved were studying in PWU and the facade of the PWU Building in Taft Avenue, Manila, conspicuously served as the background of the episode. It caused an uproar in the PWU Community. Complainants alleged that the said episode besmirched the name of PWU. MTRCB said that all television programs, including public affairs programs, news documentaries, or socio-political editorials, are subject to its power of review, and this power of review does not amount to prior review. Is MTRCB’s contention valid? Yes. REASON: Under and by virtue of Presidential Decree No. 1986, MTRCB has the power to review, screen and examine all television programs, and “The Inside Story” being a television program, it is within the jurisdiction of the MTRCB and within its power to screen, review and examine. (MTRCB vs. ABS-CBN, G.R. No. 155282, January 17, 2005)

FREEDOM OF RELIGION (Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.)

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Q – Define religion. A – In a broad sense, religion includes any form of belief in regard to the relation of human beings to some supernatural powers, or as defined in Aglipay vs. Ruiz (64 Phil. 201), it is “a profession of faith to an active power that binds and elevates man to his creator.” Persons holding the same religious beliefs are generally associated in groups which may or may not be organized as corporations. In a more specific or restricted sense, religion is a system of belief, or worship, or philosophy not necessarily in the existence of God, or power of a more superior being, but in a philosophy or way of life detached from any reverence or obedience to God. Q – What are the three (3) principal parts of Section 5? A – First Part: Non-establishment clause (First Sentence, Section 5, Article III) Second Part: Free exercise clause (Second Sentence, Section 5, Article III) Third Part: Non-religious test clause (Third Sentence, Section 5, Article III) Explanation: First Part: No law shall be made respecting the establishment of religion, or prohibiting the free exercise thereof. This is known as the nonestablishment clause. The U.S. Supreme Court interpreted this clause in Everson vs. Board of Education (330 U.S. 1), thus: “Neither the State nor the Federal Government can set-up a church; nor pass laws which recognize one religion, all religion, or prefer one religion or another or force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion; that the State cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance; that no tax in any amount, large or small can be levied to support any religious activity or institution, x x x that the state cannot openly or secretly participate in the affairs of any religious organization, group or vice-versa.” In short, the “no-establishment religion clause” requires the State to be neutral. To borrow the words of former Chief Justice Enrique Fernando, the State should adopt “a position of neutrality.” Second Part: The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. This is known as the free exercise clause. A person has the right to worship according to the dictates of his conscience, or not to worship Him at all. Religious freedom, although not unlimited, is a fundamental

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personal right and liberty designed to protect the broadest possible liberty of conscience, to allow man to believe as his conscience directs, to profess his religious beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54) Third Part: No religious test shall be required for the exercise of civil or political rights. The “no religious test” means that a person or citizen may exercise civil right (i.e., the right to acquire property) or a political right (i.e., the right to vote or hold particular religious beliefs). (Pamil vs. Teleron, 86 SCRA 413) Q – What are the two (2) aspects of religious freedom? A – The two aspects of religious freedom are: (1) Freedom to believe; and (2) Freedom to act on one’s beliefs. The freedom to believe is absolute but the freedom to act on one’s belief is not absolute. The freedom to act may be regulated if its actualization clashes with accepted norms of social behavior and established order and decency. Example: 1. Requirement to university students to recite the following: “Almighty God, we acknowledge our dependence upon thee and beg Thy blessings upon us, our parents, our teachers and our country!” Those who violate the requirement are subject to expulsion from the school. Is the expulsion of a student who refused to recite the said prayer valid? The expulsion is not valid. REASON: It is not part of the business of government to compose official prayer for any group of individuals. Religious freedom even guarantees the right of a person not to believe in God. (Engel vs. Vitale, 320 U.S. 461 [1962]) 2. The Flag Salute Law requires compulsory participation by public school students. Does the said law violate the free exercise or the non establishment clause? In Gerona vs. Secretary of Education, it was not considered as a violation of the freedom of religion and the non-establishment clause. REASONS: (1) The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national cohesion and of freedom and liberty which it and the Constitution guarantee and protect. (2) The flag is utterly devoid of any religious significance. Saluting the flag therefore does not involve any religious ceremony. (Gerona vs. Secretary of Education, 106 Phil. 11 [1969])

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NOTE: This ruling in Gerona was, however, reversed by the ruling in Ebralinag vs. The Division Superintendent of Schools of Cebu which sustained the contention of petitioners who are also Jehovah’s witnesses, that they should not salute the flag it being their belief that the same is an “image” and it is against their religious conviction to do so. REASONS: 1.

2.

Forcing a religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. What petitioners seek is only an exception from the flag ceremony, not exclusion from the public schools were they may study the Constitution, the democratic way of life and form of government, and learn not only the acts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of “patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship and moral and spiritual values.”

SIMILAR CASE IN THE U.S. 1.

West Virginia Board of Education vs. Barnette – Those who refused to participate in a flag ceremony, to recite an oath of allegiance and to salute the American flag while it was being raised, were subject to expulsion until readmitted upon compliance, and more than this, the parents of those who refused were liable for prosecution and punishment. Said requirements were imposed to all students in public schools in West Virginia. Jehovah’s witnesses protested on the ground that the said ceremony violated their interpretation of the Bible, particularly, Chapter 20, Verses 4 and 5, thus: “Thou shall not make thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shall not bow down to them, nor serve them.” The flag therefore, according to them, is an image which is within the biblical prohibition. What was the ruling of the U.S. Supreme Court regarding the said contention? Answer: The U.S. Supreme Court rejected the contention that compulsory measures are constitutional and said that the basis of the argument that “national unity is the basis of national security” is not in question. Rather, the problem is whether compulsion is a permissible means for its achievement. In this connection, the court cited the experience of Rome and Siberia, during which there was also a Roman drive to stamp out Christianity as a disturber of its pagan unity; there was also a time when Siberians were exiled as a means to religious and dynastic unity; and the Siberians were exiled as a means to Russian unity.

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The Court concluded: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unity of the graveyard.” The author likes to add that our present Constitution, just like the 1935 and 1973 Constitution, guarantees not only our freedom to believe but also our freedom not to believe in any religion, philosophy or dogma, and although the freedom to act on one’s belief is not absolute and therefore subject to the police power of the state, compulsory participation in a flag ceremony that violates one’s religious belief is, in effect compelling him to abandon his faith if only to show his love for his country and his respect for the authorities. This amounts to saying that if one does not do so, as required, he no longer love his country which, of course, is false. In many chapters of our history, love of country has been expressed in many countless ways, be it in the battlefield, in public service, in charity work, in a disaster of different proportions, in our day to day life in and out of our homes and offices. In any of the said eventualities, heroes are borne not because of the religion they profess but because of the high sense of patriotism, moral courage, and loyalty not only to the Republic of the Philippines but also to their fellowmen and to the nobility of the cause they take or advocate. Q – The Jehovah’s witnesses requested the Mayor of Sta. Cruz, Zambales, to issue a permit and to allow them to hold a meeting in the plaza and to use the same and the kiosk. This place is near the Roman Catholic Church. They were allowed to hold a meeting but they were allowed to use only the northwestern part of the plaza, in effect denying their request for a permit to use the plaza. They consider this as a violation of the freedom of speech, assembly and religious worship. Is the refusal to allow the use of the plaza, as requested, valid? A – The said refusal is valid. REASONS: 1. The plaza, particularly the kiosk, is near the Roman Catholic Church and to allow the holding of the meeting in said place could result in an ideological confrontation between the two sects. 2. The authorities deemed it better and wise in the name of public order to deny the permit to avoid a possible disturbance of communal peace and order. 3. The denial assumes further validity considering that the religious tenets being advocated by the Jehovah’s witnesses are applied and derogatory to those of the Catholic Church. Q – A group of persons wearing yellow T-shirts were on their way to St. Jude Church where they will hear mass and say their prayers for

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peace and for “an end to violence.” They were, however, prevented by the military from proceeding to the church. The group protested and filed a petition in the Supreme Court. Is there a violation of the freedom of religious worship? A – The Supreme Court ruled, through a plurality decision, that the petitioners were merely using the exercise of their religious freedom to express their opposition to the government, and even if they are in good faith, the need to protect Malacañang Palace and the official residence of the President was upheld. NOTE: Justice Teehankee, Makasiar, Abad Santos, Herrera and Relova dissented and maintained the view that there was no clear and present danger that justifies the restraint of the military. For his part, Justice Teehankee said that petitioners’ manifestations of their sincere intention as Christians to gather together in prayer at St. Jude Church should be taken in good faith. No court petition, according to him, should be necessary “to enable a group of persons such as petitioners to freely proceed and enter a church of their religion and choice and therein hear mass and say their prayers. We are basically a people of peace who believe in the power of prayer and pray silently in the land.” (German vs. Barangan, 135 SCRA 514) Q – In what way can a restraint on the right to disseminate religious ideas and information be justified? A – It can only be justified on the ground that there is a clear and present danger of a substantive evil, or where there is a grave danger to public welfare and security. (Anucension vs. National Labor Union, 80 SCRA 330 [1977]) EXAMPLE OF RIGHT TO DISSEMINATE ONE’S BELIEFS WHICH ARE INCLUDED IN THE RIGHT TO BELIEVE 1.

Sale or peddling by a religious organization of religious literature and other materials from house to house conducted not for the purpose of profit. Imposition of license or permit fees on such sale or peddling is an impairment of the free exercise and enjoyment of religious profession and worship. (American Bible Society vs. City of Manila, supra) How about the imposition of a tax on the sale of religious materials by a religious organization after the exercise of the right to disseminate, is this prohibited by Section 5? Such tax, unlike license fee, does not restrain in advance the exercise of religious freedom, and it is not therefore prohibited under

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Section 5 (Tolentino vs. Secretary of Finance, 54 SCAD 671, 235 SCRA 630 [1994]) Peddling religious information. (Murdock vs. Pennsylvania, 319 U.S. 105) REASON: This is similar to the right of a priest or a religious minister to preach a sermon in his church. How about a woman who distributed religious literature in the premises of a privately-owned town despite prohibitions of the town authorities, is this protected by the liberty of the press and religion? In Marsh vs. Alabama (66 U.S. 276), the complaint of trespassing against said woman was not upheld by the U.S. Supreme Court, and ruled instead, that the freedom of the press and religion occupies a preferred position as against the alleged property right of the corporation in the town. REASONS: 1. Ownership does not always mean absolute dominion. The more an owner for his advantage opens up his property for use by the public in general, the more his rights become circumscribed by the statutory and constitutional rights of those who use it. 2. The public has an identical interest in the functioning of the community in such manner that the channel of communication remains free. NEW CASE ALEJANDRO ESTRADA VS. SOLEDAD S. ESCRITOR A.M. NO. P-02-1651, JUNE 22, 2006

FACTS: 1. 2.

Soledad S. Escritor, a court interpreter, lived with a man, not her husband, and out of her live-in arrangement with said man, they had a child. She was charged with “disgraceful and immoral conduct” under the Revised Administrative Code. Her defenses are as follows: a. She asserts that their conjugal arrangement is in conformity with their religious beliefs and has the approval of her congregation, Jehovah’s Witnesses and the Watch Tower and Bible Tract Society. In fact, she executed a Declaration of Pledging Faithfulness after living together for ten years. b. She pleaded exemption from the law under which she was charged and invoked the Free Exercise of Religion Clause.

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ISSUE: 1. 2. 3.

Should Soledad Escritor be found guilty of the said charges? What should guide the Court in resolving claims involving religious freedom? What is the proper test that will be applied in deciding respondent’s plea for exemption?

HELD: a. No. In this particular case and under these distinct circumstances, respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms – including religious freedom – may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. b. The free exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. It is fundamental right that enjoys a preferred position in the hierarchy of rights – “the most inalienable and sacred of human rights,” in the words of Jefferson. Hence, it is not enough to contend that the state’s interest is important, because our Constitution itself holds the right to religious freedom sacred. The State must articulate in specific terms the state interest involved in preventing the exemption, which must be compelling, for only the gravest abuses, endangering paramount interests can limit the fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause as a source of right by itself. c. Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their declarations remained valid. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation. d. The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be allowed,

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not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its “burdensome effect,” whether by the legislature or the courts. Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral law that has a “burdensome” effect. The present case involves purely conduct arising from religious belief. The “compelling state interest” test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and shortterm while others delayed and far reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights – “the most inalienable and sacred of all human rights,” in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgement of such higher sovereignty, thus the Filipinos implore the “aid of Almighty God in order to build a just and humane society and establish a government.” As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide. The “compelling state interest” serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e., refusal to work on Saturdays. In the end, the “compelling state interest” test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

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THE COURTS CANNOT EXERCISE CONTROL OVER CHURCH AUTHORITIES IN THE PERFORMANCE OF THEIR DISCRETIONARY AND OFFICIAL FUNCTIONS Q – The petitioners, led by A, members of the Philippine Independent church, clamored for the transfer of Fr. B to another parish but Bishop X denied their request. The problem was compounded when Bishop X told A not to push through with his plan to organize an open mass to be celebrated by Fr. M during the town fiesta of Socorro. Bishop X failed to stop A from proceeding with his plan. A and his sympathizers proceeded with their plan. Subsequently, Bishop X declared petitioners expelled/excommunicated from the Philippine Independent Church. Petitioners filed a complaint for damages with preliminary injunction against Bishop X. Is it within the jurisdiction of the courts to hear the case involving the expulsion/excommunication of members of a religious institution? A – No. REASON: The Church and the State are separate and distinct from each other. Said matter involving the expulsion/excommunication of members of the Philippine Independent Church should be left to the discretion of the officials of said religious institution in line with the doctrine that the court should not interfere on doctrinal and disciplinary differences. (Dominador Taruc, et al. vs. Bishop Perfirio Dela Cruz, G.R. No. 044801, March 10, 2005) LIBERTY OF ABODE AND TRAVEL (Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.) Q – What is the interpretation of the Supreme Court of Section 6, Article III of the 1987 Constitution? A – Article II, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without a court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law,” a limitative phrase which did not appear in the 1973 text.” (Silverio vs. Court of Appeals, G.R. No. 9428, April 8, 1991) The phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there

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was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party. (Ibid.) Silverio posted bail for his provisional liberty after he was criminally charged for violating the Securities Act. More than two years after the filing of the information, the people moved to cancel Silverio’s passport and to issue a hold departure order against him on the ground that he had gone abroad several times without the court’s permission which resulted in postponements of the arraignment and scheduled hearings. The trial court directed the Department of Foreign Affairs to cancel Silverio’s passport or to deny his application therefor, and for the Commission on Immigration to prevent him from leaving the country. This order was upheld by the Court of Appeals. Silverio claims that the Court of Appeals erred in finding that the right to travel can be impaired upon lawful order of the court, even on grounds other than “interest of national security, public safety or public health.” Is the said contention tenable? Silverio’s theory that under the 1987 Constitution, courts can impair the right to travel only on the grounds of “national security, public safety, or public health,” is not well-taken. His argument that the Manotoc Ruling to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the court requires to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, 1973, or the 1987 Constitution. Silverio is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in a criminal proceeding is the People of the Philippines. It is to their best interest that the criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to court orders and processes. What is the meaning of liberty of abode and travel? It is the right of a person to have his home or to maintain or change his home, dwelling, residence or habitation in whatever place he has chosen, within the limits prescribed by law (First Sentence, Section 6), and to go

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where he pleases without interference from anyone, except in the interest of national security, public safety, or public health, as may be provided by law. (Second Sentence, Section 6) The exceptions aforementioned means that the liberty of abode and travel is subject to the police power of the State. Example: 1.

Q – A –

Q – A –

Insane persons who roam around in Roxas Boulevard may be committed by the government to the National Mental Hospital for appropriate treatment and medical attention. 2. Persons suffering from leprosy may be committed to Culion Leper Colony or similar institution as they are inimical to public health and safety. 3. Persons residing in danger zone areas (i.e., Mount Pinatubo, Mayon Volcano and Taal Volcano) may be relocated to safer areas and evacuation centers in case of danger and emergency to save lives and property. 4. Persons against whom warrants of arrest have been issued may be detained to insure public safety. Is it only Section 6, Article III of our Constitution which protects freedom of movement and the right to choose one’s residence? One’s right to freedom of movement and to choose his residence is protected not only by Section 6, Article III of our Constitution but also by Article 13 of the Declaration of Human Rights. (Kuat Kwong vs. PCGG, 156 SCRA 22 [1987]) In fact, this provision also includes the right to leave any country and the right to return to his country. The same protection is also found in Article 12 of the International Convention on Civil and Political Rights where the Philippines is a signatory. What is the remedy if the said right is impaired? Violation or impairment of said right is a proper ground for habeas corpus under Rule 102 of the Rules of Court; a ground for mandamus under Rule 65 of the Rules of Court; and ground for a damage suit under the Civil Code.

BRIEF SUMMARY OF OLD CASES 1.

2.

In Rubi vs. Provincial Board of Mindoro (39 Phil. 660 [1919]) – A law which created reservations for Mangyan Tribes was challenged as a deprivation of liberty but the law was justified by general welfare and public interest. In Villavicencio vs. Lukban (39 Phil. 778, 780, 787) – The Supreme Court granted a writ of habeas corpus and ordered the return to Manila

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of prostitutes who were shipped to Davao on the ground that it can only assist in retaining “a government of laws, and not of men.” In Caunca vs. Salazar (82 Phil. 851) – The Supreme Court sustained petitioner’s liberty of abode and ruled that her detention was not constitutional. The claim of the employment agency that it has advanced some amounts of money to a prospective employee was rejected. The court nevertheless sustained that said agency has absolutely no power to curtail the freedom of the maid even if she has not yet paid the amount advanced. In Salonga vs. Hermoso (17 SCRA 121, April 25, 1980) – A petition for mandamus was filed to compel the issuance of a permit to travel abroad. Before the case could be heard, however, the permit was issued and the case became moot and academic. The pertinent portion of Chief Justice Enrique Fernando’s statement is as follows: “x x x in view of the likelihood that in the future, this Court may be faced again with a situation like the present which takes up its time and energy needlessly, it is desirable that respondent Travel Processing Center should exercise the utmost care to avoid the impression that certain citizens desirous of exercising their constitutional right to travel could be subjected to inconvenience or annoyance.” Marcos vs. Manglapus (177 SCRA 668 [1989]) – “Failing in legal arguments for the allowance of the Marcoses’ return, appeal is being made to sympathy, compassion and even Filipino tradition. The political and economic gains we have achieved during the past three years, are, however, too valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and safety be sacrificed for an individual’s wish to die in his own country. Verily, in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.”

RIGHT TO INFORMATION (Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.) Q – What are the two (2) rights guaranteed by Section 7? A – The two rights guaranteed by Section 7 are: (1) the right to information on matters of public concern (First Sentence, Section 7); and (2) the right to access to official records, and to documents, and papers pertaining to

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Q – A –

Q – A –

Q – A –

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official acts, transactions or decisions, as well as to government research data used as basis for policy development. What is the scope of the right to information? The right to information includes the right to be informed “on matters of public concern.” This, in turn, includes access “to official records and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development.” Section 7 grants the said right to the “people.” Does this include aliens who are residing in the Philippines? The word “people” apparently refers to the citizens of the Philippines but this is without prejudice to the right of aliens to have access to records of cases where they are involved. In any case, said right is “subject to such limitations as may be provided by law.” (Last Sentence, Section 7) What is the remedy of a person who is unlawfully denied the right to information, or the right to access to official records? The aggrieved party may file a petition for mandamus. (Legazpi vs. Civil Service Commission, 150 SCRA 530 [1987]) A civil action for damages may also be availed of under Article 19 or 27 of the New Civil Code. Does the right to information on matters of public concern and the right to access to official records carry with it the right to compel the public officer in custody of the record to prepare the same? The person requesting the data has to prepare it, and as long as the data are open and made available to the public, this is sufficient compliance with the law. (Valmonte vs. Belmonte, 170 SCRA 256)

COMMENT: Any matter of public concern is within the right of the people to know, but Section 7 not only includes the right to information on matters of public concern. It includes the right of the people to access “to official records, and to documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development xxx.” In the light of the “Hello Garci Controversy” and the “Hello Garci Tape,” there are conflicting opinions not only among senators and members of congress but also among lawyers, professors, law students, and the general public, on which shall prevail in case of conflict between the right of information in Sec. 7 and the right of privacy (Sec. 3) and whether the right of information in Sec. 7 should be subject to the limitation in Section 3, Article IV. To be more specific, is the evidence obtained in violation of Section 3, Art. III, “inadmissible for any purpose in any proceeding,” if the sovereign

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Filipino People, in the exercise of their constitutional right to information on matters of public concern, obtain evidence which will help them find the truth about massive election fraud in the last 2004 presidential election? What if the privacy of communication so alleged is on matters which are not only immoral but also illegal? The same does not deserve protection at all. It is my opinion that in weighing the scales between the alleged right of privacy and the right of the sovereign people to information on matters not only of public concern but also of public importance, the latter should be made to prevail. It is already the right of the sovereign people which is at stake. It is no longer the privacy of a particular person that is involved. This point, in addition to the right of the people to know the truth, overwhelms the argument that invokes the right of privacy. After all, truth, fairness and justice, coupled with the right of the sovereign Filipino people to be liberated from the bondage of ignorance and fear, is higher than the mere alleged right of privacy which benefits only one or a few, especially so if what is sought to be known is the truth that will set the people free. RIGHT OF ASSOCIATION (Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.) Q – Compare the right of association under 1935, 1973 and 1987 Constitution. A – 1935 Constitution Article III, Section 1(6)

“The right to form associations or societies for purposes not contrary to law shall not be abridged.”

1973 Constitution Article IV, Section 7

1987 Constitution Article III, Section 8

“The right to form associations or societies for purposes not contrary to law shall not be abridged.”

“The right of the people, including those employed in the public or private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.”

Q – What is the difference? A – All the said provisions guarantee the right to form associations or societies for purposes not contrary to law. Section 8, Article III of the present

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Constitution, however, merely makes an emphasis: (1) that the right of association is a “right of the people, including those employed in the public and private sectors; and (2) that the said right now includes the right to form unions.” Even without the said constitutional provision, the right of association is part and parcel of the freedom of expression and assembly, and like the latter, it is subject to limitations imposed by law and to the dominant police power of the state. Q – Does the right of government employees to organize include the right to form unions or associations and the right to strike? A – There are two schools of thought on this issue. The majority view is to the effect that the right of government employees to organize may include the right to form unions or associations but it does not include the right to strike and to engage in similar activities. (Social Security System Employees Associations vs. Court of Appeals, 175 SCRA 686, July 28, 1989) This was reiterated in 1991 in Manila Public School Teachers Association (MPSTA) vs. Laguro, Jr. (200 SCRA 323, August 6, 1991). Again this was reiterated in 1993 in Alliance of Government Workers vs. Minister of Labor and Employment. (124 SCRA, August 3, 1993) However, there were two dissenting opinions, thus: (1) dissenting opinion of Justice Isagani Cruz who said “Being an economic weapon to promote the interest of labor, the denial of the right to strike of government employees is a “derogation of their freedom of expression and a violation of the equal protection clause, besides being contrary to social justice. Government workers, whatever their category or status, have as much right as any person in the land to voice their protests against what they believe to be a violation of their interests. The fact that they belong to the civil service has not deprived them of their freedom of expression, which is guaranteed to every individual in this country, including the alien. It would be ridiculous to even suggest that by accepting public employment, the members of the civil service automatically and impliedly renounce this basic liberty. This freedom can at best be regulated only but never completely withdrawn.” (2) dissenting opinion of Justice Hugo Gutierrez who said “To me, the issue is the freedom to effectively speak when the members of a noble profession are demeaned by low salaries and inattention to their needs, surely their freedom to speak in a manner and at a time as is most effective far outweighs conventional adherence to orthodox service rules on proper conduct and behavior.” Q – 800 teachers assembled in front of the Department of Education Culture and Sports to air their grievances. Then Secretary Isidro Cariño ordered the teachers to return to work within 24 hours, otherwise they will be dismissed from the service. More teachers

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protested and joined the assembly. Administrative complaints were filed against them for defying his return-to-work order. They were found guilty and ordered dismissed from the service. Is their dismissal valid? Valid. REASON: In this jurisdiction, employees in the public service may not engage in strikes, mass leaves, walkouts and other forms of mass action that will lead in the temporary stoppage, or disruption of public service. They have the right to assemble peaceably to air their grievances, but this does not include the right to strike. (Gesite vs. Court of Appeals, G.R. Nos. 123562-65, November 25, 2004) Is membership in the communist party punishable as a criminal offense? Mere membership and nothing more merely implies advocacy of abstract theory or principle. It becomes a criminal offense only if it is coupled with action or advocacy of action, namely actual rebellion, or act conducive thereto or evincing the same. (People vs. Hernandez, 99 Phil. 515 [1956]) Membership in the HMB (Hukbalahap), however, is a criminal offense because by being a member, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force be used to secure the ends of the party. (Ibid.) When a HUK member solicits contribution, or acts as courier, what crime is committed? He commits conspiracy to commit rebellion unless he takes to the field and joins in the rebellion or uprising, in which case he commits rebellion. (Guido vs. Rural Progress Administration, 84 Phil. 847) Can the lawyer’s name in the roll of attorney’s be cancelled for his failure to pay his membership dues in the Integrated Bar of the Philippines? Bar integration does not compel a lawyer to associate with anyone. It is his choice to attend or not to attend meetings of the Integrated Bar, to vote in the election of officers of the Integrated Bar of the Philippines. The only compulsion to which a lawyer is subjected to is the payment of the annual dues. Even on the assumption that the Integrated Bar compels a lawyer to pay his annual dues, this is justified as a valid exercise of the police power of the State. Admission to the practice of law is not a right but a privilege. (In re: Marcial Edillion, 84 SCRA 554) Is an annotation in the title of a lot owned by a resident of BF Homes Parañaque City Subdivision to the effect that he automatically becomes a member of BFPHA, Inc. (BF Parañaque Homeowners Association, Inc.) when he purchased the said lot, valid, binding and enforceable?

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A – Yes. The annotation, in itself, is a restriction which does not contravene laws, morals, good customs, public policy and order. Said owner cannot validly maintain that he is compelled to be a member of the Association against his will because the limitation is imposed upon his ownership of the property. (Bel Air Village Association, Inc. vs. Dionisio, 174 SCRA 589) Q – What, if any, is the remedy of said owner if he likes to free himself from the burden of becoming a member of the association? A – He can exercise his freedom to sell or dispose of his aforementioned lot. (Ibid.) TAKING OF PRIVATE PROPERTY FOR PUBLIC USE (Section 9. Private property shall not be taken for public use without just compensation.) Q – Can private property be taken from its owner? A – Private property can be taken from its owner but subject to the following conditions: 1. That the private property is taken for public use. 2. That the owner of the said property should be paid just compensation. 3. That due process of law shall be observed in the taking of the said property. 4. That the taking shall only be exercised by the State or by those whom the power has been lawfully delegated. Besides the said conditions, there are some limitations on the power of eminent domain, thus: 1. Dismissal of the expropriation case restores possession of the expropriated land to the landowner. However, when possession of the land cannot be turned over to the landowner because it is neither convenient nor feasible anymore to do so, the aggrieved landowner can demand payment of just compensation. (National Power Corporation vs. Court of Appeals and Antonio Pobre, G.R. No. 10684, August 12, 2004) 2. If as a result of the acquisition of the right of way and the installation of power lines, there are consequent limitations on the use of the land for an indefinite period which would deprive the respondent of the normal use of the subject property, the latter is entitled to payment of just compensation which must be neither more or less than the monetary equivalent of the land. (Napocor vs. Manubay Agro-Industrial Development Corporation, G.R. No. 150936, August 18, 2004) 3. When private property is taken by the government for public use without acquiring title thereto either through expropriation or

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negotiated sale, the owner’s action to recover the land or the value thereof does not prescribe. (Republic vs. Court of Appeals, G.R. No. 147245, March 31, 2005) Q – What may be subject to expropriation? A – Anything that comes under the dominion of man is subject to expropriation. This includes real personal properties, tangible and intangible properties. EXAMPLES: 1. 2.

3. 4.

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Any private property can be taken from its owner subject to the abovementioned conditions. (Sec. 9, Art. III) A franchise, being a property right, may be subject of expropriation, if it is for public good and there is genuine necessity. (Republic of the Philippines vs. La Orden de PO. Benedictos de Filipinas, 1 SCRA 649) Churches and other religious properties may be subject of expropriation notwithstanding the principle of separation of powers. Cemeteries may be taken under the power of eminent domain; subject to these conditions: (1) This should be done by the national legislature or under a specific grant of authority, (2) The Courts will have the authority to inquire on whether or not there is indeed a necessity of expropriation. Example: In City of Manila vs. Chinese Community (40 Phil. 349); the Supreme Court ruled that even granting the existence of a necessity for the opening of the street in question, “the record contains no proof of the need of opening the same through the cemetery. The record shows that adjoining and adjacent lands have been offered the City free of charge, which will answer every purpose of the plaintiff.” Services are considered property which may be subject of expropriation under the power of eminent domain. Example: In Republic of the Philippines vs. PLDT (26 SCRA 620), an issue was raised as to the alleged right of the Bureau of Telecommunications to demand interconnections between the Government Telephone System and that of PLDT, so that it could make use of the lines and facilities of PLDT. PLDT objected. The Supreme Court ruled against the objection on the reasoning that: (1) Although the parties cannot be coerced to enter into a contract, but “the Republic, in the exercise of sovereign power of eminent domain may require the telephone company to permit interconnection of the Government Telephone Company and that of PLDT, as the needs of the government may require, subject to the payment of just compensation to be determined by the court.” (2) Real property may, through expropriation, be subjected to an easement of right of way. A similar ruling was rendered in PLDT vs. NTC (190 SCRA 717)

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Q – Is everything compensable? A – No. It may not be compensable if the taking is justified under the police power. EXAMPLE: AN EXERCISE OF POLICE POWER AND THEREFORE NON-COMPENSABLE

COMPENSABLE

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Low standing and take-off flights which made the residential area unlivable. (Griggs vs. Allegheny Country, 369 U.S. 84 [1962])

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Construction of a new road under the general welfare clause which limited one’s access to the national road. (Cabrera vs. Court of Appeals, G.R. No. 786731, March 18, 1991)

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Flight of planes from a nearby military airport over plaintiff’s property which ruined his chicken farm. (U.S. vs. Causby, 328 U.S. 256 [1946])

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Ordering a subdivision to open a gate to a road within the subdivision.

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Repeated firing of guns over a piece of land. (Partsmouth harbor Land and Hotel Co. vs. U.S. 327 [1922])

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Owners whose account trees were ordered cut down to prevent the further spread of infection.

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Construction of a dam which permanently indicated a farmland and the owner is prevented from the land. (U.S. vs. Lynch, 188 U.S. 445)

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A building on the verge of collapse may be ordered demolished for the sake of public safety. In the light of the current flood and calamity in many parts of the country, the houses and structures constructed in “danger areas,” may also be demolished for the same reason. In such cases, the owners will not be entitled to payment for the loss they have sustained.

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Q – What is the rationale why the owners of the properties in said instances are not entitled to compensation? A – There is a justified and valid exercise of police power in said instances, for they are needed to: (1) to protect public safety; (2) to serve and improve general welfare; (3) even if there are losses that are sustained, the same are in the nature of damnum absque injuria; and (4) In police power, property is taken because it is a public/nuisance, being obnoxious to society, hence, they should be destroyed. Q – What, if any, is the compensation available to the owners of the affected properties? A – No material compensation is available, but at least, they should be consoled that on account of a burden and a sacrifice they assume, they have contributed to the welfare of the people and the community. The benefit to the owner may not be immediate or apparent, but in the meantime and much later on, he will be rewarded. If he is ultimately benefited, he is not only the one who is benefited but also the community and the people in general, and assuming he has not received any material reward at all, the reward to be reaped is thru his are altruistic recognition that the just restraint is for the public good. Q – What is required so that compensation is “just”? A – It must be fair not only to the owner but also to the expropriator. Q – What is the consequence if the payment is in excess of the full and fair equivalent of the loss sustained by the owner? A – It is prejudicial to the public, hence, it will not satisfy the requirement of just compensation. Q – Suppose A’s property was expropriated by the City Government of M so it can be used as a parking lot. The amount of P10 Million was appropriated for this purpose but it turned out that the Regional Trial Court fixed a compensation of P12 Million. Can A recover the balance of P2 Million? How? A – Yes. A may file a petition for mandamus to compel M to appropriate money to satisfy the judgment. A may also file a petition for mandamus to compel the enactment and approval of the necessary appropriation ordinance and disbursement of Municipal funds. The other remedy is to levy the patrimonial properties of M, as may be necessary, and have them sold on ordinary execution. Q – Does the word “taking” mean actual physical seizure or appropriation of property? A – The word “taking” includes either physical seizure or appropriation of the property, or to the limitation of the use of the property. (Stearns vs. Minnesota, 179 U.S. 223) The fact therefore that a land has become non-

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suitable for use because it is adjacent to an airport where airplanes take off over land at low levels, is equivalent to taking. Hence, it is a ground to be paid just compensation. What is eminent domain? Eminent domain is the right of the State to acquire private property for public use upon payment of just compensation. This right can also be exercised by those to whom the said power has been lawfully delegated. Eminent domain is also defined as the right of the sovereign power to appropriate not only the public but also the private property of all citizens within the territorial sovereignty to public purpose. (Charles River Bridge vs. Warren Bridge, 11 Pet. 240 641 U.S. 1837) The power of eminent domain is inseparable in sovereignty, being essential to the existence of the State and inherent in government even in its most primitive forms. No laws therefore are ever necessary to confer this right upon sovereignty or quasi-sovereign power. What is the basis of the power of eminent domain? The basis is genuine necessity, and this necessity must be of a public character. Necessity does not mean absolute necessity but only a reasonable and practical necessity, such that it will redound to the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefit. (City of Manila vs. Chinese Community of Manila, 40 Phil. 349) Who can exercise the power of eminent domain? The power of eminent domain is traditionally vested in the executive arm of the government (Visayan Refining Co. vs. Camus, 40 Phil. 550, 559 [1919]), but the executive department cannot proceed to expropriate unless and until the Legislature allows it. (Ibid.) Once this authority is given, the executive department can exercise the power of eminent domain without the necessity of another legislative authority other than that which is contained in the statute books. Can the power of eminent domain be delegated? General authority to exercise the right of eminent domain may be conferred by the legislature upon municipal corporations and other entities within the State. (City of Manila vs. Chinese Community of Manila, 40 Phil. 349, 368 [1919]) It may also be delegated to private entities operating public utilities. What is the difference between the power of eminent, as exercised by the legislature, and eminent domain, as exercised by local government and public utilities? As exercised by the legislature, the power of eminent domain is an inherent power. It is as broad as the scope of police power and it can even be

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enforced against private property which is already dedicated to public use or even as against property which is already devoted to religious worship. On the other hand, the power of eminent domain, as exercised by local governments and public utilities, is merely a delegated power. As such, it is merely a power of inferior domain, that which can be exercised only under the terns and conditions as set forth in the authority that granted the delegation. What is the meaning of public use? Public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude. (Guido vs. Rural Progress Administration, 84 Phil. 847) What is considered as included in the term “public use”? Any use which redounds to the benefit or advantage of the community, or which is for the benefit of public welfare is and has been considered as public use. Hence, acquisition by the government of a sizable area of land which, in turn, will be used for mass housing and sold at socialized prices is considered as public use. Allowing the government to expropriate a parcel of land so it can be used as an access road to the expressway and to serve the convenience of the people and the commuters is within the meaning of public use. Exercising the same power to be able to construct dams, bridges, irrigation systems, garbage sites and facilities, and other improvements which are for the common good are public uses. What is just compensation? It is the just and complete equivalent of the loss which the owner of the thing appropriated has to suffer by reason of the expropriation. (Manila Railroad Co. vs. Velasquez, 32 Phil. 286, 313, 314 [1915]) It is the market value to which must be added the consequential damages, if any, or from which must be deducted his consequential benefit, if any. (Manila Railway Co. vs. Fabie, 17 Phil. 207; Manila Railway Co. vs. Velasquez, 32 Phil. 286) Republic Act No. 7160, otherwise known as the Local Government Code, provides that the amount to be paid for the expropriated property shall be determined by the proper court based on the fair market value at the time of the taking of the property. The value determined by the assessor may, however, be contested in court. What is the test to determine if the owner is paid just compensation? The compensation given to the owner is just if he receives for his property a sum equivalent to its market value. (City of Manila vs. Corales, 32 Phil. 85, 92, 98 [1915])

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Q – What is fair market value? A – It is the price at which a willing seller would sell and a willing buyer would buy, neither being under normal pressure. (Manila Railroad Co. vs. Caligsihan, 40 Phil. 326; Municipality of Bustos vs. Santos, C.A. G.R. No. 22547-R, June 29, 1962) Q – What are the factors to be considered in arriving at the fair market value of the property? A – They are the following: 1. Cost of acquisition 2. Current value of like properties 3. Its actual or potential uses 4. In the case of lands, the following are considered, (a) the size of the land (b) the shape or location (c) the tax declarations thereon Q – What is the reason why the said factors are considered? A – They will be considered in determining the consequential damages to be awarded. EXAMPLE: If the expropriation takes only a part of a parcel of land, and the remainder with an odd shape or area is virtually unusable

In this case, the owner can claim consequential damages

If the remainder after the expropriation becomes a better location because it is now fronting the street, and no longer an interior lot

The owner will enjoy consequential benefits which should be deducted from the consequential damages

Q – What is market value? A – It is the current price, or the general or ordinary price for which property may be sold in a particular locality. (Ibid.) Q – Can the owner ask for damages besides the market value? A – The owner can ask for consequential damages, or those damages to his other interest which can be attributed to expropriation. However, consequential benefit must be deducted from the owner. This refers to the increase in the value of the interest of the owner attributable to the new use of his former property.

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Q – Can immediate possession of a property subject of condemnation or expropriation proceeding be given to the government before compensation is given to the owner? A – Before, payment of compensation is required prior to deprivation of property. (Article 249 of the Old Civil Code; Section 247 of the Code of Civil Procedure) Now, immediate possession of the property subject of condemnation or expropriation proceeding may be given to the government even before the financial ascertainment of just compensation and even before just compensation is given to any plaintiff. Q – Is a hearing required to determine provisional value? A – The prevailing jurisprudence is that a hearing is not required to determine provisional value it being sufficient that the owner of the property sought to be condemned is notified of the condemnation proceeding. (National Power Corporation vs. Judge Jocoson, G.R. Nos. 94193-99, February 25, 1992). This ruling departed from the reasoning expressed in Tuason vs. Court of Appeals (L-18128, December 26, 1961). COMMENTS: The said case of Tuason vs. Court of Appeals is a case which although decided under the 1935 Constitution, is respectfully submitted to be more in line with the concept of due process even under the 1987 Constitution. REASON: Both under the 1935, 1973 and 1987 Constitution, “no person shall be deprived of life, liberty or property without due process of law.” The guarantee has not changed. To say therefore that a hearing is not required and what is required is mere notice to the owner of the property sought to be condemned, amounts to confiscation of one’s property without due process, especially so that from the time of such condemnation, the said owner has already been disturbed of the rights accruing from his ownership and possession. Anyone in the shoes of an owner of a condemned property wants to be paid. To be merely assured of just compensation, conscious of the reality attendant to delays of court proceedings, compounds the problem of being already disturbed and deprived of his rights. His peace of mind, which is priceless, is saddled with uncertainties and anxieties. “Public use,” as it is used in Section 9, may offer consolation to some but not to all, for others may not be situated under the same conditions and circumstances. One, for instance, who has no other wealth to lean on; or one who is bedridden waiting for his death and saddled with huge obligations and expenses, are undoubtedly in dire need to be paid at once. This is more in keeping with the realities of life than mere legal niceties.

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Q – How shall just compensation be paid? A – There being no constitutional provision on how just compensation will be paid, resort is made to statutory provisions that serve as guides to determine the specific form or manner of paying just compensation. Q – Can just compensation be fixed by legislation? A – The power to pass and adopt laws is primarily a legislative function and in the exercise of this prerogative, Congress may approve a law to determine just compensation. The ultimate discretion, however, on what is just compensation is subject to review by the courts because the amount that could constitute just compensation is a question of fact which the court can look into. Q – Is the size of the land a controlling factor to justify expropriation, as pronounced in Guido vs. Baylosis? A – This was rejected in J.M. Tuason and Co., Inc. vs. Land Tenure Administration (31 SCRA 413). In this case, the size of the land to be expropriated is no longer a controlling factor and gave more importance to the quest for social justice and peace. Once this objective is declared, the judiciary need not inquire if a particular land is being taken for public use. Q – In the exercise of the power of eminent domain, what are the matters or questions that could be subject of judicial review, and what are those matters that cannot be reviewed by the court, or which are beyond its prerogative? A – The following matters/questions can be subject of judicial scrutiny: 1. Is the compensation just and adequate? 2. Is there genuine necessity of a public character? 3. The report of the commissioners can be reviewed by the courts. 4. Is the statute directing the expropriation valid? The following cannot be reviewed by the courts: 1. The Congress has the power to make a choice of the lands to be taken to attain an objective. The courts cannot question this choice. 2. The utility, necessity and the expediency of the improvement and the suitableness of the location are questions for the legislature to determine. The courts have no power to interfere and substitute their own discretion. TERESITA M. YUHUICO VS. HON. JOSE L. ATIENZA, ETC., ET AL. G.R. NO. 164282, OCTOBER 12, 2005 A decision rendering just compensation in favor of petitioner was promulgated way back in the year 2000. Five years have passed, yet the

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award is still not fully satisfied. In cases where the government failed to pay just compensation within five (5) years from the finality of judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. RULING: Recently, in Republic v. Lim (G.R. No. 161656, June 29, 2005), this Court made the following pronouncement: “xxx while the prevailing doctrine is that non- payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. To be sure, the fiveyear period limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation.” Given the above ruling, the reversion of the expropriated property to the petitioner would prove not to be a remote prospect should respondents and the City they represent insist on trudging on their intransigent course. BRIEF BACKGROUND ON THE DETERMINATION OF JUST COMPENSATION During the Martial Law Regime, President Fersinand E. Marcos promulgated several decrees providing that the basis of just compensation for property After the Edsa Revolution and after the newly constituted Supreme Court in 1987

1. 2.

IS – Either the sworn evaluation made by the owner; or The official assessment thereof, whichever was lower (NHA vs. Reyes, 123 SCRA 245) Said decrees where invalidated by the Supreme Court in EPZA vs. Dulay (G.R. No. 59603, April 29, 1987)

RULING IN EPZA VS. DULAY The method of ascertaining under the aforecited decrees

Is impermissible encroachment on judicial prerogatives

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It tends to render this court inutile in a matter which under the Constitution is reserved to it for final determination; Following the said decrees, the court’s task is relegated to simply stating the lower value as declared by the owner or the assessor;

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As a necessary consequence, it would be useless for the court to appoint Commissioners under Rule 67 of the Rules of Court; The court cannot exercise its discretion or independence in what is just or fair.

Q – Based on the said ruling are the courts still the ones authorized to determine just compensation, independent of what is stated by the decrees and to appoint Commissioners for such purpose? A – Yes. REASON: “It is violative of due process to deny the owner the opportunity to prove that the evaluation in the tax document is unfair or wrong. And it is repulsive to the basic concepts of justice to allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of the court promulgated only after expert Commissioners have actually viewed the property, after the arguments pro and con have been presented and after all factors and considerations essential to a fair and just determination have been judiciously evaluated.” (EPZA vs. Dulay G.R. No. 59603, April 29, 1987) Q – What is the medium of payment of just compensation? A – Traditionally, it is paid in money and no other. However, on the basis of the decision of the Supreme Court in Association of Small Landowners vs. Secretary of Agrarian Reform (G.R. No. 78742, July 14, 1989), that traditional method was changed. Together with a ruling in favor of the constitutionality of Republic Act 6657, the Supreme Court followed the manner of payment provided by the said law. Q – What is the manner of payment provided for in R.A. No. 6657 and what is the reason behind the said law? A – This was explained by the Supreme Court in its decision, and due to its importance, I have deemed it proper to reproduce herein my summary of the important portion of the decision, as contained in my book entitled Agrarian Reform And Social Legislation, thus: CASE ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES VS. SECRETARY OF AGRARIAN REFORM G.R. NO. 78742, JULY 14, 1989 FACTS: P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No. 6657 (Comprehensive Agrarian Reform Program) were assailed as violative of due process and therefore unconstitutional.

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ISSUE: Is Republic Act 6657 constitutional? HELD: The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights accruing to the owner in favor of the former beneficiary. This is within the power of the State to take and regulate private property for which payment of just compensation is provided. Although the proceedings in Section 16 of CARL are described as summary, the landowners and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. DAR’s determination of just compensation is not by any means final and conclusive upon the landowner or any interested party. DAR’s determination is only preliminary unless accepted by all parties concerned. Otherwise, the court of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. Regarding Section 18 thereof which requires the owners of expropriated properties to accept just compensation in less than money, the Supreme Court said: “This is not an ordinary expropriation were only a specific property is sought to be taken by the State from its owner for a specific and perhaps local purpose. WHAT WE DEAL WITH HERE IS A REVOLUTIONARY KIND OF EXPROPRIATION.” Such program will involve not merely millions but millions of pesos. “We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian reform as a top project of the government. There can be no doubt that they were aware of the financial limitation of the government and had no illusions that there would be enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers.” “We may assume their intention was to allow such manner of payment as provided by the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, the title remains with the landowner. No outright, change of ownership is contemplated.”

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PERTINENT PROVISIONS OF R.A. NO. 6657 REGARDING: (1) DETERMINATION OF JUST COMPENSATION; AND (2) VALUATION AND MODE OF COMPENSATION “Sec. 17. “DETERMINATION OF JUST COMPENSATION – In determining just compensation, the cost of acquisition of the land, the current value like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by the government assessors shall be considered. The social and economic benefits contributed by the farmers and the farmworkers and by the Government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation.” MODE OF COMPENSATION How are landowners paid? Landowners may be paid in cash or in kind. IF PAID IN CASH (a)

(b)

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For lands above fifty (50) hectares insofar as the excess hectare is concerned – 25% in cash, the balance to be paid in government financial instruments negotiable at anytime. For lands above 24 hectares and up to 50 hectares – 30% cash, the balance to be paid in government financial instruments negotiable at anytime. For lands 24 hectares and below – 35% cash, the balance to be paid in government financial instruments negotiable at anytime. (Section 18. Valuation and Mode of Compensation)

IF PAID IN KIND (a)

(b)

Shares of stock in governmentowned or controlled corporations, LBP preferred shares, physical assets or other qualified investments in accordance with guidelines set by the PARC. Tax credits which can be used against any tax liability.

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ASSESSMENT OF PROPERTY TAKEN Q – When is the property subject of expropriation assessed? A – The property is assessed at the time of the taking which usually coincides with the commencement of the expropriation proceedings. (Republic vs. Castelvi, 58 SCRA 336) If there is an entry before the filing of the complaint of expropriation, the assessment should be made as of the time of the entry. Note, however, the contrasting decisions of the Supreme Court in the following cases: 1. In Republic vs. Castelvi, by virtue of a contrast of lease in 1947, the government had in its possession a property since 1947, and as a result of improvements made by it through the years, the property was enhanced. The government claims that the property should be assessed as of the time of commencement of the lease in 1947, so that the improvements will not be included in the appraisal. RULING: The property was deemed taken only when the expropriation proceedings were commenced in 1959. It was on that year that just compensation was ascertained. 2.

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4

In Commissioner of Public Highways vs. Burgos (36 SCRA 831), the taking of the expropriated property happened in 1924, but just compensation was determined in 1973. REASON: The Supreme Court did not apply Art. 1250 of the Civil Code calling for adjustment of the peso rate in times of extraordinary inflation or deflation because in eminent domain cases, “the obligation to pay arises from law, independent of contract.” In Urtula vs. Republic, 22 SCRA 477, the owner is entitled to payment of interest from the time of the taking until the just compensation is paid to him. However, interest must be claimed. Otherwise, they are deemed waived. Taxes paid by the owner from the time of the taking until the transfer of title, during which he did not enjoy any beneficial properties, are reimbursable by the expropriator. (City of Manila vs. Roxas, 60 Phil. 215)

Q – In the light of the above-mentioned decisions, what is just and proper? A – It is submitted that the owner should be paid on the basis of the just compensation the owner deserves at the time he is actually paid. It is not fair to the owner that the same should be based on the value of the property at the time it was taken, because in the interval of time from the date it was taken, and until the date the owner is actually paid, the expropriator has already been in possession of the expropriated property and the expropriator has already been benefited.

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Q – What are the distinctions between police power and eminent domain? A – POLICE POWER

EMINENT DOMAIN

1. Purpose: In police power, property is taken because it is a public nuisance, being obnoxious to society; hence, it is destroyed. 2. Ownership: In police power, although it may and often does take property in the constitutional sense so that it must be paid for, yet, this is not accomplished by a transfer of ownership, but by destroying the property or impairing its value. 3. Compensation: In police power, the owner of the property is not entitled to compensation.

1. Purpose: In eminent domain, property is taken because of its benefit which will inure to public good. 2. Ownership: In eminent domain, property or a right in property is taken from the owner and transferred to a public agency to be enjoyed by it as its own property. 3. Compensation: In eminent domain, the owner of the property taken from public use is invariably entitled to compensation therefore. (12 C.J. 905; Mugler vs. Kansas, 123 U.S. 623, 31 L. ed. 205)

Q – When is compensation fixed? A – Compensation is fixed as of the time the property is taken. If the expropriating authority chooses not to take possession of the property until after judgment is rendered, the moment of taking, for purposes of fixing compensation, is not the filing of the condemnation suit but the date of judgment. Q – When does taking take place? A – There is taking when the owner of the property is ousted therefrom and deprived of its beneficial use. There is taking when the condemnor entered and occupied the property and such entrance and occupation is for a permanent or indefinite period. Q – What are the properties owned by a municipal corporation? A – Public property – If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it. Patrimonial property – If the property is owned by the municipality in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control over the same.

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Q – What is legua communal or communal lands of a town? A – It is a property held by the Municipality for the State in trust for the inhabitants. The State is free to dispose it at will. (Salas vs Jarencio, 46 SCRA 734 [1972]) Q – Can the power of eminent domain be used to allow a party to back out of a contract? A – In Noble vs. City of Manila (67 Phil. 1, 6 [1938]), the latter wanted to back out of a contract of sale. To enable it to do so, it started proceedings to expropriate the property of the plaintiff. The court ruled that the same is not justified there being a valid and subsisting contract. Q – What is police power? A – It is the power of the State to enact such laws or regulations in relation to persons and property as may promote public health, public morals, public safety, and the general welfare and convenience of the people. (Primicias vs. Fugoso, 80 Phil. 71) Q – What is the basis of police power? A – It is based on the Latin maxim “salus populi est suprema lex” (the welfare of the people is the supreme law), and “sic utero tuo ut alienum non laedas” (so use your own as not to injure another’s property). Its source is the social compact by which an individual must part with some rights and privileges for the common good. Every citizen of every community, in civilized society, must bear certain burdens imposed for the good of all. Among the purposes of the police power are the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. (Malcolm & Laurel, Phil. Constitutional Law, p. 329) Examples: 1. A statute or ordinance prohibiting minors from entering casinos, or those which classifies movies for general patronage from those which requires parental guidance, to protect public morals. 2. A statute or ordinance punishing the sale or use of prohibited drugs, to protect the health and safety of young men and women and even the adults of our country. 3. A statute punishing illegal possession of firearms, and the manufacturer of firecrackers, to protect public safety. 4. The rent control law and price control laws are intended to serve general welfare.

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Q – What is taxation? A – It is the process by which the government, through its legislative branch, imposes and collects revenues to defray the necessary expenses of government, and to be able to carry out, in particular, any and all projects that are supposed to be for the common good. Q – What are the similarities and distinctions of police power, taxation and eminent domain? A – SIMILARITIES 1. They exist independently of fundamental law, as a necessary attribute of sovereignty. 2. They underlie the Constitution and rest upon necessity because there can be no effective government without them. 3. They are enduring and indestructible as the State itself. 4. They constitute the three methods by which the state interferes with private property rights. 5. Each presupposes an equivalent compensation; by the police power, thru the maintenance of a healthy economic standard of society; by taxation, in the form of protection, and benefits from the government; and by eminent domain, thru the receipt of the market value of the property taken. DISTINCTIONS Police Power

Taxation

Eminent Domain

The compensation of the individual is not immediate or, possibly apparent, and because, in the application of certain laws or regulations enacted pursuant to the police power, annoyance and financial loss may even be caused to the citizens, leaving the reward of the individual to be reaped thru his altruistic recognition that the just restraint is for the public good.

The compensation of the individual is immediate and apparent in the form of protection and benefits.

The individual receives the market value of the property taken.

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Q – What is the power of taxation? A – The power to tax may include the power to destroy if it is used validly as an implement of the police power in discouraging and ultimately prohibiting in effect certain things or enterprise inimical to the public welfare. Q – When can the power to tax be attacked? A – It can be successfully attacked if it becomes confiscatory. Hence, when the power to tax is used solely for the purpose of raising revenues, it cannot be allowed to confiscate or destroy. Q – What is the nature of the power of taxation? A – 1. The power to tax is primarily vested in the legislature. This power, however, may now be exercised by local legislative bodies, no longer by virtue of a valid delegation as before, but pursuant to a direct authority conferred by Article X, Section 5 of the 1987 Constitution. 2. The power to tax is subject to the limitations imposed by the Constitution. a. It is subject to the requirement of due process. b. It is subject to the general requirement of the equal protection clause. c. Constitutional – those expressly found in the Constitution or implied from its provisions. d. Inherent – those which restrict the power although they are not embodied in the Constitution. 3. The power of taxation is inherent in the State and the State therefore can still exercise this power even if the constitution had not mentioned about it. PROHIBITION AGAINST IMPAIRMENT OF OBLIGATION OF CONTRACTS (Section 10. No law impairing the obligation of contracts shall be passed.) Q – Can the parties to a contract enter into any kind of agreement? A – Article 1306 of the New Civil Code answers this question. It provides as follows: “Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy.” Note, however, that this right is not absolute. It is subject to the limitation that said stipulations, clauses, terms and conditions “are not contrary to law, morals, good customs, public order, or public policy.”

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Q – Does a contract take effect only as between the parties? A – As a rule, contracts take effect only as between the parties, their assigns and their heirs. (Article 1311, New Civil Code) Exception: Except in case where the rights and obligations arising from contract are not transmissible by their nature, or by stipulation, or by provision of law. Q – Against whom are obligations arising from contracts enforceable? A – Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. (Art. 1159, New Civil Code) Q – How does Section 10 protect and maintain the obligation arising from contracts? A – Section 10 prohibits the passage of any law which impairs the obligation of contracts. The mere change therefore in existing laws does not fall within the prohibition. The change must be such that it will impair the obligation of contracts. Q – When is a law considered to be an impairment of a contract? A – A law impairs a contract when it enlarges, abridges, or in any manner change the intentions of the parties (U.S. vs. Diaz Conde, 42 Phil. 766, 769 [1922]), and this is true even if the change is done indirectly. (Bank of the Philippine Islands vs. Frank, 13 Phil. 236, 239 [1909]) A more complete explanation was declared in this manner: “x x x a law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms, is a law which impairs the obligation of a contract and is therefore null and void.” (Clemons vs. Nolting, 42 Phil. 702, 717) Q – Do parties have a vested right in particular remedies or modes of procedure? A – They have no vested right in particular remedies or modes of procedure. REASON: Particular remedies and modes of procedure is an exercise of the police power of the State. Besides, it is within the power of the legislature to enact laws which will provide particular remedies or modes of procedure if they are in its judgment necessary under the circumstances. Q – What considerations prevail over contracts? A – Demands of police power arising from the dictates of social justice, general welfare, public health, safety, amelioration of labor conditions, prevail over contracts. REASON: All these considerations are based under the time honored principle of Salus Populi Est Suprema Lex, as expressly pronounced in Calalang vs. Williams (70 Phil. 726).

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Example: 1. Republic Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988. REASON: “Land for the Landless” is a slogan that underscores the acute imbalance in the distribution of this precious resource among our people. But it is more than a slogan. It has become a battlecry dramatizing the increasingly urgent demand of the dispossessed for a plot on earth as their place in the sun. 2. Presidential Decree No. 27, otherwise known as the Tenant Emancipation Decree. REASON: Presidential Decree No. 27 (otherwise known as the “Tenant Emancipation Decree”) was anchored upon the fundamental objective of addressing valid and legitimate grievances of land ownership giving rise to violent conflict and social tension in the countryside. It recognized the necessity to encourage a more productive agricultural base of the country’s economy. To achieve this end, the decree laid down a system for the purchase by small farmers, long recognized as the backbone of the economy, of the lands they were tilling. Landowner of agricultural lands which were devoted primarily to rice and corn production and exceeded the minimum retention area were thus compelled to sell, through the intercession of the government, their lands to qualified farmers at liberal terms and conditions. However, the transfer of ownership over these lands is subject to particular terms and conditions the compliance with which is necessary in order that the grantees can claim the right of absolute ownership over them. (Pagtalunan vs. Tamayo, G.R. No. 54281, 19 March 1990) 3. Automatic conversion from agricultural share to agricultural leasehold was made applicable to sugarland tenants. This was sustained in Cunanan vs. Singson. The Supreme Court ruled, thus: “x x x While there have been no presidential proclamation to the effect that measures have been adopted to insure efficient management of agricultural and processing phases of crops covered by marketing allotments, it would be nothing short of regressive to deny sugarland share tenants of their right to elect the leasehold system. Considering the policy of the government as enunciated in Section 4 of the Code as amended, which mandates the automatic conversion of share tenants to leaseholders, individual sugarlands should not be discriminated against. Hence, any share tenant in sugarlands may, in accordance with law, exercise his option to change his relationship with the landowner into the leasehold system. However, all sugarland tenants who did not avail of said

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4.

5. 6.

option may still be subject to existing lawful arrangements with landowners in the absence of the presidential proclamation adverted to in Section 4.” (Cunanan vs. Singson, G.R. Nos. 56402-03, 1 December 1989) Franchises and privileges granted by the State or by the government may be amended, altered or repealed through a reasonable exercise of the police power. Compulsory arbitration in certain cases. Suspension of payment of obligation of Cherryville Subdivision homeowners in Antipolo City, thereby amending the terms of the contract between the developer and the house and lot buyers. The underlying reason is the government’s sympathy and understanding of the devastating damage and destruction caused by the flood to their houses and properties.

POINTS TO REMEMBER IN THE LIGHT OF ALL THE SAID PRINCIPLES, LAWS AND JURISPRUDENCE 1. 2. 3.

If the law is a proper exercise of the police power, it will prevail over contract. A contract may be valid at the time of its execution but it may be legally modified, or even invalidated by a subsequent law. The legislature cannot bargain away the police power through the medium of contract.

EXAMPLE: 1. A franchise may be revoked when the legislature finds legal and justifiable reasons to do so. 2. A sold two lots to B on the condition that the said lots were to be used for residential purposes. B, however, erected a commercial building thereon citing a resolution adopted by the Municipal Council of Mandaluyong declaring that the area in which the lots were located because a commercial and industrial zone. B was sustained by the Supreme Court on the reasoning that the zoning resolution had been adopted in the exercise of police power, which was superior to the impairment clause. BATANGAS CATV, INC. VS. THE COURT OF APPEALS ET AL., G.R. NO. 138810, SEPTEMBER 29, 2004 IN THE ABSENCE OF CONSTITUTIONAL OR LEGISLATIVE AUTHORIZATION, MUNICIPALITIES HAVE NO POWER TO GRANT FRANCHISES. CONSEQUENTLY, THE

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PROTECTION OF THE CONSTITUTIONAL PROVISION AS TO IMPAIRMENT OF THE OBLIGATION OF A CONTRACT DOES NOT EXTEND TO PRIVILEGES, FRANCHISES AND GRANTS, GIVEN BY A MUNICIPALITY IN EXCESS OF ITS POWERS, OR ULTRA VIRES. W H E N T H E S TAT E D E C L A R E D A P O L I C Y O F DEREGULATION, THE LGU’S ARE BOUND TO FOLLOW. BEING MERE CREATURES OF THE STATE, LGU’S CANNOT DEFEAT NATIONAL POLICIES THROUGH ENACTMENTS OF CONTRARY MEASURES. BATANGAS CATV, INC., MAY INCREASE ITS SUBSCRIBE RATES WITHOUT RESPONDENTS’ APPEAL. FACTS: On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210 granting petitioner a permit to construct, install, and operate a CATV system in Batangas City. Section 8 of the Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified therein, “provided, however, that any increase of rates shall be subject to the approval of the Sangguniang Panlungsod.” Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per month. As a result, respondent Mayor wrote petitioner a letter threatening to cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210. Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction docketed as Civil Case No. 4254. It alleged that respondent Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the sole authority to regulate the CATV operation in the Philippines. Upon respondents’ appeal, the Court of Appeals reversed and set aside the trial court’s decision; hence, this petition. ISSUE: Is Resolution No. 210 enacted by the Sangguniang Panlungsod of Batangas City valid? Can LGU’s grant a franchise to Batangas CATV to operate CATV system? HELD: (1) Municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a State law or repugnant to the general policy of the State. In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law.

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(2) The apparent defect in Resolution No. 210 is that it contravenes E.O. No. 205 and E.O. No. 436 insofar as it permits respondent Sangguniang Panlungsod to usurp a power exclusively vested in the NTC, i.e., the power to fix the subscriber rates charged by CATV operators. As earlier discussed, the fixing of subscriber rates is definitely one of the matters within the NTC’s exclusive domain. (3) Under E.O. No. 205, it has exclusive jurisdiction over matters affecting CATV operation, including specifically the fixing of subscriber rates, but nothing herein precludes LGUs from exercising its general power, under R.A. No. 7160, to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of their constituents. In effect, both laws become equally effective and mutually complementary. (4) Resolution No. 210 violated the State’s deregulation policy. (5) There is no law specifically authorizing the LGUs to grant franchises to operate CATV system. Whatever authority the LGUs had before, the same had been withdrawn when President Marcos issued P.D. No. 1512 “terminating all franchises, permits or certificates for the operation of CATV system previously granted by local governments.” Today, pursuant to Section 3 of E.O. No. 436, “only persons, associations, partnerships, corporations or cooperatives granted a Provisional Authority or Certificate of Authority by the NTC may install, operate and maintain a cable television system or render cable television service within a service area.” It is clear that in the absence of constitutional or legislative authorization, municipalities have no power to grant franchises. Consequently, the protection of the constitutional provision as to impairment of the obligation of a contract does not extend to privileges, franchises and grants given by a municipality in excess of its powers, or ultra vires. FREE ACCESS TO COURTS AND QUASI-JUDICIAL BODIES AND ADEQUATE LEGAL ASSISTANCE (Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.) Q – Who has the responsibility to implement the letter and spirit of Section 11? A – This is a collective primary responsibility of all lawyers, judges, prosecutors, legislators, and executives in government including all its employees. They should do everything possible to make their good influence felt by those in the lower echelons of government, particularly those employed in the judiciary. Q – What is the rationale behind the said collective responsibility? A – The pain and the burden arising from poverty is not only the pain and burden of one or a dozen poor. As the saying goes, the pain in one part

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of the body is felt by the whole body. In the same manner, the pain and misfortune of a part of society affects the community and the country as a whole. This reminds me of the following: 1. A hungry man with no means to feed himself and his family has more burden and pain seeing his children crying because they are also hungry. This tempts him to commit a crime. 2. A person who is oppressed and a victim of injustice may forget the law and he takes the law in his hands. 3. An oppressed hungry man suffers more. He is liable to run amuck. He lost his last hope. What has been done to alleviate, at least, the disadvantages caused by poverty? There are several laws that have been passed and are now being implemented, although there are still some inconveniences and difficulties that indigent litigants suffer in the hands of some government employees who are not sympathetic and vigilant to their causes. What are the examples of existing laws that alleviate the disadvantages caused by poverty? 1. Under Republic Act No. 6035 (Approved since August 16, 1969), stenographers are required to give free transcript of stenographic notes to indigent and low income litigants and providing a penalty for the violation thereof. 2. Any court may authorize a litigant to prosecute his action or defense as an indigent upon an ex parte application and hearing to show that he has no money sufficient and available for food shelter and basic necessities for himself and family. Such authority once given shall include an exemption from payment of docket fees and other lawful fees, and of transcripts of stenographic notes which the court may order to be forwarded to him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (Section 21, Rule 3 of the 1997 Rules of Civil Procedure) 3. Under Republic Act No. 7438 (April 27, 1992), “Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel,” and under Section 2 thereof, said person has a right “to remain silent and to have competent and independent counsel, preferably of his choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation.

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A counsel de officio may be appointed by the court if the accused cannot afford to engage the services of a counsel de parte. This is practiced by courts but actual experience shows that counsel de officios made themselves available only during the arraignment. Who is an indigent party? An indigent party is one who is authorized by the court to prosecute his action or defense as an indigent upon an ex parte application and hearing showing that he has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Distinguish indigent from a pauper. A pauper is a person so poor that he must be supported at public expense. (Philippine Legal Encyclopedia, by Jose Agaton R. Sibal) The Supreme Court, however, gave a broader meaning to this word, as applied to statutes or provisions on the right to sue. An applicant for leave to sue in forma pauperis need not be a pauper; the fact that he is ablebodied and may earn the necessary money is no answer to his statement that he has no sufficient means to prosecute the action or to secure the costs. (Ibid.) As distinguished from indigent: The difference between “paupers” and “indigent” persons is that the latter are persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment. (Ibid.) 4.

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COMPARATIVE STUDY OF THE 1935 AND THE 1987 CONSTITUTION REGARDING FREE ACCESS TO THE COURTS 1935

1973

1982

Section 21, Article III “Free access to the courts shall not be denied to any person by reason of poverty.”

Section 23, Article IV “Free access to the courts shall not be denied to any person by reason of poverty.”

Section 11, Article III “Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.”

NOTE: That Section 11, Article III, of the 1987 Constitution added “quasijudicial bodies” and “adequate legal assistance.” This is significant and of great help because those who will be benefited are not only the paupers but also indigent persons and this includes the low paid employees, domestic servants and laborers who, on account of meager salaries or income cannot afford to prosecute their cases in other quasijudicial bodies.

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In this connection, it is noticed that there is a growing number of cases in the NLRC which prompted the government to employ more labor arbiters who are now assigned to the different regions in the entire country. RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL (Section 12. [1] Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. [2] No torture, force, violence, threat, intimidation or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. [3] Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. [4] The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.) Q – Is this specific constitutional guarantee found in the 1935 Constitution? A – The right of a person to be assisted by counsel when under custodial investigation for the commission of an offense, is not found in the 1935 Constitution. It was, however, invoked by an accused for a crime that was committed in June, 1967. The plea of the accused was to exclude his extra-judicial confession because it was extracted from him without the benefit of counsel. The Supreme Court denied the said plea and held that the ruling in Miranda is not binding in this jurisdiction as it is not yet, in fact, settled in American Jurisprudence. (People vs. Jose, 37 SCRA 450, February 6, 1971) Q – What is the Miranda rule referred to in People vs. Jose? A – It is actually the case of Miranda vs. Arizona (384 U.S. 436 [1966]), an American case. This case mentions the rights that are available to a person who is under custodial investigation. These rights are the following: 1. The person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent. 2. After being so informed, he must be told that anything he says can and will be used against him in court. 3. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the investigation. He does not have to ask for a lawyer. The investigators should tell him that he has the right to counsel at that point.

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4.

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He should be warned that not only he has the right to consult with a lawyer but also that if he is indigent, a lawyer will be appointed to represent him. 5. Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in the investigation, the interrogation must cease until an attorney is present. 6. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a result of the investigation can be used against him. Are the said rights mentioned in Miranda vs. Arizona adopted in Philippine Law and Jurisprudence? They are now part of Philippine law. (People vs. Nicandro, 142 SCRA 289, February 11, 1986; People vs. Duhan, 142 SCRA 100, May 28, 1986) What are the rights of a person under investigation, as mentioned in Section 12? A person under investigation has the following rights: Under Section 12(1): 1.

The right to be informed of: a. b.

His right to remain silent His right to have competent and independent counsel preferably of his own choice. 2. If said person cannot afford the services of counsel, he must be provided with one. Under Section 12(2): No torture, force, violence, threat, intimidation or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Under Section 12(3): Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Under Section 12(4): The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

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Q – May all the said rights be waived? A – No. Only the right to remain silent and to be assisted by counsel can be waived, and in case they are waived, the waiver must be in writing and in the presence of counsel. Q – When can the said rights of the accused be invoked? A – In People vs. Jose which was decided in 1971, the rights of the accused only began upon arraignment. The 1973 rule said that the rights began the moment a person had become the focus of investigation and had been taken into police custody. In Galman vs. Pamaran (138 SCRA 294, August 30, 1985), the Supreme Court ruled that the protection covered persons not yet in custody but already under investigation. In the case of People of the Philippines vs. Rodolfo De La Cruz (G.R. Nos. 118866-68, 87 SCAD 122, September 17, 1997), the right begins to operate only when the person is “taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements. PEOPLE OF THE PHILIPPINES VS. RODOLFO DE LA CRUZ G.R. NOS. 118866-68, SEPTEMBER 17, 1997 87 SCAD 122 FACTS: In the early evening of June 23, 1992, the lifeless bodies of Teodorico M. Laroya, Jr., and his children, 12 year old Karen Verona D. Laroya and 10 year old John Lester D. Laroya, were discovered in their residence at 13 Emerald Street, Greenpark Village, Cainta, Rizal by their horrified neighbors. The star-crossed trio were all bloodied consequent to numerous stab wounds, and each of them had a knife still embedded in and protruding from their bodies when found. Karen Verona also bore external signs of sexual assault. Accused-appellant Rodolfo dela Cruz, brother-in-law of Teodorico Laroya, Jr., was apprehended as he purchased candies in a store inside the village before the incident. After trial, appellant was convicted of multiple murder based on circumstantial evidence and his extra-judicial confession. Hence, the present appeal. Appellant claims that he was not fully and appropriately apprised of or allowed to exercise his constitutional rights prior to and while undergoing custodial investigation. He further claims that he was instead tortured by the police authorities into signing the same, and not that he did so voluntarily. While he admits having been at the residence of the victims on the night that they were murdered, he flatly denied having killed them as he left the trio well and alive that same night when he proceeded to his brother’s place in Fort Bonifacio.

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HELD: 1.

2.

3.

An accused person must be informed of the rights set out in paragraph 1 of Section 12, Article III of the Constitution upon being held as a suspect and made to undergo custodial investigation by the police authorities. Failure of the police authorities to inform appellant of his rights under the Constitution, especially his right to counsel, are “all fatal to admissibility of the extra-judicial confession supposedly executed by appellant.” Necessarily, even while there is evidence of the corpus delicti in this case, appellant’s conviction must be set aside for this extra-judicial confession is obviously inadmissible in evidence against him. PEOPLE OF THE PHILIPPINES VS. ELIZAR TOMAQUIN G.R. NO. 133188, JULY 23, 2004

FACTS: Elizar Tomaquin was charged with the crime of murder against Jaquelyn Luchavez Tatoy. During the arraignment, the said accused pleaded “not guilty.” The evidence presented by the prosecutor is circumstantial in addition to the extra-judicial confession of the accused made before the police who investigated the case and Atty. Parawan, a Barangay Captain. The accused claims that he suffered maltreatment, and for this reason, denies the case filed against him. He also repudiated his extra-judicial confession and claims that Atty. Parawan, the aforementioned Barangay Captain is not the proper person to be his lawyer during his confession. ISSUE: Is Atty. Parawan, the said Barangay Captain, the lawyer referred to in Section 12? HELD: Atty. Parawan could not be considered an independent counsel of the said accused who qualifies under Sections 12, Article III of the Bill of Rights. At the time of the extra-judicial confession, the Constitution requires an independent and competent counsel who can effectively undertake his client’s defense without any intervening conflict of interest. Under such a uniquely stressful condition such as a custodial investigation, the accused should have an informed judgment on the choices explained to him by a diligent and capable lawyer. Q – What is the meaning of the right to remain silent? A – A person under investigation has the right to refuse to answer any question. More than this, his silence may not be used against him. (People vs. Alegre and Gordoncillo, 94 SCRA 109, 118 November 7, 1979) Q – What is the meaning of the right to counsel? A – The right of a person under investigation is to have “competent and independent counsel preferably of his own choice.” The purpose of the right to counsel during custodial investigation is to preclude the slightest

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coercion as would lead the accused to admit something else. (People vs. Eranoria, 209 SCRA 577, June 8, 1992; People vs. Remollo, 45 SCAD 472, 227 SCRA 375, October 22, 1993) What is the meaning of the right to be informed of one’s rights? It is not enough that a police officer will just repeat to the person under investigation the provisions of the Constitution. He must also explain the effects in practical terms. (People vs. Rojas, 147 SCRA 169 [1987]) The police investigator should explain a meaningful information rather than just a ceremonial and perfunctory recitation of an abstract constitutional principle. (Ibid.) It contemplates an effective communication that results in understanding what is being conveyed. Short of this, there is a denial of the right. (People vs. Nicardo, 141 SCRA 289) What is specifically required before a person is subject to questioning? (1) He must be warned that he has a right to remain silent; (2) That any statement he makes may be used as evidence against him; (3) that he has the right to the presence of an attorney, either retained or appointed; (4) the defendant may waive the said rights but the waiver should be made in writing and in the presence of counsel; (5) if the defendant wishes to consult an attorney before he speaks, there can be no questioning; (6) if the accused is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him; (7) if the accused have answered some questions or volunteered some questions of his own, it does not deprive him of the right to refrain from answering any further inquiries, until he has consulted an attorney, and thereafter consented to be questioned. (People vs. Decierdo, G.R. No. 46956, May 7, 1987) When are the said rights not available? They are not available before investigators become involved. In the following cases, Section 12 does not apply. 1. Section 12 does not apply to admissions made during an investigation conducted by officials of the Philippine Air Lines (People vs. Judge Ayson, G.R. 85215, July 7, 1989) 2. Section 12 does not apply to admission or confession made to a private individual. (People vs. Tawat, G.R. No. 62871, May 25, 1985) 3. Section 12 does not apply to a person undergoing audit because an audit examiner is not a law enforcement officer. (Navallo vs. Sandiganbayan, 53 SCAD 174, 294 SCRA 175 [1994]) 4. Section 12 does not apply to a person who voluntarily surrenders to the police and voluntarily admits the killing. In this case, it cannot be considered that the surrenderee is already under investigation. (People vs. Taylaran, 108 SCRA 373, 378-379 [1981])

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Q – A police officer told A, B, C, D and E to be in a police line-up with other five suspects. E told the police that he be excused to be in the police line-up until his lawyer, Atty. Sagsag arrives. Is E entitled to the right to counsel at that stage? A – No. REASON: The investigation has not yet commenced. Q – At what stage shall E have the right to counsel? A – E shall have the right to counsel from the moment the investigating officer starts to ask questions to illicit information or confession or admission. This right however, can be waived but the said waiver shall be made in writing and in the presence of counsel. (Gamboa vs. Judge Cruz, 162 SCRA 642 [1988]) Q – Supposed E is alone at the time he was in the police precinct and he is requested to have a reenactment of how the crime was committed. Is he entitled to the assistance of a lawyer? A – Yes. REASON: Re-enactment amounts to disclosure of incriminatory facts, hence, it is covered by the inhibition in Section 12. Problems a)

A PCSO collection manager is a suspect, among others, for some irregularities involving unremitted collections. On January 8, 2001, he received a letter from PCSO’s legal department informing him that an investigation will be conducted on January 15, 2001, at 10:00 a.m. On January 14, 2001, he sent a formal letter to his Department Head the pertinent portion of which reads as follows: “I am willing to settle the irregularities allegedly charged against me and I request that you withhold further action against me.” Nevertheless, PCSO proceeded with the investigation, as scheduled. During the investigation on January 15, 2001, he admitted that he used P100,000.00 out of the collections due to serious financial need brought about by his bedridden wife; that he is willing to pay and settle the same in ten equal installments; and that he is willing to sign, as he indeed signed a statement containing his said admissions. On January 25, 2001, a case of estafa was filed against him. He pleaded not guilty during the arraignment. During the trial on February 9, 2001, the Fiscal presented the statement signed by the accused as evidence. Later, it was offered in evidence. Atty. Smart, defense counsel, objected to the admission of the said statement on the ground that the said statement was taken without the benefit of counsel and therefore inadmissible. Q – Is the said accused entitled to be told or conveyed of his rights under the Miranda Rule at the time the same was given during the investigation?

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A – The PCSO collection manager was not under custodial investigation at the time he gave his statement containing his said admission. For this reason, he is not entitled to the rights mentioned in Section 12, Article III. It will be recalled that custodial investigation means “any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Navallo vs. Sandiganbayan, 234 SCRA 175, July 18, 1994) This is not true in this case. b) Hadji Pangatanga is a Tausog residing in Quiapo, Manila. He works as a helper in a Muslim store. He is one of the suspects in a bombing incident. During an investigation, he was investigated in English and which was translated in Pilipino. The police officer who was investigating him conveyed the constitutional rights to him in the following manner: “Salaysay na kusang loob na ibinibigay ni Hadji Pangatanga kay Tinyente Jose Hugo sa himpilan ng Quiapo ngayong 22 ng Disyembre, 2000. Tagasiyasat: G. Hadji Pangatanga, ikaw ay nasa ilalim ng isang pagsisiyasat ukol sa nakaraang pambobomba sa Metro Manila. Bago kita tanungin ay nais kong malaman mo ang iyong mga karapatan sa ating bagong saligang batas at ito ay ang mga sumusunod: 1. Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sa pagsisiyasat na ito; 2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa pagsisiyasat na ito; at 3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaring gamitin laban o pabor sa iyo saan mang hukuman dito sa ating bansa. Tanong: Ngayon alam mo na ang iyong mga karapatan sa ating bagong saligang batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang katotohanan lamang sa pagsisiyasat na ito? Sagot: “Opo” Q – Are the constitutional rights of Hadji Pangatanga under Section 12 properly conveyed? A – The facts did not state that the explanation of the constitutional rights mentioned in Section 12, Article III, were explained to Hadji Pangatanga and made in a language understood by Hadji. If Hadji Pangatanga who is a Tausog does not speak or understand Tagalog or Pilipino, it is submitted that the explanation of the said constitutional rights were not properly conveyed, and therefore, not admissible. (People vs. Lumayok, 139 SCRA 1, October 1, 1985) If Hadji Pangatanga understands Tagalog or Pilipino (for instance, he has been a resident of Quiapo, Manila for a long period of time), and the explanation were effectively conveyed to him in a language

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which he understands, it is submitted that the constitutional rights were properly conveyed to him. Before A is arrested for the alleged murder of Dr. B, he went to his bosom friend and confidant Barangay Captain X, and intimated to him that he is indeed the one who killed Dr. B. He was alone when he told X in confidence about his guilt. Is A’s uncounseled admission admissible? Yes. Section 12 does not apply. Instead of going to Barangay Captain X, A admitted his guilt to his friend, Joe Taruc, and to the latter he verbally confessed that he is the one who killed Dr. X. Is A’s admission admissible? Yes. REASON: Section 12 does not apply. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. A is in police custody. Bothered and remorseful, he spontaneously admitted his guilt and that he is the one who killed Dr. X. Admissible? Yes. REASON: A’s statement is spontaneous statement. It was not elicited through questioning by the authorities. (People vs. Cabiles, G.R. No. 112035, January 16, 1998) A is under investigation by B, a police investigator in the Police Precinct. B told A: “Do you have a lawyer who can assist you in this investigation?” A answered: “Wala po, pwede po bang mabigyan niyo na lang ako at handa po naman ako na magbayad ng kaukulang pera para sa kanyang serbisyo?” B said: “I will tell Atty. X who has a law office across the street if he can assist you.” A agreed and made no objection. Atty. X came up and assisted A. Thereafter, A subscribed to the truth of his statement before the swearing officer. Is Atty. X who was provided by B deemed engaged by A? Yes. REASON: A agreed to engage the services of Atty. X and he, in fact, subscribed to the truth of his statement. A had no counsel while giving his statement because Atty. X whom he called by telephone encountered traffic along Sucat Road. The interrogation was about to end when Atty. X arrived. Atty. X immediately requested the police investigator to allow him to talk to A. He discussed with A regarding the statements he already made. Thereafter, A signed the statement. Is the constitutional requirement about the presence of counsel complied with? It was considered as substantial compliance in the case of Estacio vs. Sandiganbayan (G.R. No. 75362, March 6, 1990) but in subsequent cases, involving a similar situation, the Supreme Court ruled that the right to counsel was a right to effective counsel from the first moment of

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questioning and all throughout. (People vs. De Jesus, G.R. No. 91535, September 2, 1992) Q – The only persons in the investigation room are A, the police investigator, and B, the accused under investigation. The questions and answers are as follows: Tanong: Bago ka magbigay ng salaysay sa pagsisiyasat na ito, ipinaalam ko sa iyo na ikaw ay may karapatang manahimik at huwag sumagot sa ano mang tanong sa iyo at ang lahat ng iyong sasabihin sa pagsisiyasat na ito ay maaring gamitin laban o panig sa iyo sa alin mang hukuman? Sagot: Nalalaman ko po, ngunit handa po ako na magbigay ng salaysay sa pagsisiyasat na ito. Tanong: Nalalaman mo rin ba na ikaw ay may karapatan na magkaroon ng abogado sa pagsisiyasat na ito? Sagot: Nalalaman ko po, ngunit hindi ko na po kailangan ngayon ang abogado. Sa hukuman na lang po kung kailangan pa. Tanong: Kung bibigyan kita ng abogado ngayon? Sagot: Sa hukuman na lang po. Q – Are the questions profounded to the accused substantially transmitted and have they conveyed meaningful information regarding his constitutional rights? A – Yes. It was made clear and meaningful. The mode of conveyance is not a mere ceremonial and performatory recitation. (People vs. Marquez, 153 SCRA 700, 708, 709, September 14, 1987) RIGHT TO BAIL (Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.) Q – Simplify Section 13. A – General rule: Before conviction, all persons shall be bailable by sufficient sureties. Before conviction, all persons shall be released on recognizance as may be provided by law. Exception: The said rule shall not apply to those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. Q – What is the rationale behind the right to bail? A – An accused is presumed innocent until his guilt is proven beyond reasonable doubt by final judgment. The right to bail gives the accused not only an opportunity to obtain provisional liberty but also the chance

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to prepare for trial while continuing his usual work or employment. The bail posted by the accused for his provisional liberty is, in effect, an assurance that the accused will attend the court proceedings, particularly when his presence is required. In short, the purpose of the bail is to relieve the accused from imprisonment until his conviction, and at the time his appearance at the trial is secured. (Almeda vs. Villaluz, 66 SCRA 38 [1975]) What is the rationale why capital offenses or offenses punishable by reclusion perpetua are not bailable? Due to the gravity of the offenses committed, the confinement of a person accused of said offenses insures his attendance in the court proceedings than if he is given provisional liberty on account of a bail posted by him. What are the basic principles of the right to bail? The basic principles of the right to bail are the following: 1. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Second sentence, Section 13, Article III) 2. Excessive bail shall not be required. (Last sentence, Section 13) 3. The factors which must be considered to determine bail are as follows: (Sunga vs. Judge Salud, 109 SCRA 253, November 19, 1981) a. Ability to post bail; b. Nature of the offense; c. Penalty imposed by law; d. Character and reputation of the accused; e. Health of the accused; f. Strength of the evidence; g. Probability of appearing for trial; h. Prior forfeiture of bonds; i. The fact that the accused was a fugitive when he was arrested; and j. The fact that the accused was under bond in other cases. What is the responsibility of sureties? When the obligation of bail is assumed, the sureties become in law the jailers of their principal. (Philippine Phoenix Surety and Insurance, Inc. vs. Sandiganbayan, G.R. Nos. 64157-58, 149 SCRA 317, April 29, 1987) It becomes the responsibility of the sureties to keep the accused under its surveillance and to see to it that the accused does not live our country so he will not be beyond the reach of court orders and processes. This

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duty of the sureties continue until bond is cancelled, or until the surety is discharged. What is bail? Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions hereinafter specified. (Section 1, Rule 114, Rules of Court) Bail may be given in the form of corporate surety, property bond, cash deposit or recognizance. (Ibid.) What are the different kinds or forms of bail? Bail bond – An obligation given by the accused with one or more sureties, with the condition to be void upon the performance by the accused of such acts as he may be legally required to perform. (Villasemor vs. Abana, 21 SCRA 312) It may be given in the form of: 1. Corporate Surety (Section 10, Rule 114, Rules of Court) 2. Property Bond (Section 11, Rule 114, Rules of Court) 3. Cash deposit (Section 14, Rule 114, Rules of Court) 4. Recognizance (Section 15, Rule 114, Rules of Court) Recognizance – It is a bond or similar obligation made and recorded before a court by which a person binds himself to perform an act or fulfill a condition at a specified time. (Philippine Legal Encyclopedia, by Jose Agaton R. Sibal, p. 837) What are the conditions of the bail? Before conviction – The accused shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial. After conviction – The accused will surrender himself in execution of the judgment that the appellate court may render. In case of new trial – The accused will appear in court to which it may be remanded and submit himself to the orders and processes thereof. What is the effect of non-performance of said conditions? The bond given in security thereof may be forfeited. (Philippine Phoenix Surety and Insurance, Inc. vs. Sandiganbayan, supra) Other than the aforementioned conditions, can other conditions be imposed by the court? The imposition of other conditions are discretionary to the court. In the following cases, the court may impose the following conditions: 1. The court may restrict the right to travel (Silverio vs. Court of Appeals, G.R. No. 94284, April 8, 1991), or prohibit the accused

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from leaving the Philippines. (Manotoc, Jr. vs. Court of Appeals, 142 SCRA 153) 2. The court may require an accused to make himself available at all times whenever the court requires his presence (People vs. Uy Tuising, 61 Phil. 404) or to be present in person periodically to the court. (Almeda vs. Villaluz, 66 SCRA 38 [1975]) 3. The court can increase the amount of the bail bond. (Ibid.) Is posting bail a matter of right? Bail is a matter of right, whether an accused is charged or not yet charged. (Ocampo vs. Bernabe, 77 Phil. 55) From the moment he is placed under arrest, detention or restraint by officers of the law, he can claim his right to bail and he retains this right unless and until he is charged with a capital offense and the evidence of his guilt is strong. (Henas Teehankee vs. Rovina, 75 Phil. 634). This right is guaranteed by the Constitution and may not be denied even where the accused has previously escaped detention. (People vs. Hon. Donato, G.R. No. 79269, June 5, 1991) When is bail available? It is available only in criminal proceedings and not in administrative proceedings such as a deportation proceeding. The right to bail is not a matter of right but discretionary on the part of the Commission on Immigration and Deportation. (Harvey vs. Defensor Santiago, 162 SCRA 840) There was, however, an old case of a Russian who remained on detention for more than two years despite the finality of the order of deporting him and the reason for his continuous detention is because no country would accept him. He was released under a bond by virtue of an order issued in connection with the petition for habeas corpus. (Mejoff vs. Director of Prisons, 91 Phil. 70 [1951]) When is bail not available? 1.

It is not available if a person is accused of an offense which is punishable by reclusion perpetua and the evidence of guilt is strong. (First sentence, Section 13, Article III, 1987 Philippine Constitution) 2. It is not available if a person is accused of a capital offense when the evidence of guilt is strong. (Due to reimposition of the death penalty) 3. It is not available in the military for reasons of national security. (Commendador vs. De Villa, G.R. No. 93177, August 2, 1991) Q – After an accused is convicted by the trial court, the grant of bail depends on court’s discretion. What is the reason for this?

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A – The reason for this is because the said judgment of conviction is an indication that the evidence of guilt is strong. (People vs. Divina, 221 SCRA 209 [1991]) When applied by a court of justice, the discretion must be sound and not arbitrary. Its exercise must be guided and controlled by certain well known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. (Henas Teehankee vs. Director of Prisons, 76 Phil. 756) Q – Does the posting of a bail bond constitutes waiver of any irregularity attending the arrest of a person? A – Because of this waiver, the accused is estopped from questioning the validity of his arrest. This ruling, however, is not applicable when the furnishing of the bond is prompted by the sheer necessity of avoiding further detentions. (People vs. Red, 55 Phil. 706) Q – Distinguish life imprisonment from reclusion perpetua. A – LIFE IMPRISONMENT

RECLUSION PERPETUA

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Life imprisonment is indefinite.

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Life imprisonment is a penalty imposed by special laws.

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Life imprisonment does not carry accessory penalties.

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The duration of reclusion perpetua is from 20 years and one (1) day to 40 years. (Section 17, Rep. Act No. 7659) Reclusion Perpetua is a penalty imposed by the Revised Penal Code. Reclusion Perpetua carries accessory penalties.

Q – Why is the said distinction important? A – The foregoing distinction is important because under the 1985 Rules on Criminal Procedure, a person charged with an offense punishable by life imprisonment was entitled to bail as a matter of right. However, effective October 14, 1994, Rule 114 was amended placing life imprisonment on the same level as death and reclusion perpetua. (Cardines vs. Rosete, 59 SCAD 78, 242 SCRA 557, 562) Q – Does the Constitution prohibit excessive bail? A – Excessive bail shall not be required. (Last sentence, Section 13, Article III) It is, in effect, a denial of the constitutional right to bail. Q – Does an accused waive his right to bail if he chooses to remain in legal custody?

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A – An accused who chooses to remain in legal custody is deemed to have abandoned or relinquished his right to bail. This is his personal right which may be waived, the same not being contrary to law, public order, public policy, morals or good customs. The rights of an accused fall naturally into two classes: (a) Those in which the State, as well as the accused, is interested; and (b) those which are personal to the accused which are in the nature of personal privileges. Those of the first class cannot be waived, those of the second may be waived. (People vs. Donato, 198 SCRA 130, June 5, 1991) Q – When is bail a matter of right and when is it a matter of discretion? A – Before and after conviction by the Metropolitan Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court. It is a matter of right for all persons in custody to be admitted to bail with sufficient sureties, or to be released on recognizance. (Section 4, Administrative Circular No. 12-94) Before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. It is a matter of right for all persons in custody to be admitted to bail, with sufficient sureties, or to be released on recognizance. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. The accused may be granted the right to bail upon the discretion of the court. ANITA ESTEBAN VS. HON. REYNALDO A. ALHAMBRA, ETC., ET AL. GR. NO. 135012, SEPTEMBER 7, 2004 FACTS: Petitioner Anita Esteban is the sister-in-law of Gerardo Esteban, an accused in four criminal cases in the sala of respondent judge. Petitioner posted cash bail of P20,000.00 in each case for his temporary liberty. While out on bail and during the pendency of said cases, Gerardo Esteban was again charged with another crime for which he was arrested and detained. “Fed up with Gerardo’s actuation,” petitioner refused to post another bail. Instead, on June 18, 1998, she filed with the trial court an application for the cancellation of the cash bonds she posted in the four criminal cases. She alleged therein that she is “terminating the cash bail by surrendering the accused who is now in jail as certified by the City Jail Warden.” Said application for cancellation of the cash bonds was, however, denied by respondent judge, and despite petitioner’s motion for reconsideration, the same was also denied.

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The petitioner assailed the two orders as having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioner reasoned out as follows: Petitioner submits that by surrendering the accused who is now in jail, her application for cancellation of bail in the four criminal cases is allowed under Section 19, now Section 22, Rule 114 of the Revised Rules of Criminal Procedure, as amended, which provides: “Section 22. Cancellation of bail. – Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail.” ISSUE: Was there grave abuse of discretion amounting to lack or excess of jurisdiction? HELD: The Supreme Court said that the respondent judge did not commit abuse of discretion. In this connection, the court ruled, thus: 1. We hold that the cash bail cannot be cancelled. Petitioner did not surrender the accused, charged in the four criminal cases, to the trial court. The accused was arrested and detained because he was charged in a subsequent criminal case. Moreover, the bail bond posted for the accused was in the form of cash deposit which, as mandated by Section 14 (formerly Section 11) of the same Rule 114, shall be applied to the payment of fine and costs, and the excess, if any, shall be returned to the accused or to any person who made the deposit. 2. The Rule thus treats a cash bail differently from other bail bonds. A cash bond may be posted either by the accused or by any person in his behalf. However, as far as the State is concerned, the money deposited is regarded as the money of the accused. Consequently, it can be applied in payment of any fine and costs that may be imposed by the court. This was the ruling of this Court as early as 1928 in Esler vs. Ledesma, 52 Phil. 114 (1928). Therein we declared that “when a cash bail is allowed, the two parties to the transaction are the State and the defendant. Unlike other bail bonds, the money may then be used in the payment of that in which the State is concerned – the fine and costs. The right of the government is in the nature of a lien on the money deposited.”

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DUE PROCESS IN CRIMINAL PROCEEDINGS (Section 14. [1] No person shall be held to answer for a criminal offense without due process of law. [2] In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after the arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.) Q – Simplify Section 14. A – Section 14, paragraph 1, speaks of due process in criminal cases or proceedings. Section 14, paragraph 2, specifies the rights of the accused in all criminal prosecutions namely: 1. The accused shall be presumed innocent until the contrary is proved. 2. The accused shall enjoy the right to be heard by himself and counsel. 3. To be informed of the nature and cause of accusation against him. 4. To have speedy, impartial and public trial. 5. To meet the witnesses face to face. 6. To have compulsory process. Q – Why are the said rights granted to an accused in all criminal prosecutions? A – To secure the attendance of witnesses and the production of evidence in his behalf. (Section 14[2]) Q – Can trial proceed in the absence of the accused? A – After arraignment, trial may proceed notwithstanding the absence of the accused, PROVIDED (1) that he has been duly notified and (2) that his failure to appear is unjustifiable. Q – When are the said rights available to the accused? A – They are available to the accused from the time a complaint or information is filed against him in court imputing the commission of the offense up to and until he is convicted. NOTE: FOR A CLEARER UNDERSTANDING OF SECTION 14, THERE ARE THREE (3) STAGES DURING WHICH THE ACCUSED HAS THESE RIGHTS

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RIGHTS BEFORE THE TRIAL (This covers the period after the filing of the complaint against the accused and before he is arrested) 1. He is entitled to preliminary investigation to determine whether there is a sufficient ground to engender a well founded belief that the crime alleged has been committed. (Section 1, Rule 112) 2. If a person is arrested in flagrante delicto or surrenders to the authorities, he is entitled to counsel from the moment of arrest or surrender and he may not be asked questions in connection with the offense without the assistance of counsel. REASON: He is, at that time, under custodial investigation, and he has therefore the rights under Section 12. 3. When the accused is arrested, he may exercise his right to bail as long as the offense committed is not punishable by reclusion perpetua and the evidence of guilt is not strong. (Section 13, Article III) 4. If by virtue of an irregular warrant, the accused is arrested, he may ask that the same be quashed. 5. If the accused is detained due to his inability to post bail, he is entitled to be visited by his counsel. He may confer with his counsel at any hour of the day, or even at night, in urgent cases. (Section 14, Rule 113) 6. While under custodial investigation, the accused has the following rights: a. Rights granted to him under Section 12, Article III, of the 1987 Constitution. b. Right against self-incrimination. (Section 17, Article III) c. A confession may not be extracted from him with the use of violence, force, threat, intimidation of any other measures which violates consent. Any confession secured from he unwilling lips of the accused is inadmissible in evidence. (Section 12[2] and [3], Article III) d. During his interrogation, the accused may not be placed in secret detention places, solitary or incommunicado, or other similar forms of detention. (Section 12[2], Article III) RIGHTS OF THE ACCUSED DURING THE TRIAL (The period or stage after the case against the accused was filed in Court) 1. 2. him.

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How is this observed? There will be an arraignment during which the accused is furnished a copy of the complaint or information with the list of witnesses indicated therein, and in open court, the accusation against the accused is read to him in a language or dialect known to him. After the same is read, the accused may plead guilty or not guilty. 3. After a plea has been entered, the litigation process starts. The trial is called and the accused is entitled to be heard by himself and counsel. If he cannot afford the services of counsel, the court shall appoint a counsel de officio. 4. During the trial, the accused is entitled to a speedy, impartial and public trial; to meet the witnesses face to face and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. RIGHTS AFTER THE TRIAL 1. The accused may either be acquitted or convicted. If he is acquitted, the case against him is dismissed. If he is convicted, he shall have the following rights: a. He can appeal his case; b. He is entitled to a right against the imposition of excessive, cruel, degrading or inhuman punishment; c. If the accused is either convicted or acquitted, or the case against him dismissed without his consent, he enjoys the protection of the double jeopardy clause. THE SIX RIGHTS IN SECTION 14 CODE: PEISIPMEETCOM P

– resumption of innocence (shall be presumed innocent until the guilt is proved)

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– enjoy (shall enjoy the right to be heard by himself and counsel)

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– nformed (shall be informed of the nature and cause of accusation against him)

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– (speedy, impartial and public trial)

MEET – (to meet witnesses face to face) COM – (to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf)

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Rules/Jurisprudence 1. The prosecution has the burden to prove the guilt of the accused beyond reasonable doubt. (People vs. Colcol, Jr., 219 SCRA 107, February 19, 1993) 2. The prosecution must rely on the strength of its evidence and not in the weakness of the defense. (People vs. Solis, 182 SCRA 182, February 14, 1990) 3. The right to be presumed innocent must be offset by guilt beyond reasonable doubt. (People vs. Ortiz, 198 SCRA 836, December 3, 1990) 4. Any doubt as to the guilt of the accused must be resolved in his favor and against the State. (People vs. Mortos, 226 SCRA 29, September 1, 1993) How can presumption of innocence be overcome? It can be overcome in the following instances: a. When there is the strongest evidence that removes all doubts about one’s guilt. b. When the accused pleads guilty in open court. c. When the guilt of the accused is proven beyond reasonable doubt. Who has the duty to overcome the presumption of evidence clause? The prosecution. What proof is needed to overcome presumption of evidence? (a) The proof against the accused must survive the test of reason, the strongest suspicion must not be permitted to sway judgment. (b) The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged. (c) The accused need not only perpetrate the act but such act amounted to a crime. (People vs. Austria, 195 SCRA 710, April 8, 1991) What certainty is required? Moral certainty. (Ibid.)

INSTANCES WHEN THE PRESUMPTION OF EVIDENCE RULE IS VIOLATED 1.

Atty. A who is running for public office is sought to be disqualified on the ground that charges have been filed against him. REASON:

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He is condemned before he is heard. (Dumlao vs. Comelec, 95 SCRA 392) Atty. A was sued for allegedly killing B. He claimed self-defense. During the trial, the judge directed the accused to first take the witness stand and prove that he killed B in self-defense. REASON: It violates the order of trial mandated by the Rules on Criminal Procedure and it also violates the presumption of evidence rule. The orderly course of procedure requires that the prosecution shall go forward and present his proof in the first instance. (Alejandro vs. Pepito, 96 SCRA 322, February 21, 1980)

RIGHT TO BE HEARD BY HIMSELF AND COUNSEL Rationale: The Supreme Court in the old case of People vs. Holgado, 85 Phil. 752, March 22, 1950 said: “In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.” It is for this reason that Sections 6 and 7, Rule 116 of the New Rules of Court provides as follows: “Sec. 6. Duty of court to inform accused of his right to counsel – Before arraignment, the court shall inform the accused of his right to counsel and shall ask him if he desires to have one. Unless the accused is allowed to defend himself in person, or he has employed counsel of his choice, the court must assign a counsel de oficio to defend him.” “Sec. 7. Appointment of counsel de oficio – The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability may adequately defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.” Q – Can the accused defend himself personally? A – Section 1, Rule 115 of the New Rules of Court provides as follows: “Section 1, Rule 115 – xxx upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the

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court that he can properly protect his rights without the assistance of counsel xxx.” TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM The accused cannot be convicted of an offense not charged or included in the information. (U.S. vs. Campo, 23 Phil. 368; Tubb vs. People, et al., 101 Phil 114) Hence, an information for falsification with an allegation of conspiracy, which imputes act of falsification upon one of the accused, but does not state in what way or manner the other accused conspired or helped to commit the acts of falsification, does not inform the latter of the particular act or acts imputed to him to enable him to prepare for his defense. What, if any, is the consequence of this defect? The information is entirely void with respect to said accused as it charges him with no offense at all (People vs. Barloan, [CA], 620 G. No. 2012389) and the presentation of evidence cannot validate a void information or prove an offense which does not legally exist. (People vs. Austria, 94 Phil. 897) SPEEDY, IMPARTIAL AND PUBLIC TRIAL Rationale: The other rights granted to the accused in Section 14, Article III, will not be complete without the right to speedy, impartial and public trial. The right to speedy trial, in particular, grants the accused an opportunity to have the case against him resolved within a reasonable time and to be relieved against unnecessary and oppressive delays. In People vs. Gines, the Supreme Court said: “xxx Speedy trial is one that can be had as soon after indictment is filed as the prosecution can with reasonable diligence prepare for trial. While accused persons do have rights, many of them choose to forget that the aggrieved also have rights. The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to a defendant but it does not preclude the rights of public justice.” (People vs. Gines, G.R. 83463, May 27, 1991) Q – When is the right to speedy trial denied? A – The right to speedy trial is a “more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift and deliberative.”

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It is consistent with delays and depends upon circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which renders rights nugatory. (Guerrero vs. Court of Appeals, et al., G.R. No. 117211, August 14, 1996) Q – In the determination of whether or not the right to a “speedy trial” has been violated what are the factors to be considered? A – They are: 1. Length of delay 2. Reason for the delay 3. Assertion of the right or failure to assert it 4. Prejudice caused by the delay Q – What are the factors to consider in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated “speedy disposition of cases”? A – The same factors. (Guerrero vs. Court of Appeals, et al., G.R. No. 117211, August 14, 1996) Q – Is long delay in the termination of Preliminary Investigation and the filing of the information violative of the constitutional right of the accused to procedural due process? A – Yes. (Tatad vs. Sandiganbayan, et al., G.R. Nos. 7233539, March 31, 1988; Salonga vs. Paño, etc., et al., G.R. No. 59521, February 17, 1985) Q – What is the remedy for violation of one’s right to speedy trial? A – Dismissal of the case, and if the accused in under detention, he can be released by and through habeas corpus. PUBLIC TRIAL Q – Is the trial held in the judge’s chambers without, however, any evidence of an attempt to exclude the public, violative of the constitutional right to public trial? A – No. Anyone interested in observing the manner a judge conducts the proceedings in the courtroom may do so. There is no basis on such attendance. The fact that he is a stranger to the litigants is of no moment. He need not be related to the parties. (Garcia vs. Domingo, G.R. No. L-3014, July 25, 1973) Q – Can the public be excluded from the courtroom without violating the right of the accused to a public trial? A – Section 24, Rule 119 of the Rules on Criminal Procedure provides as follows:

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“Sec. 21. Exclusion to the public. – The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties.” RIGHT TO CONFRONTATION Rationale: It is fundamental right that can be invoked not only in criminal proceedings but also in civil as well as administrative proceedings with quasi-judicial persons. (Alonzo vs. Sandiganbayan, 220 SCRA 55) As applied in criminal proceedings, it has two purposes: 1. To secure the opportunity to cross-examine, violation of which amounts to transgression of one’s right to due process. 2. To obtain the benefit of the moral impact of the courtroom atmosphere as it affects the demeanor of the witness. 3. It forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the truth. 4. It gives the court the opportunity to observe the behavior or demeanor of the witness and assess his credibility. Q – Is right to confrontation available in preliminary investigation? A – No, nor will the absence of preliminary examination be an infringement of his right to confront the witness against him. (Marinas vs. Siochi, 114 SCRA 423, May 14, 1981) TO HAVE COMPULSORY PROCESS Rationale: The accused shall have the right to compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. This is intended to assure a full and unimpeded opportunity for him to meet what in the end could be a baseless accusation. How can this be made possible? Through a motion addressed to the court for the issuance of: a. Subpoena testificandum – to persons who will testify in his behalf. b. Subpoena duces tecum – for the production of documents or papers in the possession of third persons. The motion may be supported by the affidavit of the accused.

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INTERPRETATION OF THE RIGHTS GRANTED BY SECTION 14 BENITO ASTORGA VS. PEOPLE OF THE PHILIPPINES G.R. NO. 154130, AUGUST 20, 2004 IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED FACTS: Members of RSOG (Regional Special Operations Group) of DENR, SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian of the PNP Regional Intelligence Group, were sent to the Island of Daram, Western Samar, to conduct intelligence operations on possible illegal logging activities. At around 4:30-5:00 p.m., the team found two boats being constructed at Barangay Locob-Locob. There they met petitioner Benito Astorga, the Mayor of Daram, who turned out to be the owner of the boats. A heated altercation ensued between petitioner and the DENR team. Petitioner called for reinforcements and, moments later, a boat bearing ten armed men, some wearing fatigues, arrived at the scene. The DENR team was then brought to petitioner’s house in Daram, where they had dinner and drinks. The team left at 2:00 a.m. On the basis of the foregoing facts, petitioner was charged with and convicted of Arbitrary Detention before the Sandiganbayan in Criminal Case No. 24986. On petition for review, we affirmed his conviction. Petitioner’s Motion for Reconsideration was denied with finality on January 12, 2004. Petitioner then filed an “Urgent Motion For Leave to File Second Motion For Reconsideration” with attached “Motion for Reconsideration”. ISSUE: Is the alleged guilt of petitioner proven beyond reasonable doubt? HELD: In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. He is entitled to an acquittal unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. As held in several cases, when the guilt of the accused had not been proven with moral certainty, the presumption of innocence of the accused must be sustained and his exoneration be granted as a matter of right. For the prosecution’s evidence must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the prosecution is concededly weak, even if the evidence for the defense is also weak, the accused must be duly accorded the benefit of the doubt in view of the constitutional presumption of innocence that an accused enjoys. When the circumstances are capable of two or more inferences, as in this case, one of which is consistent with the presumption of innocence while the other is compatible with guilt, the

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presumption of innocence must prevail and the court must acquit. It is better to acquit a guilty man than to convict an innocent man. The petitioner is acquitted of the crime of arbitrary detention. NUÑEZ VS. SANDIGANBAYAN 111 SCRA 452-453 Procedural Guarantees 1. 2. 3. 4. 5.

The accused has the right to be informed why he is being charged and what are the charges against him. This conviction should rest on evidence that is not tainted with falsity. He should have full opportunity to rebut it. The sentence imposed against him should be in accordance with a valid law. The court that rendered the judgment is one of competent jurisdiction. SALONGA VS. PAÑO 134 SCRA 438 It is not enough that preliminary investigation is conducted

1. 2. 3.

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A person should be free from arbitrary arrest and punishment and from unwarranted and vexatious prosecution. It is not enough that a preliminary investigation is conducted. It is imperative upon the fiscal or the judge to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Can the proceedings of the Sandiganbayan which acquitted all the accused in the murder of Benigno S. Aquino, Jr. and Rolando Galman be annulled? Yes. As decided in Galman vs. Sandiganbayan (144 SCRA 43). Is the order of the Supreme Court ordering a new trial of the said case, a violation of due process? It is not a violation of due process. On the contrary, the Supreme Court declared the trial of the said case in the Sandiganbayan as a sham trial, “a mock trial – the non-trial of the century” and concluded “that the predetermined judgment of acquittal was unlawful and void ab initio” for the following reasons: 1. The fact of the secret Malacañang conference on January 10, 1985 (during which the authoritarian President discussed with the

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Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused) is illegal. 2. This illegality vitiated from the very beginning the proceedings in the Sandiganbayan Court headed by the very Presiding Justice who attended the said secret Malacañang conference. 3. The very acts of being summoned to Malacañang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. 4. Any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacañang Palace on January 10, 1985. 5. The criminal collusion as to the handling and treatment of cases by public respondents at the secret Malacañang conference (and revealed only after fifteen [15] months by Justice Manuel Herrera) completely disqualified Sandiganbayan and voided ab initio its verdict. What should be proved to warrant a finding of pre-judicial publicity? To warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. (Webb vs. De Leon, G.R. No. 121234, 63 SCAD 916, August 23, 1995) The effect of publicity on judges cannot be presumed especially since, unlike jurors, judges are trained professionals. (People vs. Teehankee, Jr., G.R. Nos. 111206-08, 64 SCAD 808, October 6, 1995) Can a judge decide fairly if he is not the one who tried the case? For as long as the said judge decides the case based on the evidence submitted during the trial and based on the records of the case, he can render a fair decision. It is a reality that at times the judge who originally tried the case may not be able to handle the case up to its finality either on account of death, resignation or retirement. (People vs. Narajos, 149 SCRA 99, 105 [1987]) Does military courts have jurisdiction over civilians? Aquino, Jr. vs. Military Commission (63 SCRA 546, May 9, 1975) When Martial Law was declared on September 21, 1972, then Senator Benigno S. Aquino, Jr., was arrested and later charged with rebellion. He was subsequently tried by a military commission. Senator Aquino questioned the jurisdiction of the latter and claimed that he cannot have a fair trial because the members of the military commission were all appointed by President Marcos. The Supreme Court, however, through Justice Felix Antonio, ruled that due process is not necessarily judicial

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process and military tribunals can be authorized to exercise jurisdiction normally vested in courts, when “absolutely imperative for public safety.” Buscayno vs. Military Commission (109 SCRA 273, 286, November 19, 1981) In this case, it was held that what the Court can review are the decisions of Military Appeals in cases appealed to it from the military commission, citing Presidential Decree No. 1498, issued on June 11, 1978, not the rulings and proceedings of the military commission. Olaguer vs. Military Commission No. 34 (150 SCRA 144 [1987]) The ruling in this case is to the effect that “a military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the courts are open and functioning and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned.” This abandoned the ruling in Aquino, Jr. vs. Military Commission. And yet, both petitioners, Aquino and Olaguer, are civilians. The Olaguer ruling is more in keeping with American Jurisprudence, as pronounced in Ex Parte Milligan (160 SCRA 700 [1987]) and Duncan vs. Kahananoku (4 Wall 2 [1866]). In Ex Parte Milligan, it was held that military courts cannot exercise jurisdiction over civilians when civilian courts are open and functioning. In Duncan, the imposition of martial law is “not intended to authorize the supplanting of courts by military tribunals.” Cruz vs. Enrile (160 SCRA 700 [1987]) The Court nullified the proceedings against the civilian-petitioners who were still serving their sentences after their conviction by the military courts. They were not, however, released. Instead, the Court directed the Secretary of Justice to file the necessary informations against them in the proper civil courts. Q – What are the other instances when there is violation of due process? A – In the following instances, it was held that there is a violation of due process: 1. When a law or regulation sought to be enforced is not previously published. 2. When the law requires preliminary investigation and the same is claimed by the accused, a denial thereof is a denial of due process. (U.S. vs. Banzuela, 31 Phil. 564)

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3.

4.

5.

When there is a preliminary investigation but there is inordinate delay in conducting the same as it appears that the same was pending for almost three (3) years. (Tatad vs. Sandiganbayan, 159 SCRA 70) When the accused who has been convicted discovered for the first time that the lawyer who appeared for her is not a bona fide member of the Philippine Bar. (Guballa vs. Caguioa, 78 SCRA 203, July 29, 1977) When the accused, at the time of the commission of the offense and his conviction, is entitled to appeal either under the Constitution and the Rules of Court and the same is denied. (Advincula vs. Intermediate Appellate Court, 147 SCRA 262, January 16, 1987) PEOPLE VS. QUE PO LAY L-6791, MARCH 29, 1954

FACTS: Central Bank issued a circular (Circular No. 20) requiring those who had foreign currency to sell the same to Central Bank. Que Po Lay was accused of violating Circular No. 20 but he claimed that the said circular has not yet been published in the Official Gazette before his alleged violation of the same and he should therefore be acquitted. HELD: The Supreme Court sustained the defense and held that before the public is bound by its contents, a law, regulation or circular must first be published so the people will be officially informed of the same, particularly the penalties for violating thereof. Q – Is publication always necessary? A – The rulings in Victorias Milling Corp. vs. Social Security Commission (L16704, March 17, 1962), and in Gil Balbuena, et al. vs. Hon. Secretary of Education (L-14283, November 19, 1960), are to the effect that if a circular or department order is not punitive in character, or such that it is merely a statement of general policy as to how the law should be construed, the same do not need publication in the Official Gazette for their activity. Q – What should be published? A – The following should be published, following the decision in Tañada vs. Tuvera (146 SCRA 44, December 19, 1986): 1. Presidential Decrees and Executive Orders promulgated by the President in the exercise of legislative powers. 2. Administrative rules and regulations the purpose of which is to enforce or implement existing laws pursuant to a valid delegation

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except those which are merely internal in nature, or those which are issued merely to interpret regulations. Laws of local application notwithstanding that it is confined to only a portion of the national territory. Private laws like naming a public place after a favored individual or exempting him from certain prohibitions or requirements. Circulars of the Central Bank which are meant not merely to interpret but to fill in the details.

Q – What are the standards to be used in a given case in order to comply with the due process clause? A – A. In order not to violate the due process clause: There must be compliance with both the procedural and substantive aspects. B. In order not to violate procedural due process: There must be a fulfillment of the procedures or steps and even the periods prescribed by the fundamental law or statute and in accordance with the standards of fair play and without arbitrariness on the part of those who are called upon to administer the law or justice. C. In order not to violate substantive due process: The law that interferes with the rights of a person to his life, liberty or property must be valid, reasonable and not oppressive and that which responds to the supremacy of reason. When this happens, the interests of the public generally, as distinguished from those of a particular class, requires the interference by the government. HABEAS CORPUS (Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it.) Q – What is a writ of habeas corpus? A – It is a writ or order directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. (Black’s Law Dictionary 837 [1951]) It is a special proceeding the applicability of which is defined by Section 1, Rule 102 of the Revised Rules of Court in the following manner: “Section 1. To what habeas corpus extends. – Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.”

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Q – What are the instances when the writ of habeas corpus may be availed of? A – The above-quoted provision of the Rules of Court states that a writ of habeas corpus may be availed of in “all cases of illegal confinement or detention by which any person is withheld from the person entitled thereto.” There are other instances, however, when the writ of habeas corpus may also be availed of. It may be availed where, as a consequence of judicial proceedings: (Harden vs. Director of Prisons, 81 Phi. 841) 1. There has been a deprivation of a constitutional right resulting in a restraint of a person. 2. The court has no jurisdiction to impose the sentence; or 3. An excessive penalty has been imposed, in which case the sentence is void as to such excess. Q – Is a writ of habeas corpus available if it turns out that although there is restraint, the same is voluntary? A – The same is not available. (Kelly, etc. vs. Director of Prisons, 44 Phil. 623) Q – Can one ask for a writ of habeas corpus to regain custody of a minor younger sister who is voluntarily living with a married man? A – The same is not available. (Macazo vs. Nuñez, et al., 105 Phil. 55) Q – When one’s daughter who is of legal age lives voluntarily with a married man, can he ask for a writ of habeas corpus? A – The same is not available. (Real vs. Trouthman, L-23074, May 6, 1967) Q – Will habeas corpus lie against a hospital that detains a patient for failure to pay his hospital bills? A – Yes. It is not a valid ground to detain a patient. (Carmona vs. UDMC, 93 SCRA 440, October 15, 1979) Q – Is a writ of habeas corpus available to a foreigner whose detention is illegal in the beginning but which was subsequently legalized with the issuance of a court order commanding his arrest? A – No. (Harvey vs. UDMC, 93 SCRA 84) Q – What is a preliminary citation to show cause why a writ of habeas corpus should not issue, as distinguished from a peremptory writ of habeas corpus? A – The first refers to a situation where the illegality of one’s detention is not patent from the petition, and for this reason, the court issues a citation to the government officer who has custody of said person to show cause why the writ of habeas corpus should not issue. On the other hand, a peremptory writ is issued when the cause of detention appears to be patently illegal

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and non-compliance is punishable. (Lee Yick Hon vs. Insular Collector of Customs, 41 Phil. 548) PROBLEM After a warrant of arrest was issued by the Regional Trial Court, accused Mr. Locson, was detained in the Provincial Jail of Nueva Ecija. During the detention, his lawyer filed a petition for a writ of habeas corpus in the Supreme Court claiming that the preliminary investigation allegedly conducted is not valid as he was not duly notified of the same. Q – Will the said action prosper? A – No. They are not grounds for the issuance of a writ of habeas corpus. Q – What action, if any, can Mr. Locson’s counsel take to protect the rights and interest of Mr. Locson? A – His counsel should file a motion to quash the said information in the Sandiganbayan on the ground of invalid preliminary investigation. In Eden D. Paredes, vs. Sandiganbayan, G.R. No. 89989, March 13, 1991, in relation to People of the Philippines vs. Sandiganbayan and Ceferino S. Paredes, Jr., G.R. No. 101724, July 3, 1992, it was ruled that the ground of invalid preliminary investigation cannot be invoked in a petition for a writ of habeas corpus, but it was allowed as a ground for a motion to quash the said information. Q – When can the President suspend the privilege of the writ of habeas corpus? A – Under Section 18, Article VII of the 1987 Constitution, the President can suspend the privilege of the writ of habeas corpus ONLY ON TWO GROUNDS, thus: 1. Invasion; or 2. Rebellion when the public safety requires it. Note that the grounds of “insurrection” and “imminent danger” of invasion, insurrection or rebellion, as provided in the 1935 and 1973 Constitution were deleted. Q – What is suspended in case of invasion or rebellion when public safety requires it? A – It is the privilege itself which is suspended, not the writ of habeas corpus. Q – Is the power of the President to suspend the privilege of the writ of habeas corpus absolute? A – No, it is subject to the following limitations. (Section 18, Article VII, 1987 Constitution) 1. The suspension of the privilege of habeas corpus must not exceed sixty days. If the invasion or rebellion still persists after the lapse

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of 60 days, Congress may extend the period upon the initiative of the President, and the period of extension is to be determined by Congress. 2. Congress may revoke the suspension made by the President by at least a vote of the majority of the members of Congress, voting jointly, which revocation may not be set aside by the President. 3. The suspension of the privilege of the writ is subject to judicial review upon petition of any citizen. In such a case, the Supreme Court “may review, in an appropriate proceeding filed by any citizen,” the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from the filing. 4. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. 5. Persons detained or arrested during the suspension of the privilege of the writ shall be judicially charged within 3 days, otherwise, he will be released. Q – What are the implications of the above-mentioned limitations? A – First: The old rulings in Barcelon vs. Baker (5 Phil. 87 [1905]) and in Montenegro vs. Castañeda (91 Phil. 882) to the effect that: (a) The Executive Department has the superior competence to assess the peace and order condition in the country; and (b) That the suspension of the privilege of the writ of habeas corpus is a political question are already abandoned. Now, the Supreme Court does not only have the power to determine executive arbitrariness in arriving at the suspension but also the power to determine and review in an appropriate proceeding filed by any citizen, the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof. (Section 18, paragraph 3, Article VII) Second: Alleged threats of invasion or rebellion can be sufficiently handled by the President by exercising the power granted to him, thus: “x x x whenever it becomes necessary, he may call such armed forces to prevent or suppress lawless violence, invasion or rebellion.” It is for this reason THAT THE GROUNDS FOR SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS are limited only to actual invasion or actual rebellion “when the public safety requires it.” These are the same grounds for placing the Philippines or any part thereof under martial law. Third: The suspension of the privilege of the writ shall apply only to persons judicially connected with invasion. The purpose of this

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provision is to require all those detained to be immediately turned over to the judicial authorities, thereby avoiding sad experiences during the martial law years when one is detained without charges for a long period of time. Can the courts inquire on the presidential suspension of the privilege of the writ of habeas corpus? Section 18, paragraph 3 of the Article VII of the 1987 Constitution finally settles this issue as well as the arguments, for or against, in Barcelon vs. Baker, Montenegro vs. Castañeda, Lansang vs. Garcia, Padilla vs. Enrile, et al. and in Morales vs. Enrile, et al. It provides as follows: “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.” The suspension of the privilege is therefore subject to judicial review. What particularly is the subject of inquiry and judicial review? The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the writ or the extension thereof. In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. Can the courts restrain the President from exercising said power? The exercise of said power is predicated on the fact that there is an emergency situation which needs an immediate action of the President. When the President exercises that power based on the intelligence reports gathered and given to him, that is a judgment call reposed to no one except to him, subject only to the limitation that the Supreme Court “may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of habeas corpus. This is what should be subject of inquiry and judicial review.” Is there right to bail during the suspension of the privilege of the writ of habeas corpus? By express provision of Sec. 13, Article III, “the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.” This rule, however, is not applicable when the evidence of guilt is strong. This shall be determined by the judge based on the evidence presented.

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SPEEDY DISPOSITION OF CASES BEFORE ALL JUDICIAL, QUASIJUDICIAL OR ADMINISTRATIVE BODIES (Section 16. All persons have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies.) Q – Is there a difference between the right to speedy trial, as guaranteed in Section 14(2), Article III, and speedy disposition of cases, as guaranteed in Section 16? A – There is a difference. The right to speedy trial particularly refers to criminal prosecutions which are at the trial stage, while the right to speedy disposition of cases applies to all cases before judicial, quasi-judicial or administrative bodies. More particularly, here are the differences: SPEEDY DISPOSITION OF CASES

SPEEDY TRIAL

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The right to speedy trial is what is provided under Article III, Section 17 of the 1935 Constitution.

1.

The right to speedy disposition of cases is provided under Article IV, Section 16 of the 1973 Constitution, and now found likewise in Article III, Section 16 of the 1987 Constitution.

2.

The right to speedy trial pertains only to criminal prosecutions which are at the trial stage.

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It covers all phases of the proceedings, whether judicial, quasi-judicial or administrative. This right is therefore broader than speedy trial and applies to civil, criminal and administrative cases.

Q – What is the similarity of speedy trial and speedy disposition? A – Both rights are beyond quantification, as they cannot be measured in terms of days, months or even years. Both rights are given a relative concept consistent with reasonable delays considering the circumstances in each case. (Martin vs. Ver, 123 SCRA 745) Q – Within what period should a case be tried, or disposed of, considering the constitutional guarantees of “speedy trial” and “speedy disposition” of cases? A – There is no hard and fast rule on how long a case should be tried, or disposed of, except that in order to avoid delays, the Rules of Court and the rules of administrative bodies, have fixed several periods within which to file answers, appeals and other responsive pleadings.

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Examples: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

When to File Responsive Pleadings, Rule 11, Sections 1 to 11, Revised Rules of Court Bill of Particulars, Rule 12, Sections 1 to 6; Intervention, Rule 19, Section 1 to 4 Petition for relief from Judgments, Orders or other Proceedings, Rule 38, Section 1 Execution upon Judgments or Final Orders, Rule 39, Section 1 Appeal from Municipal Trial Courts to the Regional Trial Courts, Rule 40, Section 4 Appeal from the Regional Trial Courts, Rule 41, Section 9 Appeals from the Court of Tax Appeals and Quasi-Judicial agencies to the Court of Appeals, Rule 43 Appeal by Certiorari to the Supreme Court, Rule 45 Procedure in the Supreme Court: (A) Original cases, Rule 56, Section 1 to 2; (B) Appealed cases, Rule 56 Sections 3 to 7 Motion to Quash, Rule 117 Uniform Procedure in Trial Courts, Rule 5, Procedure in Regional Trial Courts, Rule 6

Q – Does the right to speedy disposition of cases applies to military personnel? A – Military men who are defenders of peace and freedom cannot be denied the said fundamental right. (Martin vs. Ver, 123 SCRA 745) RIGHT AGAINST SELF-INCRIMINATION (Section 17. No person shall be compelled to be a witness against himself.) Q – What is the rationale of Section 17? A – The right against self-incrimination is a mandatory and substantive right established on broad grounds of public policy and humanity. Policy, because it would place the witness against the strongest temptation to commit perjury, of humanity, because it would be to extort a confession of truth by a kind of duress every specie and degree of which the law abhors. (Chavez vs. Court of Appeals, 24 SCRA 663) In fact, Article III, Section 12(1) guarantees that “any person under investigation for the commission of an offense shall have the right to be informed of his right TO REMAIN SILENT.” No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him (Section 12[2], Article III, 1987 Constitution), and “any confession or admission obtained in

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violation of this or Section 17 hereof shall be inadmissible in evidence against him.” (Section 12[3], Article III, 1987 Constitution) What is the purpose of the privilege? The basic purposes of the right against self-incrimination are as follows: 1. For humanitarian reasons, to prevent a witness or accused from being coerced, whether physically, morally and/or psychologically into incriminating himself; and 2. To protect the witness or accused from committing perjury, because the first law of nature is self-preservation. (Galman vs. Pamaran, 138 SCRA 294) Is the right against self-incrimination available in other proceedings? This right is available not only in criminal prosecutions but also in other proceedings, whether they are civil, administrative or legislative investigations. (Ibid.) In fact, said right may be claimed not only by a person accused of an offense but also by any witness who is asked an incriminating question. What is the scope of the right against self-incrimination? Section 17 provides that “No person shall be compelled to be witness against himself.” The protection is therefore only against being compelled to testify against himself. For this reason, the weight of authority is to the effect that a person may be compelled to submit himself for physical examination to determine his involvement in the offense he allegedly committed. Example: After the arrest of Mr. A who is charged with murder, he was subjected to paraffin test. He claims that this violates his right against self-incrimination. HELD: There is no violation of his right against self-incrimination. This constitutional right extends only to testimonial compulsion and not when the body of the accused is subjected to examination. (Alih vs. Castro, 151 SCRA 279) The same ruling applies in case the suspects in a criminal case were made to undergo finger printing, photographing, or when a person accused for rape was examined for gonorrhea which may have been transmitted to the victim, or when a woman accused of adultery is subjected to examination to determine if she is pregnant or not.

Q – What is the reason why the accused cannot validly refuse to submit to said examinations? A – In all the said instances, the accused were made to undergo mechanical acts only. Hence, they cannot validly refuse to submit to such exercises. (People vs. Gamboa, 194 SCRA 372) The jurisprudence, however, is

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different when an accused is compelled to write down a specimen of his handwriting. This time, the Supreme Court ruled that the accused cannot be compelled to do so without violating his right against self-incrimination. REASON: Writing is not purely mechanical act. It requires the application of intelligence and attention. (Beltran vs. Samson and Jose, 53 Phil. 570) When is the proper time to invoke the right against self-incrimination? The proper time to invoke it is when a question calling for incriminating answer is propounded because there is no way to determine whether the question is self-incriminating or not unless a question is propounded. This is true, however, only if the witness involved is an ordinary witness. If the witness is the accused himself, he has the right not only to refuse to answer incriminating questions but also the right to refuse to take the witness stand. (Galman vs. Pamaran, 138 SCRA 294) Can an accused validly refuse to appear in court so he can be identified as the accused? An accused cannot validly refuse to do so. The court has the power to compel an accused to appear during the trial for the purpose of identifying him. (Carredo vs. People, 183 SCRA 273) Can the right against self-incrimination be waived? It is a personal right and it may be waived either directly or by a failure to invoke it, provided that the waiver is certain and made willingly and intelligently. There can be no implied waiver of the said right. Otherwise, it would be easier to lose the human rights guaranteed by the Bill of Rights than to protect or preserve them; it would be easier to enslave the citizen than for him to remain free, borrowing the words used by former Chief Justice Felix Makasiar in Galman vs. Pamaran. (Ibid.) Is the right against self-incrimination available to juridical persons? The said right is not available to juridical persons as “it would be a strange anomaly to hold that a State having chartered a corporation to make use of certain franchises, could not, in the exercise of sovereignty, inquire how these franchises had been employed, and whether they have been abused, and demand the production of the corporate books and papers for that purpose.” (Bataan Shipyard and Engineering Corporation vs. PCGG, 150 SCRA 181) A, accused of murder, was placed in a police line-up. Does this violate his right against self-incrimination? No, he is merely being asked to be in a police line-up. He is not made to speak of his guilt. (People vs. Casimillo, 213 SCRA 777) Performance of mechanical acts (i.e., as aforementioned: test to extract virus from the body; directing an accused to remove his shoes or

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shirts; to place one foot on a piece of paper to secure his footprints). Does this violate the right of the accused against self-incrimination? A – No, because they are mere mechanical acts which are not covered by the privilege against self-incrimination. (Villaflor vs. Summers, 41 Phil. 62; U.S. vs. Salas, 25 Phil. 337; U.S. vs. Tan Teng, 23 Phil. 145) FREEDOM OF POLITICAL BELIEF AND FREEDOM AGAINST INVOLUNTARY SERVITUDE (Section 18. [1] No person shall be detained solely by reason of his political beliefs and aspirations. [2] No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.) Q – Is the freedom to believe absolute? A – The freedom to believe is absolute but the freedom to act on one’s belief is not absolute. The freedom to act may be regulated if its actualization clashes with accepted norms of social behavior and established order and decency, or if it contravenes any law or public policy. Q – In Salonga vs. Pano, Senator Jovito Salonga, then espousing the cause of the opposition as against the dictatorship of President Ferdinand E. Marcos, allegedly uttered the following remark in a political meeting, thus: “There is a likelihood of a violent struggle here in the Philippines if reforms are not instituted.” Is that remark punishable? A – The Supreme Court ruled that the said remark is not a threat against the government nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Political discussions even among those opposed to the present administration is within the protective clause of freedom of speech and discussion. The same cannot be construed as subversive activities per se or as evidence of membership in subversive organization. (Salonga vs. Pano, 134 SCRA 438) Q – What is the rationale of Section 18? A – Every person has his own conscience, and this conscience, whether that of a rich or a poor man, or that of the weak or the mighty, should not be curtailed or restrained except when they are translated into action and appears to be contrary to law, morals or public order. Q – Under Section 18(2), a person cannot be forced to render service against his will. Hence, it guarantees that “no involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted? What if the workers contend that their conscience dictates them to strike and that for this reason, they should not obey the order. Can they be obliged to return to work?

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A – Yes, but if they choose not to obey the return to work order, they have to give up their work. In other words, they have to obey the order if they want to retain their work. Q – A, a duly licensed contractor, entered into a contract with B to construct the latter’s house in Ayala Alabang for P30M, labor and materials included, in accordance with plans and specifications agreed upon by A and B. Their agreement is that the house should be finished and completed on or before December 1, 1999. A was not able to finish and complete the said project on time allegedly because of abrupt increase in costs of materials which contributed to his business losses. B sued A for specific performance with damages. A interposed the defense that to compel him to finish the said house and to incur more losses, will necessarily compel him to work against his will. Is A’s contention valid? A – No. A is under obligation to comply with the construction agreement despite his allegation. In fact, specific performance with damages is allowed under the New Civil Code to be able to compel the contractor to comply with his obligation under the contract. Q – What is involuntary servitude? A – It is a condition where one is forced to work for another against his will and whether he is paid or not. Q – When is involuntary servitude permissible? A – It is permissible when the following conditions exist: 1. If it is a punishment for a crime whereof the party shall have been duly convicted. (Section 18[2]) 2. If it is so required to defend the state. (Section 4, Article II) 3. If it is so needed under the principle of posse comitatus. (U.S. Pompaya, 31 Phil. 245) CASES 1.

In Sarmiento vs. Tuico (162 SCRA 676), the return to work order issued by NLRC did not violate the worker’s right against involuntary servitude. The Supreme Court said: “x x x Returning to work in this situation is not a matter of option or voluntariness but of obligation. The worker must return to his job together with his co-workers so that the operations of the company can continue serving the public and promote its interest.” The important factor in this case is the fact that the company involved is an export-oriented company, with 300 workers and having a sales income of 12 million dollars annually.

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Mary, a domestic helper in the residence of B, borrowed P55,000.00 from the latter. B made it clear to Mary that she has to work for five continuous months in his house, from January 1, 1999 to May 31, 1999, and that before May 31, 1999, Mary cannot leave her work in his residence. Last February 15, 1999, Mary was asking the permission of B to leave for her hometown in Capiz, to visit her bedridden mother. Can B validly compel Mary to work until May 31, 1999? Answer: No. To compel Mary to work until May 31, 1999, on account of her unpaid obligation, amounts to involuntary servitude.

RIGHT AGAINST EXCESSIVE FINES, DEGRADING OR INHUMAN PUNISHMENT (Section 19. [1] Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. [2] The employment of physical, psychological, or degrading punishment against any prisoner or detainee on the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.) Q – When is a fine considered excessive? A – A fine is considered excessive where it is clearly shown that the nature of the violation compared with the fine is disproportionate, or if it exceeds the utmost limit of the punishment which the vindication of the law demands. (U.S. vs. Valera, 26 Phil. 598) Q – When is a punishment considered cruel? A – Punishment is cruel if it is flagrantly and plainly oppressive, wholly disproportionate to the nature of the offense as to shock the moral sense of the community (People vs. Etista, 93 Phil. 647), or when it involves torture or lingering death. (People vs. Puda, 133 SCRA 1) Q – Is death penalty cruel, degrading or inhuman? A – There is a divided opinion on this question. In People vs. Camano (115 SCRA 688), the Supreme Court ruled that the imposition of the death penalty is not cruel, unjust or excessive. However, during the deliberation of the 1986 Constitutional Commission on whether death penalty should be abolished or not, the result of the voting is to the effect that it should be abolished, without prejudice to the discretion of Congress to reimpose it at some future time. According to Dean Joaquin G. Bernas, then Commissioner of the 1986 Constitutional Commission, these are the reasons which persuaded the Bill of Rights Committee to propose the abolition of the capital punishment, thus:

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Capital punishment is inhuman because its imposition, even if not carried out, traumatizes not only the convict but also the members of his family; 2. There is no solid evidence to show that death penalty has served as effective deterrent against the commission of serious offenses; hence, life must not be destroyed just on the mere hope that extinguishing life will save other lives; 3. Assuming mastery over life of another person is just too presumptuous for any human; 4. The fact that the death penalty is an old institution should not be allowed to become an obstacle to reviewing it because human life is more valuable than institutions designed to save human life. Hence, Section 19(1) provides that death penalty shall not be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. With respect to death penalty already imposed, it shall be reduced to reclusion perpetua. (Last sentence, Section 19[1]) Q – A was languishing in the National Penitentiary for almost twenty (20) years under a shadow of a death sentence. Like other prisoners, A has been living under deplorable conditions obtaining in the National Penitentiary. Has this transformed the penalty into a cruel one? A – In People vs. Borja, accused appellants have been languishing in jail for almost 19 years under a shadow of a death sentence. The Supreme Court held that while it is true that they observed the death penalty at the time they were sentenced by the trial court, the passage of so many years of mental torture under deplorable conditions obtaining in the national penitentiary during all those years has transformed that penalty into a cruel one. Q – Due to mechanical failure in the electric chair, the death penalty imposed against A was not executed. A contended that he was been subjected to a cruel and unusual punishment. Is A’s contention tenable? A – The claim of the convict that he was being subjected to a cruel and unusual punishment was not sustained. There was no purpose to inflict unnecessary pain involved in the repetition of the execution. The fact that there was a mechanical failure in the electric chair was treated merely as an unforseeable accident. (Lousiana vs. Resueber, 329 U.S. 459) Q – Is life imprisonment to peddler of drugs, a cruel punishment? A – Said punishment is imposed to prevent or discourage the proliferation of crimes that are especially hurtful to public interest. (People vs. Alejandro, 43 SCAD 1072, 225 SCRA 347)

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Q – Is an indefinite suspension of a law practitioner due to gross misconduct, cruel, degrading and inhuman? A – The sanction imposed gives the suspended lawyer the chance to demonstrate his willingness and capacity to live up to the exacting standards of conduct rightly demanded from every member of the bar and officers of the court. (Zaldivar vs. Sandiganbayan, 170 SCRA 1) Q – Give example of degrading, inhuman and barbarous punishments. A – Any punishment that is shocking to the conscience or which increases the suffering of a prisoner or convict in a manner so flagrant, oppressive and revolting to the moral sense of the community, is considered cruel, degrading, inhuman and barbarous. Burning or crucifying a thief, for instance, is cruel, inhuman and barbarous. Tying him in a post in a public plaza under the intense heat of the sun, or to expose him to termites and ants, is likewise cruel, inhuman and barbarous, even if the crime alleged was in truth and in fact committed. Detaining all prostitutes and women of ill repute in a portion of a public plaza surrounded by barbed wire, suffering under the heat of the sun during daytime and under the coldness of the weather during nighttime, is not only cruel but also degrading and inhuman. Q – What are the yardsticks to measure that the penalty is justified, and that the fine imposed is not excessive? A – Justification of the penalty – The penalty imposed should be proportionate to the offense committed (i.e., For a heinous crime, a heavier penalty is justified. For a very minor offense like traffic violation, a lighter punishment should be imposed). Imposition of crime – In determining the fine to be imposed, the judge must consider the following: (a) the financial condition of the convict; (b) the amount fixed should be within the limits established by law; and (c) the mitigating and aggravating circumstances attendant to the commission of the crime. RIGHT AGAINST IMPRISONMENT FOR DEBT OR NON-PAYMENT OF A POLL TAX (Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.) Q – In Ganaway vs. Quillen (42 Phil. 805), the Supreme Court defined debt as a liability arising from actions ex contractu, and not those arising from action ex delicto. What is the reason for this? A – The reason for this is because in actions ex delicto, the damages recoverable therein do not arise from any contract by and between the parties. Damages arising from actions ex delicto are imposed upon the defendant for the wrong he has committed.

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Q – If the Constitution guarantees the right against imprisonment for non-payment of debt, why is it that the non-payment of a check, or its dishonor, a ground for punishment under B.P. Blg. 22? A – It is the contention of some lawyers that B.P. Blg. 22 is just a veiled device to coerce payment of a debt under the threat of a criminal penalty, hence, it violates the right against imprisonment for non-payment of debt. This contention was answered squarely in Lozano vs. Martinez (146 SCRA 323). The Supreme Court held that the non-payment of the obligation is not what the law punishes. What is punished is the making and issuing of a worthless check or a check which is dishonored upon its presentation of payment. Moreover, the law punishes the act not as an offense against property but against public order. The purpose of the law is to protect the integrity of the check as a commercial instrument and prevent the proliferation of worthless checks from creating havoc in trade circles and in the banking community. Q – Is penalty of imprisonment for failure to pay license fees a violation of the right against imprisonment for non-payment of debt? A – It is not a violation of the constitutional guarantee against imprisonment for non-payment of debt. License fees are not considered as debts. (U.S. vs. Rodriguez, 38 Phil. 759) Q – Is non-payment of poll tax a ground for imprisonment under Section 20? A – Section 20 clearly provides that “No person shall be imprisoned for debt or non-payment of a poll tax,” thereby setting aside the authority to impose imprisonment under Section 1439, in connection with Section 2718 of the Revised Administrative Code. Q – What is poll tax? A – It is a tax fixed upon all persons or upon persons of a certain class, resident within a specific territory, without regard to their property on the occupation in which they may be engaged. (Villanueva vs. City of Iloilo, 26 SCRA 578) DOUBLE JEOPARDY (Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.) Q – What is double jeopardy? A – When an accused is either acquitted, or convicted, or the case against him is dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a complaint or information or when a formal charge sufficient in form and substance to sustain a

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conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the same offense. What is the reason for the rule? It is a safeguard against a second prosecution for the same offense. Without the rule on double jeopardy, an accused will be at the mercy of the complainant and his witnesses thereby subjecting him to a neverending charge which the malice of the complaining witness might hold indefinitely suspended over his head. (Julio vs. Sotto, 2 Phil. 247) What are the requisites to constitute double jeopardy? In order that an accused may not be subjected to another trial and punishment for the same offense, the following requisites must be complied with, to wit: 1. There must be a valid complaint or information; 2. Said complaint or information must be filed in a court of competent jurisdiction; 3. The accused has pleaded guilty to the charge; and 4. The accused has been acquitted or the case dismissed or terminated without his express consent. (People vs. Vergara, 41 SCAD 13, 221 SCRA 560; People vs. Navallo, 234 SCRA 175) Discuss each requisite Valid Complaint or Information – An indictment is sufficient in form and substance. (a) If it is in writing, in the name of the People of the Philippines; (Section 2, Rule 110, New Rules of Court) (b) If it is subscribed by the offended party (Section 3, Rule 110, New Rules of Court), any peace officer or public officer charged with the enforcement of the law violated; or (c) If it complies with the elements of sufficiency of complaint or information, as provided in Section 6, Rules 110 of the New Rules of Court. What, if any, is the effect of invalid complaint or information? There can be no valid judgment if the complaint or information is invalid. Court of Competent Jurisdiction – The complaint or information must be filed before a court of competent jurisdiction because a court without jurisdiction cannot render a valid judgment. Hence, if a case against A has been dismissed by a lower court for lack of jurisdiction, and later on a charge for the same offense was filed in another proper court of

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competent jurisdiction, A cannot invoke double jeopardy because he had not been in danger of conviction in the first case. The Accused has Pleaded to the Charge – Unless and until an accused has pleaded to the charge against him, he cannot invoke double jeopardy. Hence, if the complaint against A was dismissed before he has pleaded, he cannot invoke double jeopardy. The Accused has been Convicted or Acquitted or the Case Against Him was Dismissed or Terminated Without his Express Consent – After the acquittal or conviction of an accused, and in the case of the latter which has become final there being no appeal within the reglamentary period, said acquittal or conviction can no longer be set aside by the court to order a new trial or impose a new punishment. What if the prosecution is terminated on account of dismissal? If a dismissal is without the express consent of the accused, and after said dismissal, he is prosecuted anew for the same offense, he can invoke double jeopardy. If the said dismissal is not a bar to another prosecution for the same offense. APPLICATION OF THE RULE ON DOUBLE JEOPARDY OLD CASES 1.

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A was prosecuted for estafa. The same was dismissed by the CFI for lack of territorial jurisdiction. Thereafter, a charge for the same offense was commenced in the CFI of Manila. The accused moved to quash invoking double jeopardy. Is there double jeopardy? The Supreme Court said there was no double jeopardy because the defendant had not been in danger of conviction in the original prosecution. (People vs. Adano, 75 SCRA 193) An information is motu proprio dismissed for lack of jurisdiction by a court which is actually competent to hear it. In this case, the dismissal will inure to the benefit of the accused. He is entitled to plead double jeopardy. (U.S. vs. Regala, 28 Phil. 57) Military tribunals had no jurisdiction to try cases of civilians. Said cases fall under the jurisdiction of the ordinary civil/courts even during the period of martial law. Hence, the judgments of the military tribunals in said cases were invalidated and the said civilians were released. (Olaguer vs. Military Commission, 150 SCRA 144) In Cruz vs. Enrile (160 SCRA 702), it was held that there is no violation of the double jeopardy rule if there is re-trial of petitioners for the same offense. REASON: (1) The absence of jurisdiction of the court martial to try and convict petitioners prevented the first jeopardy from attaching; (2) Valid previous proceedings

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are required in order that the defense of double jeopardy can be raised by the accused in the second proceeding. Note, however, that the Supreme Court modified the said judgment in Olaguer and ruled that there should be no retroactive nullification of final judgments, whether of conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. The Supreme Court added: Such final sentences should not be disturbed by the State. Only in particular cases where the convicted person or the State shows that there was serious denial of the constitutional rights of the accused should the nullity of the sentence be declared and a re-trial be ordered based on the constitutional rights of the accused, and not on the Olaguer doctrine. If a re-trial is no longer possible, the accused should be released since the judgment against him is null on account of the violation of his constitutional rights and denial of due process. ANOTHER PRINCIPLE The defense of double jeopardy will be available to the accused where the dismissal of the prosecution against him, even with his express consent, was based on: (1) Insufficiency of evidence; or (2) denial of his right to speedy trial. (People vs. Robles, 105 Phil. 1016) REASON: The dismissal is considered in the nature of acquittal. Hence, the dismissal cannot be appealed by the prosecution and will bar another prosecution of the defendant for the same offense. This is true even if the dismissal is erroneous. EXAMPLE: 1.

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After the presentation of evidence by the prosecution, and after resting its case, the accused moved to dismiss on the ground that the charge of estafa had not been proven beyond reasonable doubt. When the case was elevated to the Supreme Court through, a petition for Certiorari, the accused invoked double jeopardy. Is there double jeopardy? The Supreme Court said that the order of dismissal was based on the merits, and although erroneous, it amounted to an acquittal which cannot be appealed by the government. (People vs. City Court of Silay, 74 SCRA 248) A case of serious physical injuries was filed against A, but before the trial, the prosecution moved to change the charge to frustrated homicide. This motion was denied. After trial, the judge ruled that based on the evidence presented, there is a prima facie of frustrated murder which he could not decide for lack of jurisdiction. Hence, he dismissed the case “to give away to the filing of the corresponding information with the CFI. Is there double jeopardy? The Supreme Court ruled that these proceedings

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in the Municipal Court have not been lawfully terminated. There is no second proceeding to speak of and no double jeopardy. REASON: The Municipal Judge committed grave abuse of discretion amounting to excess of jurisdictions, thereby rendering his order null and void. He should not have dismissed the case on his idea or belief that there was evidence of intent to kill the victim. DOCTRINE OF SUPERVENING EVENT Q – May an accused be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted? A – Yes, under the doctrine of supervening event. BASIS OF THE DOCTRINE OF SUPERVENING EVENT The basis is Rule 117, Section 7 of the Rules of Court, which provides as follows: “Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” ANOTHER PRINCIPLE When one offense is inseparable from another and proceeds from the same act, they cannot be the subject of separate prosecutions. EXAMPLE: 1. 2.

X is indicted for smoking opium. He cannot be charged with possession of opium. X has stolen several things from B on the same date and time. X can be charged only with the crime of theft.

Q – It is possible that the commission of one act gives rise to several crimes, and hence, separate prosecutions for each crime may be filed? A – Yes, provided that elements of the several crimes are not identical. EXAMPLE: 1.

X, while driving his car without license, hit and bumped another vehicle which resulted to damage to property. X may be prosecuted for violation of the Motor Vehicles Law and for damage to property.

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HYPOTHETICAL CASES Q – Prof. A invited Miss X, his student to a dinner. After the dinner, Prof. A drove his car to a motel. While inside the motel, he started to kiss Miss X and started to undress her. Miss X, however, outsmarted Prof. A by convincing him to take a bath first before she gives in to his demand for sexual intercourse. While taking his shower, Miss X went outside of the motel, took a taxi and went home. Later, she filed an administrative case for disbarment of Prof. A, and she also filed a case of attempted rape against Prof. A. The disbarment proceedings did not prosper but the Office of the City Prosecutor filed a case of attempted rape against Prof. A. Can Prof. A invoke double jeopardy? A – Prof. A cannot invoke double jeopardy, one case being a criminal case for rape, and the other being an administrative case. To constitute double jeopardy, the offenses must be criminal in nature. Q – Same facts in No. 2 except that Prof. A was able to consummate the crime of rape. The Office of the City Prosecutor of Manila filed the case but the complaint filed in court was not signed by the offended party, and on account of which, the complaint was dismissed. Later, the Office of the City Prosecutor of Manila filed a case, this time upon the complaint of the offended party. Is the filing of the new case a valid ground for Prof. A to invoke double jeopardy? A – The first element for double jeopardy to apply is not present. The first information is not valid in form and in substance. Hence, Prof. A cannot invoke double jeopardy. 1984 BAR QUESTION Q – Upon arraignment, A pleaded not guilty to the charge of serious physical injuries. Ten days later, the victim died. Hence, the Fiscal moved for the amendment of the information so as to charge the accused with the crime of homicide. The accused objected on the ground that he had been put in jeopardy of being convicted of the crime of serious physical injuries; and that another prosecution for homicide for the same act under an amended information would constitute double jeopardy. If you were the judge, would you resolve the motion? Explain. A – There is no double jeopardy and the motion of the accused should therefore be denied. His plea was only with respect to the charge of physical injuries but not with respect to the crime of homicide. GALMAN-AQUINO DOUBLE MURDER CASE Q – After a long and protracted trial, the accused involved in the murder of then Senator Benigno S. Aquino were acquitted by an

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independent commission whose members were appointed by then President Ferdinand E. Marcos. After the EDSA People Power Revolution, a commission presided by retired Justice Conrado Vasquez, appointed by then President Corazon C. Aquino, recommended the re-opening of the Galman-Aquino murder case. Was there double jeopardy? A – There was no double jeopardy. The proceedings that took place before was a sham and a mock trial which resulted in the denial of the State’s right to due process. Q – Is liability under Batas Pambansa Blg. 22 without prejudice to any liability for violation of any provision of the Revised Penal Code? A – Yes. For this reason, issuing checks without sufficient funds may be a ground forprosecution of estafa under Article 315 of the Revised Penal Code, or for violation of Batas Pambansa Blg. 22. Hence, the filing of two sets of information does not give rise to double jeopardy. NEW CASE PEOPLE OF THE PHILIPPINES VS. THE SANDIGANBAYAN (FOURTH DIVISION) AND ALEJANDRO A. VILLAPANDO G.R. NO. 164185, July 23, 2008 Double Jeopardy: grant of demurrer amounts to an acquittal Once a court grants the demurrer to evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy FACTS: During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of Villapando’s wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, Villapando designated Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan. On February 4, 2000, a charge for violation of Article 244 of the Revised Penal Code was filed against Villapando and Tiape before the Sandiganbayan. After the prosecution rested its case, Villapando filed his demurrer to evidence. The demurrer was granted and Mayor Villapando was acquitted of the charge filed against him. Thus, the Office of the Ombudsman filed this petition arguing that the respondent court acted in grave abuse of discretion in granting the demurrer and ruling for the acquittal of Mayor Villapando.

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ISSUE: Whether or not it could be interpreted that the Legal Disqualification in Article 244 of the Revised Penal Code does not include the one year prohibition imposed on losing candidates as enunciated in the Constitution and the Local Government Code? Corollarily, does the petition violate the constitutional proscription on double jeopardy? HELD: There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries. Villapando’s contention and the Sandiganbayan, Fourth Division’s interpretation of the term legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991. Although this Court held that once a court grants the demurrer to evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. xxx We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish. There should be no distinction in the application of a law where none is indicated. A judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation and, thus, cannot be the source of an acquittal, hence double jeopardy will not attach. RIGHT AGAINST EX POST FACTO LAW AND BILL OF ATTAINDER (Section 22. No ex post facto law or bill of attainder shall be enacted.) Q – What is an ex post facto law? A – In Latin, ex post facto means “From something done afterwards.” It is any law which makes an innocent act a crime after the act was committed.

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The Supreme Court made a comprehensive meaning of an ex post facto law, thus: It is one which: 1. makes criminal an act before the passage of the law and which was innocent when done, and punishes such an act; 2. aggravates a crime, or makes it greater than it was, when committed; 3. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5. assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Philippine Legal Encyclopedia by Jose Agaton R. Sibal, p. 311, citing In re Kay Villegas Kami, Inc., 35 SCRA 429) What is prohibited under Section 22? No ex post facto law or bill of attainder shall be enacted. What is the peculiar feature of an ex post facto law? Its peculiar feature is the imposition of punishment for previous acts which at the time of its commission are not punishable. What are the characteristics of an ex post facto law? The characteristics of an ex post facto law are the following: 1. That it relates to criminal matters; 2. That it is retroactive in its operation; 3. That it alters the situation for the accused party to his disadvantage; and (Cooley’s Const. Law, 8th ed., 542) 4. Its enforcement is prejudicial to the accused. What is the scope and applicability of the prohibition against ex post facto law? The prohibition applies only to: 1. Criminal legislation which affects the substantial right of the accused. (Tolentino vs. Angeles, 99 Phil. 309, 318; Santos vs. Secretary of Public Works and Communications, C-16049, March 18, 1967)

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2.

Criminal procedural law prejudicial to the accused.

Example: 1. 2.

3.

Imposing a penalty to an act which was not punishable at the time of the commission. Procedural law authorizing fiscals to commence prosecution for adultery is without effect in connection with acts committed at a time when adultery could be prosecuted only upon the complaint of the offended party. (U.S. vs. Gomez, 12 Phil. 279, 282) A law which shortens the prescriptive period for a crime. (People vs. Sandiganbayan, G.R. No. 101724, July 3, 1992)

THE ANTI-MONEY LAUNDERING LAW CANNOT APPLY RETROACTIVELY TO DEPOSITS OPENED BEFORE ITS EFFECTIVITY To do so would violate Sec. 22, Art. III which provides: “No ex post facto law or bill of attainder shall be enacted.” Example: 1.

2.

Regarding a law amending R.A. 3019 to provide for the suspension pendente lite of any public officer or employee accused of offenses involving fraudulent use of public funds or property, including those charged earlier. Is the said amendment an ex post facto even if applied retroactively? The Supreme Court said it is not ex post facto even if applied retroactively because the suspension was not punitive but merely preventive. A law reducing the penalty for murder from death to life imprisonment – It is not ex post facto, even if it is applied retroactively, because it is not prejudicial or disadvantageous to the accused.

Q – What is the rationale behind the prohibition? A – Criminal laws cannot be applied retroactively because an accused cannot be held liable for an act which at the time of its commission was not punishable. Nulla poena sine lege (there is no crime when there is no law punishing it). Q – What is a bill of attainder? A – It is legislative act which inflicts punishment without judicial trial. (Cunnings vs. Missouri, 4 Wall. 277, 323; 18 L. ed., 356-363; People vs. Carlos, 78 Phil. 535, June 30, 1947; People vs. Terrer, 48 SCRA 382 and 397, Dec. 27, 1972) Q – What is the bill of pains and penalties? A – The term refers to a legislative act which imposes a penalty less than death, without the benefit of judicial trial.

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Q – What are the characteristics of bills of attainder and bills of pains and penalties? A – 1. They are convictions and sentences pronounced by the legislative department, instead of the judicial department. 2. The sentence pronounced and the punishment inflicted are determined by no previous law or fixed rule; and 3. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry. (Ex Parte Garland, 4 Wall. 388, 18 L. ed. 366) Q – What is the purpose of prohibition against bill of attainder? A – The purpose is to implement the time honored principle of separation of powers. The task of the legislature is to enact laws, and not to pronounce the guilt of a party through legislation. It cannot undertake a trial by legislation. (People vs. Ferrer, 48 SCRA 382) Q – When do we consider a law as penal in nature? A – When the law at issue has to be enforced through prosecution of a criminal action, it is definitely penal in nature. Q – What if the same law has to be enforced through a civil proceeding, or through an administrative proceeding, is the penalty enforced in said proceeding, penal in nature? A – In Pascal vs. Board of Examiners (28 SCRA 344), it was held that the deprivation of one’s right to practice medicine, is criminal in nature. In the U.S. (Cummins vs. Missouri, 4 Wall 277 [U.S. 1869]), the same penalty which is enforced in a civil proceeding, was considered a penalty which is covered by the prohibition against ex post facto law. Q – There are changes in the mode of trial or the rules of evidence which do not deprive the accused of a defense. The effect is merely limited or unsubstantial to the disadvantage of the accused. Is this prohibited? A – This is not prohibited. This is the same ruling of the Supreme Court in Nuñez vs. Sandiganbayan (128 SCRA 383). In this case, the accused raised the same issue that Presidential Decree No. 1486 creating the Sandiganbayan is an ex post facto law because the procedure prescribed, unlike the procedure in other courts before the passage of the law, did not provide for appeal to the Court of Appeals. The Supreme Court upheld the said law and ruled that the right of the accused to appeal to the Supreme Court on questions of law was preserved. Moreover, the said decree required a ceremonious vote of three in order to convict the accused.

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Q – Is suspension from public office a penalty? A – Suspension from public office, even if applied retroactively, is not a penalty because it is not imposed as a result of judicial proceedings. A law therefore which authorized the suspension of public officers against whom an information is pending at any stage, is not an ex post facto law. Q – In accordance with Section 8 of Presidential Decree No. 1606, “any case cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned shall be transferred to the Sandiganbayan.” Can an accused, a government employee, questioned the transfer of the case against him from the Regional Trial Court to the Sandiganbayan on the ground that it is an ex post facto law? A – The said law is not an ex post facto law the same not being penal in nature. It merely provides for the transfer of jurisdiction over certain cases where the accused has not yet been arraigned. (Alvia vs. Sandiganbayan, 137 SCRA 63) Q – What if the contention of the accused is that P.D. No. 1606 is an ex post facto law because he will incur more expenses in coming to Manila to attend his hearings in the Sandiganbayan. Is this tenable? A – No. The inconvenience suffered by the said accused is limited and unsubstantial. (Rodriguez vs. Sandiganbayan, 120 SCRA 659) Q – Is the forfeiture to the State of the property of a public officer or employee which is manifestly out of proportion to his salary, as provided in R.A. No. 1379, and made retroactive to cover forfeiture of properties prior to its approval, criminal in nature? A – Since the said law is applied retroactively to cover properties acquired before its passage, then it is an ex post facto law. (Katigbak vs. Solicitor General, 180 SCRA 540) In Tio vs. Videogram Regulatory Board (151 SCRA 208), however, the Supreme Court ruled that P.D. No. 1987, which provides, among others, that “any videogram found in the possession of any person engaged in the videogram business without the required proof of registration by the Board, shall be prima facie evidence of violation of the decree, whether the possession of such videogram be for private showing and/or public,” is not an ex post facto law. REASONS: a. The questioned provision meets the standard of rational connection between the fact provided, which is the non-registration, and the ultimate fact presumed which is a violation of said P.D. No. 1987. b. The said decree attaches only after 45 days from the date of its effectivity, hence, it is not retrospective.

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Q – Are the executive officers creating the PCGG and authorized to issue sequestration orders to recover ill-gotten wealth, a bill of attainder? A – It is not a bill of attainder because the prosecution under the said executive orders will have yet to comply with the following requirements: a. There should first be a complaint filed and prosecuted by PCGG; b. The complaint, as filed, will have yet to be tried and proven by the Sandiganbayan. (Bataan Shipyard and Engineering Co. vs. PCGG, 150 SCRA 181) Q – What is the essence of a bill of attainder? A – Its essence is the substitution of a legislative punishment instead of having a judicial determination of guilt. In short, it is a trial by legislation because Congress usurps a judicial function. MULTIPLE CHOICE QUESTIONS 1.

About one’s Constitutional Right to Equal Protection of the Law X, a Police Major in Maguindanao, was implicated in a murder case. After the information for murder was filed with the RTC, the trial court issued an order of preventive suspension of more than ninety (90) days against him. He claims that he is covered by the civil service law, and that the suspension against him should be limited to 90 days. A. The case against Major X is still pending and he is presumed innocent until the alleged crime imputed to him is proven beyond reasonable doubt. B. At most, the period of preventive suspension against Major X should not exceed the period of 60 days. C. Under the Civil Service Law, particularly under Section 42 of P.D. Number 907, his suspension should be limited to 90 days, otherwise the constitutional right of Major X to equal protection of the law is violated. D. The legislative intent is to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds 6 years of imprisonment and which suspension continues until the case is terminated. This is not a violation of his constitutional right to equal protection of the law.

2.

Equal Protection of the Law Mario had a romantic relationship with Beth. They are employees of X company and Y company, companies engaged in pharmaceutical

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industries. Under their respective contracts of employment, they are prohibited from having a relationship with an employee of a competitor company. Mario courted Beth, and later, they got married. X company informed Mario that he and Betsy should decide which one of them would resign from their jobs. A. The said prohibition in the contract of employment is contrary to law and public policy. B. The decision of Mario and Beth to get married is a valid decision which is not contrary to law or any public policy. C. Mario and Beth, or any other employees are free to cultivate relationships with any person or persons of their own choosing. D. An employee remains free to marry anyone of his or her choosing, but this does not detract the employer from exercising management prerogatives to ensure maximum profit and business success. 3.

Freedom of Religion X, a court employee, lived with a man, not her husband and out of her live-in arrangement with said man who is not yet capacitated to marry, they had a child. The conjugal arrangements of X with said married man has the approval of the Jehova’s Congregation. Is X liable for disgraceful and immoral conduct? A. X is liable for disgraceful and immoral conduct because she is living with a man who is not her husband, and she has a child with him, without the benefit of marriage. B. X is not liable because she has an arrangement with the Jehova’s Congregation which has given consent to her live-in arrangement. C. X is liable because the consent of the Jehova’s congregation to her live-in arrangement will not cure nor erase the immorality that was committed by X. D. X is not liable because not any interest of the State would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights – “The inalienable and sacred of all human rights. This right is sacred for an invocation of the free exercise clause is an appeal to higher sovereignty.

4.

About Involuntary Servitude 200 workers believe honestly that their company, X corporation, is unjust to the workers. They contend that their conscience dictates them to

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strike, and that for this reason, they should not obey the return to work order issued by NLRC which acted formally on the petition of X corporation on the ground of serious damage to company production and business. For failure to return to work, they were replaced by new workers hired by X corporation. Can they be obliged to return to work? A. They can be obliged to return to work to save X corporation from serious damage which, in effect, will damage a greater majority of the work force. B. They cannot be obliged to return to work because they just follow their conscience. C. They cannot be obliged to return to work because that will amount to involuntary servitude. D. They can be obliged to return to work but if they choose not to return to work, they have to give up their work. 5.

About Calibrated Preemptive Response (CPR). Is it legal? A. It is legal because the government has the right to protect itself against unlawful mass actions and massive rallies and demonstrations inspired by left leaning organizations. B. It is legal because it is the same thing as maximum tolerance. C. It is illegal because of the maximum tolerance policy mandated by BP 880. D. CPR serves no valid purpose if it means the same thing as maximum tolerance, and it is illegal if it means something else.

6.

About the Right of Government Employees to Organize. A. Government employees have a right to organize because like their counterparts in the private sector, they have freedom to articulate their honest protests and grievances. B. Government employees do not only have the right to organize. They have also the right to form unions or associations that will help them articulate their grievances against the government. C. Government employees have the right to organize and to form unions or associations, but this does not include the right to strike and to engage in similar activities. D. Government workers, whatever their category or status, have as much right as any person in the land to voice their protests against what they believe to be a violation of their interest.

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7.

Right to Associate with Anyone Atty. X passed and topped the bar examinations five (5) years ago. He is a resident of BF Homes Parañaque Subdivision. A year after passing the bar examinations, he received a letter from the Integrated Bar of the Philippines, Parañaque, Pasay, Muntinlupa Chapter, informing him that his name is listed in the said IBP Chapter, and that he is requested to pay the annual dues. Atty. X replied that he is not interested to associate or to be a member of the said IBP Chapter. Can Atty. X be compelled to be a member of said IBP Chapter? A. No, it is his right to be a member or not to be a member, and this right cannot be violated. B. He can be compelled to be a member because this is justified as a valid exercise of police power. C. He cannot be compelled to be member but he can be compelled to pay his annual dues to the said IBP Chapter. D. He cannot be compelled to be a member and he cannot also be compelled to pay the annual dues to the said IBP Chapter.

8.

Rights of a Person under Custodial Investigation A. These rights cannot be waived. B. Only the right to remain silent can be waived, and if it is waived, the waiver must be in writing and in the presence of counsel. C. Written waiver and presence of counsel are not necessary because all the rights of a person under custodial investigation cannot be waived. D. Only the right to remain silent and to be assisted by counsel can be waived, and in case they are waived, the waiver must be in writing and in the presence of counsel.

9.

Spontaneous Statement during Custodial Investigation A, B, and C are in police custody and will be subject of investigation in connection with the complaint of their neighbor, X, that they were the members of the Akyat Bahay Gang who committed robbery in their house and who raped his daughter. Even before the investigation could start, A, who looks so bothered and remorseful, spontaneously admitted that he is the one who raped the daughter of X, and not B and C, although both the latter were his lookouts during the robbery. Upon hearing this, the police investigator made him sign for his admission. Is the admission of A admissible in evidence?

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A. B.

C. D. 10.

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Inadmissible because he made the admission without the assistance of a lawyer. Inadmissible because B and C were not present at the time that he made the admission and they did not have an opportunity to explain their side. Admissible because A signed his admission before the police investigator. Admissible because A’s statement is a spontaneous statement. It was not elicited through questioning by the authorities.

Mode of Conveyance and Explanation of Constitutional Rights during Custodial Investigation is not a mere ceremonial and perfunctory recitation Abu Tapang is a Tausog residing in Quiapo, Manila. Barely a week after arriving from Mindanao, he worked as a helper in a Muslim store. He is one of the suspects in a bombing incident. During an investigation, he was investigated in English and which was translated in Filipino. The police officer who was investigating him conveyed the constitutional rights to him in the following manner: “Salaysay na kusang loob na ibinibigay ni Abu Tapang kay Tinyente Jose Hugo sa himpilan ng Quiapo ngayong ika-22 ng Disyembre, 2000. Tagasiyasat: G. Hadji Pangatanga, ikaw ay nasa ilalim ng isang pagsisiyasat ukol sa nakaraang pambobomba sa Metro Manila. Bago kita tanungin ay nais kong malaman mo ang iyong mga karapatan sa ating bagong saligang batas at ito ay ang mga sumusunod: 1. Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sa pagsisiyasat na ito; 2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa pagsisiyasat na ito; at 3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaring gamitin laban o pabor sa iyo saan mang hukuman dito sa ating bansa. Tanong: Ngayon alam mo na ang iyong mga karapatan sa ating bagong saligang batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang katotohanan lamang sa pagsisiyasat na ito? Sagot: “Opo” Are the constitutional rights of Abu Tapang under Sec. 21, Article III, properly conveyed to him? A. It was not mentioned that the explanation of the constitutional rights to Abu Tapang were explained to him in a language he understands. If he does not speak or understand Tagalog,

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B.

C.

D.

the constitutional rights under Sec. 12, Article III, were not properly conveyed to him. Assuming that he does not speak or understand Tagalog or Filipino, the fact is he said “Opo” when he was asked “Ngayong alam mo na ang iyong karapatan sa ating bagong Saligang Batas, ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang katotohanan lamang sa pagsisiyasat na ito?” This means that the constitutional rights will properly conveyed to him. The investigation was conducted in English, but translated in Filipino. His constitutional rights are properly conveyed to him. Even if the investigation was translated in Filipino, the constitutional right of Hadji Pangatanga will not be effectively conveyed to him if he does not speak or understand Filipino.

11.

Can the Government take possession of one’s property before just compensation is given to A? A is the owner of a parcel of land subject of condemnation or expropriation proceeding by the government which has decided to take it and devote the same for urgent public use, as explained and proven during a public hearing in Congress. Can the government take possession of the said property before just compensation is given to A? A. Yes, by express provision of Section 9, Article III of the 1987 Constitution. B. Yes, because the need of the government to devote it for public use, is urgent. C. Yes, because besides the genuine necessity for expropriation, the question of necessity is a matter which is determined by Congress and beyond the court’s interference. D. Immediate possession of the property subject of condemnation or expropriation proceeding may be given to the government even before the financial ascertainment of just compensation and before just compensation is given to the plaintiff.

12.

Recovery of Expropriated Property. A’s property was already expropriated in 2004 by the government and a decision rendering just compensation was already promulgated. However, due to change of administration and successive calamities that ensued after that, compounded by several anomalies and other incidents that occupied the attention of the entire government, the full just compensation due and payable to A was not paid. The Government

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informed A that the payment is just a matter of time and which it is willing and able to pay. Can A recover possession of his property? A. A cannot recover possession of his property because a decision has already been rendered and what is left is just the actual payment which the government is willing to pay. B. The delay in the payment of just compensation has, in effect resulted to a situation where A has been deprived of his property without just compensation since 2004. More than six (6) years have already lapsed and it is no longer just to prolong the period of A’s deprivation. C. Non-payment of just compensations does not entitle A to recover possession of his property. D. It is the duty of the government, whenever it takes private property from private persons against their will, to facilitate the payment of just compensation. Failing in this duty, it is in keeping with justice and equity that A should be allowed to recover his property after the government has failed to pay within six (6) years from finality of judgment. 13.

Impairment of Obligation of Contract. ABC Systems Corporation was granted by the City of X a franchise to operate and maintain a CATV System (Cable Television System). Later, the NTC (National Telecommunication Commission) revoked the said franchise on the ground that under existing law, the power and authority to grant the said franchise is vested only in the NTC. ABC Systems Corporation claims that the ground relied upon by NTC is an impairment of obligation of contracts, particularly Section 10, Article III of the 1987 of Constitution which provides as follows: “No law impairing the obligation of contracts shall be passed.” Decide. A. The ground cited by NTC violates Section 10, Article III of the 1987 Constitution. B. At the time the franchise was granted, there was no law that prohibits the City of X to grant a franchise to ABC Systems Corporation. The fact that there was a law enacted much later does not affect the validity of the franchise, otherwise it is a clear impairment of a right and obligation arising from a valid and subsisting franchise. C. It is the righlt of the government to withdraw its recognition of a franchise because a franchise is merely a privilege, not a vested permanent right in favor of the holder of the franchise.

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D.

Only persons, associations, partnerships corporations or cooperatives granted a Provisional Authority or Certificate of authority by the NTC, may install, operate and maintain a cable television system or render cable television service within a service area.

14.

Rights during Custodial Investigation (Section 12, Article III of the 1987 Constitution). A. Said rights cannot be waived by the person under investigation for the alleged commission of an offense by express provision of law. B. Said rights may be waived but the waiver must be in waiting and made in the presence of counsel. C. All the said rights can be waived if the person under investigation for the commission of an offense requests it in writing and he declares formally to the police that it is to his advantage to do so. D. Only the right to remain silent and to be assisted by counsel can be waived, and in case they are waived, the waiver must be a writing and in the presence of counsel.

15.

Reclusion Perpetua. A. Reclusion perpetua is an imprisonment for life. B. Reclusion perpetua is an imprisonment for life but it may be decreased or reduced on account of good behavior. C. Reclusion perpetua is indefinite. D. Reclusion perpetua is an imprisonment with duration of 20 years and one day to forty (40) years. ARTICLE IV CITIZENSHIP

CITIZENS OF THE PHILIPPINES (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.) Q – What is citizenship? A – It is the status of being a citizen. In the popular and appropriate sense of the term, a “citizen” is one who, by birth, naturalization or otherwise, is a member of an independent political society, called a state, kingdom, or

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empire, and as such is subject to its laws and entitled to its protection in all his rights incident to that relation. Is birth an important element of citizenship? Yes, but it alone does not make a person a citizen of the country of his birth. What, if any, is the difference between citizenship and nationality? Citizenship is political in character, whereas nationality refers to a racial or ethnic relationship. In the field of Civil Law and Private International Law, the two terms have the same meaning, that is, the meaning of citizenship. What are the three kinds of citizens? Three kinds of citizens: 1. Natural born citizens – They are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. (Article IV, Section 2, 1987 Constitution) Under the second sentence of Section 2, those who elect Philippine citizenship in accordance with paragraph 3, Section 1 thereof, shall also be deemed natural-born citizens. 2. Naturalized citizens – They are citizens who become such through judicial proceedings. 3. Citizens by election – They are citizens who become such by exercising the option to elect a particular citizenship, usually within a reasonable time after reaching the age of majority. Is there a difference between a natural-born citizen and a native-born citizen? Yes, a natural-born citizen is a citizen referred to in Section 2, Article IV. A native-born citizen is one who was born in a country in which he is a citizen. A child born therefore to a Filipino father in Italy is a natural born citizen of the Philippines, but not a native-born Filipino citizen. Is it the place or ancestry that determines citizenship? What are the two theories to be applied for the purpose of determining citizenship? There are two theories, namely: 1. Jus Soli – Under this theory, a person is a citizen of the country where he was born. Example: A child born in the U.S. of Filipino parents has dual citizenship. He is considered a citizen of the U.S. because he was born in the U.S. He is also considered a Filipino citizen because his parents are Filipino citizens. The doctrine of jus soli is not applied in the Philippines. 2. Jus Sanguinis – Under this theory, one follows the citizenship of his parents. This is referred to as citizenship by blood. This doctrine is the one that is followed in the Philippines.

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Q – What are the different modes of acquiring citizenship? A – The different modes of acquiring citizenship are the following: 1. One can acquire citizenship on the basis of blood relationship following the jus sanguinis principle; 2. One can acquire citizenship on the basis of place of birth, following the jus soli principle; 3. A foreigner can be naturalized. Through naturalization, an alien is given the privilege of citizenship which is enjoyed by native born citizens. Q – What is the mode of acquiring citizenship which is recognized in the Philippines? A – The Philippines follows the jus sanguinis principle. COMPARISON 1987 Constitution Article IV, Section 1, to wit: (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;

1973 Constitution

1935 Constitution

They are enumerated as follows: (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;

Article IV, Section 1, to wit: (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.

(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

(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

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of

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accordance with law.

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the Philippines and, upon reaching the age of majority, elect Philippine citizenship. (5) Those who are naturalized in accordance with law.

Q – What is the basis of the statement that the Philippines follows the jus sanguinis principle? A – The basis in Section 1(2) of Article IV which says: “Those whose fathers or mothers are citizens of the Philippines.” Q – What is the meaning of this rule? A – This means that if a child is born (either under the 1987 or 1973 Constitution), and either his father or mother is a Filipino citizen at the time of his birth, the child is a Filipino citizen regardless of his place of birth outside the Philippines. Q – Does this rule apply to an illegitimate child of a Filipina mother? A – Yes, because the mother is a Filipino. Q – The parents of Jun are Mary Jane, a Filipina, and Bill, an American. Jun was born before the effectivity of the 1973 Constitution. Is Jun considered a Filipino under the 1987 Constitution? A – It depends. If in accordance with the 1935 Constitution, Jun elected Philippine citizenship upon reaching the age of majority, he can be considered a Filipino citizen under the 1987 Constitution. If Jun did not elect Philippine citizenship upon reaching the age of majority, he cannot be considered a Filipino citizen under the 1987 Constitution and even under the 1973 Constitution. REASON: Because children born prior to January 17, 1973, are governed by Section 1(4) of the 1935 Constitution which provides as follows: “Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship.” Q – Same example. When should Jun elect Philippine citizenship? A – There is no specific time which is provided by the 1987 Constitution but this has been construed as a reasonable time “upon reaching the age of majority.” Q – Same example. What should Jun do to manifest his desire to elect Philippine citizenship? A – He must execute a sworn statement before any officer authorized to administer oaths, and thereafter, file it with the nearest civil registry, and

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accompanied by an oath of allegiance to the Constitution of the Republic of the Philippines. Are there other ways to manifest one’s desire to elect Philippine citizenship? If one, for instance, actively fought the Japanese invading forces and actively helped our government in many ways against Japan, this may be recognized as a sufficient gesture to prove that he really desired to be a Filipino. This has to be submitted to the appreciation of the court. Same example above except that Mary Jane had lost Philippine citizenship at the time of birth of Jun. Can the latter elect Philippine citizenship upon reaching the age of majority? Jun cannot elect Philippine citizenship under the afore-quoted provision. He may do so only through naturalization. What is naturalization? In the strict sense, it is a judicial process of acquiring citizenship of another country. In a broad sense, it may mean not only the judicial process but also the acquisition of another citizenship by such acts like marriage to a citizen, or the exercise of the option to elect a particular citizenship. What are the attributes of naturalization? 1) The opportunity of an alien to become a citizen by naturalization is only a matter of grace, favor or privilege extended to him by the state. It is not a matter of right. (Kim vs. Republic, L-6894, April 27, 1955) 2) The only right which an alien has to become a citizen is that which is conferred on him by statute, and to acquire this right he must strictly comply with all of the statutory conditions and requirements. (Lee Ng Lim vs. Republic, L-20151, March 31, 1965) 3) Naturalization demands allegiance to our Constitution, our laws and government. (Sec. 11, CA 473, as amended) 4) The conditions for naturalization are laid down by Congress. Courts cannot change or modify them. (Bautista vs. Republic, L-3353, December 29, 1950) What are the laws and procedures of naturalization that have been used in the Philippines? They are the following: 1. Through a judicial process following the Revised Naturalization Law (CA 473, June 17, 1939) 2. Through an administrative process following Letter of Instruction No. 270 promulgated by President Ferdinand E. Marcos on April 11, 1975, which took effect for a limited period.

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3.

Through special naturalization law, or naturalization by direct legislative action. This is within the discretion of the legislature. It may be granted to aliens in recognition of their outstanding contributions to the country. 4. Through a mass naturalization law (which was applied by virtue of the Phil. Bill of 1902) Q – What are the requirements to support an application for naturalization under the Revised Naturalization Law? A – SUBSTANTIVE REQUIREMENTS The application must comply with the substantive requirements such as the following: (a) AGE (petitioner must not be less than 21 years of age at the date of the hearing of the petition) (b) RESIDENCE (10 years of actual, substantial, and continuous residence. Reduced to 5 years: (1) If applicant has honorably held office under the Government of the Philippines. (2) If he has established a new industry or introduced a useful invention in the Philippines. (3) If he is married to a Filipina. (4) If he has been engaged as a teacher in a public or recognized private school not established for the exclusive institution of children of persons of a particular nationality, or race in any of the branches of education or industry for a period of two years. (5) If he was born in the Philippines. (Section 3, C.A. 473, as amended.) (c) GOOD MORAL CHARACTER AND BELIEF IN THE PRINCIPLES UNDERLYING THE PHILIPPINE CONSTITUTION. (This is determined by the standards of morality prevailing in this country.) Examples of improper conduct: 1. 2. 3. 4. 5. 6.

Failure to pay taxes Affiliation with the communist party or any subversive organization Concubinage Desertion of a common law wife to be able to marry another woman Playing prohibited games False statement that the applicant has never previously filed any petition for naturalization

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(d)

(e)

(f)

PROPERTY QUALIFICATION OR LUCRATIVE OCCUPATION. (The term “lucrative” means that “there must be an appreciable margin of income over expenses in order to provide for adequate support in the event of unemployment, sickness or disability to work.”) LANGUAGE REQUISITE (the petition must “be able to speak and write English or Spanish and anyone of the principal Philippine languages.” (Section 2, Naturalization Law) ENROLLMENT OF MINOR CHILDREN OF SCHOOL AGE (In order that the children will learn and imbibe the customs, traditions and ideals of Filipinos.)

PROCEDURAL REQUIREMENTS 1.

Q –

A – Q – A –

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The applicant must comply with the following procedural requirements: (a) The applicant must file a declaration of intention to become a Filipino citizen, unless he is exempted from this requirement. (Sections 5 and 6, CA 473) (b) The petition for naturalization must be filed. (Section 8, CA 473) (c) The petition will be heard. (Section 9, CA 473) (d) If the petition is approved, there will be a rehearing after two years after the promulgation of the judgment awarding naturalization. (e) The applicant will take the oath of allegiance to support and defend the Constitution and the laws of the Philippines. (Section 11, CA 473) Mr. Lucio Yu and Mary Que, both Chinese, got married. Out of their marriage, they have three children Jun, Jane, and Jack (6, 4, and 2 years old, respectively). Mr. Lucio Yu applied for naturalization. Possessing all the qualifications and none of the disqualifications, his application was finally approved. Is he already a Filipino citizen? Not yet. He has yet to take the last step which is to take an oath of allegiance to support and defend the Constitution and the laws of the Philippines. If that step is complied with, is Mary Que and children Jun, Jane and Jack Filipino citizens? Jun, Jane, and Jack became Filipino citizens. Mary Que becomes a Filipino citizen provided she shows in an administrative procedure for cancellation of her alien certificate of registration, that she has none of the disqualifications found in C.A. 473, Section 2. (Burca vs. Republic, 51 SCRA 248, June 15, 1973) Who are exempted from making a declaration of intention? 1) Persons born in the Philippines and who have received their primary and secondary education in public schools or private schools

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recognized by the Government, and not limited to any race or nationality; Those who have resided continuously in the Philippines for a period of thirty years or more before filing their application; 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.

Q – The court approves the petition of an applicant and issued a decision. Is this decision already executory? When will it be executory? Why? A – No. It will be executory only after two years from its promulgation. REASON: Certain conditions will have to be fulfilled and proper proof thereof must be presented. It must be proved that during the intervening time, the applicant: (a) Has not left the Philippines. (b) Has dedicated himself continuously to a lawful calling or profession. (c) Has not been convicted of any offense or violation of government promulgated rules. (d) Has not committed any act prejudicial to the nation or to any government announced policies. Q A Q A

– – – –

What is the purpose of the two year period? The purpose of the two-year period is to place the petitioner on probation. When does that period start? The period starts from the time the judgment becomes final, subject to the following limitations: 1. IF THE GOVERNMENT APPEALS – The period starts from the time the appellate court promulgates its judgment awarding naturalization. 2. IF THE GOVERNMENT DOES NOT APPEAL – The period begins from the time the judgment of the trial court is promulgated. REASON: It is only upon final judgment that the authorities concerned will know that naturalization is about to be granted. From that time therefore, a close scrutiny of the petitioner’s conduct will be made. (Chaustinek vs. Anti-Chinese League and Fernandez, 50 O.G. 1499) Q – What is the effect of the failure of the applicant to pass successfully the two-year probationary period? A – It results in the loss of whatever rights he may have acquired under the decision authorizing his naturalization because the said decision was rendered nullified by a subsequent one denying the grant of the certificate of naturalization.

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Q – Mr. Ong’s application for naturalization was granted last July 8, 1999. On July 8, 2000, the government discovered that Mr. Ong is a financier of gambling activities in Davao, and immediately raised a question as to Mr. Ong’s qualification. Mr. Ong’s counsel claimed that the government is already estooped to do so because his client’s petition for naturalization has already been granted on July 8, 1999? Is the said contention valid? A – No. The government is not estooped to question Mr. Ong’s qualification even after his petition for naturalization was granted. REASON: A naturalization case is not a judicial adversary proceeding. Hence, the decision therein is not res judicata as to any matter which would support a judgment canceling the certification of naturalization. (Tan vs. Republic, 19 SCRA 797) Q – Can the said question be raised when the applicant is about to take his oath? A – Yes. (Lim Hok Albano vs. Republic, L-10912, October 31, 1958) Q – Can it be raised on appeal? A Yes. (Ong Ching Buan vs. Republic, L-15691, March 27, 1961) LEAVING THE PHILIPPINES Q – During the two-year probationary period, can an applicant whose petition was granted, leave the Philippines? A – No. REASON: During this period, the physical presence of the petitioner, not mere legal residence, is required. Otherwise, the government will have no opportunity to observe and scrutinize his conduct. Moreover, if he is not in our country, he cannot dedicate himself to a lawful calling and profession. Q – Is the said rule absolute? A – No. In certain cases, the physical absence from the Philippines may be excused such as in the following cases: 1. When the petitioner leaves for abroad on a government mission; 2. When the petitioner has been kidnapped or forcibly removed; 3. If he has to undergo an operation to save his life. (Uy vs. Republic, 52 O.G. 5874) NON-CONVICTION OR VIOLATION Q – Is it necessary that the offense or violation was committed during the two-year probationary period? A – Not necessarily. If the commission was before the probationary period, the petitioner will not be allowed to take his oath. (Tiu San vs. Republic, L-7301, April 20, 1955)

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Q – If the commission was within the time specified in the law, but conviction has not yet taken place because of the pendency of the case in court, can the petitioner concerned take his oath? A The oath-taking will be postponed until after the final adjudication of the charges against the petitioner. If he is acquitted, he can take his oath. If he is convicted, he cannot take his oath. (Ching Leng vs. Republic, L-6828, May 10, 1954) Q – Is conviction for violation of a Municipal Ordinance during the twoyear probationary period a ground to prevent the oath-taking? A It will prevent the oath-taking. REASON: A municipal ordinance is a government-promulgated rule and the law does not make a distinction between acts mala in se and acts mala prohibita. (Tiu San vs. Republic, L-7301, April 20, 1955) Q – What are the effects of naturalization? A – (a) It vests citizenship on the wife if she herself may be lawfully naturalized (as interpreted by the Supreme Court in Moy Ya Lim Yao vs. Commissioner of Immigration, 41 SCRA 292) (b) Minor children born in the Philippines before the naturalization shall be considered citizens of the Philippines. (c) Minor child born outside the Philippines who was residing in the Philippines at the time of naturalization shall be considered a Filipino citizen. (d) Minor child born outside the Philippines before parent’s naturalization shall be considered Filipino citizens only during minority, unless he begins to reside permanently in the Philippines. (e) Child born outside the Philippines after parent’s naturalization shall be considered a Filipino, provided that he registers as such before any Philippine consulate within one year after attaining majority age, and takes his oath of allegiance. Q – What are the grounds to denaturalize one who has already been issued a naturalization certificate? A – (a) The naturalization certificate is obtained fraudulently or illegaly. The Supreme Court ruled in Republic vs. Li Yao, 214 SCRA 748, that a certificate of naturalization may be cancelled if it is subsequently discovered that the applicant obtained it by misleading the court upon any material fact. Availment of a tax amnesty does not have the effect of obliterating his lack of good moral character. (b) If, within 5 years, he returns to his native country or to some foreign country and establishes residence there (Provided, That the 1-year stay in native country, or 2-year stay in a foreign country shall

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(c) (d)

(e)

be prima facie evidence of intent to take up residence in the said country.) The petition was made on an invalid declaration of intention. The minor children failed to graduate through the fault of the parents either by neglecting to support them or by transferring them to another school. Allowed himself to be used as a dummy.

PREJUDICIAL ACT OR ACT CONTRARY TO PUBLIC POLICY Q – A petitioner’s application has been granted. Later, the government discovered that said petitioner committed an act contrary to government announced policies. Will this prevent the petitioner to take his oath? A – The court may only postpone the taking of the oath until the criminal case has been decided. (Ching Leng vs. Republic, L-6268, May 10, 1954) Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship. Those who elect Philippine Citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Q – What are the two kinds of natural-born citizens under Section 2? A – They are the following: 1) Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship; and 2) Those who elect Philippine Citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Q – Lucio Teng, a pure Chinese, married Maria Bonifacio, a natural-born Filipino citizen, sometime in 1929. After several years of marriage, they finally have a child who was born only on December 25, 1936. The said child was baptized as Crisanto as a gesture of gratitude to Lord Jesus. To comply with Lucio’s promise to Maria that he will apply for naturalization after they have a child, he applied for naturalization in 1937. He took his oath of allegiance in 1939. In 1965, Crisanto graduated as class valedictorian in the San Beda College of Law. While Crisanto’s papers were being processed in preparation for the bar examinations, the following questions surfaced: a) Did Crisanto become a Filipino Citizen by the mere fact that his father, Lucio was naturalized in 1937?

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b) c)

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Is it still necessary for Crisanto to elect Philippine Citizenship? Is Crisanto a natural-born citizen?

ANSWERS: a) b) c)

Crisanto, a minor child of Lucio and Maria at the time that Lucio took his oath of allegiance, became a citizen of the Philippines. There is no need for Crisanto to elect Philippine citizenship because he is already a Filipino. Crisanto is a natural-born citizen under Section 2.

Section 3. Philippine Citizenship may be lost or reacquired in the manner provided by law. Q – In general, in what ways can one lose Philippine citizenship? A – Loss of citizenship may take place voluntarily or involuntarily. Voluntary renunciation of citizenship is known as expatriation (the privilege of renouncing allegiance to one’s country and becoming a citizen of another country). Involuntary renunciation takes place when a person is deprived of his citizenship by competent authority in accordance with law. Q – Under our law, what are the grounds for losing Philippine citizenship? A – They are the following: a) By naturalization in foreign countries; b) By express renunciation of citizenship; c) By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining twenty-one years of age or more: Provided, however, that a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; d) By rendering service to, or accepting commission in the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission, in the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (1) The Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (2) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines; Provided, That the Filipino citizen concerned, at the time of

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rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country: and provided finally, That any Filipino citizen who is rendering service to, or is commissioned in the armed forces of a foreign country under any of the circumstances mentioned in paragraph (1) or (2), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of said foreign country. Upon his discharge from the service of said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen; e) By cancellation of the certificate of naturalization; f) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and g) In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force in her husband’s country, she acquires his nationality. How is Philippine citizenship reacquired? Philippine citizenship may be reacquired in the following manner: 1) By naturalization, provided, that the applicant possesses none of the disqualifications prescribed for naturalization; If reacquisition of Philippine citizenship is done through naturalization, what is required? The following are required: 1. That the applicant be at least twenty-one years of age and shall have resided in the Philippines at least six (6) months before he applies for naturalization; 2. That he shall have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines, in his relation with the constituted government as well as with the community in which he is living; and 3. That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject. (Section 3, CA No. 63) 4. By repatriation of deserters of the Army, Navy or Air Corps: Provided, That a woman who lost her citizenship by reason of her

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marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status; and By direct act of the National Assembly. (Section 2, CA No. 63)

Q – Who may be repatriated? A – The following may be repatriated: 1. Deserters of the Armed Forces of the Philippines; and 2. Women who lost their citizenship by reason of marriage to aliens, after the termination of the marital status. Q – How is repatriation carried out? A – By merely taking the necessary oath of allegiance to the Republic of the Philippines and registering the same in the civil registry. (Sections 2 and 4, CA No. 63) OLD CASES LABO VS. COMELEC, G.R. NO. 10511, JULY 3, 1992 Q – Ramon Labo, Jr., believing that he is a Filipino citizen, launched his candidacy for Mayor of Baguio City in the May 1, 1992, elections. His opponent, Robert Ortega, filed a disqualification proceeding against Labo seeking to cancel Labo’s certificate of candidacy on the ground that Labo made a false representation when he stated therein that he is a “natural born” citizen of the Philippines. Labo cited the 1980 US case of Vance vs. Terrazas (444 US 252) wherein it was held that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of evidence. Labo contends that no finding was made either by the Commission on Immigration or the Comelec as regards his specific intent to renounce his Philippine citizenship. Is the said contention tenable? A – The Supreme Court said that Labo failed to submit a scintilla of proof to shore his claim before this Court that he has indeed reacquired his Philippine citizenship. He relies in the US case of Vance vs. Terrazas (supra). Suffice it to state that petitioner has already pleaded Vance in his motion for reconsideration in Labo vs. Comelec. Having been previously passed upon the Court sees no pressing need to re-examine the same and make a lengthy dissertation thereon. At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be any, to prove his reacquisition of Philippine citizenship either by this Court or the Comelec. On this score alone, we find no grave abuse of discretion committed by respondent Comelec in canceling Labo’s certificate of candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo vs. Comelec.

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FRIVALDO VS. COMELEC, ET AL. G.R. NO. 87193, JULY 21, 1989 Q – Frivaldo was naturalized as a citizen of the United States in 1963 per certification from the United States District Court of California. Frivaldo admitted that he was naturalized in the United States but claimed that he was forced to embrace American citizenship to protect himself from the persecution of the Marcos Government. Was the claim of Frivaldo sustained by the Supreme Court? A – The court found Frivaldo’s claim of involuntariness unacceptable. In declaring both Frivaldo and Labo not citizens of the Philippines, the court considered the fact that by their own admissions, they are indubitably aliens, no longer owing any allegiance to the Republic of the Philippines since they have sworn their total allegiance to a foreign state. They could have easily acquired Philippine citizenship through the process of repatriation but they did not. (G.R. No. 86564, August 1, 1989, Frivaldo vs. Comelec, et al., G.R. No. 87193, July 21, 1989) Q – In the case of Labo, he raised a new argument that he has reacquired his Filipino citizenship by citing his application for reacquisition of Philippine citizenship filed before the Office of the Solicitor General pursuant to PD 725 and Letter of Instruction No. 270 by the Solicitor General. Was this argument sustained by the Supreme Court? A – The said alleged application for reacquisition of Philippine citizenship had not yet been acted upon by the Special Committee on Naturalization. Indeed, such fact is even admitted by petitioner. In the absence of any official action or approval by the proper authorities, a mere application for repatriation does not, and cannot, amount to an automatic reacquisition of the applicant’s Philippine citizenship. Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. Q – Maria Aguinaldo got married to Bill Blue, an American. Does she retain her Philippine citizenship after her marriage to Bill Blue? A – Yes, by express provision of Section 4 unless Maria applies for naturalization to be an American citizen. When this happens, she is considered to have renounced her Philippine citizenship. Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Q – Does Section 5 prohibit dual citizenship?

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A – Section 5 says that dual allegiance of citizenship is inimical to national interest without saying that the same is expressly prohibited. It is not dual citizenship which is mentioned in Section 5 but “dual allegiance.” It is this which is considered inimical to national interest. NEW CASES: LOPEZ VS. COMELEC AND TESSIE P. VILLANUEVA G.R. NO. 182701, JULY 23, 2008 Citizenship; R.A. 9225; Qualifications/conditions before those who re-acquired Filipino citizenship may run for a public office. The filing of a certificate of candidacy is not in compliance with the provisions of R.A. 9225, ergo, it is not an effective renunciation of any and all foreign citizenship FACTS: Petitioner Eusebio Eugenio K. Lopez was a candidate for Barangay Chairman of Bagacay, San Dionisio, Iloilo City in the synchronized Barangay and Sangguniang Kabataan Elections held on October 29, 2007. A petition for disqualification was filed by Tessie Villanueva against the petitioner on the ground that he is an American citizen, hence, ineligible from running for any public office. The petitioner argued that he is a dual citizen, a Filipino and at the same time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as the Citizenship Retention and Re- acquisition Act of 2003 and that his filing of a certificate of candidacy is an effective renunciation of his foreign citizenship. After election, where the petitioner emerged as winner, COMELEC issued a resolution granting the petition filed by Villanueva and disqualifying the petitioner from assuming the office of Barangay Chairman. Hence, this petition imputing grave abuse of discretion on the part of the COMELEC for issuing the assailed resolution. ISSUE: Is the filing of a certificate of candidacy an effective renunciation of foreign citizenship in compliance with the requirements of Section 5(2) of R.A 9225? HELD: Petition is dismissed. R.A. No. 9225 expressly provides for the conditions before those who re-acquired Filipino citizenship may run for a public office in the Philippines. Section 5 of the said law states:

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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: xxxx (2) Those seeking elective public office 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. R.A. No. 9225. Explicitly provides that should one seek elective public office, he should first “make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.” Petitioner failed to comply with this requirement. It is true that respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate General’s Office in Los Angeles, California; the same is not enough to allow him to run for a public office. R.A. No. 9225 mandates that a candidate with dual citizenship must make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. There is no evidence presented that will show that respondent complied with the provision of R.A. No. 9225. Absent such proof, respondent cannot run for Barangay Chairman of Barangay Bagacay. LOIDA NICOLAS-LEWIS, ET AL. VS. COMELEC G.R. NO. 162759, AUGUST 4, 2006 A non-resident may, as an exception to the residency requirement in the preceding section, be allowed to vote. R.A. No. 9225 does not provide that “duals” actually establish residence and physically stay in the Philippines first before they can exercise the right to vote. Petitioners were successful applicants for reacquisition of the Philippine Citizenship under Republic Act No. 9225 (Citizenship Retention and ReAcquisition Act of 2003). They sought registration and certification as “overseas absentee voter” from the Comelec. However, the Comelec denied their request stating that they have no right to vote yet due to lack of one-year residency requirement mandated by the Constitution. It averred that the “duals” upon

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renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently acquired a second citizenship then, “duals” must for purposes of voting, decisively and definitely establish their domicile through positive acts. ISSUES: (1)

(2)

Whether or not the petitioners who have retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. No. 9189. Whether or not the “duals” can enjoy their right to vote only if they meet the requirements of Sec. 1, Art. V of the Constitution, R.A. 9189 and other existing laws.

RULING: 1. Yes. Sec. 1, Art. V prescribes residency requirement as a general illegibility for the right to vote. Sec., Art. V authorizes Congress to devise a system wherein an absentee may vote. This implies that a non-resident may, as an exception to the residency requirement in the preceding section, be allowed to vote. Following this mandate, Congress enacted R.A. 9189 or the Overseas Absentee Voting Act of 2003. 2. R.A. No. 9225 does not provide that “duals” actually establish residence and physically stay in the Philippines first before they can exercise the right to vote. In fact, Sec. 5(1) of R.A. 9225 grants the same right of suffrage as that granted an absentee voter under R.A. 9189. This law aims to enfranchise all overseas Filipinos as much as possible, who are qualified to vote, except for the residency requirements required of an ordinary voter under ordinary conditions. Likewise, the Court noted that the expanded thrust of R.A. 9189 includes the next generation of duals. This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225. It is very likely that the next generations of duals may avail themselves the right to enjoy full civil and political rights under Sec. 5 of the Act. CORDORA VS. COMELEC G.R. NO. 176947, FEBRUARY 19, 2008 A natural-born Filipino, who also possesses American Citizenship having been born of an American father and a Filipino mother, IS EXEMPT from the twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship under the Citizenship Retention and Reacquisition Act (RA 9225) before running for public office.

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The Supreme Court held that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to American citizenship. The fact that Tambunting had dual citizenship did not disqualify him from running for public office. It distinguished dual citizenship which is involuntary, from dual allegiance that refers to a situation in which a person simultaneously owes loyalty by some positive act to two or more states. Q – Is dual citizenship constitutional? A – R.A. 9225 which allows dual citizenship to a natural-born Filipino Citizen who has lost Philippine Citizenship by naturalization in a foreign country, is constitutional as a mode of re-acquiring Filipino Citizenship. Whether they retain foreign citizenship is for the foreign country to determine. (Calilung vs. Datumanong, G.R. No. 60869, May 11, 2007) Q – Mr. A is a green card holder permanently residing in the U.S. Is he eligible to hold public office? A – No. A green card holder is disqualified from holding elective office unless he waives his permanent resident status in the U.S. (Ugdoracion, Jr. vs. Comelec, G.R. No. 179851, April 18, 2008) Q – Mr. A is a Filipino Citizen who is a permanent resident in a foreign country. Can he register as an absentee voter if he executes an affidavit stating his declaration that he will resume actual physical permanent residence in the Philippines within two (2) years? A – Yes, the residency requirement is not applicable to Filipinos abroad. When Mr. A. made the said declaration in his affidavit, he merely expressed his intention that he has not lost his domicile in the Philippines. (Macalintal vs. Commission on Elections, G.R. No. 157013, July 10, 2003) MULTIPLE CHOICE QUESTIONS 1.

Effect of approval of an Application for Naturalization Mr. Lucio Yu and Mary Que, both Chinese, got married. Out of their marriage, they have three children Jun, Jane and Jack (6, 4, and 2 years old, respectively). Mr. Lucio Yu applied for naturalization. Possessing all the qualifications and none of the disqualifications, his application was finally approved. Is he already a Filipino citizen? A. Yes, because his application was already approved. B. Yes, but he will be required to take an oath of allegiance.

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Yes, subject to the requirement that Lucio Yu should first take an oath of allegiance to support and defend the Constitution and laws of the Philippines. He is not yet a Filipino citizen because he has yet to take the last step which is to take an oath of allegiance to support and defend the Constitution and the laws of the Philippines.

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When does a decision in a Petition for Naturalization becomes executory? X filed a petition for naturalization. The court approves the petition and issued a decision. A. The decision becomes executory because the petition has already been approved. B. The decision becomes executory because there was already a decision that was rendered by the court. C. The decision will not be executory until after the promulgation of the same. D. The decision will be executory only after two years from its promulgation.

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Citizenship Retention and Re-acquisition Act of 2003. By virtue of Republic Act No. 9225, otherwise known as the Citizenship Retention and Re-acquisition Act of 2003, X becomes a dual citizen. Thereafter, he filed his certificate of candidacy as Mayor, of X Municipality. Y, the other mayoralty contender, filed a petition for disqualification against X on the ground that he is still an American citizen. X interposed the defense that having filed his certificate of candidacy as mayor, he has already renounced his foreign citizenship. A. X is already a dual citizen and he is not disqualified to seek public office in the Philippines. B. X effectively renounced his American citizenship when he filed his certificate of candidacy. C. X re-acquired his Filipino citizenship by virtue of R.A. 9225, and he is qualified to such public office in the Philippines. D. Although X is already a dual citizen, he should make a personal and sworn renunciation of his foreign citizenship before any public officer authorized to administer oath.

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Effect of Dual Citizenship. A, B, C and D were successful applicants for reacquisition of Philippine citizenship under Republic Act No. 9225 (Citizenship Retention

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and Re-acquisition Act of 2003). All of them sought registration and certification as “overseas absentee voter” from the COMELEC, but the latter refused their request, and in addition, the COMELEC ruled that before they are allowed to vote, they should actively establish residence first before they can exercise the right to vote. A. B. C. D.

They are dual citizens already and they have a right to vote. Dual citizens must, for purposes of voting, decisively and definitely establish their domicile through positive acts. Unless they have a one-year residency requirement, they have no right to vote yet. Republic Act 9225 does not provide that “duals” actually establish residence and physically stay in the Philippines first before they can exercise the right to vote. ARTICLE V SUFFRAGE

Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Q – What is suffrage? A – Suffrage is the right to vote in elections. It is the expression of the sovereign will of the people. In a democracy, “the people, combined, represent the sovereign power of the State. Their sovereign authority is exercised through the ballot of the qualified voters in elections held from time to time by means of which they choose their officials for definite and fixed periods, and to whom they entrust for the time being as their representatives the exercise of the powers of the government.” (Garchitorena vs. Crescini, 39 Phil. 258, 263 [1918]). As mandated by our Constitution, it is both a right and a privilege. Q – Why is suffrage both a right and a privilege under the Constitution? A – It is a right because it is the expression of the sovereign will of the people. (Lacson vs. Posadas, 72 SCRA 468 [1976]) It is a privilege because its exercise is granted not to everybody but only to “such persons or class of persons as are most likely to exercise it for the purpose of public good.” (People vs. Corral, 62 Phil. 945, 948 [1936])

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Q – What is the basis of the right of suffrage? A – 1) The right of suffrage is predicated upon the theory that the people who bear the burden of government should share in the privilege of choosing the officials of that government. (Macolor vs. Amores, 94 Phil. 1, 7 [1953]) 2) The people in clothing a citizen with the relative franchise for the purpose of securing a consistent administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. Q – What is the importance of safeguarding the right of suffrage? A – “A republic then to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted. Only thus can they be really looked upon as the ultimate source of established authority.” (Bailles vs. Cabili, 27 SCRA 113, 121-122 [1969]) Q – Who may exercise suffrage? A – Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. Q – What is the rationale for lowering the age to 18 years old? A – It is a reality that majority of voters in our country are young people who are not only actively involved in community affairs but likewise actively involved in both local and national issues affecting not only a particular community but the country in general. Q – What is residence? A – As used in election law – The term “residence,” as used in the Election Law, is synonymous with “domicile,” which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention. (Nuval vs. Guray, 52 Phil. 651) This is the same definition in Evangelista vs. Santos (86 Phil. 837). It is the place where one habitually resides to which when he is absent, he has the intention of returning. However, the words “residence” and “domicile,” though often used interchangeably, have distinct meanings in strict legal parlance. The former denotes permanency of occupation, whereas domicile is residence coupled with intention to remain for an unlimited time. (Uytengsu vs. Republic, 95 Phil. 890)

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Q – Who are not qualified to vote under the Election Code? A – The following persons shall not be qualified to vote: (a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less than one year, such disability not having been removed by plenary pardon: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five years after service of sentence. (b) Any person who has been adjudged by final judgment by competent court of having violated his allegiance to the Republic of the Philippines. (c) Insane or feeble-minded persons. Q – What is the difference between residence and domicile? A – Residence is acquired by living in a place, whereas domicile can exist without actually living in a place. The important thing for domicile is that, once residence has been established in one place, there should be an intention to stay there permanently, even if residence is also established in some other place. Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.) Q – What is the responsibility of Congress as mandated by Section 2? A – 1) The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. 2) The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. ARTICLE VI LEGISLATIVE DEPARTMENT Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. Q – What is legislative power? A – It is the power to propose, enact, amend and repeal laws. This power is vested in Congress.

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Q – What is vested in Congress? A – The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. However, the Congress also performs powers of nonlegislative nature such as the following: 1. Power to confirm presidential appointments. (Section 16, Article VII) 2. Power of impeachment. (Section 3, Article XI) 3. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment. (Section 3[4], Article XI) 4. The Senate shall have the sole power to try and decide all cases of impeachment. (Section 3[6], Article XI) 5. Power to declare the existence of a state of war. (Section 23[1], Article VI) 6. Power to concur or confirm an amnesty granted by the President. (Section 19, 2nd paragraph, Article VII) 7. Power to canvass the votes based on the return of every election for President and Vice-President. (Section 4, 4th paragraph, Article VII) 8. Power to propose amendment or revision of the Constitution upon a vote of three-fourths of all the members of the Congress. (Section 1, Article XVII) 9. Power to ratify treaties granted to the Senate. (Section 21, Article VII) Q – It was just mentioned that “legislative power is vested in Congress except to the extent reserved to the people by the provision on initiative and referendum.” What is the provision on initiative and referendum being referred to? A – They are the following: 1. Section 32, Article VI, which provides as follows: “Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative

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district must be represented by at least three per centum of the registered voters thereof.” 2. Q – A –

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Republic Act No. 6735, otherwise known as An Act Providing for a System of Initiative and Referendum. What is initiative? It is the power of the people to propose amendments to the Constitution or to propose or enact legislation through an election called for the purpose. (Section 3[a], R.A. 6735) What is referendum? It is the power of the electorate to approve or reject legislation through an election called for the purpose. (Section 2[c], R.A. 6735) What is the difference between referendum and plebiscite? Referendum is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people for their consideration, the calling of which is derived from or within the totality of the executive power of the President. It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex-convicts. A plebiscite, on the other hand, involves the constituent of those citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. Literacy, property or any other substantive requirement is imposed. It is generally associated with the amending process of the Constitution, more particularly the ratification aspect. (Sanidad vs. Commission on Elections, 73 SCRA 333)

INITIATIVE Q – What are the three (3) systems of initiative? A – There are three (3) systems of initiative, namely: 1. Initiative on the Constitution – which refers to a petition proposing amendments to the Constitution. 2. Initiative on Statutes – which refers to a petition to enact a national legislation. 3. Initiative on Local Legislation – which refers to a petition proposing to enact a regional, provincial, city or municipal or barangay law, resolution or ordinance. (Section 3[a], R.A. 6735) Q – What are the two (2) kinds of referendum? A – They are:

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Referendum on Statutes – Which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress. Referendum on local laws – Which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (Sec. 2[c], R.A. 6735)

LIMITATIONS TO INITIATIVE ON REFERENDUM PETITION Q – What cannot be the subject of an initiative or referendum petition? A – 1) No petition embracing more than one subject shall be submitted to the electorate. 2) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be the subject of referendum until ninety (90) days after their effectivity. (Sec. 10, R.A. 6735) LOCAL INITIATIVE Q – What is local initiative? A – A petition filed with the Regional Assembly or local legislative body, by not less than 2,000 registered voters in case of autonomous regions, 1,000 in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, proposing the adoption, enactment, repeal or amendment of any law, ordinance or resolution. (Sec. 13, R.A. 6735) Q – What are the limitations on local initiative? A – 1) The power of local initiative shall not be exercised more than once a year; 2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact; and 3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative. INITIATIVE TO AMEND THE CONSTITUTION, POPULARLY KNOWN AND REFERRED TO AS PEOPLE’S INITIATIVE Q – What is people’s initiative? A – Initiative is the power of the people to propose amendments to the Constitution, or to propose and enact legislations through an election called for the purpose.

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What are the requirements and limitations to people’s initiative? Already answered and discussed in Chapter I. What are the contents of the said petition? Already answered and discussed in Chapter I. Who supervises the conduct of initiative or referendum? The Commission on Elections. (COMELEC) (Section 8, R.A. 6735) What shall the Comelec do upon receipt of the said petition? Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or the referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission on Elections of the sufficiency of the petition. When will the amendment to the Constitution proposed through People’s Initiative, be effective? The proposition in an initiative on the Constitution will become effective if approved by a majority of the votes cast in the plebiscite as of the day of the plebiscite. Is the decision of the Comelec on the sufficiency of the petition on initiative subject to judicial review? Yes, it may be appealed to the Supreme Court within thirty (30) days from notice thereof. (Section 12, R.A. 6735) Is the right of the people to directly propose amendments to the Constitution self-executing? It is not self-executing. Congress shall provide for the implementation of the exercise of this right and an enabling law is, therefore, necessary. Can proposed amendments to the Constitution be submitted at a plebiscite which is scheduled on the same day as the regular elections? In Gonzales vs. Commission on Elections (21 SCRA 774), the petitioner questioned the validity of the submission of some proposed amendments to the Constitution at a plebiscite which is scheduled on the same day as the regular elections. It was the contention of the petitioner that it being the same day when the regular elections shall be held, the people would have more interest on the election issues rather than on the proposed amendments to the Constitution. The Supreme Court, however, did not uphold the said contention and held that xxx “The circumstance that the previous amendment to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It

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does not negate its authority to submit proposed amendments for ratification in general elections.” Is the power to amend or revise the Constitution included in the general grant of legislative power to Congress? The power to amend or revise the Constitution is not included in the general grant of legislative power to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a Republican State. It cannot be exercised by Congress unless expressly granted to it in the Constitution. Congress may propose amendments to the Constitution merely because the same expressly grants such power. Thus, when exercising the same, it is said that the Senators and Members of the House of Representatives act, not as Members of Congress, but as component elements of a constituent assembly. When acting as such, the Members of the Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution – they are the very source of all powers of government, including the Constitution itself. (Gonzales vs. Commission on Elections, 21 SCRA 774) Is an amendment or revision and ratification of the Constitution a justiciable question? It is a justiciable question. (Majority view in Javellana vs. Executive Secretary, et al., L-36142, March 31, 1973). In Sanidad vs. Comelec (supra), the Court held that the amending process, both as to proposal and ratification raises a justiciable question. Said the Court in Sanidad: “The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. This is specifically true in cases where the power of the President to initiate the amending process by a proposal of amendment, a function normally exercised by the legislature, is seriously doubted.”

Q – Can the Constitution be validly amended by “transposition”? A – No. The Constitution can only be validly amended by the three (3) modes explicitly enumerated in Sections 1 and 2, Article XVII. Amendment by transposition is not one of them, hence, impermissible. (Bautista vs. Salonga, 172 SCRA 160, April 13, 1989) Q – Is it possible that the procedural requirements for amendment or revision of the Constitution are not complied with, and yet, it is considered validly ratified? A – The majority view in Javellana vs. Executive Secretary confirmed that this is possible. The dispositive portion of the decision in the said case states:

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“Accordingly, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makaisar, Antonio and Esguerra with the four dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. (Underlining Supplied) Q – Explain the following: (a) Original legislative power; (b) Derivative legislative power; (c) Constituent legislative power; and (d) Ordinary legislative power. A – 1) Original legislative power – It is a legislative power vested in and exercised by the sovereign electorate. 2) Derivative legislative power – It is a legislative power delegated by the sovereign people to the legislative bodies and is subordinate to the original power of the people. 3) Constituent legislative power – It is the power to amend or revise the Constitution. 4) Ordinary legislative power – It is the power to pass ordinary laws. Q – Does the people exercise both constituent and ordinary legislative power? A – The people, through the amendatory process, exercise constituent power, and through initiative and referendum, ordinary legislative power. Q – What are the two limitations to legislative power? A – 1) Substantive limitations – The limitation is substantive because if the provision of the law will curtail constitutional rights, the same is unconstitutional. 2) Procedural limitations – Even if the law does not violate constitutional provisions but it is not passed and approved in accordance with the prescribed procedure, the same is questionable and it may not be given force and effect. Q – Can Congress amend, modify and repeal its own laws? A – Yes. The legislature has the power to amend, repeal or modify its own laws because there are no irrepealable laws. DE GUIA VS. GUINGONA, ET AL. G.R. NO. 119525, APRIL 18, 1995 FACTS: Petitioner questioned the constitutionality of Rep. Act No. 7887, enacted on February 15, 1995 insofar as it provides that elective members of the

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Sangguniang Panlungsod and Sangguniang Bayan outside Metro Manila shall be elected at large. Rep. Act No. 7887 amended Section 3, paragraphs (c) and (d) of Rep. Act No. 7166, enacted on November 26, 1991, which provides that said officials shall be elected by district on the May 8, 1995 election. He argued that Rep. Act No. 7887 is “contrary to and inconsistent with the earlier law, Rep. Act No. 7166.” He urges the Court to strike down Rep. Act No. 7887 and to “reinstate Rep. Act No. 7166.” ISSUE: Is R.A. No. 7887 contrary to and inconsistent with Republic Act No. 7166? HELD: It is of no moment that Rep. Act No. 7887 is contrary and inconsistent with Rep. Act No. 7166. Rep. Act No. 7887 was enacted precisely to amend Section 3(c) and (d) of Rep. Act No. 7166. Congress has the inherent power to amend, modify and repeal its own laws for there are no irrepealable laws. Its perception of what is good for our people can change over time. This perception is reflected by them through the amendment or outright repeal of our existing laws. By the principle of separation of powers, the Supreme Court cannot supersede the wisdom of Congress in enacting, amending or repealing a law. It cannot strike down an amendatory law on the ground that the amended law is better for the people. Petitioner’s supplication that the Supreme Court “reinstate” Rep. Act No. 7166 betrays his basic ignorance of our constitutional system. Q – Can a member of the House of Representatives or the Senate introduce any kind of bill or law? A – A member of the House of Representatives or the Senate can introduce any kind of bill subject to the following limitations: 1. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives but the Senate may propose or concur with amendments. (Section 24, Article VI) (Underlining Supplied) 2. Ex post facto laws, bills of attainder, or laws impairing the obligation of contracts cannot be enacted. 3. Other inhibitions and limitations imposed by the Constitution shall be respected. Q – Can Congress pass an irrepealable law? A – No. If this is allowed, it is, in effect, a curtailment or limitation to the power of future Congress, and considering that past and future conditions may not require different approaches and solutions, that is not only unconstitutional but also impractical.

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Q – Can legislative powers be delegated? A – Already Answered. See discussion of Article II, Declaration of Principles and State Policies. Q – What is the test to determine whether a given power has been validly exercised by a particular department? A – Already answered. See discussion of Article II, Declaration of Principles and State Policies. Q – Is the issuance of Proclamation No. 164, amending Proclamation No. 1716 (reserving for Municipal Government Center Site Purposes certain parcels of land of the public domain located in the Municipality of San Juan, Metro Manila), a valid exercise of legislative power? A – Proclamation No. 164 is not a valid act of legislation. (Municipality of San Juan, Metro Manila vs. CA, et al., G.R. No. 125183, September 29, 1997) MUNICIPALITY OF SAN JUAN, METRO MANILA VS. CA, ET AL. G.R. NO. 125183, SEPTEMBER 29, 1997 FACTS: On February 17, 1978, former President Ferdinand Marcos issued Proclamation No. 1716 reserving for Municipal Government Center Site Purposes certain parcels of land of the public domain located in the Municipality of San Juan, Metro Manila. Considering that the land covered by the above-mentioned proclamation was occupied by squatters, the Municipality of San Juan purchased an 18-hectare land in Taytay, Rizal as resettlement center for the said squatters. Only after resettling these squatters would the municipality be able to develop and construct its municipal government center on the subject land. After hundreds of squatter families were resettled, the Municipality of San Juan started to develop its government center by constructing the INP Building, which now serves as the PNP Headquarters, the Fire Station Headquarters, and the site to house the two salas of the Municipal Trial Courts and the Office of the Municipal Prosecutors. Also constructed thereon are the Central Post Office Building and the Municipal High School Annex Building. On October 6, 1987, after Congress had already convened on July 26, 1987, former President Corazon Aquino issued Proclamation No. 164, amending Proclamation No. 1716. On June 1, 1988, the Corazon de Jesus Homeowners Association, Inc., one of herein private respondents, filed with the Regional Trial Court of the National Capital Judicial Region (Pasig, Branch 159) a petition for prohibition with urgent prayer for restraining order against the Municipal Mayor and

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Engineer of San Juan and the Curator of Pinaglabanan Shrine, to enjoin them from either removing or demolishing the houses of the association members who were claiming that the lots they occupied have been awarded to them by Proclamation No. 164. On September 14, 1990, the regional trial court dismissed the petition, ruling that the property in question is being utilized by the Municipality of San Juan for government purposes and thus, the condition as set forth in Proclamation No. 164 is absent. The appeal before the Court of Appeals was dismissed in a decision dated July 17, 1991. This decision became final and the said judgment was duly entered on April 8, 1992 Disregarding the ruling of the court in this final judgment, private respondents hired a private surveyor to make consolidation-subdivision plans of the land in question, submitting the same to respondent Department of Environment and Natural Resources (DENR) in connection with their application for a grant under Proclamation No. 164. To prevent DENR from issuing any grant to private respondents, petitioner municipality filed a petition for prohibition with prayer for issuance of a temporary restraining order and preliminary injunction against respondent DENR and private respondent Corazon de Jesus Homeowners Association. The regional trial court sustained petitioner municipality, enjoining the DENR from disposing and awarding the parcels of land covered by Proclamation No. 164. The Court of Appeals reversed the said decision. Hence, this petition. ISSUE: Is Proclamation No. 164 a valid exercise of legislative power? More specifically, is Proclamation No. 164 a valid legislation? HELD: (1)

Proclamation No. 164 is obviously not a valid act of legislation – Proclamation No. 1716 was issued by the late President Ferdinand E. Marcos on February 17, 1978 in the due exercise of legislative power vested upon him by Amendment No. 6 introduced in 1976. Being a valid act of legislation, said Proclamation may only be amended by an equally valid act of legislation. Proclamation No. 164 is obviously not a valid of legislation. After the so-called bloodless revolution of February 1986, President Corazon Aquino took the reigns of government and issued Proclamation No. 3, promulgating the Provisional Constitution, or more popularly referred to as the Freedom Constitution. Under Article II, Section 1 of the Freedom Constitution, the President shall continue to exercise legislative power until a legislature is elected and convened under a new constitution. Then came the ratification of the draft constitution, to

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(2)

be known later as the 1987 Constitution. When Congress was convened on July 26, 1987, President Aquino lost this legislative power under the Freedom Constitution. Proclamation No. 164, amending Proclamation No. 1716 was issued on October 6, 1987 when legislative power was already solely in Congress. The Court holds that the issuance of Proclamation No. 164 was an invalid exercise of legislative power. Consequently, said Proclamation is hereby declared NULL and VOID – There is a long standing principle that every statute is presumed to be valid. (Salas vs. Jarencio, 46 SCRA 734 [1970]) However, this rests upon the premise that the statute was duly enacted by the legislature. This presumption cannot apply when there is clear usurpation of legislative power by the executive branch. For this Court to allow such disregard of the most basic of all constitutional principles by reason of the doctrine of presumption of validity of a law would be to turn its back to its sacred duty to uphold and defend the Constitution. Thus, also, it is in the discharge of this task that we take this exception from the Court’s usual practice of not entertaining constitutional questions unless they are specifically raised, insisted upon, and adequately argued. KILUSANG MAYO UNO, ET AL. VS. THE DIRECTOR GENERAL, NEDA, ET AL. G.R. NO. 167798, APRIL 19, 2006

FACTS: On April 13, 2005, President Gloria Macapagal-Arroyo issued EO 420 directing all government agencies and government-owned and controlled corporations to adopt a uniform data collection and format for their existing identification (ID) systems. Petitioners alleged that EO 420 is unconstitutional because it constitutes usurpation of legislative functions by the executive branch of the government. Furthermore, they allege that EO 420 infringes on the citizen’s right to privacy. ISSUES: Whether or not EO 420 is not valid as it constitutes usurpation of legislative power by the President and whether or not EO 420 infringes on the citizen’s right to privacy. HELD: a. No. EO 420 is VALID. There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The same is true for government entities under the Executive department. If government entities

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under the Executive Department decide to unify their existing ID data collection and ID card issuance systems to achieve savings, efficiency, compatibility and convenience, such act does not involve the exercise of any legislative power. Thus, the issuance of EO 420 does not constitute usurpation of legislative power. The act of issuing ID cards and collecting the necessary personal data for printing on the ID card does not require legislation. EO 420 does not establish a national ID card system. EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing laws. EO 420 does not grant such government entities any power that they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople vs. Torres sought to establish a “National Computerized Identification Reference System,” a national ID system that did not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because it creates a new national data collections and card issuance system where none existed before. No. All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards in the performance of their government functions. There have been no complaints from citizens that the ID cards of these government entities violate their right to privacy. There have also been no complaints of abuse by these government entities in the collection and recording of personal identification data. In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to EO 420 violate their right to privacy. Since petitioners do not make such claim, they even have less basis to complain against the unified ID system under EO 420. The data collected and stored for the unified ID system under EO 420 will be limited to only 14 specific data, and the ID card itself will show only eight specific data. The data collection, recording and ID card system under EO 420 will even require less data collected, stored and revealed than under the separate systems prior to EO 420. EMERGENCY POWERS Q – Under what authority may the Congress authorize the President to exercise emergency powers? A – Congress may by law authorize the President to exercise emergency powers under Section 23(2), Article VI of the 1987 Constitution, which provides as follows: “Section 23(2). In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry

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out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.” Q – What is the reason behind the exercise of emergency powers? A – Due to situations caused by war or other national emergency and in order to be able to act promptly and faster regarding the problems arising from such emergency, the President may be authorized by Congress to exercise emergency powers, instead of Congress itself going through the lawmaking process, which is necessarily subject to protracted discussion and debate. The amount of time consumed for this process entails serious delay in the solution of the problems which actually need immediate solutions. Q – What are the conditions for granting emergency powers? A – Emergency powers can be granted subject to the existence of the following conditions: CODE: WALINARE WA-r or other national emergency (There must be war or other national emergency) LI-mited period (It must be for a limited period) NA-tional policy (The emergency powers must be exercised to carry out a national policy declared by Congress) RE-strictions that Congress may prescribe (The delegation must be subject to such restrictions as the Congress may prescribe) Q – What are the limitations if emergency powers are delegated? A – The period during which emergency powers may be exercised is defined by Congress which has the option to fix the period, or to shorten the period if it wants to. In fact, Congress may terminate it even before the end of the emergency. DELEGATION TO ADMINISTRATIVE AGENCIES Q – What specifically is the power that is delegated by the legislature to administrative agencies of the government? A – What is delegated to administrative agencies is merely the power to make and issue rules, not the power to make or pass laws. In cases involving the issue of whether not there was a valid delegation of power, our courts have to find out the following: 1. Is the law which delegates powers complete in itself, or does it not set forth the policy to be executed by the delegate? (COMPLETENESS TEST)

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2.

Does the law fix standard limits which are sufficiently determinate or determinable to which the delegate must conform? (SUFFICIENT STANDARD TEST) Q – Explain the two tests above-mentioned. A – Completeness Test – A law must be complete in itself in all its terms and provisions when it leaves the legislature so that nothing is left to the judgment of the delegate. Otherwise, the statute is an unconstitutional delegation of power. When is a statute considered complete? A statute is complete when the subject, the manner, and the extent of its operation are therein stated. It is for this reason that the legislature should clearly state the legislative policy to be implemented by the delegate, who should implement the same, and the scope of authority to the delegate. (U.S. vs. Ang Tang Ho, 43 Phil. 1) Sufficient Standard Test – A sufficient standard not only defines the policy fixed by the legislature but also marks its limits by specifying the extent of the authority of the delegate as well as the conditions under which the said policy should be implemented. Without the said standard, “there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. When this happens, the power of legislation will eventually be exercised by a branch of government other than in which it is lodged by the Constitution. Q – What are the standards recognized in this recognition? A – As decided in old and new cases, the following standards have been recognized by our Supreme Court as valid and sufficient, to wit: OLD CASES 1. 2. 3. 4. 5.

Justice, equity, public convenience and welfare. In the interest of law and order. Public welfare. Public interest Simplicity, economy and efficiency. (Principles, Comments and Cases in Constitutional Law, Volume I, Suarez, p. 439, citing Calalang vs.Williams, 70 Phil. 726 [1940]; Rubi vs. Provincial Board, 39 Phil. 660 [1919]; Municipality of Cardona vs. Binangonan, 36 Phil. 660 [1917]; People vs. Rosenthal, 68 Phil. 328 [1939]; Cervantes vs. Auditor General, 91 Phil. 359 [1952])

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NEW CASES Fair and equitable employment practices. (Conference on Maritime Mining Resources, Inc., et al. vs. Philippine Overseas Employment Administration, et al., G.R. No. 114714, April 21, 1995) National interest. (The Telephone Workers Union vs. Minister of Labor and Employment, 108 SCRA 757) Protection of local consumers by stabilizing and subsidizing domestic pump rates by fixing domestic prices of petroleum products. (Osmeña vs. Orbos, 220 SCRA 703 [1993]) Standardization and regulation of medical education. (Tablarin vs. Gutierrez, 152 SCRA 730 [1987]) Traffic safety. (Agustin vs. Edu, 88 SCRA 195)

1.

2. 3.

4. 5.

Q – What are the requisites of a valid administrative regulation? A – The following requisites must be complied with: CODE: ASAR A – Authorized (Its promulgation must be authorized by the legislature); S – Scope of authority (It must be within the scope of the authority given by the legislature) A – According to prescribed procedure (It must be promulgated in accordance with the prescribed procedure) R – Reasonable (It must be reasonable) METROPOLITAN DEVELOPMENT AUTHORITY VS. DANTE O. GARIN G.R. No. 130230, APRIL 15, 2005 FACTS: 1. 2.

3.

Atty. Dante Garin parked his vehicle illegally along Gandara Street, Binondo, Manila. Atty. Garin sent a letter to Prospero Oreta, then the MMDA Chairman with these requests: (a) that his driver’s license be returned to him. On the same date, he expressed his preference that his case be filed in court. He did not receive a reply. Subsequently, he filed a complaint with the RTC of Parañaque City. His contentions are as follows: a. Without implementing rules and regulations, Section 5(f) of Republic Act No. 7924 grants MMDA the unbridled discretion to deprive erring motorists of their licenses. b. It will pre-empt a judicial determination of the validity of the deprivation, hence, it violates the due process clause.

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c.

Said law also violates the constitutional prohibition against undue delegation of legislative authority. d. Said law will also allow MMDA to fix and impose unspecified and therefore unlimited fines and other penalties on erring motorists. MMDA, on the otherhand, invoked its police power. ISSUE: Are the said contentions valid? HELD: 1. 2. 3.

4.

5. 6.

There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its council to “enact ordinances, approve resolutions and appropriate funds for general welfare” of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a “development authority.” It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organization and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature xxx. Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate its administrative rules and regulations in the implementation of the MMDA’s functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. The power therefore to confiscate and suspend or revoke driver’s license without the need of legislative enactment is an unauthorized exercise of police power. CONFERENCE OF MARITIME MANNING AGENCIES, INC., ET AL.VS. PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, ET AL. G.R. NO. 114714, APRIL 21, 1995, 60 SCAD 674

FACTS: The Philippine Overseas Employment Administration (POEA) issued on 14 January 1994 Governing Board Resolution No. 01 increasing and adjusting the rates of compensation and other benefits in Part II, Section C, paragraph

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1; Section L-paragraphs 1 and 2; and Appendix 1-A of the POEA Standard Employment Contracts for Seafarers. The adjustments were made effective 20 March 1994. Administrator Felicisimo Joson issued Memorandum Circular No. 05 on January 19, 1994, informing all Filipino seafarers, manning agencies, shipowners, managers and principals hiring Filipino seafarers, about said Governing Board Resolution No. 01. Petitioners filed the present petition urging the Court to annul Resolution No. 01, series of 1994 of the Governing Board of the Philippine Overseas Employment Administration (POEA) and POEA Memorandum Circular No. 05, series of 1994, on the grounds that: 1. The POEA does not have the power and authority to fix and promulgate rates affecting death and workmen’s compensation of Filipino seamen working in ocean-going vessels; only Congress can. 2. Even granting that the POEA has that power, it, nevertheless, violated the standards for its exercise. 3. The resolution and the memorandum circular are not valid acts of the Governing Board because the private sector representative mandated by law has not been appointed by the President since the creation of the POEA. ISSUE: Does the POEA have the power and authority to fix and promulgate rates affecting death and workmen’s compensation of Filipino seamen working in ocean-going vessels? Granting that the POEA has that power, did it violate the standard for its exercise? HELD: The constitutional challenge of the rule-making power of the POEA based on impermissible delegation of legislative power had been, as correctly contended by the public respondents, brushed aside by this Court in Eastern Shipping Lines, Inc. vs. POEA (166 SCRA 533). The petitioner in that case assailed the constitutionality of Memorandum Circular No. 02 of the POEA (effective 1 February 1984) which prescribed a standard contract to be adopted by both foreign and domestic shipping companies in the hiring of Filipino seamen for overseas employment. The challenged resolution and memorandum circular here merely further amended Memorandum Circular No. 02, which was earlier amended in 1989 per Memorandum Circular No. 41, series of 1989. The POEA mandate referred to as providing the reasonable standard for the exercise of the POEA’s rule-making authority is found in the statement of

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powers and functions of the said office in paragraph (1), Section 4 of E.O. No. 797, to wit: 1. The Administration shall formulate and undertake in coordination where necessary with the appropriate entities concerned, a systematic program for promoting and monitoring the overseas employment of Filipino workers taking into consideration domestic manpower requirements, and to protect their rights to fair and equitable employment practices. It shall have original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen. This adjudicatory function shall be undertaken in appropriate circumstances in consultation with the Construction Industry Authority of the Philippines. The governing Board of Administration, as hereunder provided, shall promulgate the necessary rules and regulation to govern the exercise of the adjudicatory functions of the Administration. While the making of laws is a non-delegable power that pertains exclusively to Congress, nevertheless, the latter may constitutionally delegate the authority to promulgate rules and regulations to implement a given legislation and effectuate its policies for the reason that the legislature finds it impracticable, if not possible, to anticipate situations that may be met in carrying the law into effect. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law. The challenged resolution and memorandum circular, which merely further amended the previous Memorandum Circular No. 02, strictly conform to the sufficient and valid standards of “fair and equitable employment practices prescribed in E.O. No. 797.” The last issue concerns the contention that without the appointment by the President of the third member of the governing board, the POEA cannot legally function and exercise its powers. This contention merits scant consideration. Section 4 of E.O. No. 797 indubitably declares the immediate creation of the POEA. Thus, upon the effectivity of E.O. No. 797, the POEA attained its juridicial personality. The appointment of the third member “who shall be well-versed in the field of overseas employment,” provided for in paragraph (b) of the said Section, was not meant to be a sine qua non to the birth of POEA, much less to the validity of the acts of the Board. As a matter of fact, in the same paragraph, the President is given the “discretion [to] designate a Deputy Administrator as the third member of the Board.”

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REVIEW OF OLD CASES PELAEZ VS. AUDITOR GENERAL G.R. NO. 23825, DECEMBER 24, 1965 FACTS: Former President Diosdado Macapagal issued Executive Orders under Section 68 of the Revised Administrative Code, to create thirty-three (33) municipalities. Former Vice-President Emmanuel Pelaez contends that Section 68, as aforementioned, is an undue delegation of power and said executive orders are therefore null and void. ISSUE: Is Section 68 of the Revised Administrative Code an undue delegation of power? Can the President of the Philippines issue an executive order under Section 68 of the Revised Administrative Code and create a municipality? HELD: Section 68 of the Revised Administrative Code is not complete in itself as it does not state the policy to be executed by the delegate, and neither does it fix a standard, the limits of which are sufficiently determinate or determinable to which the delegate must conform. It is true that the last clause of the said Section provides that the President “x x x may change the seat of government within any subdivision to such place therein as the public welfare may require,” but the phrase “as the public welfare may require” qualifies, not the clauses preceding the ones just quoted, but only the place to which the seat of the government may be transferred. It is true that “public welfare” and “public interest” are sufficient standards of a valid delegation of powers, but said cases involved grant to administrative officers of powers related to the exercise of their administrative functions which is different from the nature of the powers referred to in Section 68. The authority to create municipalities is one which is essentially legislative in character. NOTE: Under Article VI, Section 24 of the 1987 Constitution, all “x x x bills of local application” shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Section 24 provides as follows:

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“All appropriation, revenue, or tariff bills, authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.” The ruling in Pelaez vs. Auditor General that the authority to create municipal corporations are essentially legislative in character still applies. PEOPLE VS. VERA 65 PHIL. 56 FACTS: In Criminal Case No. 42649 entitled People of the Philippines vs. Mariano Cu Unjieng, the latter applied for probation under Art. 4221. However, a petition for certiorari and prohibition was filed by the petitioner in the Supreme Court to prohibit the CFI of Manila from taking further action on the said application on the ground that said Art. 4221, also known as the Probation Act is unconstitutional being as undue delegation of legislative power. Section 11 of the said Probation Act, which was challenged, reads as follows: “This Act apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at the rates not lower than those provided for provincial fiscals. Said probation officers shall be appointed by the Secretary of Justice and shall be subject to the discretion of the Probation Office.” ISSUE: Is the said Probation Act unconstitutional on ground that it is an undue delegation of officer? HELD: The effectivity of the Probation Act is dependent on whether or not the Provincial Board makes the appropriation. In effect, the Provincial Boards shall exercise the power to determine when the said Act shall take effect in their respective provinces. And yet, the law does not lay down any rule or standard to guide the provincial boards in the exercise of their discretionary power. What is granted to them is a “roving commission” which enables the provincial boards to exercise arbitrary discretion, which thereby amounts to virtual surrender of legislative power.

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In Calalang vs. Williams, the requirements of public convenience and welfare were considered as definite standards, hence, there was no undue delegation of power. CALALANG VS. WILLIAMS 70 PHIL. 726 FACTS: Upon the recommendation of the National Traffic Commission and approval of the Secretary of Public Works and Communications, the Director of Public Works ordered the closure of certain portions of Rizal Avenue and Rosario Street, Manila. The order issued by the Director of Public Works was questioned by the petitioner claiming that the same is unconstitutional and that the same was issued pursuant to an undue delegation of power. HELD: The Director of Public Works did not determine what the law shall be. He merely ascertained the facts and circumstances upon which the application of the law is predicated. Definite standards are provided in the law which lays down the requirements of public convenience and interest as a guide in the promulgation of rules and regulations. PEOPLE VS. MANCEREN 79 SCRA 450 FACTS: Section 11 of the Fisheries Law prohibits “the use of any obnoxious or poisonous substance in fishing.” The Secretary of Agriculture and Natural Resources subsequently promulgated Fisheries Administrative Order No. 84 prohibiting electro-fishing in all Philippine waters. Said order was amended by A.O. 84-1, by instructing the ban against electro-fishing to fresh water fishes. The respondents were charged for having violated A.O. 84-1. The complaint alleged that the five accused used an electro-cutting device locally known as “senso” to catch fish through electric current, in the waters of Barrio San Pablo, Sta. Cruz. The criminal complaint was dismissed. The dismissal was affirmed by the CFI. Hence, this appeal.

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ISSUE: Whether A.O. Nos. 84 and 841, penalizing electro-fishing, are devoid of any legal basis, and hence, invalid? HELD: Yes. The Secretary of Agriculture and Natural Resources exceeded its authority in issuing F.A.O. Nos. 84 and 84-1 and that those orders are not warranted by R.A. No. 8512. The reason is that the Fisheries Law does not expressly prohibit electro-fishing, since electro-fishing is not banned under the law, and the Secretary is powerless to penalize it. Hence, A.O. Nos. 84 and 84-1 are devoid of any legal basis. Had the lawmaking body intended to punish electro-fishing, a penal provision to that effect could have been easily embodied in the Old Fisheries Law. The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute a criminal offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. But a mere administrative regulation is not legally adequate to penalize electro-fishing. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. An administrative agency cannot amend the act of Congress. The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. PEOPLE VS. QUE PO LAY 51. O.G. 48850 FACTS: Central Bank issued a circular (Circular No. 20) requiring those who had foreign currency to sell the same to Central Bank. Que Po Lay was accused of violating Circular No. 20 but he claimed that the said circular has not yet been published in the Official Gazette before his alleged violation of the same and he should therefore be acquitted. HELD: The Supreme Court sustained the defense and held that before the public is bound by its contents, a law, regulation or circular must first be

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published so the people will be officially informed of the same, particularly the penalties for violating thereof. GIL BALBUENA VS. SECRETARY OF EDUCATION 110 PHIL. 150, G.R. NO. L-14283 NOVEMBER 21, 1960 FACTS: Petitioners, members of the religious sect “Jehovah’s Witnesses,” challenged the constitutionality of Republic Act No. 1265, by virtue of which the Secretary of Education issued Department Order No. 8, prescribing compulsory flag ceremony in all schools as an undue delegation of legislative power. The law required all education institutions to observe daily flag ceremony, which shall be simple and dignified and shall include the playing or singing of the Philippine National Anthem. Section 2 thereof authorizes the Secretary of Education to issue rules and regulations for the proper conduct of flag ceremony. HELD: The requirements constitute an adequate standard to wit: simplicity and dignity of the flag ceremony and the singing of the national anthem – especially when contrasted with other standards heretofore upheld by the courts such as “public interest,” “public welfare,” “interest of law and order,” “justice and equity” and the “substantial merits of the case,” or “adequate and efficient instruction.” That the legislature did not specify the details of the flag ceremony is no objection to the validity of the statute, for all that is required of it is the laying down of standard and policy that will limit the discretion of the regulatory agency. To require the statute to establish in detail the manner of exercise of the delegated power would be to destroy the administrative flexibility that the delegation is intended to achieve. Without a definite standard, there would be no reasonable means to ascertain whether or not the administrative agency concerned has acted within the scope of authority as determined by the legislature. When this happens, the power of legislation would eventually be exercised by a branch of the government other than that in which it is lodged by the Constitution. (Vigan Electric Light Co., Inc. vs. Public Service Commission, G.R. No. L-19850, January 30, 1964)

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Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reappointment of legislative districts based on the standards provided in this section. Section 6. No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he

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shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Section 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase. Q – Discuss briefly the kind of Congress we have and its composition, the respective qualifications of senators and congressmen, their office and manner of election. A – We have a bicameral Congress consisting of the Senate and the House of Representatives. The members of the Senate are called Senators and the members of the House of Representatives are called Congressmen or Congresswomen, as the case may be. The respective compositions, qualifications, term of office, manner of election, immunities of Senators and Members of Congress are as follows: SENATE

1. Composition – Composed of twenty-four (24) Senators who shall be elected at large by the qualified voters of the Philippines as may be provided by law. (Sec. 2, Art. VI)

HOUSE OF REPRESENTATIVES

1. Composition – Composed of not more than 250 members, unless otherwise fixed by law who are elected from various legislative districts. They are the following: a. District Representatives – There shall be no less than 200 members in the House of Representatives.

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b. Party List Representatives – There are fifty (50) seats initially allowed to the Party List members, to be chosen from the various parties listed in the Commission on Elections which have presented candidates in the election. (Section 5[1] and [2], Article VI) For three consecutive terms after the ratification of the 1987 Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. These members are called and referred to as sectoral representatives. 2. Qualifications: a. Natural-born citizen b. At least thirty-five years of age on the day of the election c. Able to read and write d. A registered voter e. A resident of the Philippines for not less than two years immediately preceding the day of the election. (Section 3, Art. VI)

2. Qualifications: a. Natural-born citizen b. At least twenty-five years of age on the day of the election c. Able to read and write d. A registered voter in the district in which he shall be elected. e. A resident in the district for a period of not less than one year immediately preceding the day of the election. (Section 6, Art. VI)

3. Term – Six years (Section 4, Art. VI)

3. Term – Three years (Section 4, Art. VI)

4. Re-election – No senator shall serve for more than two (2) consecutive terms. Voluntary renunciation of the office for

4. Re-election – No member of the House of Representatives shall serve for more than three (3) consecutive terms. Voluntary renunciation of the

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any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Section 4, 2nd sentence, Art. VII)

office for any length of time shall not be considered as an interruption in the continuity for his service for the full term for which he was elected. (Section 7, 2nd sentence, Article VI)

5. Manner of election – Elected at large by the entire electorate. (Section 2, Art. VI)

5. Manner of election – Directly elected from the various legislative districts (Section 5[1], Art. VI)

Q – What are the immunities of Senators and Members of Congress? A – The following are the immunities of Senators and Members of Congress SENATORS

MEMBERS OF CONGRESS

In all offenses punishable by not more than six (6) years imprisonment, a Senator has the following immunities, to wit: a. A Senator shall be privileged from arrest while the Congress is in session.

In all offenses punishable by not more than six (6) years imprisonment, a member of the House of Representatives has the following immunities, to wit: a. The members of the House of Representatives shall be privileged from arrest while the Congress is in session. Purpose: To ensure his attendance of the session so that the constituents will enjoy representation. b. A member of the House of Representatives shall not be questioned nor held liable in any other place for any speech or debate in the Congress or in any committee thereof. Purpose: To enable the member of the House of Representatives to express his views on matters of public interest without fear of accountability. (Section 11, Art. VI)

Purpose: To ensure his attendance of the session so that the constituents will enjoy representation. b. A S e n a t o r s h a l l n o t b e questioned nor held liable in any other place for any speech or debate in the Congress or in any committee thereof. Purpose: To enable the Senator to express his views on matters of public interest without fear of accountability. (Section 11, Article VI) QUALIFICATION

Natural-born citizen Q – What is a natural-born citizen?

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A – A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his/her Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.” (Section 2, Article IV, 1987 Constitution) Q – Who are being referred to as “those who elect Philippine citizenship in accordance with paragraph (3), Section 1, hereof shall be deemed natural born citizens”? A – They are those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. (Section 2, Article IV, 1987 Constitution) Thirty-five years of age Q – When should the age qualification be complied with? A – The age qualification must be possessed on the day of the election, not on the day of the proclamation of the winners by the board of canvassers, as decided in the case of Espinosa vs. Aquino. In the said case, Senator Benigno Aquino was less than thirty-five years old on the day of the election but he possessed the age qualification of thirty-five years old before he was proclaimed as one of the winners. Able to read and write Q – Can a college dropout or a high school dropout be a Senator or a Congressman? A – Yes, provided he has all the qualifications mentioned in Section 3, Article VI. In fact, it is sufficient if he is “able to read and write,” and for as long as he is “able to read and write,” and he has all the qualifications provided by the law, it does not matter if he has a formal education or not. The electorate has the ultimate discretion and sovereign authority to choose their representatives based on their qualifications and competence. A registered voter Q – What is registration? A – It is a method of proof, prescribed for ascertaining the electors who are qualified to cast votes. (People vs. Carleton, 41 Miss. 523) It does not make a person a qualified voter. It is simply a step towards voting. It does not confer the right to vote; it is but a condition precedent to the exercise of the right. In short, registration is a regulation, not a qualification, for voting. (Yra vs. Abano, 52 Phil. 380) Q – What is a registered voter? A – A registered voter is one who is duly registered in the list of voters because he possesses the qualifications for suffrage, as required by Section 1, Article

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V, which provides as follows: “Section 1. Suffrage may be exercised by all citizens of the Republic of the Philippines not otherwise disqualified by law, who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six (6) months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Resident of the Philippines for not less than two years immediately preceding the day of the election Q – What is residence? A – Already answered. MARCOS VS. COMELEC, 248 SCRA 300 In her certificate of candidacy, Mrs. Imelda Romualdez Marcos declared that she had resided in the congressional district where she is running for Congresswoman for only seven months. Despite her aforementioned express declaration, the Supreme Court sustained her contention that she is qualified to run and that she should still be considered as a resident of Leyte for the following reasons: (a) Despite her marriage to former President Ferdinand E. Marcos in 1954, she kept her domicile of origin. (b) Said domicile of origin can be lost only (1) when there is actual removal or change of domicile, (2) when there is a bonafide intention to abandon the residence and establish a new one and there are acts which correspond with the purpose. This domicile of origin continues if there is no clear and positive proof of the concurrence of the above. (c) After the death of Ex-President Ferdinand E. Marcos, Mrs. Imelda Romualdez Marcos has chosen Tacloban, her domicile of origin, as her domicile of choice. (d) Tacloban is Mrs. Marcos’ domicile of origin by operation of law when her father brought the family to Leyte, and since Mrs. Marcos was a minor at the time, she followed the domicile of her parents. AQUINO VS. COMELEC, 248 SCRA 400 When Agapito Aquino filed his certificate of candidacy, he declared that he was a resident of San Jose, Concepcion Tarlac for 52 years; that he was a registered voter of the said congressional district in Tarlac; and that Concepcion Tarlac is his birthplace. Agapito Aquino claimed that he has transferred his

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domicile from Tarlac to Makati. The Supreme Court rejected the said claim and ruled that his domicile of origin is Concepcion, Tarlac, not Makati. Additional qualifications Q – Can Congress pass a law requiring a college degree as an added qualification to be a senator or congressman? A – No, because the said law is unconstitutional. Q – Can Congress pass a law requiring a college degree as an added qualification of the President and Vice-President of the Philippines? A – No, because the said law is unconstitutional. Q – Can the Constitutional Convention approve a constitutional provision requiring additional qualifications of a President, Senator or Congressman? A – Yes, because the power to amend the Constitution has been entrusted by the people to the delegates of the Constitutional Convention whom they have chosen to represent them in the said Convention. Moreover, when the Constitution drafted and approved by the said Constitutional Convention was duly approved in a plebiscite, the people have necessarily approved the said Constitution. Q – A was born out of wedlock in 1960 of Japanese father and a naturalized Filipina mother. A never elected Philippine citizenship upon reaching the age of majority. Question: Is A a Filipino citizen? A – He follows the citizenship of the mother. He is not only a Filipino citizen, but more than that, he is a natural born citizen of the Philippines. Q – A’s parents are X, an American and Y, a Filipina who are live-in partners. He was born in San Francisco, California on July 5, 1982. On July 5, 2002, he registered as a Filipina with the Philippine consulate in San Francisco, while holding an American Passport. Few months thereafter, he returned to the Philippines with his mother who decided to leave for good in Taal, Batangas. He easily adjusted to the life and culture of the residents in Batangas, and he was also fluent in Pilipino and could easily imitate the accent of Batangueños. In a short time, he acquired many friends and easily became popular because he could also sing both in English and Filipino. He became a candidate for Congressman and was overwhelmingly elected as such last May 14, 2007. Among others, Atty. Gigil, his only opponent questioned his qualifications and said that: (1) That he is not a natural-born Filipino citizen; and (2) That he is not 25 years of age on the day of the election. Decide. A – (1) Citizenship – A is a natural-born citizen of the Philippines. He follows the citizenship of his mother.

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Age requirement – He was not 25 years of age on May 14, 2007 and therefore the claim of Atty. Gigil on this point is valid. NEW CASES: SOCIAL JUSTICE SOCIETY VS. DANGEROUS DRUGS BOARD, ET AL. G.R. NO. 157870, NOVEMBER 3, 2008 In these consolidated petitions, the constitutionality of Section 36 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses, is put in issue.

FACTS: In G.R. No. 161658, Petitioner Aquilino Q. Pimentel, Jr., a Senator of the Republic and a candidate for re-election in the May 10, 2004 elections, filed a Petition for Certiorari and Prohibition under Rule 65 seeking: (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486 prescribing the rules and regulations on the mandatory drug testing of candidates for public office. The petitioner contends that — 1. The Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. Both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. 2. There is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. In G.R. No. 157870 (Social Justice Society vs. Dangerous Drugs Board and Philippine Drug Enforcement Agency), petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing

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paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. The petitioner (SJS) contends that: (1) the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing; (2) the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable; and (3) the provisions also breach a person’s constitutional right against unreasonable searches. In G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency), petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees. ISSUE: 1. 2.

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Whether or not the petitioners have the requisite standing to challenge the constitutionality of Republic Act 9165? Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

HELD: 1.

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There is no doubt that Pimentel, as Senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court will relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.

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In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. The Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. Until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when

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they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are “randomness” and “suspicionless.” In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. SIMPLIFICATION The ruling is summaraized as follows: 1. CANDIDATES FOR PUBLIC OFFICE: Unconstitutional. REASON: It imposes additional qualifications to senatorial candidates when the Constitution already fixes their qualifications in Section 3, Art. VI. 2. STUDENTS OF SECONDARY AND TERTIARY SCHOOLS: Mandatory, random and suspiciously drug testing of students are constitutional. It is within the prerogative of educational institutes to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. 3. OFFICERS AND EMPLOYEES OF PUBLIC AND PRIVATE OFFICES: Constitutional. REASON: It is an effective way to prevent and detect drug use among employees and offices. 4. P E R S O N S C H A R G E D W I T H C E RTA I N O F F E N S E S : Unconstitutional. REASON: It is a blatant attempt to harness a medical test as a tool for criminal prosecution.

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ANTONIO F. TRILLANES IV V. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY, ET AL. G.R. NO. 179817, JUNE 27, 2008 Legislative: doctrine of condonation; the performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law FACTS: In the aftermath of the “Oakwood Incident,” petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d’etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. Petitioner, who has remained in detention, won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. Before the commencement of his term, the petitioner filed an “Omnibus Motion for Leave of Court to be allowed to Attend Senate Sessions and Related Requests.” The trial court denied all the requests in the Omnibus Motion. Hence, this present petition. ISSUE: 1. 2.

Is the doctrine of condonation available in criminal cases? Is the denial of the Omnibus Motion tantamount to removing the respondent from his office and depriving the people of proper representation? Corollary, is it tantamount to disenfranchising the electorate?

HELD: 1. ON WHETHER THE DOCTRINE OF CONDONATION APPLIES IN CRIMINAL CASES — Petitioner’s contention hinges on the doctrine in administrative law that “a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no “prior term” to speak of. [T]he Court categorically held that the doctrine of condonation does not apply to

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criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner’s electoral victory only signifies pertinently that when the voters elected him to the Senate, “they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison.” ON THE DISENFRANCHISEMENT ARGUMENT – In debunking the disenfranchisement argument, it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the “mandate of the people” are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. (Underscoring supplied) x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system.

TERM OF OFFICE Q – Distinguish term and tenure. A – The term means the period of time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. (Oliveros vs. Villaluz, 57 SCRA 163) The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons or beyond the power of the incumbent. (Nuevo vs. Angeles, 76 Phil. 12)

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Q – Why is this distinction important? A – The distinction between “term” and “tenure” is important for, pursuant to the Constitution, “no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law” (Article XII, Section 4, 1935 Constitution), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term. (Alba vs. Evangelista, 100 Phil. 683) Q – It has been said that the life of the Senate is continuous. What does this mean? A – The first twenty-four Senators who were elected on May 11, 1987, served a term of only five years, ending on June 30, 1992. Another twenty-four (24) Senators were elected on May 11, 1992. The first twelve who obtained the highest number of votes served the full term of six (6) years which expired in 1998. The last twelve (12) served a term of only three (3) years ending in 1995. The twelve (12) Senators who were elected in 1995 shall serve the full term of six (6) years. Those elected in the last senatorial elections of 1998 shall serve a full term of six (6) years. There being twelve (12) Senators who were elected every three (3) years for the full term of six years since 1992, the life of the Senate is continuous and shall not at anytime be dissolved. Under this scheme, fifty percent (50%) of the Senate membership is retained and the other fifty percent (50%) is replaced by a new set of Senators who may be elected for the first time or re-elected every three (3) years. Q – Section 4, Article VI, of the 1987 Constitution provides that no Senators shall serve for more than two consecutive terms. Is this prohibition advantageous or disadvantageous to the Filipino people? Explain. A – This prohibition may be advantageous or disadvantageous to the Filipino people. It is advantageous if the Senator who is banned by the prohibition is not truly deserving anymore of people’s mandate, either because of poor performance, incompetence, corruption and the like. Disadvantageous if the Senator who is banned by the prohibition is one with the stature and ability of Claro M. Recto, Jose P. Laurel, Lorenzo Tañada, Jose W. Diokno, and others with the same stature, brilliance and honesty. Of course, electing senators like them is becoming more and more difficult, if not impossible, because of the prevailing practice of electing men and women not on the basis of their competence and honesty but on the basis of wealth and guns, and through the glittering influence of radio, television,

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movies, entertainment shows, and sports, and the help of broadcast and print media. In the ultimate analysis, while the term of Senators, Congressmen and other public officials is fixed by the Constitution, it is the people, strictly speaking, that finally decides when to declare the “political death” of public officials. This termination is not provided in the Constitution but well-entrenched as a weapon of last resort that can be used by the people at a given time. When this is used and expressed strongly by the voice of the people, the advantage of wealth and guns and the deception of broadcast and print media and entertainment shows, will dwindle like a castle of sand. What is gerrymandering? Give an example. This is a practice of creating a legislative district composed only of towns or localities where a preferred candidate is expected to win, and excluding from said district those towns or localities where a preferred candidate is not expected to win. The author shares this specific example in his home province of Batangas. The towns taken from Taal, Batangas which originally belong to the First District of Batangas (i.e., Sta. Teresita, San Nicolas, Agoncillo) are now included in the Third District of Batangas and included, therefore to the towns of Sto. Tomas, Tanauan, Talisay, etc. The town of San Luis (another town taken from Taal) is now included in the Second District of Batangas. The result is that the small town of San Luis, the ancestral hometown of Ex-Senator Ramon Diokno, Ex-Senator Jose W. Diokno and Ex-Congressman Roberto Diokno, is now included in the second district of Batangas together with the other towns of Bauan, Mabini and Batangas City. Is there a constitutional restraint to gerrymandering? Section 5(3), Article VI of the 1987 Constitution, imposes a restraint to gerrymandering by providing that “each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. xxx” (Section 5[3], Article VI) Is a legislative apportionment measure a justiciable or a political question? It is a justiciable question. In Macias vs. Commission on Elections, the Supreme Court annulled the challenge law because the apportionment was not based on the number of the inhabitants. What are the three rules regarding apportionment of legislative districts? Code: UCR (1) Uniform and progressive ratio: Apportionment shall be made in accordance with the number of respective inhabitants (among

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provinces, cities and Metro Manila area), on the basis of a uniform and progressive ratio subject to the following rules: (a) Each city with not less than 250,000 inhabitants shall be entitled to at least one representative; and (b) Each province, irrespective of number of inhabitants, is entitled to at least one representative. (2) Contiguous, compact and adjacent: Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory in order that gerrymandering may be avoided. (3) Reapportionment within three years: Congress shall make reapportionment of legislative districts within three years following the return of every census. Can Congress increase its membership by passing a law other than a general apportionment law? Congress is not precluded from increasing its membership by passing a law other than apportionment law. In Tobias vs. Abalos (239 SCRA 106), the Supreme Court ruled that reapportionment of legislative districts may be made through a special law. REASON: If reapportionment can be made only through a general law, the people in a new city or province will be deprived of their right of representation. Can our courts make reapportionment of legislative districts? No. (Montejo vs. Comelec, 242 SCRA 45, March 16, 1995) In this case, the petitioner claimed that the conversion of Biliran into a regular province caused an imbalance in the distribution of voters and inhabitants in the 5 districts of Leyte. The Supreme Court ruled that the relief prayed for by the petitioner is beyond the power and authority of the court to do. The issue posed for resolution is clearly a reapportionment of legislative districts, and for this reason, the remedy of petitioner is well within the power and prerogative of Congress. MONTEJO VS. COMMISSION ON ELECTIONS G.R. NO. 118702, MARCH 16, 1995

PARTICULAR SUBJECT: Validity of Comelec’s Resolution No. 2736 transferring some municipalities to another district PRINCIPLE: Apportionment and reapportionment of legislative districts belong to the legislative department, not the Comelec FACTS: The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative districts.

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On January 1, 1992, the Local Government Code took effect and pursuant to its Section 462, the sub-province of Biliran belonging to the Third District of Leyte became a regular province. The conversion of Biliran into a regular province was approved by the people in a plebiscite. As a result of such conversion, eight (8) municipalities in the Third District became the composition of the new province of Biliran while the rest of the municipalities of the Third District were left to compose the district. Consequently, the Third District was reduced to five (5) municipalities with a total population of only 145,067. This resulted in an inequality in the distribution of inhabitants, voters and municipalities in the different districts of Leyte. To remedy such inequality, the Commission on Elections, after consultation with local representatives, promulgated its Resolution No. 2736 wherein it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District. Montejo moved for reconsideration of the resolution alleging that there is an inequitable distribution of inhabitants between the First and Second Districts, and proposed to diminish the 22, 226 voter’s difference between the two districts by transferring the municipality of Tolosa with 7,700 registered voters from the First District to the Second District. The motion was opposed by intervenor Apostol of the Second District. The Commission denied the motion ruling that: 1. The adjustment of municipalities it made involved the least disruption of the territorial composition of each district. 2. Said adjustment complied with the constitutional requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Montejo filed this petition on the ground that Comelec Resolution No. 2736 violates the principle of equality of representation ordained in the Constitution. Intervenor Apostol opposed the petition on the ground of lack of jurisdiction of the Comelec to promulgate the questioned resolution and, assuming that it has jurisdiction, that the resolution is not in accord with the Constitution. The Supreme Court annulled and set aside Comelec Resolution No. 2736, Section 1, insofar as it transferred Capoocan of the Second District and Palompon of the Fourth District to the Third District. The petition to transfer Tolosa to the Second District is denied. ISSUE: Can the Comelec transfer municipalities from one legislative district to another legislative district?

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HELD: The basic powers of respondent Comelec, as enforcer and administrator of our election laws, are spelled out in black and white in Section 2(c), Article IX-B of the Constitution. Rightly, respondent Comelec does not invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of its power of redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is entitled “Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area.” Its substantive section states: “Section 1. For purpose of the election Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: xxx xxx xxx “Section 2. The Commission on Elections is hereby empowered to make minor adjustments of the reapportionment herein made.” “Section 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph 3, Section 5 of Article VI of the Constitution. The number of members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election.” Consistent with the limits of its power to make minor adjustment, Section 3 of the Ordinance did not also give the Comelec any authority to transfer municipalities from one legislative district to another district. The power granted by Section 3 to the respondent Comelec is to adjust the number of members (not municipalities) “apportioned to the province out of which such new province was created…” Presiding from these premises, the Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it promulgated Section 1 of its Resolution No. 2736 transferring the municipality of Capoocan of the Second

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District and the municipality of Palompon of the Fourth District to the Third District of Leyte. It may well be that the conversion of Biliran from a sub-province to a regular province brought about an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its degree, could devalue a citizen’s vote in violation of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner’s remedy lies with Congress. SPECIAL ELECTION IN CASE OF VACANCY IN EITHER HOUSE Q – Is it mandatory to call a special election to fill a vacancy in the Senate or House of Representatives? A – The matter of whether special election shall be called or not is discretionary on the part of Congress. In case a special election takes place, the person elected shall serve only for the unexpired term. SALARIES Q – What is the salary of the Members of Congress under the 1987 Constitution? A – P204,000.00 per annum. (Section 17, Article 18) Q – Can salaries of the members of Congress be increased? A – Yes, provided that it cannot be effective during the term of the members of the Congress who have approved such increase. Q – Can salaries of the members of Congress be decreased? A – Yes, as there is no constitutional prohibition to this effect. Q – Can salaries of Members of Congress be directly increased by and through granting them some emoluments which are not part of their fixed salaries? A – Section 10, Article 6, of the 1987 Constitution does not contain any specific provision regarding this matter and it may be interpreted to mean that it is not expressly prohibited and therefore it is legally possible. However, it is clear from the wording of Section 10 that the basic intention is not to allow any increase in compensation and following this intention, any kind of increase of salary, even if it is made indirectly, should not be allowed. Q – Are members of Congress entitled to allowances for going to and from different places in connection with his functions as a legislator? A – Said allowances are not part of their salaries, hence, they are entitled to such allowances provided they are incurred in relation to or in connection

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with their duties and functions as legislators. Otherwise, there is no legal justification to allow the payment of such allowances. Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be liable in any other place for any speech or debate in the Congress or in any committee thereof. What are the immunities of a Senator or a member of the House of Representatives? (1) Privilege from arrest – In all offenses punishable by not more than six (6) years imprisonment, a Senator or a member of the House of Representatives “shall be privileged from arrest while the Congress is in session.” (2) Parliamentary privilege of speech – They shall not be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. When is “privilege from arrest” available? It is available “while the Congress is in session,” whether the session is regular or special, or whether or not the legislator is actually attending his session. Is the privilege from arrest available when Congress is in recess? Section 11 clearly states that it is available only while the Congress is in session. The reason for this is because the purpose of the said privilege is to protect a member of Congress against harassment which will prevent him from attending the session. What is parliamentary privilege of speech? It is a privilege or immunity of a member of Congress from being questioned or held liable in any other place for any speech or debate in the Congress or in any committee thereof. What does the phrase “for any speech or debate” include? They include any statement or utterances a legislator makes while he is performing his official functions (i.e., speeches delivered, statements made, votes casts, bills introduced and other acts done while performing his official duties).

Section 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

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CONFLICT OF INTEREST Q – Under Section 12, Article VI of the 1987 Constitution, Senators and Members of Congress shall make a full disclosure of their financial and business interest and shall notify the house concerned of a potential conflict of interest. When shall they make their full disclosure and notice? Why? A – They shall do so upon assumption of office. (Section 12, first sentence, Article VI) REASON: To prevent them from using the influence of their position and to reduce, if not to eliminate, the propagation of their personal and business interest, especially those which are contrary to and adverse to public interest. TRUE OR FALSE. EXPLAIN YOUR ANSWER 1.

2.

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A, a lawyer, was elected Senator of the Republic of the Philippines. After his election as senator, he can retain his investments in his business. Answer: True but he must make a full disclosure of his business and financial interest and notify the Senate of a potential conflict of interest if he authors a bill. (Section 12, Article VI) REASON: To prevent him from using the influence of his position and to reduce, if not eliminate, the propagation of his personal and business interest, especially those which are contrary to and adverse to public interest. He can continue to practice law. Answer: True but he cannot personally appear as counsel before any court of justice, the Electoral Tribunals, on quasi-judicial and other administrative bodies. (Section 14, Article VI) Suppose A lost in the elections. Later on, he was appointed Secretary of Justice. Can he practice law or participate in any business? Answer: He cannot directly or indirectly practice law or participate in any business. He should divest himself of his investments in his business.

Section 13. No Senators or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. INCOMPATIBLE AND FORBIDDEN OFFICES Q – What are the common prohibitions to Senators and Members of the House of Representatives?

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A – 1.

They cannot hold incompatible offices (which means that they cannot simultaneously hold the incompatible office while serving their term in Congress) 2. They cannot be appointed to any office which may have been created or the emoluments thereof increased during the term for which they were elected. (Section 13, Article VI, 1987 Constitution) Q – Is the prohibition to hold incompatible office absolute? A – No. The rule and the exception is as follows: General Rule: A Senator or Member of the House of Representatives may not hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Exception: Except if it is shown that said other office or employment is an extension of the legislative position or is in aid of legislative duties. Example: 1. Members of the Congress who are appointed by the President to serve in the Peace Panel between the GRP and NDF. 2. Members of Congress who are appointed by the President to assist him during his re-negotiation for renewal of the Amari Contract. In both cases, the participation of the legislators concerned in those transactions or negotiations will help them greatly in threshing out or in approving an appropriate legislation. Q – What is the effect of holding incompatible office? A – Upon the holding of an incompatible office, the legislator concerned automatically forfeits his seat in Congress. In Adaza vs. Pacana (135 SCRA 431), the petitioner who was the Governor of Misamis Oriental ran for the Batasang Pambansa. Pacana, who was then the Vice-Governor of the said province, ran likewise for the Batasang Pambansa but lost. He subsequently assumed the governorship when Adaza became qualified as Assemblyman. Adaza questioned Pacana’s assumption of the governorship on the ground that under the parliamentary system a legislator could concurrently serve as governor, and for this reason, there was no vacancy in the governorship. The Supreme Court ruled that when Adaza took his oath as Assemblyman, he automatically forfeited the governorship. Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any

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franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. INHIBITIONS AND DISQUALIFICATIONS OF A SENATOR OR A MEMBER OF THE HOUSE OF REPRESENTATIVES Q – What are the inhibitions and disqualifications of a Senator or a Member of the House of Representatives? A – Section 14, Article VI of the 1987 Constitution speaks of three (3) inhibitions and disqualifications for a Senator or a Member of the House of Representatives, to wit: 1. DURING THEIR TERM OF OFFICE, they cannot personally appear as counsel in: (a) any court of justice; (b) or before the Electoral Tribunals; (c) or before quasi-judicial and other administrative bodies. 2. DURING THEIR TERM OF OFFICE, they cannot directly or indirectly, be interested financially (a) in any contract with, (b) or in any franchise or special privilege granted by, the government, or in any subdivision, agency or instrumentality thereof, including any government owned or controlled corporation, or its subsidiary. 3. DURING THEIR TERM OF OFFICE, they shall not intervene in any matter before any office of the Government for their pecuniary benefit or where they may be called upon to act on account of their office. Q – What is the rationale for the said inhibitions and disqualifications? A – The rationale is as follows: Prohibition To Appear As Counsel – To see to it that the legislator cannot exert undue influence, directly or indirectly, upon the court or quasi-judicial bodies above-mentioned. Prohibition From Being Financially Interested In Any Contract – To prevent a legislator from committing abuses, undue influence and pressure, which are prejudicial to public interest. Prohibition Not To Intervene – Same reasons as above-mentioned. In actual reality, the mere appearance, intervention or representation of a legislator creates advantage for him and disadvantage to his adversaries. On the other hand, if legislators intercede for both adversaries in the case, the judge, arbiter, commissioner or other public officials concerned cannot be expected to act independently and objectively.

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Q – Is the disqualification of a lawyer-legislator to practice his profession absolute? A – No. When it pertains to appearance during a trial, or a hearing before any judicial or quasi-judicial body, the same may be made not by him but by any of the associates of his law firm. Q – Are all contracts or transactions of the government barred by Section 14, Article VI? A – What is barred are only those contracts from which a legislator is expected to derive gain or profit at the expense of the government or any of its agencies or intrumentalities. Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determined until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time. SESSIONS Q – What are the two kinds of sessions mentioned in Section 15, Article VI, of the 1987 Constitution? A – 1. Regular Session – The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law. 2. Special Session – A special session may be called by the President at any time. Q – What is a “Sine Die” session? A – It is one held without day, by staying the hands of the clock definitely at a certain time and continuing the session indefinitely. (U.S. vs. Pons, 34 Phil. 729) Q – How long shall Congress hold session? A – Congress shall continue to hold session for such number of days it may determine but a mandatory recess is prescribed for a thirty day (30) period before the opening of the next regular session, excluding Saturdays, Sundays and legal holidays. Q – Is the mandatory period of recess fixed at thirty days before the opening of the next regular session? A – Congress may determine if this will be prolonged or not. What it cannot control is the power of the President to call a special session because the necessity of calling the same rests on the discretion of the President.

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Q – What are the instances when Congress meets even without the President’s call? A – 1. When Congress meets to canvass the votes and the returns of the election of the President and the Vice-President. (Section 4, Article VII) 2. When congress convenes in accordance with its rules to enact a law calling for a special election to elect a President and a Vice-President. (Section 10, Article VII) 3. When the House of Representatives acts on a verified complaint for impeachment, or indorses the same, and the Senate subsequently tries and decides on the Articles of Impeachment indorsed by the House of Representatives. (Section 3, Article XI) 4. Following a proclamation of martial law or suspension of a privilege of the writ of habeas corpus, and twenty-four (24) hours following such proclamation or suspension, Congress shall convene in accordance wit its rules without a need of call. (Section 18, Article VII) Q – When are joint sessions called, and how shall the two houses of Congress vote? A – There shall be a joint session of the two houses of Congress in the following occasions: 1. When they choose the President of the Philippines under Section 4, Article VII; 2. When they determine the disability of the President under Section 11, Article VII; 3. When they confirm the nomination of the Vice-President under Section 9, Article VII; 4. When they propose constitutional amendments under Section 1, Article XVII; 5. 2/3 votes of both Houses in joint session assemble, voting separately, is needed to declare the existence of a state of war. In all the said instances, both Houses meet in joint session but they vote separately. Q – When do they meet in joint session and vote jointly? A – They vote jointly in joint session on the following matters or occasions: 1. When they revoke or extend the proclamation of martial law or a proclamation suspending the privilege of the writ of habeas corpus under Section 18, Article VII; 2. Both Houses cannot, during sessions, adjourn for more than three days, or transfer to a place other than that in which the two Houses shall be sitting without the consent of the other.

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Section 16. (1) The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (4) Each House shall also keep a Journal of its proceedings, and from time to time publish the same, excepting, such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. (5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any place than that in which the two Houses shall be sitting. QUORUM Q – What constitutes a quorum to do business in each House? A – A majority of all the members of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner, and under such penalties, as such House may provide. (Section 16[2], Article VI) Q – Define quorum. A – The number of persons of the body which, when legally assembled in their places, will enable the body to transact its proper business, or, in other words, that number that makes a lawful body and give it power to pass a law or ordinance or do any other valid corporate act. (Javellana vs. Tayo, 6 SCRA 1042) Simply stated, it refers to the number of members, whose presence is required before a meeting can legally take action. It is usually a majority of the entire body. There must at least be a quorum which is a majority of all the members or one half their members plus one. (Torres vs. Ribo, 81 Phil. 44) INTERPRETATION OF SECTION 16(2), ARTICLE VI “A majority of all the members of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel

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the attendance of absent members in such manner, and under such penalties, as such House may provide.” OLD CASE: JOSE AVELINO AND MARIANO CUENCO 83 PHIL. 17 Jose Avelino and Mariano Cuenco were both members of the Senate. Jose Avelino who was then Senate President walked out of the session hall with his followers, after adjourning the session. Twelve (12) Senators were left in the session hall. These Senators continued meeting. In the process, they replaced Jose Avelino with Mariano Cuenco as Acting President. Avelino questioned the validity of the election of Cuenco on the ground that the twelve senators who elected him did not constitute a majority and could not, therefore, constitute a quorum, there being twenty-four (24) members of the Senate. The petition for quo warranto was dismissed, the same being considered as a political question but Avelino moved for reconsideration of the decision. This motion was favorably resolved and the Supreme Court assumed jurisdiction over the petition. This time, the Supreme Court ruled that the twelve senators who elected Cuenco were sufficient to constitute a quorum, the said number being a majority of twenty-three (23), not twenty-four (24), because one Senator was then in the United States. For this reason, the Senator is not only outside of the territorial jurisdiction of the Philippines but also outside and beyond the coercive jurisdiction of the smaller number of senators. The remaining senators can therefore “adjourn from day to day and compel the attendance of absent members in such manner, and under such penalties,” as the Upper House, or the Senate, may provide. OFFICERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES Q – Who are the officers of the Senate and the House of Representatives? A – HOUSE OF REPRESENTATIVES

SENATE

1. 2. 3. 4. 5.

Senate President Senate President pro tempore Majority Floor Leader Minority Floor Leader Chairman of various standing committee

1. 2. 3. 4. 5.

Speaker Speaker pro tempore Majority Floor Leader Minority Floor Leader Chairman of various standing committees

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6. Chairman of special committees 7. Secretary 8. Sergeant-at-arms

6. Chairman of special committees 7. Secretary 8. Sergeant-at-arms

DISCIPLINE OF MEMBERS Q – Who determines the rules of the proceedings of each House? A – Each House may determine the rules of its proceedings. (Section 16[3], Article VI) Q – Who punishes, suspends or expels the members of each House for disorderly behavior? A – Each House may punish, suspend or expel its Members for disorderly behavior, but subject to the following conditions: Said punishment, suspension or expulsion must have the concurrence of two-thirds of all its members; A penalty of suspension, when imposed, shall not exceed sixty (60) days. (Section 16[3], Article VI) Q – What constitutes disorderly behavior and who determines if a disorderly behavior was committed? A – It depends on Congress to determine what constitutes the disorderly behavior being complained of, and if the same was indeed committed. This matter is considered a political question and which is beyond the ambit of judicial interference or review. Any expulsion or suspension of a member, however, which violates the two conditions aforementioned (concurrence of two-thirds or violation of the sixty [60]-day period) is considered as a justiciable question. LANDMARK CASES (OLD CASES) 1. 2.

Alejandrino vs. Quezon (46 Phil. 83) Osmeña vs. Pendatum (109 Phil. 863) 1997 CASE

Paredes vs. Sandiganbayan (G.R. No. 118364, January 28, 1997) NOTE: On account of the decision of the Supreme Court in Paredes vs. Sandiganbayan affirming the decision of the Sandiganbayan to suspend Congressman Ceferino S. Paredes, Jr., a question may possibly be asked, thus:

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Q – Can a member of Congress be suspended by the Courts? A – In the old case of Osmena vs. Pendatum (109 Phil. 863), the Supreme Court ruled that suspension of a member of Congress on the ground of disorderly behavior is a political question and it is therefore beyond the discretion and authority of the courts to intervene on such a kind of question. Suspension in this case is premised on the provision of Section 10(3), Article 6 of the 1935 Constitution which provides as follows: “Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and with the concurrence of two-thirds of all its Members, expel a Member.” The Supreme Court, however, distinguished this kind of suspension from that which is based on alleged violation of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. In effect, the Supreme Court ruled that if the basis of suspension is alleged violation of Republic Act 3019, the same is no longer a political question but a justiciable question. The Supreme Court said: “xxx Petitioner’s invocation of Section 16(3), Article VI of the Constitution xxx is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of Republic Act 3019, which is not a penalty but a preliminary preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a member of the House of Representatives.” xxx (Underlining Supplied) JOURNALS Section 16(4), Article VI of the 1987 Constitution provides as follows: “Section 16(4). Each House shall keep a Journal of its proceedings, and from time to time to publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings.” Q – What, if any, is the difference between a legislative journal and an enrolled bill? A – The enrolled bill is the official copy of an approved legislation which bears the certification of the presiding officer of the legislative body. In Mabanag vs. Lopez Vito (L-1123, March 5, 1947), the Supreme Court ruled that the enrolled bill shall prevail over the journal. The enrolled bill is conclusive upon the courts as regards the tenor of the measure passed by Congress

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and approved by the President. A legislative journal is a book containing the records of the proceedings of the legislature. What is the probative value of journals? It is a conclusive evidence of the contents thereof. (U.S. vs. Pons, 34 Phil. 729) What is the importance of Journals? Journals are important for the following reasons: 1. They are the best source of information on what actually took place during the proceedings in each House. 2. As such, they serve as reference for authors, researchers and historians, especially in cases where there is a need to dig deeper into the intention of the legislators who took part in the debates. 3. The publication of journals is in line with the right to information on matters of public concern. What should be contained in a journal? 1. The yeas and nays on any question, at the request of one-fifth of the members present (Article 6, Section 16[4] of the 1987 Constitution) 2. The yeas and nays on the final passage of every bill. (Article 6, Section 26[2]) 3. The yeas or nays, the name of the members voting for or against any bill. (Article 6, Section 27[1]) 4. The objection of the President to any bill which he has disapproved (Article 6, Section 27[1]) Which is conclusive upon the courts? Is it the journal of what actually transpired in Congress or the testimony of witnesses or newspaper reports? The journal is conclusive upon the courts. (U.S. vs. Pons, 34 Phil. 729) In case of conflict between what the journal says from that of the enrolled bill, which prevails? The “enrolled bill” being the official copy of the approved legislation and which bears the certification of the presiding officer of the legislative body, the courts, out of respect to a co-equal department, accepts the certification of the presiding officer as conclusive assurance that the bill which is so certified, is authentic. (Casco vs. Philippine Chemical Company vs. Jimenez, 7 SCRA 347) The enrolled bill is conclusive upon the court as regards the tenor passed by Congress and approved by the President. The reason for this rule is to avoid the situation where the courts will be inquiring into the conduct of the legislature which is a co-equal department or to go behind

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the enrolled bill, instead of giving it due respect. (Mabanag vs. Lopez Vito, L-1123, March 5, 1947) Q – When a co-equal department repudiates the enrolled bill like what happened in Astorga vs. Villegas where the presiding officer repudiates his signature in the enrolled bill, will the latter still prevail over the journal? A – In such a case, the journal must be accepted as conclusive. (Astorga vs. Villegas, No. L-23475, April 30, 1974) NOTE: In 1974, twenty-seven (27) years after the case of Mabanag vs. Lopez Vito (L-1123, March 5, 1947), a similar controversy was brought to the determination of the Supreme Court. This is the case of Astorga vs. Villegas. HERMINIO A. ASTORGA, ETC. VS. ANTONIO J. VILLEGAS NO. L-23475, APRIL 30, 1974 FACTS: On March 30, 1964, House Bill No. 9226, a bill of local application, was filed in the House of Representatives. During the discussion of the said bill on second reading on May 20, 1964, substantial amendments to Section 1 (Amending Section 10 of R.A. No. 408 defining the powers and duties of the Vice-Mayor) was introduced by Senator Arturo Tolentino. The said amendments were approved in toto by the Senate. The amendment recommended by Senator Gerardo Roxas does not appear in the journal of the Senate proceedings as having been acted upon. After the passage of the said bill in the Senate, the Secretary of the Senate sent a letter to the House of Representatives that House Bill no. 9266 had been passed by the Senate on May 29, 1964, “with amendments.” Attached to the letter was certification of the amendment, which was the one recommended by Senator Roxas and not the Tolentino amendments which were the ones actually approved by the Senate. The House of Representatives thereafter signified its approval of House Bill No. 9266 as sent back to it, and copies thereof were caused to be printed. The printed copies were then certified and attested by the Secretary of the House of Representatives, the Speaker of the House of Representatives, the Secretary of the Senate and the Senate President. On June 16, 1964, the Secretary of the House transmitted four printed copies of the bill to the President of the Philippines, who affixed his signatures thereto by way of approval on June 18, 1964. The bill thereupon became Republic Act No. 4065. On July 5, 1964, Senator Arturo Tolentino issued a press statement that the enrolled copy of House Bill No. 9266 signed into law by the President of the Philippines was a wrong version of the bill actually passed by the Senate because it did not embody the amendments introduced by him and approved

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on the Senate floor. Upon being informed of this fact by the Senate President, the President of the Philippines sent a message to the presiding officers of both Houses of Congress informing them that in view of the circumstances he was officially withdrawing his signature on House Bill No. 9266, adding that “it would be untenable and against public policy to convert into law what was not actually approved by the two Houses of Congress.” Upon knowing the foregoing facts, Mayor Antonio Villegas issued circulars to disregard the provisions of R.A. 4065. He also ordered the recall of five (5) members of the City Police Force who had been assigned to Vice-Mayor Herminio A. Astorga under the authority of R.A. 4065. The petitioner filed a petition for Mandamus, Injunction and/or Prohibition with Preliminary Mandatory and Prohibitory Injunction to compel the respondent to comply with the provisions of Republic Act 4065. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate President, granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. HELD: The journal of the proceedings of each House of Congress is no ordinary record. The Constitution requires it. While it is true that the journal is not authenticated and is subject to the risks of misprinting and other errors, the point is irrelevant in this case. This Court is merely asked to inquire whether the text of House Bill No. 9266 signed by the Chief Executive was the same text passed by both Houses of Congress. Under the specific facts and circumstances of this case, this Court can do this and resort to the Senate journal for the purpose. The journal discloses that substantial and lengthy amendments were introduced on the floor and approved by the Senate but were not incorporated in the printed text sent to the President and signed by him. This Court is not asked to incorporate such amendments into the alleged law, which admittedly is a risky undertaking, but to declare that the bill was not duly enacted and, therefore, did not become law. This we do, as indeed both the President of the Senate and the Chief Executive did, when they withdraw their signatures therein. In the face of the manifest error committed and subsequently rectified by the President of the Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such rectification and holding that the erroneous bill has become law would be to sacrifice truth to fiction and bring about mischievous consequences not intended by the law-making body. (Underlining Supplied) ADJOURNMENT Q – What are the two prohibitions mentioned in Section 16(5), Article VI of the 1987 Constitution?

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A – The two prohibitions mentioned in Section 16(5) are the following: 1. During the sessions of Congress, neither House shall adjourn for more than three (3) days without the consent of the other. 2. During the sessions of Congress, neither House shall adjourn to any other place than that in which the two Houses shall be sitting. Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it. ELECTORAL TRIBUNALS Q – Does the Senate and the House of Representatives have an Electoral Tribunal? A – Under the 1987 Constitution, the Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Under the 1973 Constitution, this power and authority belongs to the Commission on Elections.

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Q – What is the composition of each Electoral Tribunal? A – Each Electoral Tribunal shall be composed of nine (9) members. Three (3) shall be justices of the Supreme Court to be designated by the Chief Justice. Six (6) shall be Members of the Senate or House of Representatives, as the case may be. Q – How are the six (6) members chosen? A – They shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. Q – Who shall be the Chairman? A – The Senior Justice in the Electoral Tribunals shall be its chairman. Q – Are the decisions of the Electoral Tribunals appealable to the Supreme Court? A – No, except if there is a clear showing of grave abuse of discretion. Q – Are the Electoral Tribunals independent of the legislature? A – In the discharge of their constitutional duties, the Electoral Tribunals are independent not only of the legislature but also of the other departments for that matter. In fact, it has the power to appoint, supervise and control its employees, they being the employees of the Electoral Tribunals and not of the Senate. Q – Who has the right to nominate to the legislative seats in the Electoral Tribunals? A – Under the 1935 Constitution, the parties who have the largest and second largest number of votes in the chamber are entitled to nominate three (3) members each to the legislative seats. Under the 1987 Constitution, the members of the electoral tribunal “shall be chosen on the basis of the proportional representation from the political parties and the parties or organizations registered under the party-list system.” In accordance with the apportionment, as provided in Section 17, Article VI of the 1987 Constitution, the parties, “on the basis of proportional representation from political parties and the parties or organizations registered under the party-list system represented therein,” are entitled to nominate their own representatives in the electoral tribunals. This is an improvement of the decision in Tañada vs. Cuenco (100 Phil. 1101), that the right to nominate to the legislative seats in the electoral tribunals belonged to the majority and minority parties in the chamber, and not to the chamber itself or to the majority party therein.

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ROBERT Z. BARBERS VS. COMELEC G.R. NO. 165961, JUNE 22, 2005 THE SENATE ELECTORAL TRIBUNAL IS THE SOLE JUDGE OFALL CONTESTS RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS OF THE MEMBERS OF THE SENATE. THIS AUTHORITY WHICH IS PROVIDED IN SECTION 17, ARTICLE VI OF THE CONSTITUTION AND RULE 12 OF THE REVISED RULES OF THE SENATE ELECTORAL TRIBUNAL, IS CATEGORICAL AND COMPLETE. FACTS: The Comelec promulgated a resolution on June 2, 2004, and proclaimed Biazon as the “12th Ranking duly elected 12th Senator of the Republic of the Philippines in the National and local elections that were held on May 10, 2004. Robert Z. Barbers claimed that the remaining uncanvassed COC’s and the votes and the results of the special elections, which were still to be conducted, would undoubtedly affect the results of the elections and he claimed that the proclamation of Biazon was illegal and premature being based on an incomplete canvass. ISSUES: Is the premature proclamation of the Comelec a grave abuse of discretion amounting to lack or excess of jurisdiction? Can the Supreme Court take cognizance of the petition to annul a proclamation of a Senator? HELD: A canvass does not reflect the true vote of the electorate unless the Board of Canvassers considers all returns and omits none, but this is true only where the election returns missing or not counted will affect the results of the election. Although all the election returns have not been recovered by the Board of Canvassers, the latter may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election. On the question of whether the Supreme Court can take cognizance of a petition to annul a proclamation of a Senator, the Supreme Court ruled that the Senate Electoral Tribunal is the sole judge of all contests relating to the election returns, and qualifications of the members of the Senate. The authority conferred upon the Senate Electoral Tribunal by Section 17, Article VI of the Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal is categorical and complete. The Supreme Court has no jurisdiction to entertain the instant petition. The Senate Electoral Tribunal has the exclusive jurisdiction to act on the complaint of Robert Z. Barbers.

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THE COMMISSION ON APPOINTMENTS Q – What is the composition of the Commission on Appointments? A – The composition of the Commission on Appointment is as follows: Senate President as ex officio Chairman Twelve (12) Senators Twelve (12) Members of the House of Representatives Q – How are they elected? A – They are elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented. Q – Can the chairman vote? A – The Chairman of the Commission shall not vote except in case of tie. Q – Within what period shall the commission act on all appointments submitted to it? A – Within thirty (30) session days from their submission. Q – If the Commission on Appointments can meet only during the sessions of Congress, can the President make an appointment during the recess? A – Yes, but the said appointment is subject to consideration, confirmation or rejection of the Commission on Appointments. This is referred to and called as ad interim appointment. Q – Are the electoral tribunals functioning only during the sessions of Congress? A – The electoral tribunals continue to function during the recess. This is brought about by the fact that there are many election protests being filed before and after the winners are proclaimed. Q – What happens to ad interim appointments not acted upon at the time of adjournment of the Congress? A – They are deemed by-passed. Q – When will the Electoral Tribunal and the Commission on Appointments be constituted? A – They shall be constituted within thirty (30) days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. Q – When shall the Commission on Appointments meet? A – It shall meet only while Congress is in session, at the call of its Chairman or a majority of all its members.

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POWERS OF CONGRESS Q – Classify the powers of Congress. A – The powers of Congress are classified as follows: LEGISLATIVE POWER IN GENERAL

SPECIFIC LEGISLATIVE POWERS

NONLEGISLATIVE POWERS

IMPLIED POWERS

INHERENT POWERS

Legislative power in general refers to the power to enact laws which includes the power to alter or repeal them.

These are the powers expressly conferred by the Constitution.

These are the powers which are not basically legislative in nature but which are performed by Congress.

These are the powers which are not expressly conferred by the Constitution but which are implied from those expressly granted.

These are the powers which are inherent to the exercise of its legislative powers.

The power to enact laws starts formally from the time a bill, or a proposed law, is introduced by a member of the House of Representatives or a Senator. Once approved by Congress and the President, the said bill becomes a law.

EXAMPLE: Power of Appropriation Power of Taxation Power of Expropriation

EXAMPLE: 1. Power to propose amendments to the Constitution 2. Power to impeach. 3. Power to canvass presidential elections 4. Power to declare the existence of a state of war.

EXAMPLE: 1. Power to punish or declare a person in contempt during or in the course of legislative investigation 2. Power to issue summons and notices in connection with matters subject of its investigation or inquiry

EXAMPLE: 1. Power to determine the rules of its proceedings

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Q – What are the limitations to general legislative power? A – They are the following: 1) Substantive limitations 2) Procedural limitations Q – What are the said substantive limitations? A – They refer to the following prohibitions and restrictions which are imposed by the 1987 Constitution: PROHIBITIONS CODE: (EBITAT) E-x post facto law B-ill of attainder I-mpairment of the obligation of contract T-itle of royalty or nobility A-ppellate jurisdiction of the Supreme Court T-ax exemption 1. No ex post facto law shall be passed. (Section 22, Article III) 2. No bill of attainder shall be passed. (Section 22, Article III) 3. No law impairing the obligation of contracts shall be passed. (Section 10, Article III) 4. No law granting a title of royalty or nobility shall be passed. (Section 31, Article VI) 5. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. (Section 30, Article VI) 6. No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress. (Section 28(4), Article VI) CONSTITUTIONAL RESTRICTIONS 1. No money shall be paid out of the Treasury except in pursuance of an appropriation made by the law. (Section 29[1], Article VI) 2. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister or other religious teacher, or dignitary as such, except when such priest, preacher, minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (Section 29[2], Article VI) 3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If

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the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any shall be transferred to the general funds of the government. (Section 29[3], Article VI) 4. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 5. All appropriation, revenue or tariff bills, bills authorizing increase of public debt, bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. 6. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (Section 25[1], Article VI) 7. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (Section 25[2], Article VI) 8. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (Section 25[3], Article VI) 9. A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (Section 25[4], Article VI) 10. Two-thirds (2/3) votes of both Houses in joint session is needed to declare existence of a state of war. 11. Congress may, by law, authorize the President to fix and impose tariff rules, etc. 12. Charitable institutions shall be exempt from taxation. 13. Tax exemption needs concurrence of a majority of the members of Congress. DISCUSSION OF THE SAID RESTRICTIONS 1. POWER OF APPROPRIATION Q – What is an appropriation measure? A – An appropriation measure is a statute the primary and specific purpose of which is to authorize the release of public funds from the treasury. It may be general or special.

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Q – What is a general appropriations law? A – A general appropriations law is for the purpose of providing financial operations of the entire government during the fiscal period. Q – What is a specific appropriations law? A – A specific appropriations law is for a specific purpose, e.g., Creation of fund for Mt. Pinatubo and lahar victims. DISCUSSION OF EACH RESTRICTION 2.1

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All appropriation bills should originate in the House of Representatives but the Senate may propose or concur with amendments. (Section 24, Article VI) What is the reason for this rule? Because the House of Representatives is composed of Two Hundred Fifty (250) regular District Representatives and Party-List Representatives, compared to only twenty four Senators, hence, it is more numerous in membership than the Senate. Besides, the members of the lower house have a closer and more direct access to their constituents and are expected to be more familiar with the needs of the whole country and their constituents in particular. 2.2 Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (Section 25[6], Article VI) What is the reason for this rule? To see to it that discretionary funds are not spent for personal benefit, or for any purpose which are contrary to public interest. 2.3 Special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal included therein. (Section 25[4], Article VI) What is the reason for this rule? To see to it that an appropriation measure is supported by existing, adequate and available funds. 2.4 Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content and manner of preparation of the budget shall be prescribed by law. (Section 25[1], Article VI) What is the reason for this rule? To avoid undue influence of Congress over the President.

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Q – Can Congress reduce the appropriations recommended by the President? A – This can be done, there being no prohibition against the same. 2.5 No provision or enactment shall be embodied in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (Section 25[2]), Article VI) Q – What is the reason for this rule? A – To see to it that a non-appropriation item is not inserted in an appropriation measure in violation of the constitutional inhibition against riders to the general appropriations act. Q – What is a rider? A – A rider is a completely unrelated provision included in the general appropriations bill. 2.6 Every bill passed by the Congress shall embrace only one subject which will be expressed in the title thereof. (Section 26[1], Article VI) Q – What is the reason for this rule? A – This will prevent riders from being included in an ordinary bill. 2.7 The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (Section 25[3], Article VI) Q – What is the reason for this rule? A – To prevent appropriations the purpose of which is to allot a budget which is intended to benefit the legislators. To hide this to the public, the legislators agree among themselves that the same shall no longer be scrutinized and subjected to public hearings. This kind of appropriation is known as appropriation subrosa. 2.8 No law shall be passed authorizing any transfer of appropriations; however, the President, President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (Section 25[5], Article VI) Q – What is the reason for this rule? A – This prohibits transfer of funds from one department to another department. Oftentimes, transfer of funds is being made for a variety of political motives, thus: (1) Sometimes, it serves to implement exchange of favors

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between the President and the Members of Congress; (2) In the course of a political campaign, some funds are transferred from one executive department to another so these can be used as campaign funds. 2.9 No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (Section 29[2], Article VI) What is the reason for this rule? Public funds or property should not be used for sectarian purposes as and by way of respect to the principle of the separation of Church and State. What is the extent of the prohibition to use public funds or property for sectarian purposes? The prohibition applies only when the appropriation is intended purposely to benefit a religious institution. The use of public property for religious purposes is not prohibited in the following cases: 1. When the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general. Example: The Quirino Grandstand may be used by the El Shaddai, or by any religious denomination, to commemorate its founding anniversary. It may also be used by any political party for a political rally. 2. Ecclesiastics may be paid public funds if they serve the government in a non-ecclesiastical capacity. Example: A priest serving as a member of the committee investigating the Centennial Expo Scam may receive transportation allowance from public funds because he receives the same not as an ecclesiastic but as a member of the said committee. Under Section 25(7), Article VI, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until a new general appropriations law is passed by Congress. What is the advantage of this rule than the old rule and procedure of the President having to call Congress in special session until it enacts a new general appropriations law? This is better than the old procedure of the President having to call the Congress in special session until it enacts a new general appropriations law. Experience shows that on account of the time consumed before a new

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general appropriations law is passed, funds are released in anticipation of its approval. 3. Q – A –

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OTHER LIMITATIONS 3.1 Rule of taxation shall be uniform and equitable. What is the difference between uniform taxation and equitable taxation? Uniformity means that persons or things belonging to the same valid classification shall be taxed at the same rate. Equitable taxation means that taxes should be apportioned among the people according to their capacity to pay. 3.2 Congress may, by law, authorize the President to fix and impose tariff rates, etc. What actually is the extent of authority which may be granted by Congress to the President regarding this matter? “The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the government.” What is the reason for this rule? This is one of the legislative powers which may validly be delegated by Congress to the President to give the latter the authority and opportunity to act promptly on the economic problems confronting our country instead of being subject to delay caused by the usual debates and other congressional proceedings. 3.3 Charitable institutions, etc., shall be exempt from taxation. Who are entitled to tax exemption? The tax exemption under Section 28(3), Article VI, is now extended to three institutions such as the following: (1) charitable institutions; (2) religious institutions; and (3) educational institutions. 3.4 The exemption needs the concurrence of a majority of the members of Congress. Why is it that a law granting tax exemption needs the concurrence of an absolute majority “of all the Members of Congress”? The reason for this is because a tax exemption means less revenue which the government should have earned were it not for the tax exemption. What are the procedural limitations to the general legislative power? Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

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(2)

(2)

No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each Houses shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

NOTE: The step by step procedure in the approval of bills will be discussed separately in this chapter. Q – Does the 1987 Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of a similar bill in the House? A – No. So long as the action taken by the Senate as a body is withheld pending receipt of the House bill. In other words, the substitute bill in the Senate may be filed in anticipation of its receipt of the bill from the House as long as the Senate does not act thereon until it receives the House bill. (Alvarez vs. Guingona, 252 SCRA 295) Section 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.

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Q – Why it is necessary to preserve the records and books of accounts of the Congress? A – They are, or they may be needed from time to time especially in cases where they may supply or give relevant information relative to complaint for graft and corruption allegedly committed by members of Congress. Records of proceedings also serve as reference to researchers and scholars in connection with any book, research, thesis or article being prepared, written or published. Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Q – Is the power of legislative investigation available to both Houses of Congress? A – Yes, by express provision of Section 21. Q – What is the purpose of legislative investigation? A – A legislative body cannot effectively perform legislative work if it does not know the matters which are the subject of legislation. Q – What is the scope of the power of the legislative investigation? A – The power of legislative investigation includes the following: 1. The power to conduct inquiry in aid of legislation in accordance with its duly published rules of procedure. 2. The power to issue summons and notices in connection with matters subject of its investigation or inquiry. 3. The power to punish or declare a person in contempt during or in the course of legislative investigation. The power to determine the rules of its proceedings. Q – Allegedly in aid of legislation, the Senate Blue Ribbon Committee investigated a transaction involving alleged transfer of some properties of Benjamin “Kokoy” Romualdez to the Lopa Group of Companies. When the petitioners were summoned to the said committee, they asked the court (where they have been also charged in connection with the same transaction) to issue a restraining order. The petitioners claimed that the said investigation was not in aid of legislation; that if they appear in the committee, that could prejudice their case in the Sandiganbayan; that the same is a violation of due process as it might weaken their case; and that their appearance in the committee violates their right against self-incrimination. Is the contention of the petitioner tenable?

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A – The investigation being conducted by the Blue Ribbon Committee is not in aid of legislation but in aid of prosecution, hence, it violates the doctrine of separation of powers. Moreover, the claim that petitioner’s appearance in the committee would violate his right against selfincrimination is not applicable for the reason that the right to refuse on the ground of self-incrimination is available only to the accused in a criminal case. (Bengzon vs. Senate Blue Ribbon Committee, G.R. No. 89914, November 20, 1991) Q – An invited witness failed and refused to attend a legitimate legislative investigation. Can he be punished for said failure and refusal to attend a legitimate legislative investigation? A – Said failure or refusal may be punished as a legislative contempt, and the punishment that may be meted out includes imprisonment. In Arnold vs. Nazareno (87 Phil. 29), the petitioner was ordered incarcerated by the Senate until he answered certain relevant questions propounded to him regarding a government transaction which is subject of investigation. Q – Does the relevance of the questions propounded to the witness pertain only to any legislation which is pending in either House of Congress? A – Questions being raised in a legislative investigation do not necessarily have to be relevant to any pending legislation, provided only that they are relevant to the subject matter of the investigation being conducted. Q – There is an investigation in aid of legislation which was initiated by the senate. The witnesses who are asked to testify claims that the senate could not conduct the investigation because the matter involves a case pending in court. Is the said claim valid? A – No, otherwise it would be easy to subvert any legislative investigation by instituting the case. (Standard Chartered Bank vs. Senate Committee On Banks, 541 SCRA 456) Q – How long may a private individual be imprisoned by the legislature for contempt? A – In Lopez vs. Delos Reyes (55 Phil. 170), the punishment could last only for the duration of the session when the contempt was committed. In Arnold vs. Nazareno, the Supreme Court held that the offender could be imprisoned indefinitely by the Senate, the latter being a continuing body, provided that the punishment did not become so long as to violate process. With respect to the House of Representatives, the imprisonment could last not only during the session when the offense was committed but until the final adjournment of the body.

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Section 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before his scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Q – Can cabinet secretaries be obliged to appear before and be heard by either House of Congress on any matter pertaining to their departments? A – They may do so: (1) upon their own initiative; (2) with the consent of the President; (3) or upon the request of either House, as the rule of each House shall provide. Q – In case cabinet secretaries decide to appear in either House of Congress, what is the constitutional requirement under Section 22? A – Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Q – Shall the interpellations, if there shall be any, be limited to written questions? A – No. Interpellations may cover matters related thereto. SENATE OF THE PHILIPPINES, ET AL. VS. EDUARDO R. ERMITA G.R. NO. 169777 PROMULGATED ON APRIL 20, 2006 FACTS: Several invitations were sent to several officials of the Executive Department to be resource speakers in connection with investigations and inquiries concerning the following: (1) The North Rail Project; (2) The alleged Wire-Tapping Activity involving the President in the May 2004 elections; (3) The fertilizer scam. As a result of the postponement of the hearings, as requested by the officers concerned, the latter were invited again to attend the said investigations, but this time, Executive Secretary Eduardo Ermita sent a letter informing the Senate President that the President issued Executive Order No. 464, and under said Executive Order No. 464, certain senior officials should obtain

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first the consent of the President before they are allowed to attend congressional hearings, and that such consent was not yet secured. Petitions for Certiorari and prohibition were filed in the Supreme Court questioning the constitutionality of Executive Order No. 464. ISSUE: (1) (2) (3) (4)

Whether Executive Order No. 464 is constitutional? Whether the said order contravenes the power of inquiry vested in Congress; Whether it violates the right of the people to information on matters of public concern; and Whether or not Section 6 of said Order (setting forth the immediate effectively clause), valid?

HELD: Sections 2(b) and 3 are void and were invalidated on the ground that they authorize an implied claim of privilege without any specific allegation of the basis thereof. Congress has the right to know why the executive considers the requested information privileged. A claim of privilege, being claim of exemption from an obligation to disclose information, must therefore be clearly asserted. It is for this reason why Sections 2(b) and 3 are invalid per se. Instead of providing precise and certain reasons for the claim, it only invokes EO 464, coupled with an announcement that the President has not given her consent. It severely frustrates the power of inquiry of Congress. When Congress exercises its power of inquiry, the only way, for the department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the President on whom executive power is vested, hence, beyond the power of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. EO 464 violates the right of the people to information on matters of public concern: To the extent that EO 464 unduly limits disclosure of information on investigations in aid of legislation necessarily deprives the people of information, and this being in aid of legislation, is presumed to be a matter of public concern. The challenged order must be covered by the publication requirement: REASON: EO 464 has a direct effect on the right of the people to information on matters of public concern. It is therefore a matter of public interest which

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members of the body politic may question before this court. Due process requires that the people should have been apprised this issuance before it was implemented. DIFFRENCE BETWEEN THE RIGHT OF THE LEGISLATURE TO CONDUCT INQUIRY IN AID OF LEGISLATION (SEC. 21) AND THE POWER TO CONDUCT QUESTION HOUR (SEC. 22) SEC. 21 (Right to Conduct Inquiry in aid of legislation)

SEC. 22 (Power of Congress to conduct a question hour)

Under this section, Congress has the power to conduct inquiries in aid of legislation the aim of which is to elicit information that may be used for legislation. Under this section, attendance is compulsory. Congress can compel the attendance of executive officials.

Under this section, Congress has the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight functions. Under this section, attendance is discretionary, hence, it is valid for the President to require that consent be required first before her subordinates appear in congress during the question hour. Congress cannot compel the appearance of executive officials if the required consent of the President is not obtained first, or if no such consent is given.

FURTHER IN REFERENCE TO THE POWER OF CONGRESS TO CONDUCT INQUIRY IN AID OF LEGISLATION, THE FOLLOWING ARE MADE CLEAR BY THE SUPREME COURT: 1. Sections 2(B) and 3 of E.O. 464 were declared invalid and unconstitutional because they authorized an implied claim of privilege without any specific allegation on the basis thereof; 2. Only the President can claim executive privilege. The department heads cannot claim this privilege. If they desire to claim this privilege, CONGRESS HAS A RIGHT TO KNOW WHY THE EXECUTIVE CONSIDERS THE REQUESTED INFORMATION PRIVILEGED. IT IS NOT SUFFICIENT TO MERELY DECLARE THAT THE PRESIDENT, OR AN AUTHORIZED HEAD OF OFFICE, HAS DETERMINED THAT IT IS SO. 3. The executive privilege being claimed MUST BE CLEARLY ASSERTED. It is for this reason why Sections 2(B) and 3 are invalid per se. Instead of providing certain reasons for the claim, it only invokes EO 464,

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coupled with the announcement that the President has not given her consent. IT SEVERELY FRUSTRATES THE POWER OF INQUIRY OF CONGRESS. 4. EO 464 violates the right of the public to information. Since EO 464 unduly limits disclosure of information in investigations in aid of legislation, it necessarily deprives the people of information that, being presumed to be in aid of legislation, is presumed to be a matter of public concern. Q – What is executive privilege? A – The right of the President and high level officials of the executive branch to withhold information from Congress, the courts and the public. The validity of the executive privilege depends on the ground invoked to justify it and the context in which it is made. Q – Is Congress bound to respect the refusal of a department head to appear in an inquiry in an aid of legislation? A – Congress may respect the said refusal if there is a valid claim of privilege through a certification of the President, or by the Executive Secretary, upon the authority or order of the President. This means that if Congress, on its honest view and for its own reasons, holds that there is no valid claim of privilege, this becomes a contestable issue which should be resolved by the Supreme Court. TYPES OF INFORMATION WHICH MAY BE CONSIDERED PRIVILEGED: 1. MATTERS OF DIPLOMATIC CHARACTER AND UNDER NEGOTIATIONS AND REVIEW: Information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. In Peoples’ Movement for Press Freedom (PMPF) vs. Manglapus, the petitioners were seeking information from the President’s representatives on the state of the then on-going negotiation of the RP-US Military Bases Agreement. The Court denied the petitions, and stressed that “secrecy of the negotiations with foreign countries is not a violation of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. (PMPF vs. Manglapus, G.R. No.84642, September 13, 1988) 2. PRIVILEGE ACCORDED TO PRESIDENTIAL COMMUNICATIONS: The frank exchange of exploratory ideas and assessment, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision making of those tasked to exercise Presidential, Legislative and Judicial Power. This privilege is not absolute. The Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental

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institutions into possible criminal wrongdoing. (Senate Select Committee on Presidential Campaign Activities vs. Nixon, 498 F 2d 725,162 U.S. App. D.C. 183) 3. DELIBERATIVE PROCESS PRIVILEGE WHICH IS RECOGNIZED IN THE UNITED STATES: Deliberative process covers documents reflecting advisory opinions, recommendation and deliberations comprising part of a process by which governmental decisions and policies are formulated. Note, however, that privileged status of such documents rests, not on the need to protect national security, but, on the “obvious realization that officials will not communicate cordially among themselves if each remark is a potential item of discovery and front page news.” The objective of the privilege is merely to enhance the quality of agency decisions. 4. INFORMER’S PRIVILEGE: The privilege of the government not to disclose the identity of a person or persons who furnish information of violations of law. The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long standing practice. It would also be highly prejudicial to law enforcement efforts in general. ON THE ISSUE OF WHO CAN AVAIL EXECUTIVE PRIVILEGE Q – Who can avail executive privilege? A – The President can either invoke executive privilege or authorize the Executive Secretary to invoke the privilege in her behalf, in which case the Executive Secretary must state that the authority is “By Order of the President” which means that he personally consulted with her. Q – Can cabinet members invoke executive privilege? A – Executive privilege applies only to the president. If the cabinet members or department secretaries claim that they need the consent of the President before they testify in Congress, or that the matter subject of their testimony involves a state secret or a privilege matter, they should obtain a certification from the president, through the executive secretary, to the effect that the subject of their testimony is indeed a state secret or a privileged matter. This must be clearly asserted. Q – Is Congress bound to respect the refusal of a department head to appear in an inquiry in aid of legislation? A – Congress may respect the said refusal if there is a valid claim of privilege through a certification of the President, or by the Executive Secretary, upon the authority or order of the President. This means that if Congress, on its

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honest view and for its own reasons, holds that there is no valid claim of privilege, this becomes a contestable issue which should be resolved by the Supreme Court. ROMULO NERI VS. COMMITTEE ON ACCOUNTABILITY G.R. NO. 180643, MARCH 25, 2008 Secretary Neri refused to answer three (3) questions, thus: (a) Whether or not the President made a follow up (Re National Broadband Network Projects); (b) Whether or not she directed him to prioritize it; (c) Whether or not she directed him to approve it. He said his refusal to answer the said questions was anchored on a VALID CLAIM OF EXECUTIVE PRIVILEGE, and that the Senate Committee exceeded their authority. ISSUE: Whether the three questions Neri refused to answer were covered by executive privilege, making the arrest order void. RULING: 1.

The three (3) questions are covered by presidential communication privilege, and that this privilege has been validly claimed by the executive department.

REASONS: 1. 2.

3.

The information sought to be disclosed might impair our diplomatic and economic relations with the People’s Republic of China. Communications were received by a close adviser of the President. Under the “operational proximity” test, Neri can be a close adviser, being a member of the President’s cabinet. Presidential communications are presumptively privileged and the presumption can be overcome only by mere showing of public need for the three answers to the questions in the enactment of any law under Sec. 21, Article VI. FURTHER RESOLUTION OF THE SUPREME COURT

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There is no violation of the people’s right to information on matters of public concern. REASON: Sec. 7, Art. III, itself provides that this right is subject to such limitations as may be provided by law. The right of Congress or any committees to obtain information in aid of legislation cannot be equated with the people’s right to information. REASON: Citizen’s demand for reproduction of documents does not have the same obligatory force as subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power

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to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. Contempt order is void, there being a valid claim of privilege. The respondents did not comply with the requirement in Senate vs. Ermita that the invitations should contain the “possible needed statute which provided the needs for the inquiry”, along with the “usual indication of the subject of inquiry and questions relative thereto.” Only a minority of the Senate Blue Ribbon Committee was present during the deliberation of the issuance of the contempt order. (A violation of Sec. 18 of the Rules of Procedure governing Inquiries in aid of legislation.) Sec. 21, Art VI was violated. There was no publication of the Rules of Procedures. The issuance of the contempt order was arbitrary and precipitate. The respondent Committees did not first pass upon the claim of executive privilege. Neri’s explanation was dismissed as unsatisfactory even if Neri desires to appear and answer other questions. AKBAYAN, ET AL. VS. THOMAS AQUINO IN HIS CAPACITY AS UNDERSECRETARY OF THE DEPARTMENT OF TRADE, ET AL. G.R. NO. 170516, JULY 16, 2008

The petitioners filed a mandamus petition in the Supreme Court to compel the DTI , DFA and DOJ, NEDA and the Executive Secretary to furnish them with the full text of the JPEPA (Japan, Philippines Economic Partnership Agreement) as well as documents on its negotiation. Petitioners said that the government cannot sign the Trade agreement with Japan without a full disclosure of its provisions to the public. ISSUE: Is the IPEPA protected by executive privilege? RULING: 1. 2. 3.

4.

Diplomatic negotiations are protected by executive privilege; This was the resolution of the Supreme Court in PMPR vs. Manglapus as early as September 13, 1988; Petitioners, both private citizens and members of the House of the Representatives have failed to present a “sufficient showing of need” to overcome the claim of privilege. Petitioner’s demand to be furnished copy of the full text has become moot and academic, it having been made accessible to the public since September 11, 2006.

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As for their demand for copies of the Philippine and Japanses offers submitted during the JPEPA negotiations, the same was denied, BECAUSE RESPONDENTS’ CLAIM OF EXECUTIVE PRIVILEGE IS VALID.

NOTE: The petitioners have two demands in Akbayan vs. Thomas G. Aquino, et al., thus: 1. 2.

To be furnished with a copy of the full text of the JPEPA. They demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations. The Supreme Court ruled as follows: 1. 2.

The first demand has become moot and academic, because it has already been made accessible to the public since September 11, 2006. The second demand was denied because the claim of executive privilege is valid.

In this connection, this is how the dissent of the Chief Justice was rebutted by the majority opinion: 1.

2.

The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents. REBUTTAL: What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S. Constitution excludes the House of Representatives from the treaty making process: “x x x The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.” These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S. does not even grant the Senate the power to advice the Executive in the making of treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded.

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REBUTTAL: Intra-agency recommendations are privileged even after the positions under consideration by the agency has developed into a definite proposition. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. REBUTTAL: The majority disagreed. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or like, what the Senate did in Senate vs. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions. The dissent contends that the Executive failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. REBUTTAL: This contention misplaces the onus prodandi. In keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, but once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need. The Executive Secretary failed to explicitly state that he is claiming the privilege “by order of the President.” REBUTTAL: When the Court in Senate vs. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. The Court’s recognition that the Executive Secretary also bears the power to invoke the privilege provided he does so “by order of the President,” is meant to avoid laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate vs. Ermita became final. PMPF vs. Manglapus may not be applied in the present case. This case involved a collision between governmental power over the conduct of foreign affairs and the citizen’s right to information, while U.S. vs. Courts Wright which this Court cited referred to a conflict between the executive and legislative branches of government.

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REBUTTAL: What counts as privileged information in an executivelegislative conflict is also recognized as such in cases involving the public’s right to information. The Court has always regarded claims of privilege, whether in the context of executive-legislative conflict or a citizen’s demand for information, as clearly intertwined, such that the principles applicable to one are also applicable to the other. The dissent maintains that “it suffices that information is of public concern for it to be covered by the right, regardless of the public need for the information,” and that the same would hold true even, “if they simply want to know it because it interest them.” REBUTTAL: The Court has already concluded that it is a matter of public concern not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. The Court stressed: “We must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine Government runs the risk of betraying the trust reposed by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then explain when that happens? Surely, it cannot bear to say that it just had to release injunction because certain persons simply wanted to know it “because it interests them.” The dissent maintains that “the treaty has thus entered the ultimate stage, where the people can exercise their right to participate in the discussion whether the Senate should concern in its ratification or not.” REBUTTAL: It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Contrary to the submission that the right to participate in decision-making would be deleted, we reiterate that our people have been exercising their right to participate in the discussion on the issue of JPEPA, and they have been able to articulate their opinions without need of access to the JPEPA negotiation documents. GUDANI VS. SENGA G.R. NO. 170165, AUGUST 15, 2006

Q – Can the president prevent a member of the armed forces from testifying before a legislative inquiry? A – Yes. The president has constitutional authority to prevent a member of the Armed Forces from testifying before a legislative inquiry, by virtue of her power as Commander-in-Chief. As a consequence, a military officer who defies such injunction is liable under military justice.

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Q – If this is so, what, if any, is the remedy of Congress to compel such attendance? A – Any military official whom Congress summons to testify before Congress may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of law of the land which the President has the duty to faithfully execute. Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war of other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. Q – Can the President of the Republic of the Philippines, or Congress, declare war? A – No. Only Congress has the SOLE POWER to declare the existence of a state of war, not the power to declare war. Q – One day, the bomber planes of Red China attacked Mindanao and destroyed the war vessels deployed by the Philippine Navy in the area, particularly in the areas adjacent or near the Spratly Islands. Congress declared a state of war and fought the Red Chinese soldiers scattered in the whole of Mindanao. Is this not a violation of Section 2 to the effect that we renounce war as an instrument of national policy? A – No. We are merely defending our territory. Hence, it is a defensive war. What we renounce is an aggressive war, not a defensive war. Q – What is the basis of the preceding answer? A – Section 2, Article II, which provides as follows: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” The restriction means that by the time “the existence of a state of war is declared by Congress, a war has already been commenced by an enemy state, or we have already been provoked, and that being already the subject or victim of an attack, we are merely being compelled to defend our State and our people.” Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate

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exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Q – Can a member of the House of Representatives or the Senate introduce any kind of bill or law? A – A member of the House of Representatives or the Senate can introduce any kind of bill subject to the following limitations: 1. All appropriation, revenue or tariff bills, bills authorizing increase of public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives but the Senate may propose or concur with amendments. (Section 24, Article VI) (Underlining Supplied) 2. Ex post facto laws, bills of attainder, or laws impairing the obligation of contracts cannot be enacted. 3. Other inhibitions and limitations imposed by the Constitution shall be respected. Q – What is an appropriation bill? A – It is a bill the primary and specific purpose of which is to authorize the release of funds from the public treasury. Q – What is a revenue bill? A – It is a bill that levies taxes and raises funds for the government. Q – What is a tariff bill? A – It is a bill that specifies the rates or duties to be imposed on imported articles. Q – What is a bill increasing public debt? A – It is a bill which authorizes the increase of public debt. Q – What is a private bill? A – It is a bill which will benefit only a private individual like a bill granting honorary citizenship to a foreigner for meritorious or distinguished service which benefits our country or our people. Q – What is a bill of local application? A – It is a bill which is of local application like the creation of a new town, city or province. Q – A substitute bill was filed in the Senate in anticipation of its receipt of the bill from the lower House. Does that contravene the constitutional requirement that a bill of local application should originate in the House of Representatives? A – No, for as long as the Senate does not act thereupon until it receives the House bill.

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SENATOR ALVAREZ, ET AL. VS. GUINGONA, ET AL. G.R. NO. 118303, JANUARY 31, 1996 FACTS: On April 18, 1993, H.B. No. 8817, entitled “An Act Converting the Municipality of Santiago into an Independent Component City to be known as City of Santiago” was filed in the House of Representatives. Meanwhile, on May 19, 1993, a counterpart of H.B. No. 8817 (Senate Bill No. 1243 with the same title) was filed in the Senate. Less than a month after H.B. No. 8817 was transmitted to the Senate, the Senate Committee on Local Government conducted public hearings on S.B. No. 1243 and thereafter recommended its approval without amendment, taking into consideration the reality that H. B. No. 8817 was on all fours with S.B. No. 1243. The enrolled bill was submitted to and was signed by the Chief Executive on May 5, 1994, as R.A. No. 7720. The plebiscite on the Act showed that a great majority of the voters of Santiago voted in favor of its conversion into a city. ISSUE: Is Republic Act No. 7720 constitutional? HELD: Although a bill of local application like H.B. No. 8817 should, by constitutional prescription, originate exclusively in the House of Representatives, the claim of petitioners that Republic Act No. 7720 did not originate exclusively in the House of Representatives because a bill of the same import, S.B. No. 1243, was passed in the Senate, is untenable because it cannot be denied that H.B. No. 8817 was filed in the House of Representatives first before S.B. No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that H.B. No. 8817 was filed on April 18, 1993, while S.B. No. 1243 was filed on May 19, 1993. The filing of H.B. No. 8817 was thus precursive not only of the said Act in question but also of S.B. No. 1243. Thus, H.B. No. 8817 was the bill that initiated the legislative process that culminated in the enactment of Republic Act No. 7720. No violation of Section 24, Article VI of the 1987 Constitution is perceptible under the circumstances. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House Bill.

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EX POST FACTO LAW Q – What is an ex post facto law? A – Generally, it is a law which punishes an act which at the time of its commission was not punishable. Q – What are the six (6) kinds of ex post facto law? Give example. A – “1. Every law that makes criminal an action done before the passage of the law and which was innocent when done, and punishes such an action.” Example: A law passed in 1998 raising the age of seduction from eighteen to twenty-five years, effective 1998. “2.

Every law that aggravates a crime, or makes it greater than when it is committed.” Example: A law passed in 1998 designating the crime of homicide through reckless imprudence as murder, effective 1998.

“3.

Every law that changes punishment, and inflicts a greater punishment than the law annexed to the crime when committed.” Example: A law passed in 1998 increasing the penalty for libel from prision correccional to prision mayor, effective 1988.

“4.

Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.” Example: A law passed in 1998 requiring for conviction mere preponderance of evidence instead of proof beyond reasonable doubt, effective 1988.

“5.

Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which, when done, was lawful.” Example: A law passed in 1998 depriving professionals of the right to practice for failure or refusal to vote, effective 1998.

“6.

Every law which deprives persons accused of crime of some lawful protection of a former conviction or acquittal, or of a proclamation of amnesty.” Example: A law passed in 1998 lengthening the period for prescription of blackmail from five to ten years, effective 1988.

Q – What is a bill of attainder? A – It is a bill or a law that inflicts punishment without trial.

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Q – What are the laws impairing the obligation of contracts? A – They are laws which renders inoperative or illegal a contract which was valid and existing before their enactment. PROCEDURE IN THE APPROVAL OF BILLS Q – What is the procedure in the approval of bills, after it is presented in the House of Representatives or the Senate? A – The procedure is as follows: FIRST READING – Only the number and the title of the bill is read. Thereafter, the Speaker or the Senate President, as the case may be, refers it to the proper committee for study. The following may happen after the bill is referred to the proper committee: a. It may be unacted upon or “killed” in the committee. b. It may be approved by the committee without any amendment. c. It may be amended and approved later. d. The committee may conduct public hearings and consider favorably the comments and suggestions during the public hearings. SECOND READING – When the bill is reported out by the committee, it shall be calendared for second reading. It is at this stage when the bill is read in its entirety. Thereafter, the bill is subject to debate, amendment and scrutiny by the members of either House. This is the most important stage in the passage of a bill. THIRD READING – The bill as approved on second reading is printed in its final form. Copies thereof are distributed at least three days before the third reading. During the third reading, the members merely register their votes, or they may explain their votes, if this is allowed by the rules. No further debate is allowed. IF THE BILL PASSES THE THIRD READING – It is sent to the other chamber. There will also be three readings in the other chamber. If it is approved by the upper chamber, it will be submitted to the President for his consideration and approval. IF THE BILL IS FINALLY APPROVED BY CONGRESS – The bill is enrolled when it is finally approved by Congress. Thereafter, it will be authenticated with the signatures of the Senate President or the Speaker and the Secretary, and approved by the President. Q – What is the procedure in the approval and disapproval of bills?

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A – IF A BILL IS APPROVED

IF A BILL IS DISAPPROVED

If a bill passed by Congress is approved by the President, he shall sign it. (Section 27[1], Article VI) This means that the President is in conformity with the purposes for which the bill was enacted.

If a bill passed by Congress is not approved by the President, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large on its journal and proceed to reconsider it.

Q – In case the President has a veto message, what are the two possibilities that may happen? A – Upon receipt of the “veto message” of the President, there are two possibilities that may happen. The House where the bill originated may take into account the objections made by the President and make corresponding amendments in the bill to accommodate the requests or wishes of the President. When this happens, the bill, as amended, will again be presented to the President for his approval. The other possibility is that two-thirds (2/3) of all the members of each House (the House where the bill originated and the other House) may invalidate the veto and convert the bill into law over the objection of the President. Q – Can a bill be vetoed partially by the President? A – As a rule, the President must either approve or disapprove a bill except in the case of appropriation, revenue and tariff bills. By express constitutional provision, the veto of any particular item or items in an appropriation, revenue or tariff bill shall not affect the item or items to which the President does not object. Section 27(2), Article VI, provides as follows: “Section 27(2). The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill, but the veto shall not affect the item or items to which he does not object.” (Underlining Supplied) Q – Within what period shall the President communicate his veto of any bill? A – The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of the receipt thereof; otherwise, it shall become a law as if he had signed it. (Section 27[1], Article VI) Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

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(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provisions or enactment shall be limited in its operation to the appropriation to which it relates. (3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. Re: Section 25(1) – Congress may not increase the appropriations recommended by the President REASON: To avoid undue influence of Congress over the President Section 25(2) – No enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. REASON: To see to it that a non-appropriation item is not inserted in an appropriation measure in violation of the constitutional inhibition against riders to the general appropriations act. Section 25(3) – Procedure in approving appropriations shall strictly follow procedure for approving appropriations for other departments in agencies.

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REASON: To prevent appropriations the purpose of which is to allot a budget which is intended to benefit the legislators. To hide this to the public, the legislators agree among themselves that the same shall no longer be scrutinized and subjected to public hearings. This kind of appropriation is known as appropriation subrosa. Section 25(4) – Special appropriations bill shall specify the purpose for which it is intended and actually supported by available funds. REASON: To see to it that an appropriation measure is supported by existing, adequate and available funds. Section 25(5) – No law shall be passed authorizing any transfer of appropriations, with exceptions. REASON: This prohibits transfer of funds from one department to another department. Oftentimes, transfer of funds is being made for a variety of political motives, thus: (1) Sometimes, it serves to implement exchange of favors between the President and the Members of Congress; (2) In the course of a political campaign, some funds are transferred from one executive department to another so these can be used as campaign funds. Section 25(6) – Discretionary funds appropriated for particular officials shall be disbursed only for public purposes. REASON: To see to it that discretionary funds are not spent for personal benefit, or for any purpose which are contrary to public interest. Section 25(7) – If general appropriations bill is not passed, the general appropriations law for the preceding fiscal year shall be deemed reenacted. REASON: This is better than the old procedure of the President having to call the Congress in special session until it enacts a new general appropriations law. Experience shows that on account of the time consumed before a new general appropriations law is passed, funds are released in anticipation of its approval. Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final

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form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Q – What is the limitation under Section 26(1)? A – Every bill shall passed by Congress shall embrace only one subject which shall be expressed in the title thereof. Q – Is this mandatory or directory and what is the reason for this requirement? A – This is a mandatory requirement and the purpose of this requirement is as follows: 1. To prevent hodge-podge or log-rolling legislation. 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles give no information and which might be overlooked and carelessly and unintentionally adopted. 3. To inform the people regarding the subjects of legislation that are being considered. (Central Capiz vs. Ramirez, 40 Phil. 883, 891 [1920]) Q – Should the said rule be liberally or strictly interpreted? A – It should be liberally interpreted, hence, the rule is sufficiently complied with if the title expresses the general subject and all the provisions of the statute are germane to that general subject. (Sumulong vs. Commission on Elections 73, 288, 291 [1941]). Example: 1. If a bill is passed creating a certain municipality but the proposed municipality included some barrios outside of the province where the said municipality is situated, the same is invalid for insufficiency of title. This is the majority view in Lidasan vs. Comelec (21 SCRA 496 [1967]). 2. A law is passed entitled “An Act Creating the Videogram Regulatory Board” but Section 10 thereof imposes a 30% tax receipts on video transactions. The Supreme Court ruled that the imposition of the said tax is sufficiently related to the regulation of the video industry. (Tio vs. Videogram Regulatory Board, 151 SCRA 208 [1987]) Q – What is the limitation of Section 26(2)? A – 1. No bill passed by either House shall become a law, (1) unless it has passed three readings on separate days; (2) unless printed copies thereof in its final form have been distributed to its members three

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2.

days before its passage, EXCEPT when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the journal.

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each Houses shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. Q – When does a bill become a law? A – A bill becomes a law in any of the following manner: 1. When, after the same is presented to the President, the latter signs it; or 2. When the President vetoes the said bill but the said veto is overridden by two-thirds vote of all the members of each House; or 3. When the President does not act upon the bill within thirty days after it is presented to him. Q – President Marcos vetoed Section 42 of Republic Act 6110 which imposed a 20% caterer’s tax on restaurants. It is claimed that the veto refers to a veto of an entire section and not a veto of a section. Is the veto valid? A – The veto was valid for the reason that “An “item” in a revenue bill does not refer to an entire section imposing a particular kind of tax, but rather to the subject of the tax and the tax rate. To construe the word “item” as referring to the whole section would tie the President’s hand in choosing either to approve the whole section at the expense of also approving a provision therein which he deems unacceptable or veto the entire section

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at the expense of abandoning the collection of the kind of tax altogether.” (Commissioner of Internal Revenue vs. Court of Tax Appeals, G.R. No. 47421, May 14, 1990) Section 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (3) Charitable institution, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. Section 28(1). The Rule of Taxation Shall Be Uniform And Equitable. Q – What is the meaning of uniformity of taxation and equitable taxation? A – Uniformity means that persons or things belonging to the same valid classification shall be taxed at the same rate. Equitable taxation means that taxes should be apportioned among the people according to their capacity to pay. Q – What is the nature and power of taxation? A – 1. It is inherent in sovereignty – It can be exercised by the State even without the need of any express authority, constitutional or otherwise. 2. It is legislative in character – Only Congress can impose taxes. However, such power may be delegated to local government units under such terms and conditions as may be provided by law. 3. It is subject to constitutional and inherent limitations – The limitations are those specifically provided in the Constitution, or implied therefrom, while the rest are inherent such as those arising from the nature of the taxing power itself. Q – What are the limitations on the power to tax? A – Code: C – Constitutional limitations I – Inherent limitations Constitutional limitations 1. Due process clause and equal protection clause of the Constitution. (Section 1, Article III)

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2. 3. 4. 5. 6. 7.

The rule on taxation shall be uniform and equitable. (Section 28[1], Article VI) No person shall be imprisoned for non-payment of poll tax. (Section 24, Article VI) Tariff bills must originate exclusively from the House of Representatives. (Section 24, Article II) It must respect persons and properties constitutionally exempted from taxation. (Section 28[3], Article VI) Non-impairment of contracts. (Section 10, Article III) Legislative exemption from taxation must be with the concurrence of the majority of the members of Congress. (Section 28[4], Article VI)

Inherent limitations 1. 2. 3. 4.

It must be for a public purpose. It must be exercised by the legislature. It is applicable only within the territorial jurisdiction of the taxing State. International law on comity.

Q – What is a “progressive system of taxation”? A – A tax system is progressive when the rate increases as the tax base increases. The concept of progressive taxation reflects the wish of the Commission that the legislature should use the power of taxation as an instrument for a more equitable distribution of wealth. Section 28(2). Authority of Congress to the President to Impose Tariff Rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the National Development Program of the Government. Q – Is the power or authority of the President to fix tariff rates, import and export quotas, etc., absolute? A – By express provision of Section 28(2), said power and authority is subject to such limitations and restrictions as Congress may impose. Q – What is the purpose of Section 28(2)? A – This is one of the legislative powers which may validly be delegated by Congress to the President to give the latter the authority and opportunity to act promptly on the economic problems confronting our country instead of being subject to delay caused by the usual debates and other congressional proceedings.

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Q – What is the test to determine whether a given power has been validly exercised? A – Already answered. Section 28(3). Charitable Institutions, Churches, and Parsonages or Convents, etc., and all Lands, Buildings and Improvements shall be exempt from taxation. Q – What is required in order that said lands, buildings and improvements shall be exempt from taxation? A – They should be actually, directly and exclusively used for religious, charitable, or educational purposes, and this must be proven. (Province of Abra vs. Hernando and Roman Catholic Bishop, 107 SCRA 108) Q – What are the three (3) institutions which are granted tax exemption under Section 28(3)? A – (1) Charitable institutions; (2) religious institutions; and (3) educational institutions. Section 28(4). A Law granting any tax exemption must have the concurrence of all the members of the congress. Q – Why is it that a simple majority is not enough and the concurrence of the majority of all the members of Congress is required? A – The reason for this is because a tax exemption means less revenue which the government should have earned were it not for the tax exemption. Section 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Q – What are the constitutional restrictions to ensure that public funds are spent properly? A – (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Section 29[1])

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(2)

Q – A – Q – A –

Public money shall not be appropriated, applied, paid, or employed directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian institution or system of religion, or of any priest, preacher, minister or dignitary. EXCEPT when such priest, preacher or minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (Section 29[2]) What is the reason behind Section 29(2), as aforementioned? Public funds or property should not be used for sectarian purposes as and by way of respect to the principle of the separation of Church and State. What is the extent of the prohibition to use public funds or property for sectarian purposes? The prohibition applies only when the appropriation is intended purposely to benefit a religious institution. The use of public property for religious purposes is not prohibited in the following cases: (1) When the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general. (People vs. Fernandez, C.A. G.R. No. L-1128) Example: The Quirino Grandstand may be used by the El Shaddai; or by any religious denomination, to commemorate its founding anniversary. It may also be used by any political party for a political rally. (2)

Ecclesiastics may be paid public funds if they serve the government in a non-ecclesiastical capacity. Example: A priest serving as a member of the committee investigating the Centennial Expo Scam may receive transportation allowance from public funds because he receives the same not as an ecclesiastic but as a member of the said committee.

Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. Q – Can the appellate jurisdiction of the Supreme Court be increased by Congress? A – With advise and concurrence of the Supreme Court itself, the appellate jurisdiction of the Supreme Court may be increased by Congress. Q – Under the 1987 Constitution, what is the appellate jurisdiction of the Supreme Court? A – Section 5(2), Article VIII of the 1987 Constitution provides that the appellate jurisdiction of the Supreme Court shall be as follows:

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“Section 5(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. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. Section 31. No law granting a title of royalty or nobility shall be enacted. Q – What is the rationale of Section 31? A – A law granting title of royalty or nobility runs contrary to the nature and character of a republican government, particularly to the declaration of principle stated in Section 1, Article II of the 1987 Constitution, which provides as follows: “Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. Self-explanatory. MULTIPLE CHOICE QUESTION 1.

Mandatory Drug Testing. Constitutionality of Section 36 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office , students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses.

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A. B.

C. D.

They are all declared constitutional. Mandatory drug testing of candidates for public office was declared unconstitutional because it imposes additional qualification for candidates for senators, but all the rest were declared constitutional. They were all declared constitutional on the ground that they are all intended to improve peace and order. Mandatory drug testing of candidates of public office and persons charged before the prosecutor’s office of certain offices, were declared unconstitutional, while mandatory drug testing for students of secondary and tertiary schools and officers and employees public and private offices were declared constitutional.

2.

Alleged Right of a detained legislator to perform his legislative duties. A. The duty to legislate ranks higher in the hierarchy of government and a detained legislator should not be denied the right to represent the people who voted for the said legislator. B. The call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated by the Constitution and echoed by the Constitution. C. The fact that such detained legislator was elected by the people operates as a condonation of his alleged previous misconduct. D. Performance of legislative and even essential duties by public officers has never been an excuse to free a person validly in person. Congress continues to function well in the physical absence of one or a few of its members.

3.

Can the COMELEC transfer Municipalities from one Legislative District to another Legislative District? The COMELEC, after consultation with local representatives, promulgated Resolution No. 2736 wherein it transferred the Municipality of Capoocan of the Second District of Leyte and the Municipality of Palampon of the Fourth District of Leyte to the Third District. Because of such conversion, eight (8) municipalities in the Third District became the composition of the new Province of Biliran while the rest of the municipalities of the Third District were reduced to five (5) municipalities. This resulted in an inequality in the distribution of inhabitants, voters and municipalities in the different districts of Leyte.

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Atty. A moved for reconsideration of said COMELEC resolution on the ground that on account of said resolution there is an inequitable distribution of inhabitants between the First and Second Districts. Furthermore, it violates the principle of equality of representation ordained in the Constitution. Can the COMELEC transfer municipalities from one legislative district to another legislative district? A. The COMELEC can do so as it relied on the ordinance appended to the 1987 Constitution as the source of its power of redistricting which is traditionally regarded as part of the power to make laws. The ordinance is entitled “Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area.” B. The COMELEC’s power is merely to make minor adjustment. Section 3 of the said ordinance did not give the COMELEC any authority to transfer municipalities from one legislative district to another district. C. More specifically, the power granted by Section 3 to the COMELEC is to adjust the number of members not municipalities “apportioned to the province out of which such new province was created…,” hence, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction. D. There was indeed an imbalance in the distribution in the distribution of votes and inhabitants which could devalue a citizen’s vote, in violation of the equal protection clause of the Constitution, but it is not proper for Atty. A to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner’s remedy lies with Congress. 4.

Privilege from Arrest. Congressman Filosopo left his residence in BF Homes, Parañaque at 8:00 A.M., to attend the session of the House of Representatives scheduled at 11:30 A.M. When his car reached Makati, his mistress called her and was asking for help because of an alleged death threat she received from an unknown caller who is blackmailing her. Instead of proceeding to Congress, Cong. Filosopo went to the Condo Unit of her mistress. After an hour and after making an arrangement to transfer her mistress to another Condo Unit owned also by Cong. Filosopo, the latter left to attend the session. He was, however, delayed because of heavy traffic,

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compounded by his stomach ache. He told his driver to go to the nearest gasoline station to attend to personal necessity. As he was about to leave the gasoline station, two (2) policemen approached him and told him that they are serving a warrant of arrest to him in connection with an unjust vexation case filed against him. Cong. Filosopo said that he cannot be arrested as he is privileged from arrest as he is attending a session of the House of Representatives. The policeman said that he is not in session, and he can be arrested. Decide. A. B.

C. D.

5.

Cong. Filosopo can be arrested because he is not yet in the session hall. Cong. Filosopo can be arrested because the Constitution provides that a congressman “shall be privileged from arrest while the Congress is in session.” Cong. Filosopo cannot be arrested simply for the reason that he is privileged from arrest being a member of Congress. Cong. Filosopo cannot be arrested because he is on his way to attend the session even if he is not yet actually in the session hall, and moreover, the warrant of arrest is only for unjust vexation.

Suspension for Disorderly Behavior. Congressman Gigil was suspended for disorderly behavior, upon recommendation of the Ethics Committee and upon the resolution of fifty (50) members of the House of Representatives who were present during the session. Is this a political question or justiciable question? A.

B.

C.

D.

This is a political question because disorderly behavior is a ground for each House to punish, suspend or remove its members. This is a justiciable question because only fifty (50) members of the House of Representatives signed the resolution to suspend Cong. Gigil. This is a political question because the finding of disorderly behavior is beyond the ambit of judicial interference or review. This is a justiciable question because it is not enough to have a finding of disorderly behavior. Even if there is such a finding, a violation of one or either of the two (2) conditions in Sec. 16(3), Art. VI (concurrence of two-thirds of all the members of the House of Representatives and the suspension shall not exceed sixty [60] days).

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6.

Definition of Executive Privilege. A. It is the right granted to the President or to his Cabinet secretaries, or to some public officials to withhold information on matters which are considered confidential or of a sensitive nature. B. It is the right of the government to withhold information from Congress and the public relative to any matter which is confidential or of a sensitive nature. C. It is a privilege which constitutes a claim of exemption from an obligation to disclose information, which must be clearly asserted. D. It is the right of government to withhold information from the courts, Congress and the public. However, this privilege is recognized only in relation to certain types of information of a sensitive character. It does not recognize that executive officials are exempt from disclosure by the mere fact of being executive officials. The presumption favors disclosure and against executive secrecy.

7.

Valid Claim of Executive Privilege. Secretary Romulu Neri refused to answer three questions during a Senate Investigation, thus: (a) Whether or not the President made a follow up (Re National Broadband Network Projects); (b) Whether or not she directed him to prioritize it; (c) Whether or not she directed him to approve it. He said his refusal to answer the said questions was anchored on a VALID CLAIM OF EXECUTIVE PRIVILEGE, and that the Senate Committee exceeded its authority. A. He cannot refuse to answer the said questions because he has no valid claim of privilege. B. He cannot refuse to answer the questions because he did not secure a certification from the President to exempt him from testifying in the Senate. C. He cannot refuse to answer because of Sec. 7, Article III of the 1987 Constitution which provides “that this right is subject to such limitations as may be provided by law.” D. The three (3) questions are covered by presidential communication privilege, and that this privilege has been validly claimed by the executive department.

8.

Whether the President has constitutional authority to prevent a member of the Armed Forces from testifying before a legislative body. Summons of Congress to General X to testify in connection with a legislative inquiry about the alleged involvement of an Army Field

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Commanders in Visayas and Mindanao. He consulted the Chief of Staff of the Armed Forces of the Philippines about the summons he received and he was allowed to appear during the legislative inquiry and to shed light as to the truth of the matters and incidents being asked. When the President came to know about the same, he prevented him from testifying. A. General X can testify because: (1) He already obtained the advice and consent of the Chief of Staff of the Armed Forces of the Republic of the Philippines; and (2) After all, General X was instructed to testify only on the truth of the matters and incidents being asked. B. General X can testify because “the right of the people to be informed on matters of public concerns shall be recognized xxx.” C. General X can testify even if the President prevented him from testifying because the principle of civilian supremacy yields to the dictates of truth and that sovereignty resides in the people and all government authority emanates from them. D. The President has constitutional authority to prevent a member of the Armed Forces from testifying before a legislative body, by virtue of the president’s power as Commander-in-Chief of the Armed Forces of the Republic of the Philippines. 9.

Renounciation of WAR as an instrument of National Policy. The Philippines renounces was as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the land. A. B. C. D.

10.

Congress can declare war. The President can declare war. Congress can declare the existence of a state of war by a vote of 2/3 of all the members of the Senate. Congress can declare the existence of a state of war but it should be authorized to do so by a vote of two-thirds of both Houses in joint session assembled, voting separately.

Use of Public Property for public purposes. A. Public funds or property should not be used for public purposes. B. “No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit,

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or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. The said prohibition applies only when the appropriation is intended purposely to benefit a religious institution. The use of public property for religious purposes is not prohibited when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general.

11.

Tax Exemption under Sec. 28(3), Article VI. TAX exemption under Sec. 28(3), Article VI, thus: “CHARITABLE INSTITUTIONS, CHURCHES, AND PARSONAGES OR CONVENTS, ETC., AND ALL LANDS, BUILDING AND IMPROVEMENTS SHALL BE EXEMPT FROM TAXATION,” is extended to: A. Charitable Institutions B. Religious Institutions C. Educational Institutions D. All the said institutions

12.

Legislative Power. A. Legislative power is vested only in the legislature and it may not be delegated. B. Legislative power is vested only in the legislature but it may be delegated. C. Legislative power which is the power to make laws only pertains to the legislature and to no other. D. Legislative power which is the power to make laws is only the general rule, and it admits of several exceptions, and one of them is that legislative power may be delegated to the people at large.

13.

Uniform Data Collection and Format for the existing Identification ID Systems. Executive Order No. 420 “directing all government agencies and government owned and controlled corporations to adopt a uniform data collection and format for their existing identification ID systems.

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A.

B. C. D.

It is unconstitutional because it constitutes corruption of legislative functions by the executive branch of the government. It is unconstitutional because it infringes on the citizen’s right to privacy. EO 420 is valid. There is nothing legislative about unifying existing ID Systems. EO 420 is valid. It does not establish a national ID Card System. EO 420 applies only to government entities that already maintain ID Systems and issue ID Cards pursuant to their regular functions existing law.

14.

The period during which the Emergency Powers may be exercised. A. It is defined by Congress. B. Congress does not only define emergency power, but it also fixed the period. C. Congress has the power to define emergency power, it fixes the period of the emergency power, or it may shorten the period of the emergency power. D. Congress does not only have all the said powers. Congress may terminate the emergency power even before the end of the emergency.

15.

Mandatory Drug Testing. Section 36 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices and persons charged before the prosecutor’s office with certain offenses. A. They are unconstitutional. They violate the right to privacy. B. They are constitutional. Republic Act 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well being of the youth, and at the same time to promote and pursue resolutely a national drug policy in the workplace via a mandatory drug test. C. Mandatory drug testing for candidates for public office is unconstitutional because it prescribes and imposes an additional qualification to senatorial candidates when the constitution already fixes their qualifications in Section 3, Article VI. The rest is constitutional to prevent and detect

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drug use among students, employees and to all citizens of the Philippines. Mandatory drug testing for students and employees both in private and public offices, are constitutional to prevent and detect use in all offices. Mandatory drug testing for candidates for public office is unconstitutional for its imposes additional qualifications, and mandatory drug testing for persons charged with certain offenses is unconstitutional, for it is a blatant attempt to harness a medical test as a tool for criminal prosecution.

16.

Omnibus Motion for Leave of Court to be allowed to attend Senate Sessions and related requests, filed by Senator Antonio F. Trillanes, IV. A. The said denial is a disenfranchisement in the sense that it deprives the right of the people to representation. B. Petitioner’s electoral victory operates as a condonation of the officer’s previous misconduct. C. The mandate of the people should be respected because sovereignty resides in the people and all government authority emanates from them. D. Allowing Senator Trillanes to attend congressional sessions and committee meetings from five days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates Senator Trillanes to that of a special class, it would be a mockery of the purposes of the correction system.

17.

Quorum in the Senate. Senator X, Senate President, walked out of the session hall with his followers, after adjourning the session. Twelve (12) Senators were left in the session Hall. Those senators continued meeting. One senator was out of the country for serious surgical operation. The 12 Senators left replaced Senator X and elected Senator Y as Acting President. Senator X questioned the validity of the election of Senator Y on the ground that the 12 senators who elected Senator Y did not constitute a majority and could not therefore constitute a quorum. A. There was no majority of the 24 members of the Senate and the election of Senator Y is not valid. B. There was no majority of the 24 members of the Senate but Senator Y was validly elected because there was a majority of

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C.

D.

18.

the 23 senators who were present and who voted for Senator Y. The 12 senators who elected Senator Y were sufficient to constitute a quorum, the said number being a majority of the 23, not 24, because one Senator was in the U.S., for a serious surgical operation. The majority of 24 Senators is 13 and in order to have a quorum and a majority, 13 Senators should be the required number to vote for Senator Y.

Political Question or Justiciable Question. Congressman X was suspended for disorderly behavior for a period of ninety (90) days with a concurrence of 2/3 of all the members of the House of Representatives. Congressman X filed a petition for certiorari in the Supreme Court alleging grave abuse of discretion and questioning the validity of the suspension. Is this a political question or a justiciable question? A. It is a political question because it is a suspension imposed by the House of Representatives upon a vote of 2/3 of all its members. B. It is a political question because the power to suspend a member of Congress is a legislative power vested in Congress. C. It is a justiciable question because the petition of Congressman X is questioning the validity of his suspension. D. It is a justiciable question because although there was a concurrence of 2/3 of all the members of the House of Representatives, Congressman X was suspended beyond a period of sixty (60) days as required by Section 16(3) of Article VI of the 1987 Constitution. ARTICLE VII EXECUTIVE DEPARTMENT

Section 1. The executive power shall be vested in the President of the Philippines. Q – Who shall have control of all executive departments, bureaus and offices? A – The President of the Republic of the Philippines shall have control of all executive departments, bureaus and offices (Section 17, Article VII) and shall be the Commander in Chief of all the armed forces of the Philippines. Under and by virtue of all the powers vested in him by the Constitution,

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he is regarded as the most powerful and the most influential person in the country subject to no other restraint than to comply with the law and the Constitution. What does this mean? This means that he is the “Chief Executive.” More specifically, he is the Executive of the Government of the Philippines and the heads of the different executive departments who are popularly known and called as Cabinet Members, are, in effect, merely his advisers, hence, they are subject to his control and supervision. Q – Are the powers of the President limited only to those that are expressly enumerated in the Constitution? A – No. The President has residual power to protect the general welfare of the people. It is founded on the duty of the President as steward of the people. (Marcos vs. Manglapus, 177 SCRA 668 [1989]) Q – What is the so-called residual power of the President? A – In the said case (Marcos vs. Mangalapus), the Supreme Court, through Justice Irene R. Cortes, said that “it is a power borne by the President’s duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed. (see Hyman, the American President, where the author advanced the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President.) Chief Justice Marcelo B. Fernan, on the other hand, made this explanation: “Failing in legal arguments for the allowance of the Marcoses’ return, appeal is being made to sympathy, compassion and even Filipino tradition. The political and economic gains we have achieved during the past three years are, however, too valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and safety be sacrificed for an individual’s wish to die in his own country. Verily, in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.” Q – What is the executive power of the President? A – It is the power to enforce and administer the laws. (Sections 1 and 17, Article VII) The President shall ensure that laws are faithfully executed. (Section 17, Article VII) Q – Is he still required to determine the validity of a law? A – No, this being a question that should be properly resolved by the judicial department of government. Hence, the President has a duty to execute it regardless of his doubts on its validity. Until and unless a law is declared

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unconstitutional, it is not unlawful for the President to perform his duty of ensuring that laws are faithfully executed. ALFREDO T. ROMUALDEZ VS. SANDIGANBAYAN G.R. NO. 152259, JULY 29, 2004 ANY REASONABLE DOUBT ABOUT THE VALIDITY OF THE LAW SHOULD BE RESOLVED IN FAVOR OF ITS CONSTITUTIONALITY. EXECUTIVE IMMUNITY CANNOT BE USED TO SHIELD A NON-SITTING PRESIDENT, AND ANY PERSON ACTING PURSUANT TO THE PRESIDENT’S ORDERS CANNOT CLAIM IMMUNITY BECAUSE HE DERIVES HIS AUTHORITY FROM ONE WHO IS NO LONGER SITTING AS PRESIDENT. FACTS: An information was filed against the accused for alleged violation of Section 5, R.A. No. 3019, as amended. The accused, a brother-in-law of former president Ferdinand E. Marcos, intervened directly in a contract between the NASSCO, a government owned controlled corporation, and BASECO (Bataan Shipyard And Engineering Company), a private corporation, the majority stocks of which is owned by said president. Under the contract, NASSCO sold, transferred and conveyed to BASECO all its ownership, its titles and interests over all equipment and facilities (i.e., structures, buildings, shops, quarters, houses, plants and expendable and semi-expendable assets for P5 Million. The accused claims that Sec. 5, R.A. 3079 is unconstitutional because the act which constitutes the offense is vague and impermissibly broad, and that he is immune from criminal prosecution under Section 17, Art. VII, of the 1973 Constitution. ISSUES: Are the said contentions tenable? HELD: 1.

2.

Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality. To doubt is to sustain. Every statute is presumed valid. The overbreathe and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Executive immunity is applied only during the incumbency of a President. It cannot be used to shield a non-sitting president from prosecution for alleged acts while sitting in office. This will hold true in the case of a person who is acting pursuant to the President’s orders. He cannot claim immunity since he derives his immunity from one who is no longer sitting as President.

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Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election. Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from office in the same manner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of the Congress. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose.

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Q – What are the qualifications of a President? A – Section 2, Article VII, provides for the following qualifications: 1. He must be a natural-born citizen of the Philippines; 2. He must be a registered voter; 3. He must be able to read and write; 4. He must at least be forty years of age on the day of the election; 5. He must be a resident of the Philippines for at least ten (10) years immediately preceding such election. Q – What are the qualifications of a Vice-President? A – The Vice President shall have the same qualifications and term of office and shall be elected with and in the same manner as the President. (Section 3, Article VII) Q – How are the President and the Vice-President elected? A – They shall be elected by a direct vote of the people for a term of six years. (Section 4, 1st paragraph, Article VII) Q – What is their term of office and up to when shall they serve as such? A – Their term is for six years and shall begin at noon of the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. Q – Can they serve for more than two successive terms? A – They shall not serve for more than two successive terms. Q – If they voluntarily renounce their office for any length of time, shall that be considered as an interruption in the continuity of their service for the full term for which they are elected? A – No. By express provision of Section 4, second paragraph, which provides as follows: “Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.” Q – If a Vice-President succeeds to the Presidency, may he run for President at the end of the term to which he succeeded as President? A – No, by express provision of Section 4, 1st paragraph, which provides as follows: “No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.” Q – Is former President Joseph Estrada eligible to run again as President of the Philippines? A – This issue surfaced when former President Joseph Estrada announced few months ago that he will run again as President of the Philippines.

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Dean Pacifico Agabin, former Dean of the University of the Philippines and Lyceum College of Law, claims that the use of the article “the” before “President,” implies that the phrase refers only to the incumbent President. Moreover, he uses the four-year threshold found in the second sentence as basis to argue that since President Estrada served for only three years, then he is not barred from running again. I respectfully submit that former President Estrada is not eligible to run again as President of the Philippines, for the following reasons: 1. In Estrada vs. Desierto, et al., the Supreme Court already ruled that “using the totality test” (which was determined “from his acts and omissions before, during and after January 20, 2001, or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue,” “we hold that petitioner resigned as President.” This being expressly pronounced by final judgment, it is clear that former President Estrada, by his own acts, already completed the term of six years, and for this reason, the second sentence of Section 4, Article 7, applies to him, which means that he is not eligible for any re-election. 2. Other than this barrier which is founded on the express pronouncement of the Supreme Court, there are thought provoking considerations, based on facts before and after the said pronouncement of the Supreme Court, which, taken together in their entirety, are justifiable reasons constituting his ineligibility to run again as President of the Philippines, thus: a. Under Section 5, Article III, of the Constitution, his oath is that during his term, he will faithfully and conscientiously fulfill his duties, preserved and defend the Constitution, execute its laws, do justice to every man, and consecurate himself to the service of the nation. He did not, however, comply with his solemn oath, and instead, he was convicted of plunder beyond reasonable doubt, only that he was granted pardon, an act which is an abuse of presidential prerogative because it was granted not only in haste but also before the judgment of conviction became final. By his own acts again, and through no fault of the people who voted for him, he made himself not only ineligible and unqualified but also unworthy to seek the trust of the people whose trust he already violated. In otherwords, he reneged on his solemn oath to be faithful to and to be deserving of the trust of the people, an act which is a violation of our Constitution, an infedility which cannot

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b.

be washed away by a pardon which is, by itself, a separate abuse of President GMA’s oath. Besides, to allow him to be eligible to run again as President, is preposterous, whether he wins or loses his bid to run again. If he is allowed to run again, the mere fact of allowing him ipso facto allows a mockery of Sec. 5, Article III, which sends a wrong signal to our countrymen, that in our country, a travesty of our Constitution is tolerated and permissible. If he loses, it is not only himself and the people who voted for him, who are the losers. Our government and our justice system are losers too because we cannot prevail against what is wrong and unjust. If he wins, he will, in effect, be allowed to serve for more than six years, placing him in a better situation than one who is regularly elected for a six years term. In either way, the benevolence and trust reposed by the sovereign electorate is abused.

Q – What are the procedures to be conducted in the canvass of election returns and the proclamation of the President and the Vice-President? A – The canvass of election returns and the proclamation of the President and the Vice-President shall be conducted in accordance with the following procedure: 1. Transmission Of Returns – The returns of every election for President and Vice-President shall be duly certified by the board of canvassers of each province or city. (Sec. 4, 4th paragraph) 2. Transmission Of Certified Returns To The Congress – The certified returns shall be transmitted to the Congress, directed to the President of the Senate. (Ibid.) 3. Opening Of Certificates Of Canvass – Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session. (Ibid.) 4. Canvass Of The Votes By Congress – Upon determination of the authenticity and due execution of the certificates of canvass, Congress shall canvass the votes. (Ibid.) 5. Proclamation – The person having the highest number of votes shall be proclaimed elected. (Section 4, 5th paragraph) 6. In Case Of Tie – In case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by a vote of a majority of all the members of Congress. (Ibid.)

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7.

8.

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Promulgation Of Rules For Canvassing Of Certificates – The Congress shall promulgate its rules for the canvassing of the certificates. (Section 4, 6th paragraph) Sole Judge Of All Contests – The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to: (a) The election; (b) Returns; and (c) Qualifications of the President or Vice-President. The Supreme Court may promulgate its rules for the purpose. (Section 4, 7th paragraph, Article VII) LEGARDA VS. DE CASTRO P.E.T. CASE NO. 003, MARCH 31, 2005

Presidency; Article VII Section 4; The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the Presidential Electoral Tribunal (PET), in Section 4, Article VII of the Constitution. FACTS: The Presidential Electoral Tribunal (PET) in its Resolution dated January 18, 2005 confirmed the jurisdiction over the protest of Loren B. Legarda and denied the motion of protestee Noli L. de Castro for its outright dismissal. The Tribunal further ordered to undertake measures for the protection and preservation of the ballot boxes and election documents subject of the protest. On February 4, 2005, protestee filed a motion for reconsideration assailing the said resolution. Protestee contends that: 1. The PET cannot correct the manifest errors on the statements of votes (SOV) and certificates of canvass (COC) because 2. The PET erred in ruling that the petition filed by Legarda is sufficient in form and in substance. ISSUE: Whether or not questions on the validity, authenticity and correctness of the SOVs and COCs are outside of the PET’s jurisdiction? Corollarily, is it within the grant of authority of the tribunal to re-canvass the ballots in cases of protests? Is the petition filed sufficient in form and substance? HELD: The Court held that the tribunal has the authority to correct manifest errors on the statements of votes (SOV) and certificates of canvass (COC). The constitutional function as well as the power and the duty to be the sole judge

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of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the duty to correct manifest errors in the SOVs and COCs. As held in Peña v. House of Representatives Electoral Tribunal, the requisite for the sufficiency of election protest is to specify the results in the contested precincts. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she questions all the results in all the precincts therein. The protest here is sufficient in form and substantively, serious enough on its face to pose a challenge to protestee’s title to his office. Although the Court find that the protest is sufficient in form and substance, it further stressed that nothing as yet has been proved as to the veracity of the allegations. The protest is only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots, nothing herein prevents the Tribunal from allowing or including the correction of manifest errors, pursuant to the Tribunal’s rule-making power under Section 4, Article VII of the Constitution QUALIFICATIONS OF THE PRESIDENT AND VICE-PRESIDENT Q – What is a natural-born citizen? A – A natural-born Filipino citizen is a citizen of the Philippines from birth without having to perform an act to acquire or perfect his Philippine citizenship. (Section 2, Article IV) Those who were born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority “shall be deemed natural-born citizens.” (Section 2 in relation to Section 1[3], Article IV) Q – What is a naturalized citizen? A – A naturalized citizen is one who acquires his Philippine citizenship after birth by any of the modes allowed by law. Q – What is a registered voter? A – A registered voter is one who is duly registered in the list of the voters because he possesses the qualifications for suffrage, as required by Section 1, Article V which provides as follows: “Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately pre-

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ceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.” Q – What is the required age of a presidential candidate? A – The presidential candidate should at least be forty (40) years of age on the day of the election, not on the day of proclamation. Q – What is the required years of residence for a presidential candidate? A – The Constitution requires ten (10) years residence immediately preceding the election of the presidential candidate so he will be acquainted with the conditions of the country which will give him an insight or idea as to the possible solutions that he may pursue if he succeeds. Q – Is the President eligible for any re-election? A – No. This constitutional limitation is apparently brought about by the sad experiences of martial rule and the maneuvers perpetrated by former President Ferdinand E. Marcos that enabled him to stay in office for twenty years. With only one term of six years, the President can devote his time and efforts to enable him and his administration to succeed instead of utilizing his first term in preparation for the second term. Q – Can the Vice-President be appointed as a member of the cabinet? A – The Vice-President, who shall have the same qualifications and term of office and who shall be elected with and in the same manner as the President, is in a better position compared to a Vice-President under the 1935, or even the 1973 Constitution, in the sense that by express constitutional provision, a Vice-President under the present Constitution may now be appointed as a member of the Cabinet, and if he is appointed, the appointment requires no confirmation from the Commission on Appointments. Notes and Comments: The 1935 Constitution contains no similar provision. The 1973 Constitution states that the Vice-President “may be appointed as a member of the Cabinet and may be nominated and elected as Prime Minister,” but it contains no statement that his appointment requires no confirmation. More than this, the country, at that time is under martial law and it goes without saying that any Vice-President serving under the circumstances then prevailing has a limited latitude of discretion and authority, compared to a Vice-President who is elected at a time when full democracy is restored. The present Constitution, however, merely says that the VicePresident “may be appointed as a member of the cabinet,” which means that the President may or may not appoint the Vice-President to a cabinet position. It will be a better idea to fix the appointment of the Vice-President

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to a designated position, such as for instance, his automatic designation as Vice-President and Ex-Officio President of the Senate. This will ensure a fixed job and responsibility for whoever will be elected by the people as Vice-President of the Philippines. This will also prevent the recurring power struggle in the Senate and the disruption of legislative activities in the Senate which, as we all know, is not beneficial to the country and the people in general. Q – What is the weakness of Section 2, Article VII of the 1987 Constitution with respect to qualifications of a President, Senators, and Members of the House of Representatives? Explain. A – This provision has to be studied and re-examined. Ability “to read and write,” for instance, will not preclude a high school graduate, or elementary graduate, to be a candidate for president, assuming that he possesses all other qualifications. In fact, that phrase may even qualify a person who merely finished Grade I or Grade II by simply proving that he is “able to read and write.” Of course, the people is, in the ultimate analysis, the sovereign will to reject an unqualified candidate but why not simply prescribe a better credential or qualification? After all, he will be President of the country. It is not unreasonable to prescribe that the President of the Philippines should at least be a college graduate, with at least ten (10) years of actual work experience in management, or administration, in the government or private sector in addition to the other qualifications required by the Constitution. The same thing is true for Senators, Members of the House of Representatives and even for Delegates to the Constitutional Convention who are supposed to be our lawmakers. This being their primary duty, it is but fitting and proper that a higher qualification should be imposed by the Constitution which will automatically disqualify candidates whose academic training and work experience is totally strange, unfamiliar or unrelated to lawmaking, particularly in the drafting and preparation of a Constitution which is the fundamental law of the land. Section. 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (In case of affirmation, last sentence will be omitted.)

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Q – Besides the powers granted by the 1987 Constitution to the President, what else are the powers of the President? A – (1) Those powers which are found, confirmed, and stated in enabling laws and in several decisions of the Supreme Court. (2) They may also be implied or inferred from those expressly granted to the President, or in the exercise of his control “of all executive departments, bureaus and offices,” or in the pursuit of his task of ensuring “that laws be faithfully executed,” or in his capacity as “Commander-in-Chief of all Armed Forces of the Philippines.” Q – What is the purpose of Section 5, Article VII, requiring the President, Vice-President or Acting President to take the oath or affirmation stated in Section 5? A – The purpose is to instill in their minds and to declare to all: 1. That the said public officials have a solemn oath – that they will faithfully and conscientiously fulfill their duties. 2. That they preserve and defend the Constitution of the Philippines. 3. That they will execute the laws of the Philippines. 4. That they will do justice to every man. 5. That they consecrate to themselves to the service of the Nation. 6. That besides the solemn oath they take, they formally invoke and ask the help of God, in the course of and in the fulfillment of their duties. Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source. Q – What is the salary of the President and Vice-President? A – Until the Congress provides otherwise, the President shall receive an annual salary of P300,000.00. (Section 17, Article XVIII) Q – Can the said salary be decreased during his tenure? A – The said salary shall not be decreased during his tenure. (Section 6, Article VII) Q – Can the said salary be increased? A – The said salary can be increased but subject to the following constitutional limitations: “No increase in said compensation shall take effect until after

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the expiration of the term of the incumbent during which such increase was approved.” Q – Can the President receive any other emolument during his tenure from the government or any other source? A – No, by express provision of Section 6 (last sentence), Article VII. He must, therefore, confine himself to the duties of his office thereby inhibiting him from accepting any other employment elsewhere. Section 7. The President-elect and the Vice-President-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President shall have been chosen and qualified. If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice-President-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the speaker of the House of Representatives, shall then act as President until the President or VicePresident shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.

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Section 10. The Congress shall, at ten o’clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House or Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmits within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For the purpose, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.

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Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The Members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. SIMPLIFICATION OF THE RULES Q – What are the rules to be applied if there is a vacancy before the beginning of the term of the President? A – Section 7 lays down the rule to be applied if there is a vacancy before the beginning of the term of the President. Rules applicable: 1. In case of death or permanent disability of the President-elect. 2. In case of failure to elect the President (i.e., Presidential election has not been held or non-completion of the canvass of the Presidential elections). 3. In case no President and Vice-President shall have been chosen and qualified, or where both shall have died or become permanently disabled.

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The Vice-President elect shall become President.

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The Vice-President shall act as the President until the President shall have been chosen and qualified.

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The Senate President, or in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. Congress shall by law provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability or inability of the officials mentioned in no. 3.

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Q – What are the rules to be applied if a vacancy occurs during the incumbency of the President? A – Section 8 lays down the rules to be applied if a vacancy occurs during the incumbency of the President. Rules applicable:

ARTICLE VII EXECUTIVE DEPARTMENT

1. In case of: (a) Death; (b)

Permanent Disability; (c) Removal from Office; or (d) Resignation of the President. 2. In case of: (a) Death; (b) Permanent Disability; (c) Removal from Office; or (d) Resignation of both the President and the VicePresident.

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The Vice-President shall become the President to serve the unexpired term.

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The Senate President, or in case of his inability, the Speaker of the House of Representatives, shall act as President until the President or Vice-President shall have been elected and qualified.

Q – What are the rules and procedure if a vacancy occurs in the offices of the President and Vice-President? A – The rules and procedures are as follows: 1. At 10:00 A.M. of the third day after said vacancy occurs – Congress shall convene in accordance with its rules without the need of a call. 2. Within seven (7) days – Congress shall enact a law calling for a special election to elect a President and a Vice-President. 3. Said special election shall be held – Not earlier than forty-five (45) days nor later than sixty (60) days from the time of such call. 4. The bill calling such special election – Shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by Congress 5. Appropriations for said special election – Shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution 6. The convening of Congress and the special election – Cannot be suspended or postponed. 7. No special election shall be called – If the vacancy occurs within eighteen (18) months before the date of the next presidential elections. (See Section 10, Article VII) Q – What are the instances when there is presidential inability to discharge powers and duties of his office? A – 1. When the President transmits

to the Senate President and to the Speaker of the House of Representatives his written

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The powers and duties of his office shall be discharged by the Vice-President as Acting President.

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declaration that he is unable to discharge the powers and duties of his office. (First paragraph, Section 11, Article VII) 2. When a majority of all the members of the Cabinet transmit to the Senate President and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. (Second paragraph, Section 11, Article VII)

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The Vice-President shall immediately assume the powers and duties of the office as Acting President.

Q – When No. 2 happens, can the President re-assume the powers and duties of his office? A – Yes, if he transmits to the Senate President and to the Speaker of the House of Representatives his written declaration that no inability exists. (First paragraph, Section 11, Article VII) Q – Can the members of the Cabinet refute the written declaration of the President that no disability exists? A – Yes, but the majority of all the members of the Cabinet should transmit within five (5) days to the Senate President and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. When this happens, the disability of the President becomes an issue. (Ibid.) Q – Who decides the said issue? A – Congress shall decide the issue. (Ibid.) Q – How shall Congress decide said issue? A – If Congress is not in session, it shall convene within forty-eight (48) hours, in accordance with its rules and without the need of a call. Within ten (10) days from receipt of the last declaration, or within twelve (12) days , if not in session, it shall determine by a two-thirds (2/3) vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office. If this is so declared, the Vice-President shall act as President, otherwise, the President shall continue exercising the powers and duties of his office.

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Q – What is the information needed if the President is seriously ill? A – In case of serious illness of the President, the public shall be informed of the state of his health. The Members of the cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. SIMPLE QUESTIONS ON PRESIDENTIAL SUCCESSION Q – What happens if A, President-elect, fails to qualify? A – The Vice-President elect shall act as President until the President-elect shall have been chosen and qualified. (2nd par., Sec. 7, Article VII) Q – What happens if no President is chosen? A – The Vice-President elect shall act as President until the President shall have been chosen and qualified. (3rd par., Sec. 7, Article VII) Q – What happens if A, President-elect, dies before he assumes office or before the beginning of his term? A – The Vice-President elect shall become President. (4th par., Sec. 7, Article VII) Q – What happens if A, President-elect, was shot in Malacañang Palace, before the beginning of his term? A – It depends. 1. If A dies as a result of the incident, the Vice-President elect shall become President. (4th par., Sec. 7, Article VII) 2. If A did not die and he is still able to assume the Presidency, not having suffered any disability, A remains as President-elect, and he is entitled to assume the Presidency. Q – What happens if A and B, President and Vice-President, die before they could assume office? A – The President of the Senate, or in case of his inability, the Speaker of the House of Representatives shall act as President until the President or the Vice-President shall have been chosen and qualified. (5th par., Sec. 7, Article VII) Q – What happens if A, duly proclaimed President, dies a day after he assumed office? A – The Vice-President shall become the President, to serve the unexpired term. Q – What happens if A, duly proclaimed President, is sued for immorality two years after he assumed office? A – He remains as President, and unless he is duly removed or impeached on the grounds stated in Section, Article XI, of the 1987 Constitution, he shall continue as President of the Republic of the Philippines.

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Q – What happens when the President transmits to the Senate President and to the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office? (1st par., Sec. 11, Article VII) A – The powers and duties of his office shall be discharged by the VicePresident as Acting President. Q – What happens if a majority of all the members of the Cabinet transmit to the Senate President and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office? (2nd par. Section 11, Article VII) A – The Vice-President shall immediately assume the powers and duties of the office as Acting President. Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The spouse and relatives by consanguinity of affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Q – What are the inhibitions of the President? A – The President has the following inhibitions: 1. He shall not hold any other office during his tenure. 2. He shall not, during his tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporations or their subsidiaries. 3. He shall strictly avoid conflict of interest in the conduct of his office. 4. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the

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Q – A – Q – A –

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Office of the Ombudsman, or as Secretaries, Undersecretaries, Chairmen or heads of bureaus or offices, including government owned or controlled corporations and their subsidiaries. (Section 13, Article VII) Are the said inhibitions applicable to the Vice-President, to the Members of the Cabinet, their Deputies and Assistants? Yes, the said inhibitions are also applicable to the said officials. Does the President enjoy immunity from suit? The President enjoys immunity from suit during his tenure. After the tenure of office of the President, immunity for non-official acts is lost. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. (Estrada vs. Desierto, G.R. Nos. 146710-15, March 2, 2001) In this connection, former President Joseph Estrada made two submissions; first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. The Supreme Court held that: 1. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. 2. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. 3. What is the scope of immunity that can be claimed by petitioner as a non-sitting President? The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery, and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.

Q – In Soliven vs. Judge Makasiar, Beltran vs. Makasiar, Mr. Louie Beltran made the contention that on account of the complaint affidavit filed by President Corazon Aquino, she submitted herself to the jurisdiction of

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the Regional Trial Court, hence, that defeats her privilege of immunity from suit. Does President Corazon Aquino’s immunity from suit prevent her from suing? A – The privilege from immunity from suit pertains only to President Aquino by virtue of the office, hence, it may be invoked only by herself and not by any other person in her behalf. (Soliven vs. Judge Makasiar, Beltran vs. Makasiar, G.R. No. 8287, November 14, 1988) Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office. Q – A is an Acting President. Does he possess the power to appoint? A – He has the power to appoint but his appointment may be revoked by the elected president within 90 days from his assumption or re-assumption of office. Q – A is an incumbent president whose term of office is about to expire. The night before his term expired, President A issued mass “midnight appointments.” Are the said appointments valid? A – In the celebrated case of Dominador R. Aytona vs. Andres Castillo, et al. (L-19313, January 19, 1962), the Supreme Court held that although President Carlos P. Garcia was still President up to noon of December 30, 1961 (his successor, President Diosdado Macapagal was scheduled to assume the Presidency on said date) he should not have issued mass “midnight appointments” on December 26, 1961. Such an act may be regarded by the successor as an abuse of Presidential prerogatives. Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Q – What is the restraint to a president or acting president in extending appointments? A – (1) Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Hence, only temporary appointments can be extended and only to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

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COMMENTS: Section 15, Article VII, is correlated to Sections 4 and 9 of Article VIII of the 1987 Constitution. They provide as follows: “Section 4(1), Article VIII. The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. Underalining supplied “Section 9, Article VIII. The members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. However, the said appointment and the power to fill up the said vacancy is subject to a constitutional ban, as provided in Section 15, Article VII (Executive Department), thus: “Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” To my mind, and to many other lawyers and professors as well, the provision in Section 15, Article VII, is so clear. It is most courteously submitted that the same need not be subject to interpretation. Following the cardinal rule of statutory construction, a law which is clear should be applied, not interpreted. These notwithstanding, the Supreme Court, in a majority decision, penned by Justice Lucas Bersamin, and concurred in by eight other justices, ruled that the constitutional ban on midnight appointments does not apply to appointments to the judiciary. With all due respect to the said decision, it is respectfully submitted that the ban is clear – NO APPOINTMENT TWO MONTHS IMMEDIATELY BEFORE THE NEXT PRESIDENTIAL ELECTIONS AND UP TO THE END OF HIS TERM. The wordings of Section 15, Article VII are crystal clear, thus: OPENING SENTENCE “Two months immediately before the next presidential elections and up to the end of his term, the President or Acting President shall not make appointments xxx.” (Underlining Supplied)

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EXCEPTION TO SECTION 15 “Except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safetly.” (Underlining Supplied) The exception refers only to “temporary appointments to executive positions.” (Underlining Supplied) The position of Chief Justice is not an executive position, hence, it is not within the exception referred to in Sec. 15, Art. VII. To add another exception, as the majority of justices did, is putting words, or supplying words to our Constitution, which did not provide for it. THESE FACTS AND CIRCUMSTANCES ADD MORE REASON TO SUPPORT THE CONSTITUTIONAL BAN TO THE APPOINTMENT OF THE NEXT CHIEF JUSTICE These facts add more reason and actually negate any and all efforts to justify any decision to allow the midnight appointment of the next chief justice. 1. Chief Justice Reynato Puno retired on May 17, 2010; 2. The presidential elections was held on May 10, 2010; 3. The ban on midnight appointments started on March 30, 2010 until June 30, 2010; 4. Any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof; 5. The 90th day from the occurrence of the vacancy was on August 15, 2010; 6. The term of President Gloria Macapagal-Arroyo expired on June 30, 2010; 7. Between July 1, 2010, to August 15, 2010, the new president assume office on June 30, 2010, has ample time to appoint the next Chief Justice and one associate justice of the Supreme Court. Why then should the outgoing President whose term of office is about to expire, insist on making the appointment, instead of leaving this task to the newly elected president? The newly-elected president has the newest mandate of the sovereign electorate. In his hands, the people have entrusted their new hopes for a better administration and governance. This is precisely the purpose of electing a new head of State, new senators, new

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congressmen, and other local leaders, when their respective terms of office come to an end. Besides the clarity of the said constitutional provisions, the constitutional ban to the appointment of a midnight Chief Justice should be based not only on pure legal semantics or consideration, but it should also be based on propriety and moral considerations. Such is the case of the three hundred fifty (350) midnight appointments made before the beginning of the term of President Diosdado Macapagal, and before the term of President Carlos P. Garcia expired. Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts; or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Q – What is the scope of the President’s appointing power? A – The President shall nominate and with the consent of the Commission on Appointments, appoint the following: CODE: HAO-OAA H– eads of the executive department (subject to confirmation by CA) A– mbassadors, or other public ministers and consuls (subject to confirmation by CA) O– fficers of the armed forces from the rank of colonel or naval captain (subject to confirmation by CA) O– ther officers whose appointments are vested in him in this Constitution (not subject to confirmation by CA) A– ll other officers of the government whose appointments are not provided for by law (not subject to confirmation by CA) A– nyone whom he can appoint by authority to law. Q – What is the nature of the appointing power of the President?

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A – It is executive in nature. (Government vs. Springer, 50 Phil. 259, 283 [1927]) Q – If the appointing power of the President is executive in nature, can Congress usurp the exercise of such function? A – It violates the principle of separation of powers if Congress usurps such presidential prerogative of appointment. However, the Supreme Court retains the power and authority through the Commission on Appointments, to confirm the appointments made by the President which require its approval and confirmation. The legislature has also the power to impose additional duties on existing offices. (Roxas vs. Lopez, 17 SCRA 756 [1966]) Q – What appointments need confirmation by the Commission on Appointments? A – As a rule, all appointments made by the President need the confirmation of the Commission on Appointments. However, appointments of other officers, lower in rank, may, by law, be vested by Congress in the President alone, in the courts, or in the heads of departments, agencies or boards. Q – General Mison was appointed Commissioner of Customs, does his appointment need the confirmation of the Commission on Appointments? A – No, because said office is not one of those mentioned in the 1st sentence of Section XIV, Article VII. (Sarmiento vs. Mison, 150 SCRA 549) NOTE: This is also the same reason used in Bautista vs. Salonga, G.R. No. 86439, April 30, 1989. Q – What is the distinction between Regular and Ad Interim Appointment? A –

Q A Q A

– – – –

REGULAR APPOINTMENT

AD INTERIM

It is an appointment made by the President while Congress is in session. It takes effect only after confirmation by the Commission on Appointments. Once the same is approved, it continues until the end of the term of the appointee.

It is an appointment made by the President while Congress is not in session. It takes effect immediately but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress.

What is the purpose of Ad Interim Appointment? To prevent a hiatus in the discharge of official duties. Is an Ad Interim appointment a permanent appointment? It is a permanent appointment. (Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 140 SCRA 22)

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Q – What is the effectivity and duration of ad-interim appointments? A – They are effective immediately, without need for confirmation by the Commission on Appointments, but they are effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. Q – Distinguish ad-interim appointment from an appointment in an acting capacity A – Ad-interim

Appointment in an acting capacity

This appointment refers only to positions which need confirmation by the Commission on Appointments. The appointment may be given only when Congress is not in session

The said appointment is given to those which do not need confirmation. The appointment may be given even when Congress is in session.

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. Q – What is the extent of the control power of the President? A – The control power of the President does not only refer to the power of the President to make an appointment but also the power to remove whenever he deems it proper and necessary. He suffers from no legal constraint whatsoever in exercising the said power of appointment and removal, except that constitutional officers can only be removed by impeachment. In Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, the Supreme Court explained the Presidential power of control over the Executive Branch of the government in this manner: “x x x it extends over all executive officers from Cabinet Secretary to the lowliest clerk and has been held to mean ‘the power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former to the latter.’” Q – Does the decision of the Supreme Court in Carpio vs. Secretary of the Interior abandon the ruling in Villena vs. Executive Secretary? A – It is an improvement because the Presidential power of control over the Executive Branch of the government, according to the Supreme Court in Carpio vs. Executive Secretary, extends over all executive officers from Cabinet Secretary to the lowliest clerk and has been held to mean

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“the power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former to the latter. President Ramon Magsaysay directly exercised the authority to promulgate rules and regulations concerning trawl fishing. This was challenged, however, on the ground that the power to do so belongs to the Secretary of Agriculture and Natural Resources. Is this contention valid? This contention was not sustained by the Supreme Court. It was ruled that the President of the Philippines may exercise the power and authority to regulate or ban trawl fishing under and by virtue of Article VII, Section 10(1) of the Constitution. Moreover, all executive functions of the government of the Republic of the Philippines shall be directly under the executive department subject to this provision and control of the Republic of the Philippines in matters of general policy. (Araneta vs. Gatmaitan, 101 Phil. 328) What is the doctrine of qualified political party? The doctrine of qualified political agency is a corollary rule to the control powers of the President. Under this doctrine, which recognizes the establishment of a single executive, “all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or by law to act in person on the exigencies of the situation which demands that he acts personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, En Banc, Paras, J.) Does the President have control over officers of government-owned corporations? Yes. What is the difference between the power of control and the power of supervision? The power of control is the “power of an officer to alter or modify or set aside what is subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” (Carpio vs. Executive Secretary, Ibid.) The power of supervision is the “power

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of a superior officer to ensure “that the laws are faithfully executed” by inferiors. The power of control necessarily includes the power of supervision but the power of supervision does not include the power of control. Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

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He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Section 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. SIMPLIFICATIONS OF SECTIONS 18 TO 23 I. II. III.

IV. V.

VI.

SECTION 18 cites the military powers of the President. SECTION 19 refers to the power of the President to grant executive clemency. SECTION 20 refers to the power of the President to enter into contracts or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the monetary board, and subject to such limitations as may be provided by law. SECTION 21 refers to the power of the President in the field of foreign relations. SECTION 22 refers to the power of the President to submit and recommend a budget of receipts and expenditures and sources of financing to Congress within thirty days from the opening of every regular session. SECTION 23 refers to what is popularly called as the function of the President to deliver a state of the nation address (SONA). More specifically, the powers granted to the President are the following:

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POWERS OF THE PRESIDENT I.

CODE: EAC – MP – BDBI – OTHER POWERS E – xecutive Power A – ppointment Power C – ontrol Power M – ilitary Power P – ardoning Power B – orrowing Power D – iplomatic Power B – udgetary Power I – nforming Power O – ther powers

DETAILED DISCUSSION OF EACH POWER EXECUTIVE POWER Q – Who shall have control of all executive departments, bureaus and offices? A – The President has control of all executive departments, bureaus and offices. Q – What is the extent of the presidential power of control over all executive departments, bureaus, and offices? A – Already answered. (See Carpio vs. Executive Secretary, G.R. No. 969409, February 14, 1992, En Banc, Paras, J.) The President’s power of control is directly exercised by him over the members of the Cabinet, who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department. (Ibid.) POWER OF APPOINTMENT Q – Distinguish designation from appointment. A – DESIGNATION

APPOINTMENT

A person who is already in the public service is given additional duties. These duties are usually imposed by law.

In appointment, the person who shall exercise the function of a given office is selected by the authority vested with the power to make a selection.

Q – What is a commission? A – It is the written evidence of the appointment.

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Q – What are the steps in the appointment process? A – 1. The President makes the nomination 2. The same is submitted to the Commission on Appointments for confirmation. 3. The corresponding commission is issued. 4. The appointee makes an acceptance of the appointment. Q – What, if any, is the limitation of the power of the appointing authority? A – The power to make an appointment is essentially a discretionary power. However, it is subject to the following limitations: 1. The appointee should possess the minimum requirements prescribed by law for the position. (Pobre vs. Mendieta, 224 SCRA 738) 2. When an appointment is made by an acting President, the same shall remain effective unless revoked by the elected President within ninety days from his assumption of office. 3. Two months immediately before the next presidential elections and up to the end of his term, a President or acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. 4. Congress may limit presidential power of appointment by prescribing qualifications for public office. 5. The judiciary may annul an appointment made by the President if the appointee is not qualified or has not been validly confirmed. Q – Does the power of appointment carry with it the power of removal? A – As a general rule, the power of removal may be implied from the power of appointment. However, the President cannot remove officials appointed by him where the Constitution prescribes certain methods for separation of such officers from public service. Commissioners of Constitutional Commissions, for instance, can only be removed by impeachment. In the cases where the power of removal is lodged in the President, the same may be exercised only for cause as may be provided by law, and in accordance with the prescribed administrative procedure. Q – Can the President discipline members of the career service of the Civil Service who are appointed by him? A – Yes, they may be directly disciplined by the President (Villaluz vs. Zaldivar, 15 SCRA 710) provided that the same is for cause and in accordance with the procedure prescribed by law. Q – What is the power of the President over his cabinet members and over such officers whose term of office depends upon his pleasure? A – They serve under the pleasure and discretion of the President.

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CLASSIFICATION OF APPOINTMENTS Q – What is the difference between permanent appointment and temporary appointment? A – PERMANENT APPOINTMENT

TEMPORARY APPOINTMENT

A permanent appointment is extended to persons who possess the required eligibility. As such, they enjoy security of tenure.

It is revocable at will and without the necessity of just cause or a valid investigation. As the term itself connotes, the temporary appointee may be replaced at anytime a permanent choice is made.

Q – What is the effect of a designation? A – A designation, like a temporary appointment, is not subject to confirmation by the Commission on Appointments. (Valencia vs. Peralta, 8 SCRA 692) When a person is merely designated, and not appointed, he shall hold office in a temporary capacity and he may be removed at will by the appointing power. CONTROL POWER Q – What is the difference between control and supervision? A – CONTROL

SUPERVISION

It is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgement of the former for that of the latter. (Mondano vs. Silvosa, 97 Phil. 143)

It is the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law.

DOCTRINE OF QUALIFIED POLITICAL AGENCY Already discussed. THE ALTER EGO PRINCIPLE Q – What is the Alter Ego Principle?

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A – The members of the Cabinet of the President are referred to as his ALTER EGOS for even if they are the heads of the different departments of government, they are considered as the extension of the personality of the President. For this reason, “acts performed and promulgated in the regular acts of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Villena vs. Secretary of the Interior, 67 Phil. 45) This doctrine was further improved by the decision in Carpio vs. Executive Secretary, supra. Q – In what way was the doctrine in Villena vs. Secretary of the Interior improved by the decision in Carpio vs. Executive Secretary? A – The decision in Carpio vs. Executive Secretary is actually an improvement of the old ruling in Villena vs. Secretary of the Interior to the effect that the acts of the heads of the various departments which are “performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumed to be the acts of the Chief Executive.” It is an improvement because the Presidential power of control over the Executive Branch of the government, according to the Supreme Court in Carpio vs. Executive Secretary, extends over all executive officers from Cabinet Secretary to the lowliest clerk and has been held to mean “the power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Q – Are decisions of Cabinet members and other subordinate executive officers subject to appeal to the President? A – Yes, as and by way of exhaustion of administrative remedies except in the instances when the doctrine of qualified political agency applies. (Kilusang Bayan, etc. vs. Dominquez, 205 SCRA 92) MILITARY POWERS As Commander-In-Chief of the Armed Forces of the Philippines Q – What are the military powers of the President as Commander-in-Chief of the Armed Forces of the Philippines? A – 1. He may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. 2. He may enforce discipline in the armed forces through courts martial which may be created by the President under and by virtue

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of his power as Commander-in-Chief of the Armed Forces of the Philippines. Q – Can the President declare a state of war? A – The President cannot declare war and neither can he declare a state of war. Section 23(1), Article VI, gives our Congress the SOLE POWER to declare the existence of state of a war, not the power to declare war, but this power and authority is subject to the fundamental principle expressed in Section 2, Article II, thus: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” The restriction means that by the time “the existence of a state of war” is declared by Congress, a war has already been commenced by an enemy state, or we have already been provoked, and that being already the subject or victim of an attack, we are merely being compelled to defend our State and our people. SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS In case of invasion or rebellion, when public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus. LIMITATIONS TO THE MILITARY POWER OF THE PRESIDENT Q – What are the limitations to the military power of the President? A – The limitations are as follows: 1. He may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion only. 2. The grounds for the suspension of the privilege of the writ of habeas corpus and the proclamation of martial law are now limited only to invasion or rebellion. 3. The duration of suspension should not exceed sixty days following which it shall be lifted, unless extended by Congress. 4. The President shall submit a report in person or in writing to the Congress within 48 hours form the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. 5. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.

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6.

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Congress may extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate it decision thereon within thirty (30) days from its filing. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released.

PROF. RANDOLF S. DAVID, ET AL. VS. GLORIA MACAPAGALARROYO G.R. NO. 171396, MAY 3, 2006 FACTS: 1.

2.

3.

President Gloria Macapagal-Arroyo issued Proclamation 1017 declaring a state of national emergency. She issued the said proclamation on February 24, 2006, during the 20th celebration of the 20th anniversary of the Edsa People Power I, amidst reports that there was a conspiracy among some military officers, the leftist insurgents of the NPA, and some/members of the political opposition in a plot to unseat or assassinate her. The declaration was anchored and premised on the “take over clause” relative to the power of the President under Section 17, Article XII of the 1987 Constitution which provides as follows: “Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under unreasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.” On the same day, the President issued “G.O. No. 5 implementing Proclamation 1017. Immediately, permits to hold rallies issued earlier by

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the local government were revoked and rallies were dispersed. Warrantless arrests were made and some media outlets were searched and under tight watch by the police. A petition was filed in the Supreme Court challenging the constitutionality of PP 1017, alleging that the proclamation does not authorize the President to take over or direct the operation of any privately-owned public utility or business affected with public interest. On March 3, 2006, a week after the declaration of the state of national emergency and after the said petition was filed, the President lifted PP 1017 and issued Proclamation No. 1021 which declared that the state of national emergency has ceased to exist.

ISSUES: Is President Gloria Macapagal-Arroyo authorized, under PP 1017, to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest? Is Proclamation 1017 constitutional? Is G.O. No. 5 Constitutional? Is the warrantless arrest, the dispersal of rallies, imposition of standards in media, restraint on the press constitutional? HELD: 1.

The President is not authorized under PP 1017 to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. The Supreme Court said: a. A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. Regarding the first (to declare a state of national emergency), Section 18, Article VII grants the President such power. For this reason, there can be no legitimate objection. Regarding the second (to exercise emergency powers such as the taking over of privatelyowned public utility or business affected with public interest), this is a matter which requires a delegation from Congress. b. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23(2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) there must be a war or other emergency, namely: a) economic, b) natural disaster,

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and c) national security; (2) the delegation must be for a limited period only; (3) the delegation must be subject to such restrictions as the Congress may prescribe; and (4) the emergency powers must be exercised to carry out a national policy declared by Congress. c. Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms and prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest,” it refers to Congress, not the President. Whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Constitutionality of PP 1017: Presidential Proclamation 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e., whatever is “necessary and appropriate actions and measures to suppress and prevent acts of lawless violence.” Considering that “acts of terrorism” have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

Q – On March 3, 2006, a week after the declaration of the state of national emergency and after the said petition was filed, the President lifted

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PP 1017 and issued Proclamation No. 1021 which declared that the state of national emergency has ceased to exist. It was alleged that the state of national emergency has ceased to exist and the issues in the said case have become moot and academic. Why is there still a need to resolve the petition? A – In the following instances, the issues involved in the case have become moot, but they were still resolved. REASONS: the same may be justified in the following instances: 1. When paramount public interest is involved; 2. When there is a grave violation of the Constitution; 3. When there is a need to formulate principles for the guidance of the bench, the bar and the public. 4. When the question is capable of repetition, yet evading review. (David vs. Arroyo, Ibid.) TRUE OR FALSE. EXPLAIN AFTER A PROCLAMATION OF A STATE OF EMERGENCY, THE PRESIDENT CAN EXERCISE THESE POWERS. TRUE OR FALSE. EXPLAIN YOUR ANSWER BRIEFLY. 1.

2.

3.

4.

5.

The President may call out the Armed Forces to prevent or suppress lawless violence, invasion or rebellion. Answer: True, by express provision of Sec. 18, Art. VII of the 1987 Constitution. The President can order the Armed Forces to enforce all laws. Answer: False, Under Sec. 18, Art. VII, the President may only the call the AFP “to prevent or suppress lawless violence, invasion or rebellion” x x x, not to enforce all laws. The President can issue decrees. Answer: False. Same reason. In fact, it was declared unconstitutional in Randolf S. David, et al. vs. Gloria Macapagal-Arroyo. The President can order the arrest of all persons involved in the plot to unseat or assassinate the President. Answer: False. In the absence of proof that they were committing lawless violence, invasion or rebellion and violating BP 880, this was also declared unconstitutional in said case. The President may order the AFP to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

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Answer: False. This was declared unconstitutional because this is a matter which requires a delegation from Congress. MARTIAL LAW POWER The Martial Law power of the President is expressly provided in Section 18, Article VII, of the 1987 Constitution which provides as follows: “x x x. Sec. 18. The President shall be the Commanderin-Chief of all Armed Forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight (48) hours from the proclamation of martial law or the suspension of th e privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. x x x.” Said power is subject to the limitations, as aforementioned, and to the conditions provided in Section 18, Article VII, paragraphs 1 to 6 thereof. Q – Is the President of the Philippines authorized to create military tribunals? A – In Aquino vs. Military vs. Commission No. 2 (63 SCRA 546), the power of the President to create military tribunals was upheld by Supreme Court. In fact, said military tribunals were authorized to try not only military personnel but also civilians even if civil courts were open and functioning at that time. The said decisions, however, were reversed in Olaguer vs. Military Commission No. 34 (150 SCRA 144), for the following reasons: 1. The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. 2. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law.

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3.

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The military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. (Citing Ex-parte Milligan, 4 Wallace [U.S.] 127, 18 L. Ed. 297) Suppose all the major cities in Mindanao are repeated targets of terrorist bomb attacks. Intelligence reports that reached the Office of the President indicate that the MILF, the Abu Sayaff and the NPA have merged their armed forces. Actual armed conflicts are happening in Basilan and Sulu, and lately, the mayor of Basilan was killed, together with two (2) of his police bodyguards. Question: Can the President place the whole of Mindanao under martial law? Can the President place Basilan and Sulu under martial law? There is no “invasion or rebellion” in the whole of Mindanao that will justify the declaration of martial law in the area. However, when public safety requires it and it becomes necessary, he may call the Armed Forces of the Philippines to prevent or suppress lawless violence, subject to the limitations in Section 18, Article VIII. There being an armed conflict in Basilan and Sulu, the President may do the following: (1) If the armed conflict or hostility is such that it is only happening in limited areas in Basilan and Sulu, she may exercise her powers under Section 18, Article VII; (2) If the armed conflict or hostility is such that all the towns of Basilan and Sulu and all the residents therein are already affected by the hostilities, the President may suspend the privilege of habeas corpus or place the said provinces under martial law, subject to the limitations in Section 18, Article VII. Can the President extend the said proclamation? Said proclamation or suspension may be extended for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it.

LIMITATIONS ON THE POWER TO SUSPEND THE PRIVILEGE AND THE POWER TO IMPOSE MARTIAL LAW 1.

60 DAY LIMIT “The President may, for a period not exceeding sixty (60) days suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.” (Section 18, 1st paragraph)

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2.

PRESIDENT’S REPORT IN PERSON OR IN WRITING TO CONGRESS “Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress.” (Section 18, paragraph 1)

3.

REVIEW AND POSSIBLE REVOCATION BY CONGRESS “The Congress, voting jointly, by a vote of at least a majority of all its members in regular on special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.” (Section 18, paragraph 1)

4.

REVIEW AND POSSIBLE NULLIFICATION BY THE SUPREME COURT “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law on the suspension of the privilege of the writ or the extension thereof and must promulgate its decision within thirty days from its filing.” (Section 18, 3rd paragraph)

Q – What particularly is the subject of inquiry and judicial review? A – The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the writ or the extension thereof. Q – In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. Can the courts restrain the President from exercising said power? A – The exercise of said power is predicated on the fact that there is an emergency situation which needs an immediate action of the President. When the President exercises that power based on the intelligence reports gathered and given to him, that is a judgment call reposed to no one except to him, subject only to the limitation that the Supreme Court “may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of habeas corpus. This is what should be subject of inquiry and judicial review.” Q – In the exercise of the calling out power of the President, is the concurrence of two (2) conditions, to wit: (1) An actual invasion or rebellion; and (2) that public safety requires it, required? A – No.

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Q – When are they needed? A – They are needed when the President declares martial law or suspend the privilege of habeas corpus. PARDONING POWER Q – What is pardon? A – It is an act of grace given by those who have the power and authority to execute laws which exempts the individual subject of pardon from the punishment which the law inflicts for a crime he has committed. Section 19 of Article VII of the 1987 Constitution authorizes the President of the Republic of the Philippines to grant not only pardon but also reprieve, commutation of sentence, remission of fines and forfeitures and amnesty. Section 19 provides the following: “Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.” Q – What is the nature of Executive Clemency? A – It is an executive function and not a function of the judiciary. It is also a non-delegable power and it can only be exercised by the President personally. (Villena vs. Secretary of the Interior, 67 Phil. 451, 453 [1953]) Q – Distinguish the following terms from each other: 1. Pardon 2. Reprieve 3. Parole 4. Amnesty 5. Commutation of sentence A – Pardon – It is an act of grace given by those charged with the power and authority to execute laws which exempts the individuals subject of pardon from the punishment which the law inflicts for a crime he has committed. Reprieve – The execution of the sentence is stayed or postponed. Parole – The person subject of parole is released from imprisonment but his liberty is not fully restored because the parolee is still considered in the custody of the law although he is not in confinement.

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Amnesty – It is an act of grace given with the concurrence of Congress. It is usually extended to groups of persons who committed political offenses and it abolishes the offense itself. Commutation – The penalty is mitigated or reduced. Q – What are the differences between pardon and amnesty? A – PARDON

AMNESTY

1. Pardon is granted by the Chief Executive and therefore it is a private act which must be pleaded and proved by the person pardoned because the courts take no notice thereof. 2. It is granted to one after his conviction by final judgment.

1. It is a proclamation of the Chief Executive with the concurrence of Congress, hence, it is a public act which the court should take judicial notice. 2. Amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. 3. Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (Barrioquinto vs. Fernandez, 82 Phil. 642 [1949])

3. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted. It abolishes or forgives the punishment, and for that reason it does “not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence.” Q A Q A

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What are the different kinds of pardon? They are as follows: (1) Absolute pardon; and (2) Conditional pardon. What are the similarities? A pardon, whether absolute or conditional, is in the nature of a deed, for the validity of which delivery is an indispensable requisite. Until accepted,

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all benefits to the grantee may be cancelled. But once accepted by the grantee, the pardon already delivered cannot be revoked by the authority which granted it. What are the differences? Absolute pardon is complied with even without acceptance of the person pardoned. Conditional pardon has no force until it is accepted by the one condemned. What are the limitations on the exercise of the power to grant pardon? The limitations are as follows: a. It cannot be granted in cases of impeachment. (Section 19, Article VII) b. It cannot be granted in cases of violation of election laws without the favorable recommendation of the Commission on Elections. c. It can be granted only after conviction by final judgment. NOTE: (1) People vs. Salle (250 SCRA 581) – the Court declared that the 1987 Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from the judgment of conviction by the trial court. Any application for a pardon should not be acted upon, or the process toward its grant should not be begun, unless the appeal is withdrawn). (2) The ruling in Monsato vs. Factoran, 170 SCRA 190, which was laid down under the 1973 Constitution, is now changed by virtue of the explicit requirement under the 1987 Constitution. In People vs. Catido, G.R. No. 116512, March 7, 1997, it was held that while the pardon was void for having been extended during the pendency of the appeal, or before conviction by final judgment, and therefore a violation of Sec. 19, Article VII, the grant of amnesty applied for by the accused-appellants under Proclamation No. 347, was valid.) d. It cannot be granted in cases of legislative contempt (as it would violate separation of powers), or civil contempt (as the State is without interest in the same). e. It cannot absolve the convict of civil liability. In People vs. Nacional, G.R. No. 11294, September 7, 1995, the Court said that the grant of conditional pardon and the subsequent dismissal of the appeal did not relieve the accused of civil liability.

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It cannot restore public offices forfeited. In Sabello vs. DECS, 180 SCRA 623, where a pardoned elementary school principal, on considerations of justice and equity, was deemed eligible for reinstatement to the same position of principal and not to the lower position of classroom teacher. On executive clemency regarding administrative decisions, see Garcia vs. Chairman, Commission on Audit, 226 SCRA 356. Suppose Kumander Roger was arrested six (6) months before Joma Sison was arrested in Netherlands. He was correspondingly charged with rebellion. During the arraignment, he entered a plea of not guilty. Through backroom negotiations, the government negotiators told Kumander Roger that he will be granted absolute pardon provided he cooperates with the government not only in the prosecution of other top raking NPA officials but also to help in the prosecution of all Filipino communists who are based abroad. Kumander Roger was at once amenable as he was saying that he has long wanted to return to normal life. Subsequently, the President granted absolute pardon to Kumander Roger on the condition that he will convince all the NPA in the mountains to come down from the hills and surrender. Is the said pardon valid? No. REASON: Pardon can be granted only after conviction by final judgment. Suppose after consulting his lawyer, Kumander Roger insisted to the government negotiators that he wants amnesty, not pardon, not only for himself but for all his companions in the NPA movement, is that legally possible? Assuming that the government is agreeable and that the amnesty is only with respect to the political offenses involved, the amnesty is possible, subject to the concurrence of Congress. Other criminal offenses, if any, which are separate and distinct from political offenses and not absorbed in the rebellion, are not included in the amnesty. f.

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PARDON GRANTED BY PRESIDENT GLORIA MACAPAGAL-ARROYO TO FORMER PRESIDENT JOSEPH EJERCITO ESTRADA The presidential pardon granted to former President Joseph Ejercito Estrada on October 25, 2007, is worded as follows:

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The said pardon was granted after the former President was convicted by the Sandiganbayan of the crime of plunder. Former President Joseph Ejercito Estrada vigorously protested the correctness of the decision and, in fact, he filed a motion for reconsideration of the judgment of the Sandiganbayan. The merits and the arguments contained in the said motion for reconsideration were not, however, resolved and pursued any further because the said presidential order was issued by President Gloria Macapagal-Arroyo on October 25, 2007, and the same was received and accepted by former President Joseph Ejercito Estrada on October 26, 2007.

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Except for the reasons mentioned by President Gloria Macapagal Arroyo and her spokesman, there is no clear explanation why the said pardon was granted hurriedly shortly after the conviction of the former President, and after more than six (6) years of prosecution which necessarily entails millions of money and efforts of government lawyers. After the announcement of the pardon, and until now, several questions have surfaced and lawyers of different minds and persuasions are divided on each question. I IS THE POWER OF THE PRESIDENT TO GRANT PARDON ABSOLUTELY WITHOUT LIMITATIONS? There is no doubt that President Gloria Macapagal-Arroyo has the power to grant pardon to deposed President Joseph Estrada. That power is granted to her by Section 19, Article VII of the 1987 Constitution of the Republic of the Philippines which provides as follows: “Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.” It is established in this jurisdiction that executive clemency is an executive function and not a function of the judiciary. It is a non-delegable power and it can only be exercised by the President personally. (Villena vs. Secretary of Interior, 67 Phil. 451, 453 [1953]) Nevertheless, the power to grant pardon to deposed President Joseph Estrada is not absolutely without limitations, such as the following: 1. It can be granted only after conviction by final judgment. (Sec. 19, Article VII, 1987 Constitution) 2. It cannot be granted in cases of impeachment (Sec. 19, Article VII, 1987 Constitution) 3. It cannot be granted in cases of violation of election laws without the favorable recommendation of the Commission on Elections. (Sec. 5, Article IX[c], 1987 Constitution) OTHER POINTS AND CONSIDERATIONS Separate and distinct from the said limitations, however, are equally important points and considerations which President Gloria Macapagal-Arroyo either missed or conveniently set aside for reasons only known to her such as the following:

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The totality of all the facts and the circumstances before the judgment of conviction was rendered, and after the motion for reconsideration was filed, convincingly show that President Gloria Macapagal Arroyo, in utter disregard of all the millions of money and resources of the People of the Philippines, and the efforts and sacrifices of the government lawyers who prosecuted and handled the case from the inception to the end, as well as all the efforts and sacrifices of the justices of the Sandiganbayan and all the other employees of the government involved in the case, issued the presidential pardon on October 25, 2007, without giving any value and respect to the People of the Philippines who is the repository of sovereignty in a republican and democratic State like ours. Apparently, the President gave no importance at all to the rights and interest of the sovereign electorate to whom she owes her position, and to whom she has an obligation to account for each and every official act that she performs. It is the interest of the people that is at stake, not her personal interest. Until now, many citizens, lawyers or non-lawyers, are asking – •

Why is the President in a hurry to grant the said pardon even before the former President could serve a single day of the jail sentence against him? • Why is there an immediate negotiation to grant the pardon even before and immediately after the judgment of conviction? • Why is it that the pardon was granted without a prior and clear acknowledgment of guilt of the convict? • A pardon is granted after the judgment of conviction and after the convict has requested for it. In this case, the convict did not request for the pardon, but on the contrary, it is the government, through Secretary Puno who took the initiative to go to his detention cell and offered the pardon. • All these are questions left unanswered. Undoubtedly, the pardon was hurriedly made; President GMA acted in haste; and, as a result, the rights and interest of the People of the Philippines were seriously abused and violated. Thus, more confusion, disappointment and insult resulted. In fact, in a speech delivered by the former president in San Juan, Rizal, right after he was released from detention, he said: “I might have committed mistakes but corruption is not one of them.” It is clear then that the former president has not acknowledged his guilt, he has not shown any remorse at all for the plunder he committed, and it is

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even worst that he is insulting the benevolence of the President who granted the pardon. More than this, the said statement is adding insult to injury already caused to the People of the Philippines. The power to grant or not to grant pardon is her prerogative, but the thing is she has abused her presidential prerogative. While it is true that the first is a political act which is beyond the domain of the judiciary, the second one, if there is indeed an evidence to prove that there was an abuse of presidential prerogative as in this case, amounts to grave abuse of discretion and it cannot just be disregarded whimsically for the totality of the facts and circumstances before and after the judgment of conviction show that there was a hurried, hasty and determined effort on the part of the President to extend at once a pardon before the judgment of conviction became final, and immediately after the motion for reconsideration of former President Joseph Ejercito Estrada, was withdrawn. These facts and circumstances, for instance, are unmistakably clear: 1. The lawyers of the government have worked so hard to prove their charges against deposed President Joseph Estrada, and said charges have been proven beyond reasonable doubt, and for which reason, the latter was convicted of plunder; 2. It took the lawyers, with the help of the witnesses, more than six (6) years to prosecute the said case. 3. The government spent millions of money, time, efforts and resources to be able to finish its task of proving the plunder that was committed. 4. And yet, even before the judgment becomes final, the government, through backroom negotiation led by Secretary Ronaldo Puno, already admitted having negotiations with President Joseph Estrada regarding his offer of executive clemency. 5. True enough, the pardon was granted in haste even before the resolution of the motion for reconsideration that was filed by President Joseph Estrada. On October 26, 2007, the pardon dated October 25, 2007, was received and accepted by President Joseph Estrada on October 26, 2007, at 3:35 P.M. 6. Deposed President Joseph Estrada has not acknowledged his guilt prior to or even after the said pardon was granted to and received by him on October 26, 2007. There is no valid and justifiable reason to grant pardon in haste and so hurriedly but which was granted after all. It is so unfair to the Filipino people as a whole, and more so, it adds insult to the intelligence to grant pardon to him knowing that he does not acknowledge guilt, and he has not asked for forgiveness for the plunder he committed.

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THERE IS AN ABUSE OF PRESIDENTIAL PREROGATIVE AND AN ABUSE OF DISCRETION With all the foregoing factual background, the provision of Article 19 of the Civil Code comes into application. It says: “Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Underlining Supplied) In Aytona vs. Castillo, et al. (L-19313, January 19, 1962), a case which, although involving an abuse of prerogative in extending midnight appointments, was nevertheless considered and referred to as an “abuse of presidential prerogative.” It is true that the said midnight appointments were issued during the term of then President Carlos P. Garcia, but he knew too well that the following day, President Diosdado Macapagal will assume the presidency of the Republic of the Philippines. For this reason, it was then considered as an abuse of presidential prerogative. The case on hand is more than an abuse of a presidential prerogative. President GMA knew and was thoroughly aware of the foregoing background, and yet, she nevertheless granted pardon to President Joseph Estrada, an act which I respectfully submit, is a violation of the letter and spirit of Article 19 of the New Civil Code. It is likewise submitted that she violated her oath of office as enshrined in Section 5, Article VII of the 1987 Constitution, in relation to Article XI and Article III of the 1987 Constitution, thus: 1. She violated Section 1, Article XI – “Public office is a pubic trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.” (Underlining supplied) 2. She betrayed public trust (Section 2, Article XI) 3. She also violated Section 1, Article III of the 1987 Constitution, particularly the equal protection clause therein, thus: “Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the law.” (Underlining supplied)

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Are the violations of the said provisions of the Constitution, including the violation of the cardinal principle in Article 19 of the New Civil Code, considered as grave abuse of discretion? There is grave abuse of discretion when “any tribunal board or officer exercising judicial or quasi-judicial functions” has acted in a capricious, whimsical manner as to be equivalent to lack or excess of jurisdiction. In other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. (Madrigal Transport, Inc., vs. Lapanday Holdings Corporation, et al., G.R. No. 156067, August 11, 2004) Some lawyers ask: Are all these abuse of discretion? The facts that have unfolded show that there was abuse of discretion. ANOTHER POINT: The letter and spirit of the equal protection clause, as guaranteed in our Constitution, is that it should be applied equally to any and all citizens of the Philippines who are similarly situated, without regard to differences of color, religion, belief, or status in life and political persuasions. And yet, the situation and circumstance of not only one but several and so many who have languished in jail, particularly in the national penitentiary, for many long years, have not received the same benefit, treatment, convenience and accommodation accorded by President GMA to one person who happens to be the former president of the Republic of the Philippines. Particularly with respect to those who were convicted of crimes, lesser than the crime of plunder and who have been in jail for more than the period the former president was detained, the benefit, treatment, convenience and accommodation, that were extended to the latter but not to them, opens the door wide open not only to criticism but also to bitter and justified complaints of those who were not fortunate enough to be accorded the same benefit. All these may be looked into, analyzed, and resolved, in their entirety, for it is the right and interest of the Filipino people that is at stake. And since sovereignty resides in the people and all government authority emanates from them, it is but proper that their voices should be heard. They are more important than the personal and selfish interest of a few. It is not enough that President GMA has the authority to grant pardon. More than this power and authority is the great responsibility on her part to act with propriety, act with justice, observe honesty and good faith. Then and only by doing this can it be said that she complies with the basic norm of conduct required of her as President of the Republic of the Philippines.

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II. CAN THE PARDON GRANTED TO FORMER PRESIDENT JOSEPH EJERCITO ESTRADA BE NULLIFIED? Now that the presidential order that granted pardon to former Joseph Ejercito Estrada has already been received and accepted by the latter, and considering my submission that President Gloria Macapagal-Arroyo has abused her presidential prerogative, can the pardon granted to and accepted by former President Joseph Ejercito Estrada, be nullified? Again, lawyers are divided on this question. There are those who say that it can no longer be nullified because the pardon that was granted after the finality of the conviction has already been accepted by the former President Joseph Ejercito Estrada on October 26, 2007, and from that day, the pardon has already become final. I beg to disagree. I hold the view that there being an abuse of presidential prerogative and a grave abuse of discretion, considering the constitutional provisions that were violated, this may qualify to be a valid cause of action and which can be sustained under the provisions of Section 1, Article VIII, of the 1987 Constitution which provides as follows: “Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the court 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.” (Underlining and emphasis supplied) Under the expanded jurisdiction and authority of the Supreme Court, it is submitted that the Supreme Court, being the highest court of the land, can check and determine if there is an abuse of discretion that was committed by any branch or instrumentality of government, and this includes all members of Congress, cabinet members, and including the President of the Republic of the Philippines. III. THE DEVELOPMENTS BEFORE AND AFTER THE PARDON TO THE FORMER PRESIDENT IS A MOCKERY OF OUR JUSTICE SYSTEM In the midst of all the scandals hounding the controversial pardon given to the former president, and while questions arising from the same are continuing

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to be still heated, these developments have just been announced in broadcast and print media, thus: a) Another pardon was granted to Sgt. Pablo Martinez, one of those convicted in the murder of former Senator Benigno S. Aquino, Jr.; b) The Secretary of Justice made a statement that he is in favor of pardoning the other 13 military men who were also convicted in connection with the said murder of former Senator Benigno Aquino, Jr. All these developments add to the unfairness already suffered, and still being suffered by the People of the Philippines, particularly the widow, children and relatives of former Senator Benigno Aquino, Jr., who, up to now, have not yet obtained true justice. The conglomeration of events, especially the scandals, one after another, have not only made it extremely difficult if not totally impossible, for the people of the Republic of the Philippines, particularly the victims of murder and assassinations, to obtain justice. The government which is expected to be the one to “serve and protect the people” which is its prime duty” is the very one which frustrates the ends of justice. THE PAIN IS BEING FELT The offended party is the sovereign people who are tired and sick of each and every scandal that happens, without the government, particularly the President, being able to do her duty to protect their rights and interests. The vast powers under her command are too strong to be cowed and overwhelmed by any citizen or group of citizens in this Republic. Those powers of the President of the Republic of the Philippines, whether they are express or residual powers, are just waiting to be performed with courage and political will, unselfishly and honestly, that this nation and our people will be at peace. IF SHE CANNOT, SHE AUTOMATICALLY LOSES HER MORAL AND POLITICAL ASCENDANCY TO GOVERN. BORROWING POWER (Section 20, Article VII) The President may contract or guarantee foreign loans on behalf of the Republic with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall submit to Congress a report on loans within 30 days from the end of every quarter.

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SPS. RENATO CONSTANTINO, JR., ET AL. VS. HON. JOSE B. CUISIA, ET AL. G.R. NO. 106064, OCTOBER 13, 2004 Petitioners object to the debt-relief contracts entered into pursuant to the financing program as beyond the powers of the President under Sec. 20, Art VII of the Constitution which empowers the President to contract or guarantee foreign loans in behalf of the Republic. They argued that even assuming that the contracts are constitutionally permissible, it is only the President who may exercise the power to enter into such contracts and not any of the respondents as the President may not delegate the power. RULING: 1.

2.

3.

The Constitution allows the President to contract and guarantee foreign loans. It makes no prohibitions on the issuance of certain kinds of loans or distinctions as to which kind of debt instruments are more onerous than the others. The only restriction that the Constitution provides, aside form the prior concurrence of the Monetary Board, is that the loans must be subject to the limitations provided by law. Sec. 1 of R.A. 245 empowers the Secretary of Finance with the approval of the President and after consultation with the Monetary Board, “to borrow from time to time on the credit of the Republic of the Philippines such sum or sums as in his judgment may be necessary, and to issue therefore evidences of indebtedness of the Philippine Government. Ineluctably then, while the President wields the borrowing power it is the Secretary of Finance who normally carries out its thrusts.”

DIPLOMATIC POWER (Section 21, Article VII) Q – What is the difference between treaties and executive agreement? A – International agreements which involve political issues or changes of national policy and those involving international arrangements of a permanent character take the form of a treaty; while international agreements involving adjustment of details carrying out well established national policies and traditions and involving arrangements of a more or less temporary nature take the form of executive agreements; and in treaties, formal documents require ratification, while executive agreements become binding through executive action.

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WHO HAS THE POWER TO ENTER INTO TREATIES AND EXECUTIVE AGREEMENTS AND TO NEGOTIATE WITH OTHER STATES? The President has the sole power to enter into treaties and executive agreements, but this power requires the concurrence of 2/3 of all members of the Senate for the validity of the treaty entered into by the President. (Pimentel vs. Executive Secretary, 396 Phil. 623, 663 [2000]) BUDGETARY POWER (Section 22, Article VII) The President shall submit to Congress within 30 days from the opening of every regular session, as the basis of the general appropriations act, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. INFORMING POWER (Section 23, Article VII) The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. OTHER POWERS a. b.

c. d.

e.

The President may approve or veto bills. (Section 27, Article VI) The President may exercise emergency power and tariff power as may be regulated by Congress (Section 23[2], Article VI and Section 28[2], Article VI) The President may exercise general supervision over local governments and autonomous regional governments. (Article X) The President may give his consent to deputized government personnel by the Commission on Elections and to discipline its deputies. (Section 2[4], Article IX[C] and Section 2[8], Article IX[C]) The President may call Congress to a special session. MULTIPLE CHOICE QUESTIONS

1.

Proclamation 1017 Proclamation 1017 declaring a state of national emergency was issued by Pres. Gloria Macapagal Arroyo on February 24, 2006 during the 20th celebration of the 20th anniversary of the EDSA People Power I, amidst reports that there was a conspiracy among some military officers, the latest insurgents of the NPA, and some members of the political opposition in a plot to unseat or assassinate her. The declaration was anchored on the “take over clause” relative to the power of the President under Sec. 17, Article XII of the 1987 Constitution.

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A.

B.

C.

D. 2.

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The provision in PP 1017 declaring national emergency and taking over of private business affected with public interest is constitutional. “The state may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.” The President therefore may, during the period of national emergency, take over or direct the operation of privately owned public utility or business affected with public interest. PP 107 is constitutional insofar as it constitutes a call by President GMA on the AFP to prevent or suppress lawless violence but such declaration does not authorize the President to take over privately owned public utility or business affected with public interest without prior legislation. Only Congress can declare and exercise emergency powers as it is the repository of emergency powers.

Power of the President to grant Pardon. A. The power to grant pardon is vested in the President of the Republic of the Philippines and to no other. B. It is true that the President has the power to grant pardon but this power is not absolutely without limitations. C. The power to grant pardon is not only vested in the President of the Republic of the Philippines, but it is also a non-delegable power and it can only be exercised by the President personally. D. Only the President of the Republic of the Philippines can grant pardon but this power is not absolutely without limitations. Hence, it can only be granted after conviction by final judgment; it cannot be granted in cases of impeachment; it cannot be granted in case of violation of election laws without the favorable recommendation of the Commission on Elections. ARTICLE VIII JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion

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amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Q – What makes up the judicial department? A – The Supreme Court, together with all the lower courts referred to in Section 1, Article VIII, of the 1987 Constitution, makes up the judicial department of our government. Q – What are the lower courts referred to in Section 1 of Article VIII of the 1987 Constitution? A – (1) The lower courts mentioned in Section 2 of the Judicial Reorganization Act of 1980 are the following: 1. Court of Appeals 2. Regional Trial Court (RTC) 3. Metropolitan Trial Court 4. Municipal Circuit Trial Courts

(2)

1.

Shall consist of a Presiding Justice and fifty (50) Associate Justices. It shall exercise its powers, functions and duties, through seventeen (17) divisions, each composed of three (3) members. Distributed in twenty (20) judicial regions Established in each Metropolitan area Established in each circuit composing such cities and/or municipalities as are grouped together pursuant to law

The following courts are not mentioned in the Judiciary Reorganization Act of 1980 but they are considered part of the judicial department considering that they possess inherent powers of a court of justice on specific cases within their jurisdiction. Sandiganbayan – created by Presidential Decree 1606, as amended. It shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code. b. Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prison correcional or imprisonment for six (6) years, or a fine of P6,000.00; Provided, however, That offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correcional or imprisonment for six (6) years

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2.

3.

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or a fine of P6,000.00 shall be tried by the proper Regional Trial Court and Municipal Circuit Trial Court. It shall exercise appellate jurisdiction. a. On appeal, from the final judgment, resolutions or orders of the Regional Trial Courts in cases originally decided by them in their respective territorial jurisdiction. b. By petition for review, from the final judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in their respective jurisdiction. Court of Tax Appeals – created by Republic Act 1125. It has exclusive appellate jurisdiction to review on appeal the following: a. Decisions of the Commissioner of International Revenue in: (1) Cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto; or (2) Other matters arising under the National Internal Revenue Code or other law or part of law administered by the Bureau of Internal Revenue. b. Decisions of the Commissioner of Customs in: (1) Cases involving liability for customs duties, fees or other money charges; seizure, detention or release of property affected; fines, forfeitures or other penalties imposed in relation thereto; or (2) Other matters arising under Customs Law or other laws administered by the Bureau of Customs; and c. Decisions of Provincial or City Boards of Assessment Appeals in: (1) Cases involving the assessment and taxation of real property; or (2) Other matters arising under the Assessment Law (now the Local Government Code), including rules and regulations relative thereto. (Section 7, R.A. No. 1125) Sharia’s District Courts – created by Presidential Decree No. 1083, entitled “Code of Muslim Personal Laws of the Philippines.” They are considered as part of the Judicial machinery only insofar as they have exclusive original jurisdiction over: a. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under this Code;

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b.

4.

All cases involving disposition, distribution and settlement of the estate of the deceased Muslim, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property; c. Petitions for declaration of absence and death for cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of this Code; d. All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and e. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. Likewise, concurrently with existing civil courts the Shari’a District Court shall have original jurisdiction over: a. Petition by Muslims or the constitution of a family home, change of name and commitment of an insane person to any asylum; b. All other personal and real actions not mentioned in paragraph 1(d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Courts; and c. All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. Sharia’s Circuit Courts – created by Presidential Decree No. 1083. It has exclusive jurisdiction over: a. All cases involving offenses defined and punished under this code. b. All civil actions and proceedings between parties who are Muslims or have been married in accordance with Article 13 involving disputes relating to: a. Marriage; b. Divorce recognized under this code; c. Betrothal or breach of contract to marry; d. Customary dowry (mahr); e. Disposition and distribution of property upon divorce;

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f.

Q – A –

Q – A –

Q –

A –

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Maintenance and support, and consolatory gifts (mut’a); and g. Restitution of marital rights. c. All cases involving disputes relative to communal properties. What is the traditional concept of judicial power? The traditional concept of judicial power refers only to the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the court of justice or the redress of wrongs for the violation of such rights. (Philippine Legal Encyclopedia, by Jose Agaton R. Sibal, citing Lopez vs. Roxas, 17 SCRA 756) What is the new definition of judicial power? The traditional concept of judicial power, as above-mentioned, including now the duty of the courts of justice “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on any part of any branch or instrumentality of the Government,” constitutes the totality of the judicial power which is now vested by our Constitution “in one Supreme Court and in such lower courts as may be established by law.” What is the significance of the additional sentence “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”? (Last paragraph Section 1, Article VIII, 1987 Constitution) This sentence has, in effect, expanded the power, authority and jurisdiction of our courts of justice, particularly the Supreme Court, to determine whether any branch or instrumentality of our government has committed “grave abuse of discretion amounting to lack or excess of jurisdiction.” In fact, this power, authority and jurisdiction goes beyond the mere legality of a questioned act, or transaction, whether it is committed, or entered into by the highest official of the land, or of any official or branch of our government. The question of whether or not the said abuse of discretion is grave or not is ultimately determined, not by the officials whose acts are in question, but by our courts, particularly by the Supreme Court, and it is in this sense that the new provision grants unto the Supreme Court “an expanded jurisdiction and authority” to look into what it considers as a proper subject of its final disposition. In so doing, the Supreme Court, as the final arbiter, enjoys a wide latitude of power and discretion using, as it may, its honest evaluation of facts, laws, jurisprudence and any and all materials, books and points of reference which may be valuable to support its analysis and conclusion.

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The wisdom and propriety, for instance, which may be invoked by the executive department may not be considered so by the scrutinizing minds of the justices. In the end, the Supreme Court may, in the process, find itself intervening in matters which should better be left to the wisdom of the leaders of the nation who are directly responsible to the sovereign electorate. In Manila Prince Hotel vs. Government Service Insurance System, Manila Hotel Corporation, et al. (G.R. No. 122156, February 3, 1997), the Supreme Court ruled that the sale of 51% of the shares of GSIS in Manila Hotel Corporation, pursuant to the privatization program of the government, cannot contravene the Filipino First Policy. In this case, the petitioner invoked Article XII, Section 10(2) of the 1987 Constitution and submits that Manila Hotel has been identified with the Filipino nation and has practically become a historical monument that reflects the vibrance of Philippine heritage and culture. Since Manila Hotel is part of national patrimony and part of the national economy, petitioner should be preferred after it has matched the offer of Renong Berhad, a Malaysian firm. Respondents argued that Article XII, Section 10(2) is merely a statement of principle and policy since it is not a self-executing provision and that it requires an implementing legislation. Respondents also argued that even if the said provision is self-executing, the hotel does not fall under the term “national patrimony.” In sum, the privatization of business asset for purposes of enhancing its business viability and preventing further losses, in pursuance of and to implement alleged economic policy, did not meet the approval of the Supreme Court which took the position that this argument should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. Giving emphasis to what it considers to be more deserving of preference, the Supreme Court added that there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. MANILA PRINCE HOTEL VS. GSIS, MANILA HOTEL CORPORATION, ET AL. G.R. NO. 122156, FEBRUARY 3, 1997 FACTS: Pursuant to the privatization program of the government, the shares of GSIS, owner of 51% of the shares of Manila Hotel Corporation (MHC), was

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sold by GSIS through public bidding. Manila Prince Hotel and Renong Berhad, a Malaysian firm, participated in the bidding, and both of them offered to buy 51% of MHC shares. Renong Berhad offered a higher bid. MHC sent a check to match the bid of the foreign firm. To prevent the consummation of the bid of Renong Berhad, petitioner filed a petition for prohibition and mandamus. Petitioner’s arguments are as follows: Petitioner invokes Article XII, Section 10(2) of the Constitution and submits that Manila Hotel has been identified with the Filipino nation and has practically become a historical monument that reflects the vibrance of Philippine heritage and culture. Manila Hotel has become a national patrimony. 1. Since Manila Hotel is part of national patrimony, petitioner should be preferred after it has matched the offer of the Malaysian firm. 2. Respondents argued that Article XII, Section 10(2) is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation. Respondents added that even if the provision is self-executing, the hotel does not fall under the term “national patrimony.” ISSUE: Does MHC fall under the term “national patrimony”? Is Section 10(2) of Article XII self-executing? HELD: Section 10, second paragraph, Article XII of the 1987 Constitution, is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words, the provision does not require any legislation to put in operation. It is per se judicially enforceable. When our Constitution mandates that in the grant of rights, privileges, and concession covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that – qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances, an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right, there is a remedy. Ubi jus ibi remedium. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark – a living testimonial of Philippine heritage.

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While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of 1930’s. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government, it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by the Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission. It should be stressed that while the Malaysian firm offered the higher bid, it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos, the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Reluctantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee, respondents are mandated to abide by the dictates of the 1987 Constitution, the provisions of which are presumed to be known to all the bidders and other interested parties. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved.

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Q – In the light of the decision of the Supreme Court in Manila Prince Hotel vs. GSIS, Manila Hotel Corporation, et al., what particularly is the effect of the Supreme Court’s “expanded jurisdiction and authority.” A – 1. The power, authority and discretion “to determine whether or not grave abuse of discretion amounting to lack or excess of jurisdiction” was committed goes beyond the mere legality of a questioned act, or transaction, whether it is committed, or entered into by the highest official of the land, or any official or branch of our government. 2. The wisdom and propriety which may be invoked by the executive department may not be considered so by the scrutinizing minds of the justices. Example: The privatization of business asset for purposes of enhancing its business viability and preventing further losses, in pursuance of and to implement alleged economic policy, did not meet the approval of the Supreme Court which took the position that this argument should not take precedence over non-material values. A commercial, nay even a budgetary objective, should not be pursued at the expense of national will and dignity. Q – Is this expanded jurisdiction and authority of the Supreme Court absolute? Explain. A – This power and authority will yield only to the principle of separation of powers, or if the matter being raised is a political question. Example: In Guingona vs. Carague (G.R. No. 94571, April 24, 1991), the Supreme Court ruled that the issue of whether or not the country should honor its international debt is a political question. It is a political decision for Congress and the executive to determine the exercise of their wisdom and sound discretion. In Bruno vs. Philippine Amusement and Gaming Corporation, the Supreme Court ruled that policy issues are within the domain of the political branches of government and the people themselves is the repository of all state power. And yet, in Garcia vs. Board of Investments, the decision of the Board of Investments, its discretion in allowing Luzon Petrochemical Corporation to transfer its plant site from Bataan to Batangas was considered as an abuse of discretion on the following grounds: (1) Nothing is shown to justify the transfer to Batangas; (2) The BOI capitulation is adverse to Philippine interest contrary to the thrust of the Constitution. (Garcia vs. Board of Investments, G.R. No. 920241, Nov. 9. 1990) Q – What kind of power is given to courts? A – “Judicial power,” as specifically stated in Section 1. It cannot be required to act as a board of arbitrators (Noblejas vs. Teehankee, 23 SCRA 405

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Q – A –

Q – A –

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[1968]), nor can it give advisory opinions. (Director of Prisons vs. Ang Cho Kio, 33 SCRA 494, 509 [1970]) What are the three (3) points that should be remembered in connection with the new concept of judicial power? 1. The abuse of discretion, as alleged, must be grave which amounts to lack or excess of jurisdiction. 2. The alleged grave abuse of discretion will have yet to be determined by the courts of justice, particularly the Supreme Court. 3. That if indeed it is true that there exists a grave abuse of discretion amounting to lack or excess of jurisdiction, our courts of justice, particularly the Supreme Court, can check even Congress and the President of the Republic of the Philippines, or even Constitutional bodies because they fall within the phrase “any branch or instrumentality of the government.” When is there grave abuse of discretion? There is a grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or not to act at all in contemplation of law. (People vs. Marave, 11 SCRA 618; Maritime Co. of the Philippines vs. Paredes, 19 SCRA 569; Panaligan vs. Adolfo, 67 SCRA 176; Butuan Bay Wood Export Corp. vs. CA, 97 SCRA 297; Litton Mills, Inc. vs. Galleon Trader, Inc., 163 SCRA 489; Paredes vs. CSC, 192 SCRA 84; Acena vs. CSC, 193 SCRA 623) What are the constitutional safeguards that guarantee the independence of the judiciary? 1. The members of the judiciary have security of tenure. 2. The members of the Supreme Court can only be removed by impeachment. 3. The Supreme Court is a constitutional body, hence, it may not be abolished by the legislature. 4. The Supreme Court has administrative supervision over all other courts. 5. The Supreme Court has the exclusive power to discipline judges/ justices of inferior courts. 6. The Supreme Court may not be deprived of minimum original and appellate jurisdiction. Appellate jurisdiction may not be increased without its advice and concurrence. 7. The members of the judiciary may not be designated to any agency performing quasi-judicial or administrative functions.

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8. 9. 10. 11. 12.

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The judiciary enjoys fiscal autonomy. The Supreme Court alone may initiate Rules of Court. The Supreme Court alone may order temporary detail of judges. The Supreme Court can appoint all officials and employees of the Judiciary. Salaries of judges may not be reduced.

ARE THE FINDINGS IN A CONGRESSIONAL COMMITTEE REPORT BINDING TO THE COURT? In Demosthenes P. Agan, Jr., et al. vs. Philippine International Air Terminals, Co., Inc., et al., G.R. No. 155001; Salacnib F. Baterina, et al., vs. Philippine International Air Terminals Co. Inc., et al., G.R. No. 155547; Ceferino C. Lopez, et al. vs. Philippine International Air Terminals Co., Inc., et al., G.R. No. 155661, January 21, 2004, an issue was raised by respondent Congressmen to the effect that at least two (2) committee reports by the House of Representatives found the PIATCO contracts valid and contend that the Supreme Court, by taking cognizance of the cases at bar, reviewed an action of a co-equal body. They insist that the Supreme Court must respect the findings of the said committees of the House of Representatives. The Supreme Court ruled, thus: “With due respect, we cannot subscribe to their submission. There is fundamental difference between a case in court and an investigation of a congressional committee. The purpose of a judicial proceeding is to settle the dispute in controversy by adjudicating the legal rights and obligations of the parties to the case. On the otherhand, a congressional investigation is conducted in aid of legislation. Its aim is to assist and recommend to the legislature a possible action that the body may take with regard to a particular issue, specifically as to whether or not to enact a new or law or amend an existing one. Consequently, this Court cannot treat the findings in a congressional committee report as binding because the facts elicited in congressional hearings are not subject to the rigors of the Rules of Court on admissibility of evidence. The Court in assuming jurisdiction over the petitions at bar simply performed its constitutional duty as the arbiter of legal disputes properly brought before it, especially in this instance when public interest requires nothing less.” Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 thereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

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Q – What is the power of Congress under Section 2 and what is the limitation to the exercise of this power? A – CODE: D-P-A To define, prescribe and apportion the jurisdiction of the various courts. This means that Congress has the power to create new courts. This power, however, is subject to the following limitations: 1. This power may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5. 2. No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members. Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. Q – What is the limitation to the power of Congress under Section 3? A – Congress cannot reduce the appropriations for the judiciary below the amount appropriated for the previous year and, after approval, the amount appropriated shall be automatically and regularly released. RESOLUTION OF THE SUPREME COURT IN ADMINISTRATIVE MATTER NO. 02-12-01-SC, NOVEMBER 24, 2004 SUPREME COURT’S MANDATE OF FISCAL AUTONOMY THE AUTHORITY OF THE SUPREME COURT TO INTERPRET A LAW IS FINAL. NO OTHER GOVERNMENT AGENCY MAY EXERCISE THE CONSTITUTIONALLY MANDATED FUNCTION OF THE COURT TO INTERPRET AND CONSTRUE THE LAW FACTS: The Chief Justice of the Supreme Court received two (2) letters from the Undersecretary Mario L. Relampagos of the Department of Budget and Management (DBM), advising the Court of DBM’s action to disallow the 5-year lump sum gratuity separately claimed by the heirs of the late Judge Melvyn U. Calvan and Judge Emmanuel R. Real under the Court’s Resolution dated 30 September 2003 in A.M. No. 02-12-01-SC. ISSUE: Can the DBM disallow the request for the release of funds in order to recover the additional 5-year lump sum benefits of the late two judges who both unquestionably died while in actual service?

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HELD: (1) Under R.A. No. 910, a situation whereby a Justice or Judge dies while in actual service but without having attained the twenty-year length of service requirement is not expressly provided for. There is thus a gap in that law, which gap prompted the Court to issue the Resolution dated September 30, 2003 in Administrative Matter No. 02-12-01-SC, a resolution granting automatic permanent total disability benefits to heirs of justices and judges who die in actual service. (2) Once this court has interpreted a law, such interpretation becomes a part of the law itself. And as an interpretation of R. A. No. 910, the Resolution dated September 30, 2003 in Administrative Matter No. 02-12-01-SC promulgated by the Court pursuant to its mandate of fiscal autonomy under Section 3 and of administrative supervision over all courts and personnel thereof under Section 6, Article VII of the Constitution, became part of said statute. As such, the DBM is duty-bound to honor and execute the same. (3) Being the highest Court of the land, the Supreme Court’s construction of a law is final. No other government agency, much more the other two branches may exercise the constitutionally mandated function of the Court to interpret and construct the law. Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, That no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Q – Can the composition of the Supreme Court be increased or decreased by Congress? A – The number of members of the Supreme Court and of the divisions is fixed by the Constitution and may not be changed by a statute.

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Q – Under the 1987 Constitution, what are the cases which shall be heard by the Supreme Court en banc? A – The following cases shall be heard by the Supreme Court en banc: 1. All cases involving the constitutionality of (Code: TIEL) a. A T-reaty b. An I-nternational Agreement c. An E-xecutive Agreement d. A L-aw 2. All other cases which under the Rules of Court are required to be heard en banc. 3. All cases involving the constitutionality, application or operation of: a. Presidential Decrees b. Proclamations c. Orders d. Instructions e. Ordinances f. And other regulations Q – Are all cases in the Supreme Court heard en banc? A – The Supreme Court is free to create divisions of three, five or seven, hence, cases may be heard by the Supreme Court either en banc, or in a division of three, five or seven, provided that cases mentioned above must be heard by the Supreme Court en banc. Q – What is the vote needed for cases or matters heard by the Supreme Court en banc? A – When the Supreme Court sits en banc, cases are decided by the concurrence “of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. (Section 4[2]) Q – If there are twelve (12) justices who actually took part in the deliberations on the issues in the case and voted therein, what is the vote needed? A – Seven because this is the majority of 12. Q – What is the weakness of this rule? A – Even five members of the Court can declare the constitutionality or unconstitutionality of a questioned treaty, agreement or law, this number being a majority of the quorum of eight of the fifteen (15) justices constituting the Supreme Court. In effect, this is even less than the required “concurrence of at least eight (8) members of the Supreme Court, under the 1973 Constitution.

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Q – Suppose there are only eight (8) justices who actually took part in the deliberations on the issues in the case and voted thereon, what is the vote needed? A – Five because this is the majority of 8. Q – What is the vote needed for cases or matters heard by a division? A – “Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, That no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Q – What happens when the required number is not obtained? A – The case shall be decided en banc provided that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. (1)

(2)

(3)

(4)

Section 5. The Supreme Court shall have the following powers: Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 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. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. Order a change of venue or place of trial to avoid a miscarriage of justice.

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(5)

(6)

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Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Q – What are the powers of the Supreme Court? A – 1. The powers in Section 5(1) and (2) (which refers to what is called as the jurisdiction of the Supreme Court over cases). 2. The powers in Section 5(3), (4), (5), and (6) (which refers to the auxiliary administrative powers of the Supreme Court. In order to simplify, they are as follows: SECTION 5(1) AND (2) (JURISDICTION OF THE SUPREME COURT OVER CASES)

ORIGINAL JURISDICTION Section 5(1). The Supreme Court shall have the power to exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. APPELLATE JURISDICTION Section 5(2). The Supreme Court shall have the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court

AUXILIARY ADMINISTRATIVE POWERS OF THE SUPREME COURT

Section 5(3). Assign temporarily judges of the lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. Section 5(4). Order a change of venue or place of trial to avoid a miscarriage of justice. Section 5(5). Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and

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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. b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. c. All cases in which the jurisdiction of any lower court is in issue. d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.

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procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Section 5(6). Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.

Q – May Congress diminish the jurisdiction of the Supreme Court? A – Congress may not diminish the jurisdiction granted by the Constitution itself but it may diminish the jurisdiction granted by a statute. Q – What is the power of judicial review or judicial supremacy? A – It is the assertion of the solemn and sacred obligation assigned to the Judiciary by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the right which that instrument secures and guarantees to them. (Angara vs. Elec. Com., 63 Phil. 139) Q – What are the requisites of judicial review or inquiry? A – No constitutional question will be heard and decided by our courts unless the following requisites are complied with: 1. There must be an actual case or controversy; 2. The question of constitutionality must be raised by the proper party;

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3.

The constitutional question must be raised at the earliest possible opportunity; and 4. The decision of the constitutional question must be necessary to the determination of the case itself. (Macasino vs. National Housing Authority, 224 SCRA 236) Q – Explain each. A – THERE MUST BE AN ACTUAL CASE OR CONTROVERSY There must be an actual case or controversy involving the conflicting claims of the parties and which is appropriate for judicial determination. There must be a real and substantial controversy, and not merely a dispute of a hypothetical character, which is cognizable by a court of justice and which it can decide on the basis of an existing law and jurisprudence. The conflict must be one that has assumed the proportions of a full scale controversy between the parties who have contrasting assertions, and on account of which, they pray for relief or reliefs contrary to the relief of the other, leaving the court no other alternative than to decide on the merits of the case on the basis of what it finds proper and just according to law and jurisprudence. This is different from a mere request for advisory opinion where the relief being asked is merely that of asking an opinion, suggestion or comment, instead of a decision which determines the conflicting claims of the parties. How about an action to determine any question of construction or validity arising under an instrument or statute, can our courts assume jurisdiction over this kind of action? How about an action to reform an instrument, or to quiet title to real property, or to remove clouds therefrom, or to consolidate ownership, can our courts assume jurisdiction over this kind of action? Both actions can be filed, through a formal petition, under Rule 62 of the Rules of Court which provides as follows: “Section 1. Interpleader when proper – Whenever conflicting claims upon the same subject matter are or may be made against a person, who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.” “Section 2. Order – Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered into court.”

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OLD CASES PACU VS. SECRETARY OF EDUCATION 97 PHIL. 806, 810 Section 3 of Article No. 2706 provides, among others, that before a private school may be opened to the public, it must first obtain a permit from the Secretary of Education. The petitioners had previously obtained the required permit but they were questioning the validity of the law alleging that in the future, they may be denied such permit. The Supreme Court ruled that the case is not ripe for adjudication, there being no conflict yet of legal rights that will satisfy the court to assume jurisdiction. Besides, the mere apprehension of the petitioners that they might be denied the same permit in the future, does not constitute a justiciable controversy.

TAN VS. MACAPAGAL 43 SCRA 678 The petitioners were asking the Supreme Court to declare that the 1971 Constitutional Convention does not have the power under Article XVI, Section 1, of the Constitution and Republic Act 6132, to consider, discuss and adopt proposals which seek to revise the present Constitution without altering the general plan laid down therein. At the time the case was filed, the 1971 Constitutional Convention was in the process of deliberations and, in fact, it has not yet finalized any resolution that would radically alter the 1935 Constitution. The question raised was not yet ripe for adjudication. The Supreme Court declined to take action. Q – IS THERE NO ACTUAL CASE OR CONTROVERSY WHEN THE CASE HAS ALREADY BECOME ACADEMIC? A – The “moot and academic principle” is not a magical formula that automatically dissuades courts in resolving a case. Our Courts will decide cases, otherwise moot and academic, in the following instances: 1. There is a grave violation of the Constitution; 2. The situation is of exceptional character and paramount public interest is involved;

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3. 4. 5.

The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; The case is capable of repetition yet evading review; and Where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation. (David vs. Macapagal Arroyo, G.R. No. 171396, May 3, 2006)

IT MUST BE RAISED BY THE PROPER PARTY Who are proper parties? Under the Rules of Court, proper parties refer to those who are not indispensable but who ought to be parties if complete relief is to be accorded as between those already parties. (Section 8, Rule 3, Rules of Court) They are those without whom a case may be finally determined between the parties in court, but should be included in order that a final determination may be had in a single action of the whole controversy, except when it is not permissible to join them, in which event, the case should be heard and determined without prejudice to their right. (Comments on the 1997 Rules of Civil Procedure, Justice Oscar M. Herrera) Proper parties are also called necessary parties, which refer to those whose presence is necessary to adjudicate the whole controversy, but whose interests are so far separable that final decree can be made in their absence without affecting them. (Seno vs. Mangubat, 156 SCRA 113 [1987]; Quisumbing vs. Court of Appeals, 189 SCRA 325 [1990]) In Constitutional Law, a proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act as complained of. Until and unless such actual or potential injury is established, the complainant cannot have the legal personality to raise the constitutional question. (Philippine Legal Encyclopedia, Jose Agaton R. Sibal, 783) Examples: 1. Taxpayers and citizens are proper parties to raise the question of constitutionality of a law that provides special retirement benefits for members of the legislature. (Philcomsa vs. Jimenez, 65 SCRA 479) 2. Petitioners Pablo C. Sanidad and Pablito V. Sanidad are proper parties to challenge the constitutional premise of Presidential Decree Nos. 991, 1031 and 1033.

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REASON: P.D. No. 991 involves as appropriation of P5M; P.D. No. 1031 appropriates P8 M to carry out its provisions. As taxpayers, said petitioners have an interest in the lawful expenditure of said amounts of public money. The court also ruled that in taxpayers’ suits, it has an “open discretion to entertain the same or not” and it has, in fact used its discretion “so that the authority upon which the disputed decrees were issued may be inquired into.” (Sanidad vs. Commission on Elections, 73 SCRA 333) 3.

An association of citizens and taxpayers can challenge a contract between the Philippine Charity Sweepstakes Office and a foreign corporation for the operation of nationwide lottery. The issues raised affect the social, economic and moral well-being of the people even in the remotest barangays of the country and the counter productive and retrogessive effects of the envisioned on-line lottery system is as staggering as the billions it is expected to raise. (Kilosbayan vs. Guingona, 235 SCRA 630)

THE QUESTION OF CONSTITUTIONALITY MUST BE RAISED AT THE EARLIEST POSSIBLE OPPORTUNITY The general rule was established in People vs. Vera (65 Phil. 56), to the effect that the question of constitutionality must be raised at the earliest possible opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial and if not raised in the trial court, it will not be considered on appeal. The court, however, may in its discretion determine the time when the question affecting the constitutionality of a statute should be presented. In fact, in criminal and civil cases, the constitutional question can be raised at anytime in the discretion of the court, or if it is necessary to the determination of the case itself. Another exception is with respect to jurisdiction. It has long been established that jurisdiction over a subject matter is conferred by law, and the question of lack of jurisdiction may be raised at anytime even on appeal. The exception to the exception is the ruling in Zamboanga City Electric Cooperative, Inc. vs. Buat (243 SCRA 47), thus: “Petitioner cannot anymore raise the issue of jurisdiction, under the principle of estoppel. Petitioner participated in the proceedings from start to finish. It filed its position paper with the Labor Arbiter. When the decision of the Labor Arbiter decided in its favor, petitioner said nothing about jurisdiction. It was only when the Resolution of the NLRC was adverse to the petitioner that it raised the issue of jurisdiction.” The ruling in the said case is bolstered by the following decisions: 1. A party, after having participated actively in proceedings before the Court of Appeals, is estopped from later on questioning the jurisdiction of said appellate court. (Navoa vs. Court of Appeals, 251 SCRA 539)

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2.

3.

Failure to object to the introduction of evidence on an issue not contained in the pre-trial order amounts to an implied consent conferring jurisdiction on the court to try the said issue. (Son vs. Son, 251 SCRA 556) In labor cases, laches may be applied only upon the most convincing evidence of deliberate inaction, for the rights of laborers are protected under the social justice provision of the Constitution and under the Civil Code. (Reno Foods, Inc. vs. NLRC, 249 SCRA 379)

THE DECISION OF THE CONSTITUTIONAL QUESTION MUST BE NECESSARY TO THE DETERMINATION OF THE CASE ITSELF The power of judicial review is expressly vested in the Supreme Court by our Constitution. (Article VIII, Section 5[2][a]) This does not mean, however, that the Supreme Court will assume jurisdiction over every constitutional case that is brought to its determination. This is true even in a case that is ripe for resolution but which, in its view, is a case which involves a political question. Examples: 1.

2.

3.

Although the Supreme Court agreed that the suspension of Alejandrino is unconstitutional, it refused to interfere thereby sustaining the view that the legislative department has the disciplinary power over its own members. (Alejandrino vs. Quezon, 46 Phil. 83) The Supreme Court also refused to interfere in the suspension of Sergio Osmeña, Jr., for alleged disorderly behavior in delivering a speech in the floor of Congress attacking then President Carlos P. Garcia. (Osmeña vs. Pendatum, 109 Phil. 863 [1960]) In the recent case, however, of Congressman Ceferino S. Paredes, Jr. (Ceferino S. Paredes, Jr. vs. Sandiganbayan, Governor Democrito O. Plaza, G.R. No. 118364, January 28, 1997), the Supreme Court distinguished between suspension on the basis of disorderly behavior and suspension on the basis of alleged violation of Republic Act No. 3019, Section 3(g) otherwise known as the Anti-Graft and Corrupt Practices Act. In this case, the Supreme Court justified the suspension of Paredes under R.A. No. 3019. Although a constitutional question had been raised in Zandueta vs. De la Costa, the Supreme Court did not find it necessary to resolve it for the reason that Judge Zandueta cannot question the judiciary organization law under which he had previously accepted benefits. Hence, he was estopped to question the validity of the said law.

Q – What are the other instances when the Supreme Court ruled that petitioners have the requisite “standing” to challenge the constitutionality, or validity of laws, acts, decisions, rulings or orders of various agencies of government.

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A – The trend of the decisions show the liberal policy of the Supreme Court in allowing taxpayers, members of Congress, and even association of citizens and taxpayers, planters and other non-profit civic organizations, to question the constitutionality or validity of laws, acts, decisions, rulings or orders of different government agencies. Example: 1.

2.

3.

Taxpayers are allowed to sue when there is illegal disbursement of funds. More specifically, a taxpayer can bring an action to restrain the expenditure of public funds. (Gonzales vs. Commission on Elections, 27 SCRA 835) Social demands which were presented as constitutional issues by minors were recognized by the Supreme Court on the reasoning that said minors have the personality to sue in behalf of the succeeding generations, this being based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. (Oposa vs. Factoran, 224 SCRA 792 [1993]) This right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. Concerned citizens have personality to sue if they raise issues of transcendental importance, such as the issue raised in Kilosbayan vs. Guingona to the effect that the contract entered into by the PCSO (Philippine Charity Sweepstakes Office) and a foreign corporation, is not only invalid but also threatened values which the Constitution advocates. The decision, however, in Kilosbayan was reversed in the second Kilosbayan case which still assailed the authority of the PCSO to operate lotto. The result of the first voting is 7-6, a narrow margin, which was reversed by an 8-5 vote, a development which may even suggest another future change in the decision depending on what future justices may think on what really constitutes as a constitutional issue that will provide the basis for one to be considered as having a standing to challenge a law, order, contract, or any particular act, out of the enforcement of which one may sustain an injury.

HON. EXECUTIVE SECRETARY VS. SOUTHWING HEAVY INDUSTRIES, INC., ET AL. G.R. NO. 16417, FEBRUARY 20, 2006 CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 156 ENTITLED “PROVIDING FOR A COMPREHENSIVE

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INDUSTRIAL POLICY AND DIRECTIONS FOR THE MOTOR VEHICLE DEVELOPMENT PROGRAM AND ITS IMPLEMENTING GUIDELINES” FACTS: 1. 2.

3.

4.

President Gloria Macapagal-Arroyo, through Executive Secretary Alberto P. Romulo, issued said Executive Order on December 12, 2002. Said Executive Order prohibits the importation into the country, inclusive of the Special Economic and Freeport Zone or the Subic Bay Freeport (SBF or Freeport) of used motor vehicles, subject to a few exceptions. The issuance of the said order spawned three separate actions for declaratory relief before the RTC of Olongapo City, all seeking the unconstitutionality of Article 2, Section 3.1 of the said order. The said cases were filed by respondents, who or whose members are classified as Subic Bay Freeport Enterprises and engaged in the business of importing and/or trading used motor vehicle, among others. In three separate decisions, the trial court declared Article 2, Section 3.1 of said executive order unconstitutional. The same was affirmed by the Court of Appeals.

ISSUES: 1. 2. 3. 4.

Can the respondents assail the validity of E.O. No. 156? Is Declaratory Relief a proper action to assail an executive issuance? Is there constitutional and statutory basis for said E.O. No. 156? Is the importation ban valid?

HELD: (1)

(2)

Respondents have standing to assail the validity of EO 156. – The established rule that the constitutionality of a law or administrative issuance can be challenged by one who will sustain a direct injury as a result of its enforcement has been satisfied in the instant case. The broad subject of the prohibited importation is “all types of used motor vehicles.” Respondents would definitely suffer a direct injury from the implementation of EO 156 because their certificate of registration and tax exemption authorize them to trade and/or import new and used motor vehicles and spare parts, except “used cars.” Other types of motor vehicles imported and/or traded by respondents and not falling within the category of used cars would thus be subjected to the ban to the prejudice of their business. Propriety of declaratory relief in assailing an executive issuance. – In Commission of Audit of the Province of Cebu vs. Province of Cebu, the

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(3)

(4)

(5)

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Court entertained a suit for declaratory relief to finally settle the doubt as to the proper interpretation of the conflicting laws involved, notwithstanding a violation of the right of the party affected. We find no reason to deviate from said ruling mindful of the significance of the present case to the national economy. EO 156 satisfied the first requisite of a valid administrative order – EO 156 has both constitutional and statutory bases. Delegation of legislative powers to the President is permitted in Section 28(2) of Article VI of the Constitution. The relevant statutes to execute this provision are: (1) The Tariff and Customs Code, which authorizes the President, in the interest of national economy, general welfare and/or national security, to, inter alia, prohibit the importation of any commodity; (2) Executive Order No. 226 or the Omnibus Investment Code of the Philippines, which empowers the President to approve or reject the prohibition on the importation of any equipment or raw materials or finished products; (3) Republic Act. No. 8800, otherwise known as the “Safeguard Measures Act,” which designated the Secretaries of the Department of Trade and Industry (DTI) and the Department of Agriculture, in their capacity as alter egos of the President, as the implementing authorities of the safeguard measures, which include, inter alia, modification or imposition of any quantitative restriction on the importation of a product into the Philippines. To be valid, an administrative issuance, such as executive order, must comply with the following requisites: (1) Its promulgation must be authorized by the legislature; (2) It must be promulgated in accordance with the prescribed procedure; (3) It must be within the scope of the authority given by the legislature; and (4) It must be reasonable. EO 156 satisfied the first requisite of a valid administrative order as already mentioned. The second requisite is presumed to have been complied with. On this point, the Supreme Court said: “EO 156 is obviously a legislative rule as it seeks to implement or execute primary legislative enactments intended to protect the domestic industry by imposing a ban on the importation of a specified product not previously subject to such prohibition. The due process requirements in the issuance thereof are embodied in Section 401 of the Tariff and Customs Code and Sections 5 and 9 of the SMA, which essentially mandate the conduct of investigation and pubic hearings before the regulatory measure or importation ban may be used. However, respondents neither questioned before this Court nor with the courts below the procedure in the issuance of EO 156 considering the settled principle that, in

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the absence of strong evidence to the contrary, acts of the other branches of government are presumed to be valid, and there being no objection from the respondents as to the procedure in the promulgation of EO 156, the presumption is that said executive issuance duly complied with the procedures and limitations imposed by law.” (6)

However, the importation ban runs afoul with the third requisite for a valid administrative order. EO 156 is reasonable, except as to its application in the Freeport. The Supreme Court ruled, thus: “To be valid, an administrative issuance must not be ultra vires or beyond the limits of the authority conferred. It must not supplant or modify the Constitution, its enabling statute and other existing laws, for such is the sole function of the legislature which the other branches of the government cannot usurp. In the instant case, the subject matter of the laws authorizing the President to regulate or forbid importation of used motor vehicles is the domestic industry. EO 156, however, exceeded the scope of its application by extending the prohibition on the importation of used cars to the Freeport, which RA 7227 considers to some extent a foreign territory. The domestic industry which the EO seeks to protect is actually the “customs territory.” The proscription in the importation of used motor vehicles should be operative only outside the Freeport and the inclusion of said zone within the ambit of the prohibition is an invalid modification of RA 7227. Indeed, when the application of an administrative issuance modifies existing laws or exceeds the intended scope, as in the instant case, the issuance becomes, void, not only for being ultra vires, but also being unreasonable.” (Underlining and emphasis supplied) “To be valid, an administrative rule and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they were authorized to be issued, then they must be held to be invalid. The issuance of the ban to protect the domestic industry is a reasonable exercise in the police power. The deterioration of the local motor manufacturing firms due to the influx of imported used motor vehicles is an urgent national concern that needs to be swiftly addressed by the President. In the exercise of delegated police power, the

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executive can therefore validly proscribe the importation of these vehicles. The Courts find no logic in all encompassing application of the assailed provision to the Freeport which is outside the customs territory. As long as the used motor vehicles do not enter the custom territory, the injury or harm sought to be prevented or remedied will not arise. The application of the law should be consistent with the purpose of and reason for the law. Ratione cessat lex, et cessat lex. When the reason for the law ceases, the law ceases. It is not the letter alone but the spirit of the law also that gives it life. The importation ban should also be declared void for its too sweeping and unnecessary application to the Freeport which has no bearing on the objective of the prohibition. If the aim of the EO is to prevent the entry of used motor vehicles from the Freeport to the customs territory, the solution is not to forbid entry of these vehicles into the Freeport, but to intensify governmental campaign and measures to thwart illegal ingress of used motor vehicles into the customs territory.” (Underlining and emphasis supplied) (7)

More specifically, here is the disposition of the Supreme Court: “Petitions PARTIALLY GRANTED and the Decisions of the Regional Trial Court of Appeals MODIFIED insofar as they declared Article 2, void in its entirety. Said provision was declared VALID insofar as it applies to the Philippine territory outside the presently fenced-in former Subic Naval Base area and VOID with respect to its application to the said area.”

SIMPLIFICATION ORIGINAL JURISDICTION of the Supreme Court refers to the following cases: 1.

2.

Cases affecting ambassadors, other public ministers and consuls: They are not subject to the jurisdiction of the courts of the receiving state except if they waive their immunity. This is an accepted practice in international law and among nations. Petitions for (a) certiorari; (b) prohibition; (c) mandamus; (d) quo warranto; and (e) habeas corpus: All these are special civil actions which are specifically covered by the following rules: Certiorari – Rule 65, Section 1

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Prohibition Mandamus Quo Warranto Habeas Corpus

– – – –

Rule 65, Section 2 Rule 65, Section 3 Rule 66 Rule 102

Certiorari (Rule 65, Section 1) – It is a special civil action directed against any tribunal, board or officer exercising judicial functions claiming that said tribunal, board or officer has acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain speedy, and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff in a verified petition filed in the proper court and praying that judgment be rendered annulling or modifying the proceedings as the law requires. Prohibition (Rule 65, Section 2) It is a special civil action directed against any tribunal, corporation, board or person whether exercising judicial, quasi-judicial or ministerial functions claiming that said tribunal, corporation, board or person acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff through a verified petition filed in the proper court and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein. Mandamus (Rule 65, Section 3) It is a special civil action directed against any tribunal, corporation, board or person claiming that said tribunal, corporation, board or person has unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of the right or office to which such other is entitled and there is no other plain, speedy and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff through a verified petition filed in a proper court and praying that judgment be rendered commanding the defendant immediately or at some other specified time to do the act required to be done to protect the life of the petitioner and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondents. Quo Warranto (Rule 66) It is a special civil action whereby a person claiming to be entitled to a public office or position files an action against a usurper challenging the authority of the latter in holding said public office or position.

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Habeas Corpus (Rule 102) This is a writ directed to a person detaining another and commanding him to produce the body of the prisoner at a certain time and place and to state the cause of his caption action detention. Habeas corpus is a remedy to relieve persons from unlawful restraint APPELLATE JURISDICTION of the Supreme Court refers to the following cases: “Section 5(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. b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. c. All cases in which the jurisdiction of any lower court is in issue. d. All criminal cases in which the penalty imposed is reclusion perpetua or higher. e. All cases in which only an error or question of law is involved.” REGARDING AUXILIARY ADMINISTRATIVE POWER OF THE SUPREME COURT AS AFOREMENTIONED Q – What are the limits on the power of the Supreme Court to promulgate rules concerning pleading, practice, and procedure and admission to the practice of law? A – The Constitution imposes the following limitations and guidelines: (1) they “shall provide a simplified and inexpensive procedure for the speedy disposition of cases”; (2) they “shall be uniform for all courts of the same grade”; (3) and they “shall not diminish, increase, or modify substantive rights.” Q – Can our courts decide political questions? A – Courts have no jurisdiction to pass upon “political questions.” Their jurisdiction is limited to “justiciable or non-political questions.” Q – What is the difference between a political question and a justiciable question?

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A – POLITICAL QUESTION

JUSTICIABLE QUESTION

A political question is a question of policy. It refers to those questions which, under the Constitution, are to be decided by the people in their sovereign authority, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. (Tañada vs. Cuenco, 100 Phil. 1101) Political questions are neatly associated with the wisdom, not the legality of a particular measure. (Sanidad vs. Commission on Elections, 73 SCRA 333)

Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. The Supreme Court explained this further in Sanidad vs. Commission on Elections (73 SCRA 333), thus: “What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution but his constitutional authority to perform such act or to assume the power of the constituent assembly. Whether the amending process confers on the President that power to propose amendments is, therefore, a downright justiciable question. Should the contrary be formed, the activation of the President would normally be a brutum fulmen. If the Constitution provides how it will be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not.”

Q – Give examples A – POLITICAL QUESTIONS

JUSTICIABLE QUESTIONS

1. The calling of the “Snap” presidential elections on February 7, 1986, by the Batasang Pambansa is a political question. (Philippine

1. The determination of whether or not an appointee has the prescribed qualifications is a justiciable question.

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Bar Association vs. Commission on Elections, G.R. No. 72915, December 20, 1986) 2. The calling of a referendum is within the exclusive discretion of President Ferdinand E. Marcos and it is therefore a political question. (De la Llana vs. Commission on Elections, 82 SCRA 30). 3. The authority of the Senate to punish and detain a witness for contempt is within its discretionary power and authority and it is therefore a political question. For this reason, the Supreme Court refused to order the release of the witness. (Armault vs. Balagtas, 97 Phil. 358)

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2. The determination of the President’s authority to propose amendments and the regularity of the procedure adopted for submission of proposals to the people is a justiciable question. 3. The determination of whether or not a constitutional provision has been followed or not is a justiciable question.

4. The determination of whether or not a suspension for disorderly behavior is supported by the required 2/3 votes is a justiciable question. 5. The determination of whether or not the voting requirement prescribed by the Constitution was complied with is a justiciable question. 6. The determination of constitutionality or legality of an act.

Q – Is the issue of whether or not the country should honor its international debt a political question? A – It is a political question. The Supreme Court said: “xxx As to whether or not the country should honor its international debt, more specifically the enormous amount that had been incurred by the past administration which appears to be the ultimate objective of the petition, is not an issue that is presented or proposed to be addressed by the Court. It is a political decision for Congress and the Executive to determine in the exercise of their wisdom and sound discretion.” (Guingona vs. Carague, etc., G.R. No. 94571, April 22, 1991)

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Q – Can our courts settle policy issues? A – Policy issues are within the domain of the political branches of government and the people themselves. It was ruled that if a law runs counter to government policies, it is for the Executive Department to recommend to Congress its repeal or amendment. The Judiciary does not settle policy issues. The Court can only declare what the law is and what the law shall be. Under our system of government, policy issues are within the domain of the political branches of government and the people themselves as the repository of all state power. (Buno vs. Philippine Amusement and Gaming Corporation [PAGCOR], G.R. No. 91649, May 14, 1991) Q – Are political questions absolutely beyond the domain of judicial power? A – The decision in Manila Prince Hotel vs. GSIS, MHC, et al., G.R. No. 122156, February 6, 1997, shows that the Supreme Court intervened under its expanded jurisdiction and ruled, thus: “The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved.” On the basis of the said decision, the wisdom and propriety, for instance, which may be invoked by the executive department may not be considered so by the scrutinizing minds of the justices. In the end, the Supreme Court may, in the process, find itself intervening in matters which should better be left to the wisdom of the leaders of the nation who are directly responsible to the sovereign electorate. (p. 228, Principles, Comments and Cases in Constitutional Law I by Rolando A. Suarez)

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Q – What is the effect of a statute which is declared unconstitutional? A – There are two (2) schools of thought on this question. 1. ORTHODOX VIEW: Article 7 of the Civil Code, which provides that “when the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern,” represents the orthodox view. Under this view, an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties and affords no protection. This view finds support in the well-settled doctrine that the Constitution is supreme and provides for the validity of legislative or executive acts. For this reason, neither the legislative nor the executive branch, or the judiciary has the power under the Constitution to act contrary to its terms. Any attempted exercise of power in violation of its provisions is to the extent unwarranted and null. (Fernandez vs. Cuerva, 21 SCRA 1095, 1106 [1967]) 2. THE SECOND VIEW: Under this view, the Supreme Court simply ignores statutes deemed unconstitutional. (Alison vs. Corker, 60 L.R.A. 564) It does not strike the statute from the statute books; it does not repeal, supersede, revoke, or annul the statute. The orthodox view has been applied as early as the case of the Springer vs. Government of the Philippine Islands (297 U.S. 189), but this was expanded with more vigor in Fernandez vs. Cuerva (21 SCRA 1095, 1106), by no less than former Chief Justice Enrique Fernando. It is in this case where this ruling was enunciated. “Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. As the new Civil Code puts: “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 or to the Constitution.” The above provision of the Civil Code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law it confers no rights, imposes no duties, and affords no protection. The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the measure of the validity of legislative or executive acts. Clearly then, neither the legislative nor the executive branch, and for that matter much less, this Court, has the power under the Constitution to act contrary to its terms. Any attempted exercise of power in violation of its provisions is to that extent unwarranted and null.

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Q – What is the extent of judicial power to declare the unconstitutionality of assailed legislative and executive acts? A – As a rule, our courts, particularly our Supreme Court, have the power to declare said acts to be unconstitutional if indeed they are contrary to the Constitution. Out of respect, however, to the principle of separation of powers, our courts have shown restraint in declaring the same to be totally unconstitutional, if it still possible, for instance, to salvage the valid portions of a statute from those which, in their assessment, should be declared illegal and unconstitutional. In this manner, the will of the legislature is given effect, and the cardinal rule that the legislature intended right and justice to prevail, is given importance. In Ty vs. Trampe (250 SCRA 500), it was held that the unconstitutionality of a law, regulation, ordinance or act will not be resolved by the courts if the controversy can be settled on other grounds. Q – What are the requisites for declaration of partial unconstitutionality? A – Declaration of partial unconstitutionality is valid only if two conditions concur, thus: 1. That the legislature is willing to retain the valid portion even if the rest is declared illegal; and 2. That the valid portions can stand independently as a separate statute. Q – What is the manifestation that the legislature is willing to retain the valid portions of the law? A – The legislature manifests its willingness to retain the valid portions if the law itself contains a separability clause. Q – What is a separability clause? A -- This is a clause which contains a proviso to the effect that if a provision in the law is declared invalid or unconstitutional, the remainder of the act shall not be affected by such declaration or invalidity or unconstitutionality. But even without such clause, the remaining provisions of the law which are valid must express the legislative will independently of the void part since the court has no power to legislate. (Barrameda vs. Moir, 25 Phil. 44) Example: The Bar Flunkers Bill was sustained insofar as it amended the Rules of Court prospectively but the part thereof which retroactively reduced the passing average in the bar examinations was declared unconstitutional, the same being an encroachment to functions belonging to the judiciary. Q – Is the power of judicial review exclusively vested only in the Supreme Court?

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A – Inferior courts have the power of judicial review but whatever its judgment may be appealed to the Supreme Court for final determination of the issue involved and which is raised as a ground for appeal. This is implied from the provision of Section 5(2), Article X, which confers appellate jurisdiction to the Supreme Court over judgments of inferior courts in all cases in which the constitutionality or validity of any treaty, international agreement, law, presidential decree, proclamation, order, construction, ordinance, or regulation is in question. EXAMPLE OF CASES WHERE THE SUPREME COURT EXERCISED ADMINISTRATIVE POWER AND SUPERVISION OVER JUDGES OF LOWER COURTS LUCILA TAN VS. JUDGE MAXWEL S. ROSETE A.M. NO. MTJ-04-1563 (FORMERLY A.M. OCA IPI NO. 02-1207-MTJ) SEPTEMBER 8, 2004 (a) Gross Misconduct; (b) Soliciting Money From a Litigant It is paramount that a judge’s personal behavior both in the performance of his duties and his daily life, be free from any appearance of impropriety as to be beyond reproach. Like Caesar’s wife, a judge must not only be pure but above suspicion. FACTS: Complainant claims that respondent judge, through his staff, required her to pay the amount of P150,000.00 for him to render judgment in her favor in two criminal cases she filed against Alfonso Pe Sy. Respondent Judge, on the otherhand, asserts that it was complainant who attempted to bribe him by offering to pay for the downpayment of the car he was planning to buy, and she even sought the intervention of their San Juan Mayor Jinggoy Estrada to persuade him to rule for the complainant in Criminal Cases Nos. 59440 and 66120. ISSUE: Is respondent Judge guilty of gross misconduct? Whose version is more trustworthy? HELD: 1.

The Court found the version of the complainant more trustworthy. Not only did she testify with clarity and in full detail, but she also presented during the investigation the unsigned copy of the draft decision of respondent judge in Criminal Case No. 59440 given to her by a member of his staff. Said documentary evidence supports her allegation that

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a member of complainant’s staff met with her, showed her copies of respondent judge’s draft decisions in Criminal Cases No. 59440 and 66120, and demanded, in behalf of respondent judge, that she pays P150,000.00 for the reversal of the disposition of said cases. It would be impossible for complainant to obtain a copy of a judge’s draft decision, it being highly confidential, if not through the judge himself or from the people in his office. And an ordinary employee in the court cannot promise a litigant reversal of a case’s disposition if not assured by the judge who drafted the decision. The respondent’s evidence did not overcome the facts proved by complainant. We note that the testimonies of two of respondent’s witnesses contradict each other. Fernando Espuerta confirmed complainant’s claim that she met respondent judge and his two companions, Espuerta himself and Rodolfo Cea (Buboy), at Sangkalan Restaurant in Quezon City. Rodolfo Cea, on the other hand, denied that he met complainant at Sangkalan and swore that he never went out with respondent judge in non-office functions. Exacting standards of conduct demanded from judges. – We have repeatedly admonished our judges to adhere to the highest tenets of judicial conduct. They must be the embodiment of competence, integrity and independence. Like Caesar’s wife, a judge must not only be pure but above suspicion. This is not without reason. The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary because the people’s confidence in the judicial system is founded not only on the magnitude of legal knowledge and the diligence of the members of the bench, but also on the highest standard of integrity and moral uprightness they are expected to possess. When the judge himself becomes the transgressor of any law which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs public confidence in the integrity and impartiality of the judiciary itself. It is therefore paramount that a judge’s personal behavior both in the performance of his duties and his daily life, be free from any appearance of impropriety as to be beyond reproach. Respondent’s act of sending a member of his staff to talk with complainant and show copies of his draft decisions, and his act of meeting with litigants outside the office premises beyond office hours violate the standard of judicial conduct required to be observed by members of the Bench. They constitute gross misconduct which is punishable under Rule 140 of the Revised Rules of Court.

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SPOUSES FLORENCIO AND ESTHER CAUSIN VS. JUDGE LEONARDO N. DEMECILLO, ETC. A.M. NO. RTJ-04-1860, SEPTEMBER 8, 2004 ALLOWING ANOTHER JUDGE TO PARTICIPATE AS COUNSEL IN A CASE PENDING BEFORE HIS SALA IS INAPPROPRIATE CONDUCT FACTS: Complainant-spouses alleged the following: 1. That Judge Rodrigo Lim, Jr. then RTC Acting Judge of Branch 21, Cagayan De Oro City and a brother of plaintiff Raul Lim, acted as the latter’s counsel in the civil case for quieting of title. They claim that Judge Lim attended the hearings in the case, cross-examined the witnesses, interposed objections at the trials, chose the hearing dates, and delivered oral arguments in court – all without special authority from this Court; that when confronted by them, Judge Lim refused to confirm whether he was hired by the plaintiffs to represent them in the said case; and, that respondent judge allowed Judge Lim to actively participate and intervene in the proceedings although he knew that the latter was not authorized by this Court to do so. 2. That during the trial, respondent judge extended unwarranted consideration to the plaintiffs. 3. That respondent judge knowingly rendered unjust judgment in the case when he awarded the disputed portion of the land to plaintiff Lim without considering the merits of their evidence. 4. The respondent judge denied the charges. He explained that he allowed Judge Lim to appear as counsel for the plaintiffs as he presumed that the latter had sought prior authority to do so from this Court. He pointed out that under Section 21, Rule 138 of the Rules of Court, an attorney is presumed to be properly authorized to represent any cause in which he appears. Respondent judge also argued that the complainants failed to file a motion questioning the authority of Judge Lim to appear as counsel for the plaintiffs in said case. 5. For his part, Executive Judge Rodrigo Lim, Jr. admitted that he did not secure from this Court an authority to appear in the proceedings of the case. He explained that his appearance at the trial of September 20, 1995 was only for the purpose of cross-examining the complainants’ witness, Pedro Tellafer, who was a tenant of his father, the original owner of plaintiffs’ lot. He allegedly participated in the hearings of said case in good faith as he had personal knowledge of the witness’ background. Moreover, it was a family case – his brother was one of the plaintiffs and his wife acted as his brother’s attorney-in-fact. He

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argued that he did not engage in the illegal practice of law as the phrase connotes payment of a fee and he did not receive remuneration for his participation in the case. Finally, he claimed that the complaint was ill-motivated and was filed by disgruntled litigants to get even with the Lim family after losing the case, as evidenced by the fact that it was only filed six (6) years later. ISSUE: Is there bias or partiality? Is respondent judge guilty of improper conduct? HELD: 1.

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Bias or partiality – Bias and partiality can never be presumed. Bare allegations of partiality will not suffice in the absence of clear and convincing proof that will overcome the presumption that the judge dispensed justice according to law and evidence, without fear or favor. Knowingly rendering an unjust judgment – Complainant Spouses failed to prove that the judgment is contrary to law or unsupported by evidence. The records disclose that the assailed decision of respondent judge had been affirmed on appeal by the Court of Appeals and by this Court. Neither was it shown that the judgment was made with deliberate malice or injustice. Thus, their claim is more speculative than a product of concrete proof. Delayed filing of the complaint against respondent judge after complainants lost the case on appeal likewise casts doubt on the motive of the complainants. Respondent Judge is Guilty of Improper Conduct (Violating Canon 2 of the Code of Judicial Ethics) – It was incumbent from respondent judge to inquire from Judge Lim whether he obtained authority from this Court to appear in said case. The rule that a lawyer is presumed to be authorized to appear before a court applies only to lawyers, not judges. Judges are prohibited from being personally involved in a case unless he himself is a party thereto. Respondent judge transgressed the rule pertaining to the avoidance, not only of actual impropriety, but even the appearance of impropriety. He failed to comport himself in a manner that his conduct could bear the most searching scrutiny of the public that looks up to him as an epitome of integrity and justice. This Court has stressed in countless cases that judges ought not only to be impartial but should also appear to be impartial. They should continuously encourage and uphold safeguards for the discharge of judicial duties to reinforce public confidence in the judicial process which is fundamental to the maintenance of judicial integrity.

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ENFORECEMENT WRIT OF AMPARO QUESTIONS AND ANSWERS ABOUT THE RULE ON THE WRIT OF AMPARO Q – What is the rationale behind the adoption of the Rule on the Writ of Amparo? A – It is a remedy available to any person whose right to life, liberty and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The rule “will provide the victims of extralegal killings and enforced disappearances the protection they need and the promise of vindication for their rights. The rule also empowers our courts to issue reliefs that may be granted through judicial orders of protection, production, inspection, and other relief to safeguard one’s life and liberty.” (Statement of Chief Justice Reynato S. Puno on September 25, 2007) Q – What is the higher standard of conduct that is expected from public authorities? A – “The writ of amparo shall hold public authorities, those who took their oath to defend the Constitution and enforce our laws, to a higher standard of official conduct and hold them accountable to our people. The sovereign Filipino people should be assured that if their right to life and liberty is threatened or violated, they will find vindication in our courts of justice.” (Statement of Chief Justice Reynato S. Puno on September 25, 2007) Q – What is the brief background of the writ of amparo? A – The writ of amparo was first adopted in Mexico in 1857. The literal meaning of “amparo” is “protection.” It is broader in scope and application than the writ of habeas corpus in that it protects a person against illegal arrest and violation of human rights. In Mexican jurisdiction, the amparo procedure has two parts, thus: 1. The preliminary one (suspension incident) tends to prevent the consummation of alleged violations. The court, without issuing any opinion as to whether or not the acts stated really do violate an individual right, suspends their effects so that the final decision granting the amparo may have practical effect. 2. In the other part of the Amparo procedure, the facts alleged are proved and a study is made as to whether or not they violate the rights invoked.

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Q – What is the constitutional basis relied upon by the Supreme Court in issuing and approving the Rule on Writ of Amparo? A – Under Section 5(5) of Article III of the Constitution, the Supreme Court is clothed with powers to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. The provision is intended not only to underscore that constitutional rights are mere declaratory, but also enforceable. By virtue of this constitutional grant of power, the Supreme Court may adopt the writ of Amparo in order to effectively shield a person against the violation of human rights by arbitrary authorities. Q – Is the writ of amparo broader than its counterparts in other countries? A – It is broader because (1) it protects not only against actual violations but also against threats of violation of rights; and (2) it covers not only unlawful acts or omissions of public officials or employees, but also that of private individuals or entities Q – Aside from the writ of amparo, what are the rules which the Supreme Court may promulgate to give teeth and strength to the writ of amparo? A – According to Chief Justice Reynato S. Puno, the Supreme Court will also promulgate rules to govern the issuance of the WRIT OF HABEAS DATA. Q – What are the reliefs that are expected from the writ of habeas data? A – The writ of habeas data will compel government and military officials to allow families of victims of enforced disappearances access to official documents by invoking “the right of truth.” The said writ has been used in solving the problem of extralegal killings and enforced disappearances in Latin American Countries under military dictatorship. RECENT EVENTS Q – There is a growing number of disappearances and missing persons not only in Metro Manila but also in some towns and provinces in the Philippines. One example is the case of Jonas Burgos, the son of journalist Joe Burgos, who had been reported missing since April, 2007, and has not been found until now. The mother of Jonas Burgos filed a petition for a writ of habeas corpus in the Supreme Court. A writ of habeas corpus was issued on July 24, 2007, but the military establishment, through its spokeperson, said on television that Jonas Burgos is not in its custody and it is not in the position to comply with the order of the Supreme Court. What action, if any, can the Supreme Court do to be able to give protection to persons who are victims of violation of human rights? Explain.

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A – Under Sec. 5(5) of Article VIII of the Constitution, the Supreme Court is clothed with powers to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. The provision is intended not only to underscore that constitutional rights are mere declaratory, but also enforceable. By virtue of this constitutional grant of power, the Supreme Court may adopt the writ of amparo in order to effectively shield a person against the violation of human rights by arbitrary authorities. MEANING OF “ENFORCED DISAPPEARANCE OF PERSONS”? “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support, or acquiescence of a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. SPECIAL FEATURES OF THE WRIT OF AMPARO AT A GLANCE 1. Where it may be filed

2. Filing fee 3. Immediate relief 4. Summary hearing

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The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. (Sec. 3) – The petition is exempted from the payment of the docket fee and the other lawful fees. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it might be issued. (Sec. 6) – The writ shall also set the date and time for summary hearing of the petition which shall not be

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5. A general denial from the respondent is not allowed 6. Interim reliefs that may be granted 7. The Writ of Amparo imposes a higher standard of diligence (extraordinary diligence) 8. No presumption of regularity on the part of the public official or employee 9. Judgment shall be rendered within 10 days from the time it is submitted for decision.

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later than seven (7) days from the date of the issuance. (Sec. 6, 3rd paragraph) A general denial of the allegations in the petition shall not be allowed. (Sec. 9) (1) TPO (Temporary protection order) (2) IO (Inspection Order) (3) PO (Protection Order) (4) WPO (Witness Protection Order) (5) Contempt Order (Contempt may be issued against a respondent who refuses to make a return or who makes a false return, or any person who otherwise disobey’s or resists a lawful process or order.) (Secs. 14, 15, 16) This is imposed on pubic officers or employees (Sec. 15) The respondent pubic official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (Sec. 17) The court shall render judgment within 10 days from the time the petition is submitted for decision. (Sec. 18)

WRIT OF HABEAS DATA IMPORTANT FEATURES OF THE RULE ON THE WRIT OF HABEAS DATA 1.

What is the writ of habeas data? The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private

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individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Section 1) Who may file the petition for the writ of habeas data? Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph (Section 2) Where shall the petition be filed? The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. (Section 3) What are the contents of the petition? A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. (Section 6) What can be done when the respondent invokes the defense that the release of the data or information shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character?

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A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. (Section 12) What is the nature of the hearing of the petition? The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. (Section 15) What is the effect of a criminal action? When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. (Section 22)

Section 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines. (2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. (3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence. Q – What are the general qualifications of every member of the judiciary? A – Section 7(3) provides that a Member of the Judiciary must be a person of proven competence, integrity, probity and independence. Q – What are the qualifications of the Supreme Court Justices? A – Section 7, Article VIII provides that a Member of the Supreme Court or any lower collegiate court, must be: (a) a natural-born citizen of the Philippines; (b) at least forty years (40) of age; (c) have been for fifteen years or more a judge of a lower court or engages in the practice of law in the Philippines. In addition to these requirements, a member of the Supreme Court must be a person of proven competence, integrity, probity and independence. Q – What are the qualifications of judges of lower court? A – They must be (1) citizens of the Philippines; (2) members of the Philippine Bar; (3) they must possess the other qualifications prescribed by Congress;

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and (4) they must be persons of proven competence, integrity, probity, and independence. Q – May the qualifications of members of judiciary be altered by Congress? A – No, but Congress may alter the statutory qualifications of judges and justices of lower courts. Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. (5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. Q – What is the principal function of the judicial and bar council? A – It shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. Q – Who supervises the judicial and bar council? A – It is under the supervision of the Supreme Court. Q – What is the composition of the judicial and bar council? A – It is composed of the following: 1. Chief Justice as ex officio Chairman. 2. Secretary of Justice as ex officio member 3. Representative of Congress as ex officio member. 4. Representative of the Integrated Bar 5. A Professor of Law

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6. 7.

A Retired Member of the Supreme Court Representative of the Private Sector (Section 8[1], Article VIII)

Q – Who appoints the regular members of the council? A – The regular Members of the Council shall be appointed by the President with the consent of the Commission of Appointments. Q – What are the rotational schemes observed in the appointment of the members of the council? A – The rotational schemes observed in the appointment of the members of the council are the following: 1. Of the Member first appointed, the representative of the Integrated Bar shall serve for four (4) years. 2. The professor of law for three (3) years. 3. The retired justice for two (2) years. 4. The representative of the private sector for one (1) year. Q – What is the salary of the members of the council? A – The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. Q – Who shall be the secretary of the council? A – The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. Q – It has been said that the judicial and bar council is intended to minimize, if not remove, the exercise of political influence in the appointment of judges and justices. Is this a reality? Explain. A – The Judicial and Bar Council is intended to minimize, if not remove, the exercise of political influence in the appointment of judges and justices. In reality, however, the influence of politicians is still being felt especially in the appointment of judges and justices of lower courts. Strictly speaking, the President of the Republic of the Philippines has the discretion to appoint justices of the Supreme Court. In fact, experience shows that even the practitioners and academicians have been appointed to the Supreme Court and they even became Chief Justices. The only consolation is that the appointees are known to be and recognized as brilliant lawyers and academicians in their respective fields of expertise. Besides, they are known as lawyers of proven competence, integrity, probity, and independence. Q – What is the composition of the Supreme Court? A – The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices.

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Q – May a law be passed to change the number of Members of the Supreme Court and of the divisions thereof? A – The number of members of the Supreme Court and of the divisions is fixed by the Constitution and may not be changed by statute. Section 4(1), Article VIII, provides as follows: “The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices. It may sit en banc, or in its discretion, in divisions of three (3), five (5) or seven (7) Members. Any vacancy shall be filled within ninety (90) days from the occurrence thereof.” Q – What is the rationale of Section 4(3), Article VIII? A – The said provision seeks to avoid a situation where the decision of one division is contradicted by another division. Q – What is the power of judicial review or judicial supremacy? A – This is already discussed in connection with Section 6. Q – What are the requisites of judicial review or inquiry? A – This is already discussed in connection with Section 6. Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. Q – What is the procedure in the appointment of justices and judges? A – Whenever there is a vacancy, the Judicial and Bar Council submits to the President a list of at least three (3) nominees. The President may or may not appoint anyone mentioned in the said list. In fact, the President may even ask for another list. But once the appointment is issued by the President, and accepted by the nominee, the appointment needs no confirmation. In the case of judges of lower courts, the Judicial and Bar Council also submits a list of its nominees and the President is given ninety (90) days from submission within which to issue the appointment. Q – Is there a difference as to the period when the President shall fill up a vacancy in the Supreme Court and in the lower Courts? A – Yes. In the Supreme Court, “any vacancy shall be filled within ninety days from the occurrence thereof.” (Sec. 4, Art. VIII) For the lower courts, the President shall issue the appointment “within ninety days from the submission of the list.” (Sec. 9, Art. VIII)

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Section 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. Q – Can the salary of judges and justices be decreased? A – Section 10 says that their salary shall not be decreased during their continuance in office. Their salaries, however may be increased if Congress so decides. Q – Are the salaries of judges subject to income tax? A – The imposition of income tax on the salaries of judges was declared unconstitutional in Perfecto vs. Meer (85 Phil. 552 [1950]) and Endencia vs. David (93 Phil. 696 [1953]) on the ground that to do so would result in the reduction of the compensation. And yet, in Nitafan vs. Commissioner of Internal Revenue (152 SCRA 284), it was held that the salaries of judges may be subject to income tax. Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Q – What specifically is the guarantee under Section 11? A – Section 11 states that “the members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office.” The phrase “shall hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office” means that justices of the Supreme Court shall continue in office for as long as they are not held guilty of any offense which is a constitutional ground for impeachment, or until they reach the age of seventy (70) years. Q – How about the judges of lower courts, do they also enjoy security of tenure? A – Judges of lower courts also enjoy security of tenure by express provision of Section 11 and they shall “hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their offi ce.” This time, however, “the Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the

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Q – A – Q – A –

Q – A –

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members who actually took part in the deliberations on the issues in the case and voted thereon.” Disciplinary action that may be taken by the Supreme Court against judges of lower courts may either be dismissal, or any disciplinary action lower or lesser than dismissal. Can disciplinary action be taken against judges of the inferior or lower courts by the executive department? Only the Supreme Court shall have the power to discipline judges of the lower courts and not even the President, therefore, can exercise that power. Can statutory courts be abolished by Congress? The Supreme Court held that statutory courts may be abolished by Congress as long as the abolition is done in good faith. There was, however, a dissenting opinion by Judge Claudio Teehankee (De La Llana vs. Alba, 82 SCRA 30), who said: “I do not subscribe to the test of good faith or bad faith in the abolition of courts and consequent ouster of the incumbent judges.” “The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon complaint and with the cooperation of the aggrieved parties and after due process and hearing.” It will be recalled that in the early case of Ocampo vs. Secretary of Justice (L-7918, January 18, 1955), the Supreme Court ruled that the right of judges to his full tenure does not depend alone upon his good conduct, but also upon the discretion of Congress when it decides to exercise its power to create, reorganize or even abolish courts, if this is necessary for the attainment of public good. The ruling in Ocampo vs. Secretary is seemingly consistent with the principle that the Constitution is, by all means, superior than any statute to be passed by Congress. When the Constitution guarantees security of tenure of justices and judges, the Constitution, in effect, guarantees that they cannot in any way be removed from office by any law or statute for the simple reason that security of tenure is a constitutional guarantee which is not subservient to the whims and caprices of the legislature even if in truth and in fact, it is an exercise of discretion allegedly to pursue the crying need for reforms in the Judiciary. In short, what the Constitution grants, a mere statute cannot set aside. How may justices and judges of inferior courts be removed? Supreme Court justices can be removed only by impeachment. (Section 2, Article XI) Judges of inferior courts are removable only by the Supreme Court en banc.

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Q – What is the compulsory retirement age of the members of the judiciary? A – Seventy years just like the retirement age under the 1935 Constitution. Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions. Q – Suppose a law was passed and approved which created a Foreign Debt Central Board. The task of the Board is to study and collate all contracts entered into by the Government of the Republic of the Philippines and foreign government banks or financing institutions from the time of President Ferdinand E. Marcos until now, and to study and find out our total foreign debt, our system and procedures on how our foreign debt is paid and settled, how much is our annual budget for our own foreign debt, and to submit recommendations on how we can effectively and efficiently manage our foreign debt situation. The following were appointed to be members of the said board: 1. The Chairman of the Senate Committee on Appropriations, as Chairman 2. The Chairman of the Appropriations Committee of the House of Representatives, Member 3. The Secretary of Budget, Member 4. The President of the Philippine Chamber of Commerce, Member 5. The Presiding Justice of the Court of Appeals, Member Question: Are the said appointments valid? Answer: 1. It may be upheld on the theory that said appointment is in aid of legislative duties. 2. It may be upheld on the theory that said appointment is in aid of legislative duties. 3. It may be upheld on the theory that the functions of the board is related to his functions as Secretary of Budget. 4. It may be upheld on the ground that Congress has the power to prescribe qualifications for said office. 5. It cannot be upheld because the functions he will exercise are non-judicial functions and this is a violation of Section 12, Article VIII. Section 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before

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the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. Q – What are the three (3) requirements provided in Section 13 that provides for the procedure and the mechanics in the issuance of decisions of the Supreme Court and all over collegiate courts? A – There are three (3) requirements provided in Section 13, thus: 1. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a member for the writing of the opinion of the court. 2. Once the decision is reached, a certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. 3. Any member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The foregoing requirements are the same requirements to be observed by all lower collegiate courts. Q – Does the absence of the said certification invalidate a decision? A – In Consing vs. Court of Appeals (G.R. No. 78272, August 29, 1989), it was held that the absence of said certification does not invalidate the decision. Indeed, it may be possible that the decision had not been reached in consultation before it was assigned to a member for the writing of the opinion of the court but there was no certification at the end of the decision. Q – What is the importance of stating the reasons behind a dissenting opinion? A – All the justices of the Supreme Court have been chosen because of their proven competence and integrity. In fact, all justices were successful lawyers, practitioners, judges and academicians, and it is assumed that in writing every decision, they are always guided not only by their enormous amount of experience and expertise but also by their sense of fairness, justice and by the dictates of their conscience. But different men see the same subject in different ways because they are precisely intelligent. They may have studied the same law but there is never a guarantee that they will be unanimous in all subjects. Time and again, a majority opinion may be a dissenting opinion at some future time, and

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likewise, a dissenting opinion may become the majority opinion later on. Practitioners are continuously guided both by the majority and the dissenting opinion. It is not surprising that at times, practitioners and even law students subscribe to dissenting opinions although professors always remind their students to refer to the majority opinion especially when they are answering bar questions. Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor. Q – Why should a court decision express clearly and distinctly the facts and the law on which it is based? A – A decision which does not state clearly and distinctly the facts and the law on which it is based, deprives not only the parties but also the practitioners, professors and students as to the factual and legal considerations that guided the court in reaching a decision. Court decisions, particularly the decisions of the Supreme Court, are discussed, scrutinized and cited by lawyers and non-lawyers alike from time to time and in the years to come. This goes on and on even at a time when those who wrote them have banished from the broad face of the earth. Even dissenting opinions in yesteryears are made as references for, in several instances, they appear more convincing to the next generation of lawyers, judges, professors, scholars and law students. In actual practice, practicing lawyers analyze the decision extensively as well as the citations made by the court, and on the basis of the same, the lawyers concerned will study the grounds upon which their appeals will be based. The evaluation and the determination of the court for or against a particular party or for or against a particular issue commands the respect of a lawyer if the decision is well studied and researched and if it is sustained by the weight of jurisprudence. Q – Does the said requirement apply to court orders and minute resolutions of the court? A – The requirement that a court decision “should state clearly and distinctly the facts and the law on which it is based” does not apply to the following: 1. Court orders which resolve incidental matters only. 2. Minute resolutions in the following cases: a. In cases which are “patently without merit”, where the issues are factual in nature; where the decision appealed from is

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3.

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supported by substantial evidence and is in accord with the facts of the case and applicable laws. b. In cases where it is clear from the records that the petitions were filed merely to forestall the early execution of judgment and for non-compliance with the rules. In administrative cases where the issues raised therein have been previously duly considered and passed upon.

COMPLAINT OF MR. AURELIO INDENCIA ARRIENDA AGAINST JUSTICES REYNATO S. PUNO, ET AL., (ADMINISTRATIVE MATTER NO. 03-11-30-SC, JUNE 9, 2005) THERE IS NO DEPRIVATION OF DUE PROCESS WHEN THE SUPREME COURT DISPOSED MOTIONS AND PLEADINGS THROUGH MINUTE RESOLUTIONS. FACTS: In his affidavit, the complainant charged the respondent justices of “willfully, maliciously and arbitrarily” rendering allegedly unjust decisions in Civil Case No. Q-53060, CA-GR. CV No. 48737 and G.R. No. 137904 which were filed by complainant and his family against the GSIS and Crispina de la Cruz. He also charged them with “willfully maliciously and arbitrarily” suppressing evidence and resorting “to a modus operandi or the so-called ‘1-2-3’ to swindle or defraud” him and his family “by simply issuing ‘minute’ resolutions based on technicalities without having passed upon the unresolved issue and those other issues that were resolved contrary to laws, rules on evidence, etc.” He alleged that the disposition of his various motions and pleadings through minute resolutions amounted to a deprivation of due process. ISSUE: Should the decisions or resolutions of the Supreme Court be signed by the justices all the time? HELD: (1) The Court is not duty-bound to issue decisions or resolutions signed by the justices all the time. It has ample discretion to formulate ponencias, extended resolutions or even minute resolutions, depending on its evaluation of a case, as long as a legal basis exists. When a minute resolution (signed by the Clerk of Court upon orders of the Court) denies or dismisses a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order, together with all its findings of fact and legal conclusions, are deemed sustained. (2) There is no deprivation of due process when the Supreme Court disposes motion or pleadings through minute resolutions. (3) There is only one Supreme Court from whose decisions all other courts are required to take their bearings. While most of the Court’s work is

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performed by its three divisions, the Court remains one court – single, unitary, complete and supreme. Flowing from this is the fact that, while individual justices may dissent or only partially concur, when the Court states what the law is, it speaks with only one voice. Any doctrine or principle of law laid down by the Court may be modified or reversed only by the Court en banc. GERMAN MACHINERIES CORP. VS. ENDAYA G.R. NO. 156810, NOVEMBER 25, 2004 SECTION XIV, ARTICLE 8 OF THE 1987 CONSTITUTION PROVIDES THAT NO DECISION SHALL BE RENDERED BY ANY COURT WITHOUT EXPRESSING CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS BASED. THIS RULE, HOWEVER, APPLIES ONLY WITH RESPECT TO “CASES SUBMITTED FOR DECISION,” NOT WHEN A RESOLUTION IS ISSUED DENYING DUE COURSE TO A PETITION FACTS: A labor arbiter rendered judgment in favor of an employee who was allegedly dismissed illegally by the petitioner. This judgment was affirmed by the NRLC, hence, the petitioner filed a petition for certiorari with the Court of Appeals. The Court of Appeals issued the herein assailed resolution dismissing the petition for certiorari. The said petitioner filed a motion for reconsideration but the appellate court denied the same. He then filed the present petition for review on certiorari on the ground that the resolution is without any analysis of the evidence of the parties. Section 14 of Article VIII provides that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. ISSUE: Is Section 14, Article VIII of the Constitution violated? HELD: No. it is not violated. When the Court, after deliberating on a petition and subsequent pleadings, denies to deny due course to the petition and states that the questions raised are factual or there is no reversible error in the respondent court’s decision, there is sufficient compliance with the constitutional requirement. In the present case, the Court of Appeals denied due course and outrightly dismissed the petition for certiorari filed by herein petitioner on the grounds that the factual issues had already been passed upon by the NLRC, and since its factual findings are in agreement with the findings of the labor arbiter, the same are binding and conclusive upon the Court of Appeals; and that the questions raised are too unsubstantial to require consideration.

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DATU SAMAD MANGELEN VS. COURT OF APPEALS, ET AL. G.R. NO. 88954, OCTOBER 28, 1992 FACTS: The judgment of the trial court was affirmed by the Court of Appeals. The respondent filed a motion to reconsider the decision of the Court of Appeals. The Court of Appeals reversed its previous decision and issued the following resolution: “It appearing from the motion for reconsideration that defendants-appellants have good and valid defenses as amplified in their motion for reconsideration and their reply to opposition which in fairness to the lower court, we will not point out, since this is a default case so that any decision of the lower court will not in any way be preempted in the interest of justice.” “WHEREFORE, the motion for reconsideration of the decision of this Court promulgated on January 30, 1989, is hereby granted and the said decisions is hereby reversed. Let this case be remanded to the lower court for further proceedings.” SO ORDERED. HELD: The challenged decision leaves much to be desired. What was filed before the Court of Appeals was an ordinary appeal from a judgment by default. This necessitated a full-blown decision, taking into account the five (5) assigned errors which touch on both substantive and procedural matters. Accordingly, the Court of Appeals promulgated its 30 January 1989 decision following a meticulous review of the proceedings had before the trial court and careful re-appraisal of the evidence adduced before it. Thus, that decision faithfully complied with Section 14, Article VIII of the Constitution which provides that no decision shall be rendered by any court without expressing therein clearly and distinctly that facts and the law on which it is based. Now, if such decision had to be completely overturned or set aside, upon the filing of a motion for reconsideration, in a subsequent action via a resolution or modified decision, such resolution or decision should likewise state the factual and legal foundation relied upon. The reason is obvious: aside from being required by the Constitution, the court should be able to justify such a sudden change of course; it must be able to convincingly explain the taking back of its solemn conclusions and pronouncements in the earlier decision. In the instant case, the Court of Appeals miserably failed to do so; this is reflected in the quoted resolution of 12th of July,

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1989, which leaves in limbo the trial court’s challenged decision because it is not the latter which is reversed but rather the Court of Appeal’s own decision of 30 January 1989. The Court of Appeals simply restored the parties to the status quo obtaining prior to 30 January 1989. Clearly, therefore, an amended decision on the appeal proper or on the merits of the decision of the trial court would be in order. There is more to the confusion. The Court of Appeals ordered that the case be remanded to the trial court for further proceedings, thereby placing the latter in a quandary as to what is supposed to do. The trial court would not know what “further proceedings” means as the Court of Appeals neither nullified the order of default nor set aside the evidence received ex parte. Thus, the former would be hard put at finding a satisfactory solution to the problem presented for its resolution. Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case ore matters submitted thereto for determination, without further delay Q – Within what period must cases be decided or resolved? A – The maximum period within which cases must be decided or resolved is stated in the following tabulation: SUPREME COURT

LOWER COLLEGIATE COURTS

LOWER COURTS

Within twenty-four (24) months from date of submission which means “upon the filing

Within twelve (12) months unless reduced by the Supreme Court, counted from the date

Wi t h i n t h r e e ( 3 ) months unless reduced by the Supreme Court, counted from the date

ARTICLE VIII JUDICIAL DEPARTMENT

of the last pleading, brief or memorandum required by the Rules of Court or by the court itself.”

of submission which means “upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself.”

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of submission which means “upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself.”

Q – Why are the said periods mandatory? A – Section 15(4) states that the said periods are mandatory. (First sentence, Section 15, in relation to Section 15[4], Article VIII, 1987 Constitution) This paragraph imposes a responsibility to the court to decide or resolve the case or matter submitted thereto for determination, “without further delay.” (Last Sentence, Section 15[4]) If the case submitted to the court for determination is not decided or resolved within the respective mandatory periods, as above-mentioned, an explanation must be made by the Chief Justice or the presiding judge and this explanation shall be so stated in a certification to this effect. A copy of this certification shall be attached to the record of the case or matter, served upon the parties. This constitutional provision is a much needed improvement in our judicial system considering that in the past years, our courts are saddled by a backlog of cases that have been pending for many years. It is unfortunate that at times, a decision is rendered when a litigant has already passed away, or after an accused has already rotten in jail and has already spent the fruitful years of his life which could have been devoted to a more productive endeavor. Q – Is the period for making the decision mandatory or discretionary for all courts? A – There are conflicting views on this question. One view is to the effect that it is mandatory and the other view is that it is merely directory considering that the prescribed period is impossible of application because of the crowded court docket. It should be noted, however, that Section 15, paragraph 4, makes no distinction as to whether or not it applies both to the Supreme Court or to the lower courts. It makes the period mandatory for “the court.” It reads as follows: “Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.” (Underlining Supplied)

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Section 16. The Supreme Court shall, within thirty days, from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary. Q – Section 16, Article VIII of the 1987 Constitution, provides that “the Supreme Court shall, within thirty days, from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary.” Does this mean that the Supreme Court is under the control of the President and Congress? A – Said provision is not intended to place the Supreme Court under the control of the President and Congress but merely to give the government, particularly the executive department and Congress, the opportunity to know how they can help improve the judicial system. In the last few years, for instance, many Halls of Justice have been constructed in Luzon, Visayas and Mindanao. The budget allocated to the judicial department has increased considerably. More employees and technical personnel have been hired to assist the courts. More and more judges and prosecutors have been appointed throughout the country and their salaries are now higher than the salaries before. There are still a lot of improvements being desired to improve our judicial system and machinery but it requires a corresponding increase in the budget. This is what should be attended to by Congress and the President of the Republic of the Philippines. This is one concrete example of the principles of sharing of power and interdependence. MULTIPLE CHOICE QUESTIONS 1.

Security of Tenure of Justices. A. Justices shall hold office until they reach the age of seventy (70) years. B. Justices shall hold office during good behavior until they reach the age of seventy (70) years. C. Justices shall hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office. D. Justices shall hold office during good behavior until they reach the age of seventy (70) years and they shall continue in office as long as they are not held guilty of any offense which is a constitutional ground for impeachment.

2.

Security of Judges of Lower Courts. A. Judges of lower courts also enjoy security of tenure. Hence, they shall also hold office until they reach the age of seventy (70) years.

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B.

C.

D.

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Judges of lower courts shall hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office. Judges of lower courts shall hold office during good behavior until they reach the age of seventy (70) years and they shall continue in office as long as they are not held guilty of any offense which is a constitutional ground for impeachment. Judges of lower courts shall hold office during good behavior until they reach the age of seventy (70) years and they shall continue in office as long as they are not ordered dismissed, or subject to disciplinary action, by a vote of the majority of the members of the Supreme Court who actually took part in the deliberations on the issues in the case and voted thereon.

3.

Additional Double or Indirect Compensation. A. An elective or appointive public officer and employee shall not receive additional, double or indirect compensation. B. An elective or appointive public official or employee may receive additional, double or indirect compensation, if he is specifically authorized by law to receive the same. C. An elective or appointive public officer and employee are not allowed to receive additional, double or indirect compensation, because it is not prejudicial to the government which is heavily indebted but also because it is unfair to other government employees who do not receive the same benefit. D. An elective or appointive public officer and employee may receive an additional, double or indirect compensation if he is specifically authorized by law to receive the same and provided that for every instance the law requires the consent of Congress.

3.

Effect of a Statute which is declared Unconstitutional. A. It is valid until it is declared unconstitutional. B. It is not valid but it may be ratified. C. The Supreme Court simply ignores statutes deemed unconstitutional. D. When the Courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Hence, an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties and affords no protection.

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5.

Specific Constitutional Basis of issuing a Writ of Amparo. A. The issuance of a writ of amparo is based on the constitutional mandate of the Supreme Court to give protection, justice and relief against violation of human rights by arbitrary authorities. B. The issuance of a writ of amparo is based on the new meaning of judicial power which is not only to assist in the peaceful settlement of controversies arising from actions which are legally demandable and enforceable, but also in the expanded jurisdiction of the Supreme Court to determine whether or not grave abuse of discretion, amounting to lack of jurisdiction, has been committed on the part of any branch or instrumentality of government. C. There is no specific constitutional provision upon which a writ of amparo is specifically based. D. There is no specific constitutional provision which specifically allows the issuance of a writ of amparo but under Section 5(5) of Article III of the Constitution, the Supreme Court is clothed with powers to promulgate rules concerning the enforcement and protection of constitutional rights, pleading and procedure in all courts.

6.

Where and when a Petition for Issuance of a Writ of Amparo may be filed. A. It may be filed only in the Supreme Court on any day, from Monday to Friday. B. It may be filed with the Regional Trial Court, where the alleged threat, act or omission was committed, or any of its elements occurred, on any day from Monday to Friday. C. It may be filed with the Court of Appeals of the place where the threat, act or omission was committed or any of its elements occurred, from Monday to Friday. D. It may be filed in any of the above-mentioned courts or in any justice of said courts, on any day at anytime.

7.

Reliefs that may be granted on account of a Petition for a Writ of Amparo. A. A writ of amparo will be issued. B. There is no immediate relief that may be granted at once because there will still be a hearing of the petition which shall not be later than seven (7) days from the date of issuance.

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C.

D.

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Upon the filing of the petition the court, justice or judge shall immediately order the issuance of the writ if on its face it might be issued. If on the face of the petition, the court, justice or judge has deemed it necessary to grant the remedy prayed for, a writ of amparo may be issued and the following interim reliefs may be granted: (1) TPO (Temporary Restraining Order); (2) IO (Inspection Order); (3) PO (Protection Order); (4) WPO (Witness Protection Order); and (5) Contempt Order against a respondent who refuses to make a return or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order. ARTICLE IX THE CONSTITUTIONAL COMMISSIONS COMMON PROVISIONS

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. Section 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. Section 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure. Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law. Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights. Section 7. Each Commission shall decide a majority vote of all its Members any case or matter brought before it within sixty days from the date of its

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submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. Section 8. Each commission shall perform such other functions as may be provided by law. EACH COMMISSION EN BANC MAY PROMULGATE ITS OWN RULES CONCERNING PLEADINGS AND PRACTICE BEFORE IT OR BEFORE ANY OF ITS OFFICES (Section 6, Article IX) Q – What is the only limitation imposed by Section 6 ? A – Such rules shall not diminish, increase or modify substantive rights. Q – If there is a conflict between a Comelec Rule of Procedure and a Rule of Court, which prevails? A – The Comelec Rule of Procedure shall prevail if the proceeding is before a Commission. The Rules of Court prevail if the proceeding is before a court. (Aruelo, Jr. vs. Court of Appeals, October 20, 1993) Q – How shall each commission decide a case or matter brought before it? A – Said case shall be decided by each commission by a majority vote of all its members Q – How are decisions of commissioners reviewed? A – Section 7, paragraph 2, Article IX(A) provides as follows: “Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof.” CIVIL SERVICE COMMISSION, COMMISSION ON ELECTIONS AND COMMISSION ON AUDIT ARE INDEPENDENT COMMISSIONS Q – Why are they called independent commissions? A – They are called independent commissions because of the constitutional guarantees given to them such as, among others, the following: 1. The said commissions are independent constitutional bodies. (Section 1[a], Article IX) 2. The Members of the Constitutional Commissions cannot be removed from office except by impeachment. (Article XI, Section 2)

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3. The powers conferred to each of the said commissions cannot be withdrawn or reduced by statute. (Article IX[B], [C] and [D]) 4. The term of office of the Chairman and the Commissioners is seven (7) years without re-appointment. (Article IX[B], [C), and [D]) 5. Their term of office are staggered in order that the majority of them may not be appointed by the same President. (Article IX[B], [C] and [D]) 6. They may not be re-appointed or appointed in an acting capacity. (Article IX[B], [C] and [D]) 7. Their salaries are fixed by law and shall not be decreased during their tenure. (Section 3, Article IX[A]) 8. All the said commissions enjoy fiscal autonomy. (Section 5, Article IX[A]). 9. All the said commissions may promulgate its own procedural rules. (Section 6, Article IX[A]) 10. All the said commissions can appoint their own officials and employees in accordance with law. (Section 4, Article IX[A]) 11. The chairman and members of all the said commissions are subject to certain disqualifications so they will not be distracted from performing their duties and functions. (Section 2, Article IX[A]) 12. All the said commissions are created by the Constitution and they may not be abolished by the statute. (Section 1, Article IX[A]) FISCAL AUTONOMY OF CONSTITUTIONAL COMMISSIONS Q – Sec. 5, Art. IX(A) of the 1987 Constitution provides as follows: “The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.” Can the funds appropriated to the Civil service Commission be released by installments allegedly because of shortfall with the revenue collections during a month? A – The full amount must be released because of the fiscal autonomy of the Civil Service Commission. (Civil Service Commission vs. Department of Budget and Management, 482 SCRA 233) Q – Are the rulings and the findings of facts of said commissions reviewable by the Supreme Court? A – As a rule, the rulings and findings of facts of said commissions cannot be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence to support the same. Said ruling may be reviewed by the Supreme Court only in a petition for certiorari, and only questions of law may be raised in such a proceeding, including grave abuse of discretion. (Torralba vs. Comelec, G.R. No. 105602, December 3, 1992)

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Q – What particularly is the petition that should be filed in the Supreme Court? A – The aggrieved party has to file a petition for certiorari within thirty (30) days from receipt of said decision, order or ruling. This petition is actually a special civil action for certiorari under Rule 65 and, therefore, the ground or the issue to be brought to the Supreme Court for decision is limited to grave abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction. There is lack of jurisdiction if the grave abuse of discretion was done in a capricious or whimsical manner. Excess of jurisdiction presupposes that the court has jurisdiction but it has overstepped the permissible bounds in the exercise thereof. (Galido vs. Comelec, 193 SCRA 78 [1991]; Rivera vs. Comelec, 199 SCRA 178 [1991]) It is now settled that in providing that the decisions, orders or rulings of COMELEC “may be brought to the Supreme Court on certiorari,” the Constitution in its Article IX(A), Section 7, means the special civil action for certiorari under Rule 65, Section 1. Q – What should be filed first before the petition for certiorari is brought to the Supreme Court? A – The aggrieved party must first file a motion for reconsideration before the petition for certiorari is brought to the Supreme Court. (Reyes vs. Regional Trial Court, et al., G.R. No. 108886, May 5, 1995) REYES VS. REGIONAL TRIAL COURT, ET AL. G.R. NO. 108886, MAY 5, 1995 FACTS: After the May 11, 1992 synchronized elections, the Municipal Board of Canvassers proclaimed Aquiles U. Reyes as the 8th winning candidate for the position of member of the Sangguniang Bayan of Naujan, Oriental Mindoro. Thereafter, Adolfo G. Comia, a candidate for the same position, filed before the trial court an election protest alleging that the Board of Canvassers had committed a mistake in the mathematical computation of the total number of votes garnered by petitioner. After the mistake was admitted and rectified, the trial court annulled the proclamation of Reyes and declared Comia as the duly elected winner. Reyes filed a notice of appeal with the COMELEC and also a petition for mandamus and prohibition in the Court of Appeals. The Comelec’s First Division dismissed Reyes’ appeal on the ground that he failed to pay the appeal fee within the prescribed period and the Court of Appeals dismissed his petition in view of his pending appeal in the Comelec citing Supreme Court

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Circular 29-91 which prohibits the filing of multiple petitions involving the same issues. Reyes then brought the present action. Reyes contends that both the trial court and the Comelec’s First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by Comia despite the fact that the case was filed more than ten days after Reyes’ proclamation, and the second, i.e., the Comelec’s First Division, by dismissing Reyes’ appeal from the decision of the trial court for late payment of the appeal fee. The Supreme Court dismissed the petition. Reyes failed to first file a motion for reconsideration before the Comelec en banc before filing his petition for certiorari before the Supreme Court contrary to Article IX, A, Section 7 of the Constitution. It likewise held that the Comelec’s First Division properly dismissed Reyes’ appeal from the decision of the trial court for his failure to pay the appeal fee within the time for perfecting an appeal. The Solicitor General, in behalf of the Comelec, raises a fundamental question. He contends that the filing of the present petition, without Reyes first filing a motion for reconsideration before the Comelec en banc, violates Article IX, Section 7 of the Constitution because under this provision only decisions of the Comelec en banc may be brought to Supreme Court on certiorari. HELD: This is correct. It is now settled that in providing that the decisions, orders and rulings of Comelec “may be brought to the Supreme Court on certiorari,” the Constitution in its Article IX(A), Section 7 means the special civil action of certiorari under Rule 65, Section 1. (Galido vs. Comelec, 193 SCRA 78 [1991]; Rivera vs. Comelec, 199 SCRA 178 [1991]) Since a basic condition for bringing such action is that Reyes first file a motion for reconsideration (Regalado, Remedial Law, pp. 459-460 [1988]), it follows that Reyes’ failure to file a motion for reconsideration of the decision of the First Division of the Comelec is fatal to his present action. Reyes argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This is not correct. The questions raised by Reyes involve the interpretation of constitutional and statutory provisions in the light of the facts of this case. The questions tendered are, therefore, not pure questions of law. Moreover, that a motion for reconsideration before the Comelec En Banc is required for the filing of a petition for certiorari is clear from the provisions of Article IX(C), Sections 2 and 3, of the Constitution. Conformably to these provisions of the Constitution, all election cases, including pre-proclamation controversies, must be decided by the Comelec in Division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the Comelec En Banc. It is, therefore, the decision, order or ruling of the Comelec En Banc that “may be brought to the Supreme Court on certiorari,” in accordance with Article IX(A), Section 7.

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Reyes also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election protest of Comia was filed more than ten days after his (Reyes) proclamation. Reyes, however, is estopped to raise this question now. He did not only appeal from the decision of the trial court to the Comelec raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of action, he should not be allowed to file the present petition just because he lost in those cases. NOTE: 1.

2.

3.

4.

5.

6.

With the enactment of Republic Act No. 7902, which expanded the jurisdiction of the Court of Appeals, the Supreme Court issued Circular No. 1-95 dated May 16, 1995 providing that appeals from all quasi-judicial bodies to the Court of Appeals shall be by a verified Petition For Review, regardless of the questions to be raised, and under the requirements and conditions of Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. (Fabian vs. Desierto, G.R. No. 129742, September 18, 1998, 98 SCAD 414) This also includes appeals from the Ombudsman in administrative disciplinary cases. (Fabian vs. Desierto, 98 SCAD 414; Vide Namuhe vs. Ombudsman, G.R. No. 124913, October 29, 1998, 100 SCAD 432) However, if the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondent’s jurisdiction, Rule 43 is not applicable. The appropriate remedy is Rule 65 on certiorari. (Fortich vs. Corona, G.R. No. 131457, April 24, 1998, 94 SCAD 72) Judgments and fiscal orders issued under The Labor Code of the Philippines may only be brought to the Court of Appeals under Rule 65. (St. Martins Funeral Homes, vs. NLRC, G.R. No. 130866, September 16, 1998, 98 SCAD 435) Note that an appeal under Rule 43 may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (Section 3, Rule 43) Note that the Civil Service Commission which is a constitutional body is now mentioned in Rule 43, Section 1. The other constitutional commissions (Comelec and Commission on Audit) are not included or mentioned in Rule 43.

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7.

R.A. 7902 and Administrative Order No. 1-95 make decisions of the Civil Service Commission appealable to the Court of Appeals, but the reason why it was singled out and why the Comelec and the COA are not included, is not explained. Q – At a glance, state briefly the salaries and the term of office of the commissioners, and the prohibitions to them? A – SALARIES, TERM OF OFFICE, PROHIBITIONS AT A GLANCE SALARY

TERM OF OFFICE

PROHIBITIONS

Annual salary of the Chairman – P204, 000.00 (Section 17, Article XVIII) Annual salary of the members – P180,00.00 (Section 17, Article XVIII) The said salaries may not be decreased during their continuance in office. REASON: So they will be relieved from whatever pressures the members of Congress may exert on them.

All the members of the said Constitutional Commissions are appointed by the President with the consent of the Commissions of Appointments for a term of seven (7) years without re-appointment. (Section 1[2], Article IX[B]) However, they will not vacate their offices at the same time because of the constitutional provisions staggering their terms. How is this done? Of the commissioners first appointed, the Chairman shall have a term of seven (7) years, another of five (5) years, and the third of three (3) years. (Section 1[2], Article IX[B])

During his tenure, a member of said commissions (a) shall not hold any other office or employment; (b) shall not engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office; (c) he shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, any or its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations or their subsidiaries. (Section 2, Article IX[A])

Q – What is the mechanics of staggering the terms?

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A – Every two (2) years, the term of one Commissioner expires leaving behind two experienced Commissioners. If a vacancy occurs, the commissioner so appointed to fill up the vacancy shall serve only for the unexpired term of the predecessor. Q – If there is a vacancy in a particular commission, can the President of the Philippines fill up a vacancy by designating one of the commissioners a temporary chairman? A – No, as decided in Brillantes vs. Yorac. BRILLANTES VS. YORAC 192 SCRA 3580 FACTS: Commissioner Haydee Yorac, then an associate commissioner of the Commission on Elections, was designated by President Corazon C. Aquino as Acting Chairperson of the Commission because the regular chairman was appointed to another position in the government. The petitioner challenged the designation invoking the prohibition that “no member may be appointed or designated in a temporary capacity.” ISSUE: Is the said designation valid? HELD: The Chairman and the Commissioners of the Commission on Elections must be extended permanent appointments by the President but such appointments shall have the consent of the Commission on Appointments. The President has no power to designate a temporary Chairman. This prerogative may be exercised by the members of the Commission on Elections for they may, by a majority vote, designate one of them as temporary chairman pending the appointment of a permanent chairman by the President. Q – Suppose an unexpected vacancy will happen in the COMELEC on March 30, 2010, because A, one of the commissioners died, and B, another commissioner, meet an accident in Zamboanga City and according to his doctors, he will be required to take a rest for several months. Because the election is about to be held on May 10, 2010, the President appoints M as ad-interim commissioner to succeed A, and she designated N, an associate justice in the Court of Appeals as acting commissioner during the temporary disability of B. Are the said appointments valid? A – Since the election is scheduled to be held on May 10, 2010, and the ad-interim appointment of M is actually a permanent appointment, the President, within two months immediately before the said presidential elections and up to the end of his term, cannot do so, the same being in

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the nature of a permanent appointment. The designation of Justice N is not valid by express provision of Section 1(2), Article IX-C of the 1987 Constitution. Q – Within what period must a case or matter be decided by each Commission? A – Section 7, Article IX(A) answers this question, thus: “Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.” CONCERNING PROMULGATION OF RULES Q – Can the said commissions promulgate its own rules? A – Yes, by express provision of Section 6 which provides as follows: “Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights.” Q – Does the Supreme Court have the power to disapprove the internal rules of the commission? A – No. Reason: Because the said commissions are independent bodies. Q – Is this rule absolute? A – They can be subject of judicial review if the said rules diminish, increase or modify substantive rights. A. THE CIVIL SERVICE COMMISSION Section 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of

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seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of their predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Q – What is the objective of a civil service system? A – The objective of a civil service system is to encourage, promote and strengthen professionalism and efficiency in public service; to give opportunities to qualified and competent men and women who have passed corresponding civil service examinations; to give preference to civil service eligibles over those who are not and who are mere political proteges; and in the process, to serve the people with a high level of competence, dedication and patriotism. Q – At a glance, state the composition, qualifications of the commissioners of the Civil Service Commission and their term of office. A – Composition and qualifications at a glance. COMPOSITION

The Civil Service shall be administered by the Civil Service Commission composed of a Chairman and two (2) Commissioners. They are appointed by the President with the consent of the Commission on Appointments.

QUALIFICATIONS

1. 2. 3. 4.

Natural-born citizens of the Philippines Thirty-five (35) years of age at the time of their appointment With proven capacity for public administration Must not have been candidates for any elective position in the elections immediately preceding their appointment.

Q – Is the mechanics of staggering the terms, as mentioned earlier, the same as the staggering of the terms in the Civil Service Commission? A – Yes. Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including governmentowned or controlled corporations with original characters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

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(3) No officer or employee in the civil service shall be removed or suspended except for cause provided by law. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (5) The right to self-organization shall not be denied to government employees. (6) Temporary employees of the Government shall be given such protection as may be provided by law. COVERAGE OF THE SYSTEM (SECTION 2[1]) Q – What is the coverage of the civil service system? A – The Civil Service embraces the following: a. All branches, subdivisions, instrumentalities and agencies of the government; b. All government-owned or controlled corporations with original charters, which refer to corporations which have been created by special law, or granted legislative charters, and not through the general corporation law (National Service Corporation vs. NLRC, 186 SCRA 122). The phrase “government-owned or controlled corporations” means that if a corporation ceases to be owned or controlled by the government, it ceases to be within the coverage of the civil service system. All offices and employees of the government and its agencies as well as the officers and employees of government-owned or controlled corporations are within the coverage of the civil service system. The GSIS (Government Service Insurance System) and SSS (Social Security System) are corporations with original charters and, therefore, covered by the civil service. Manila Hotel and Philippine Airlines, although subsidiaries of the said corporations, are not covered by the Civil Service. Other subsidiaries of government-owned or controlled corporations, if organized under the general corporation law, are not covered by the Civil Service. The Philippine Fisheries Development Authority is a governmentowned or controlled corporation created by PD No. 977. (Philippine Fisheries Development Authority vs. NLRC, et al., G.R. No. 94825, September 4, 1992) Q – What is the test to determine whether a government-owned or controlled corporation is subject to the Civil Service Law? A – The test is under what law was it created. If a corporation is created under the corporation law, it is not subject to the Civil Service. If it is created by special charter, it is subject to the Civil Service.

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MERIT AND FITNESS (SECTION 2[2]) Q – How shall appointment in the civil service be made? A – Appointment in the civil service shall be made according to merit and fitness. This shall be determined by competitive examination. Q – Who are exempted from the requirement of competitive examinations? A – The following are exempted from competitive examinations: 1. Policy-determining position – A position held by one whose duty is to formulate policies and guidelines of the government. 2. Primarily confidential position – A position held by one in whom personal trust and confidence is reposed by the appointing power. 3. Highly Technical Position – A position held by one possessing superior technical training. EMPLOYEES SHALL NOT BE REMOVED OR SUSPENDED EXCEPT FOR CAUSE AS PROVIDED BY LAW (SECTION 2[3]) Q – Can a person without civil service eligibility be appointed? A – Yes, if there is no civil service eligible and it becomes necessary in the public interest to fill a vacancy. This appointment, however, is subject to the following conditions: 1. The temporary appointment shall not exceed twelve (12) months. 2. The appointee may be replaced sooner if a qualified civil service eligible becomes available. (1987 Administrative Code) 3. The said temporary appointment may be withdrawn or discontinued, with or without cause, by the appointing power. (Ibid.) Q – Can an officer or employee of the civil service be removed or suspended? A – Section 2(3), Article IX of the 1987 Constitution provides that “No officer or employee of the civil service shall be removed or suspended except for cause provided by law.” (Underlining Supplied) Q – What is the assurance that security of tenure is protected? A – In addition to Section 2(3), the Administrative Code of 1987 lays down the following rules: 1. The grounds for the discipline of civil servants are enumerated in Section 46, Book V(A). 2. The procedure of investigation is likewise provided in Section 46. 3. During the pendency of his administrative investigation the employee charged shall be subject to preventive suspension. 4. The preventive suspension shall, however, be lifted after ninety

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days if he is not a presidential appointee unless the delay in the investigation is imputable to him. (Section 47, Book V[A]) EXAMPLE: DOMINGO VS. DEVELOPMENT BANK OF THE PHILIPPINES G.R. NO. 93355, APRIL 7, 1992, EN BANC, REGALADO, J. FACTS: Domingo was employed by Development Bank of the Philippines as Senior Training and Career Development Officer on permanent status from February, 1979 to December, 1986. On December 3, 1986, Executive Order No. 81 (The Revised Charter of DBP) was passed authorizing the reorganization of DBP. Pursuant thereto, DBP issued Board Resolution No. 304-87 allowing the issuance of temporary appointments to all DBP personnel in order to fully implement the reorganization. The resolution authorized the issuance of temporary appointment to all DBP personnel to allow maximum flexibility in the implementation of the reorganization. Such temporary appointments issued had a maximum period of twelve (12) months during which period the performance of the incumbents were assessed based on the results of their evaluation. DBP undertook the evaluation and comparative assessment of all its personnel under the CSC approved New Performance Appraisal System, a peer and control rating process which served as an assessment tool of DBP’s screening process. A temporary appointment was issued to Domingo on January 2, 1987, for a period of one (1) year. This was renewed for another period up to November 30, 1988. In a memorandum issued by the Final Review Committee on November 23, 1988, Domingo got a performance rating of “below average.” For this reason, his appointment was “made to lapse.” Subsequently, Domingo filed with the Civil Service Commission a verified complaint against DBP. His complaint is for illegal dismissal. On November 27, 1989, the CSC issued a resolution directing the re-appointment of Domingo as Senior Training and Career Development Officer or any such equivalent rank under the DBP’s staffing pattern. On motion for reconsideration by the DBP, the Civil Service Commission set aside its previous decision and affirmed Domingo’s separation. Domingo’s separation from the service was the lapse of his temporary appointment. The non-extension or non-issuance of permanent appointments were based on his unsatisfactory rating and performance after he was re-evaluated and comparatively reassessed by the Final Review Committee of the Bank. ISSUES: a. b.

Whether Domingo’s tenure of office was violated; Whether he was not afforded a day in court and denied procedural due

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c. d.

e.

process in the unilateral evaluation by his peers of his efficiency ratings for the years 1987 and 1988; Whether average and below efficiency ratings are grounds for termination of service; Whether Section 5 of the Rules Implementing Republic Act No. 6656 is repugnant to the constitutional mandate that no officer or employee of the civil service shall be removed or suspended except for cause provided by law; and Whether Section 6, Article XVIII, Transitory Provisions of the new Constitution was also violated.

HELD: The Supreme Court affirmed the Civil Service Commission’s resolution, no grave abuse of discretion having been committed by the latter. Reorganization is a recognized valid ground for separation of civil service employees, subject only to the condition that it be done in good faith. No less than the Constitution itself in Section 16 of the Transitory Provisions, together with Sections 33 and 34 of Executive Order No. 81 and Section 9 of Republic Act No. 6656, support this conclusion with the declaration that all those not so appointed in the implementation of said reorganization shall be deemed separated from the service with the concomitant recognition of their entitlement to appropriate separation benefits or retirement plans of the reorganized government agency. Domingo failed to invoke the presence of any of the circumstances enumerated under Section 2 of Republic Act No. 6656 which would show or tend to show the existence of bad faith in the implementation of the reorganization. The reorganization having been conducted in the accordance with the mandate of Dario v. Mison, et al., 176 SCRA 84 (1989), it can safely be concluded that indeed the reorganization was attended by good faith. The dismissal of Domingo is a removal for cause which, therefore, does not violate his security of tenure. The State puts a premium on an individual’s efficiency, merit and fitness before one is accepted to the career service. A civil service employee’s efficiency rating, therefore, is a decisive factor for his continued service with the Government. The inescapable conclusion is that a “below average” efficiency rating is sufficient justification for the termination of a government employee. This is the reason why, painful as it may be, such an employee’s separation must be affirmed if public good is to be subserved. The reappointment of such officials and employees who have fallen short of the performance necessary in order to maintain at all times efficiency and effectiveness in the office cannot be sanctioned. (Underlining Supplied)

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Domingo had the opportunity to present his side or contest the results of the evaluation proceedings. The fact that he made no appeal to the Final Review Committee was duly considered by the Civil Service Commission, noting that Domingo did not file or submit his opposition to the motion for reconsideration. He cannot, by his own inaction, legally claim that he was denied process of law. Considering his years of service, despite the unfortunate result of the reorganization, he should be allowed separation and other retirement benefits accruing to him by reason of his termination, as provided for in Section 16, Article XVIII of the 1987 Constitution, as well as in Section 9 of Republic Act No. 6656 and Section 34 of Executive Order No. 81. ELECTIONEERING OR PARTISAN POLITICAL CAMPAIGN (SECTION 2[4]) Q – Can an officer or employee in the Civil Service engage directly or indirectly in any electioneering or partisan political campaign? A – As a rule, an officer or employee in the Civil Service shall not engage directly or indirectly in any electioneering or partisan political activity. (Section 2[4], Article IX) However, the said prohibition does not prevent any officer or employee from expressing his views on current political problems, or from mentioning his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports. (Section 29, Republic Act No. 2260; Section 45, Presidential Decree No. 807) It does not also prohibit a person from voting or from joining civic organizations that are non-partisan in character. (Section 14, Rule XVIII, Civil Service Rules) Q – What is a partisan political activity? A – It means active support for or affiliation with the cause of a political party or candidate. This would include, among others, being a candidate for any political convention, being an officer or member of any political committee, party or organization, delivering speeches, canvassing or soliciting votes or political support or contributions for any political party or candidate or, in general, becoming actively identified with the success or failure of any candidate or candidates for election to public office. (Section 14, Rule XVIII, Civil Service Rules) Q – Who are exempted from the prohibition against partisan political activity? A – Members of the Cabinet are exempted from the prohibition against political activity for the reason that they were appointed by the President

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precisely to support him and his administration in all undertakings where they could contribute their skill, experience and political influence. Are members of the armed forces subject to the said prohibition? Members of the armed forces are subject to this prohibition for the reason that their involvement poses a threat to the peace and stability in any place or community where they are stationed. Experience shows that their mere presence in a place of partisan political activity already creates a threatening atmosphere, which is not conducive to a peaceful and orderly partisan political exercise. Is an officer or employee who is next in rank automatically qualified to be promoted to a position next higher in rank than his existing position? No, because the power to appoint is a matter of discretion. (Santiago, Jr. vs. Civil Service Commission, G.R. No. 81467, October 27, 1989)

RIGHT TO SELF-ORGANIZATION (SECTION 2[5]) Q – Are government employees entitled to the right to self-organization? A – Yes, by express constitutional commission (Section 2[5], Article IX). It provides as follows: “Section 2. [5] The right to self-organization shall not be denied to government employees.” Q – Does the right to self-organization include the right to strike? A – No. Hence, public school teachers (Manila Public School Teachers Association vs. Secretary of Education, G.R. No. 95445, August 6, 1991), and the employees of the SSS (SSS vs. Court of Appeals, G.R. No. 85279, July 28, 1989) do not have a constitutional right to strike. TEMPORARY APPOINTMENT (SECTION 2[6]) Q – Is the guarantee of security of tenure applicable to a temporary appointee? A – No. Because a temporary appointee may be removed at anytime even without cause. Q – In response to the request of the President, Tomas Achacoso, then the administrator of Philippine Overseas and Employment Administration, tendered his courtesy resignation. The said resignation was accepted and he was subsequently replaced by another appointee. Tomas Achacoso invoked his security of tenure and refused to vacate his office on the ground that his position is one in the Career Executive Service. Can he invoke security of tenure? A – No. Although it is true that his position is one in the Career Executive Service, he has yet to take the Career Service Examination which he failed to do. His appointment in the career service does not automatically

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confer security of tenure to him. He is considered a temporary or acting appointee and he can be separated when his term expired. Expiration of the term is not covered by the guarantee of security of tenure. (Achacoso vs. Macaraig, G.R. No. 93023, March 13, 1991) Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. Q – Section 3 specifically provides that the Civil Service Commission is the central personnel agency of the government. As such, what are its functions? A – The following are the functions of the Civil Service Commission. 1. To promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service; 2. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks; 3. To institutionalize a management climate conducive to public accountability; and 4. It shall submit to the President and the Congress an annual report on its personnel program. Q – What is the advantage of an efficient career service system? A – An efficient career service system rewards competence and merit. When employees are promoted because of their own merits, efficiency and competence and not because of political patronage, they have strong morale and confidence in the discharge of their duties. They have a feeling of security and they are inspired to work harder because they are confident that for as long as they do their work honorably and efficiently, they cannot be removed from their positions at the whim and caprice of their superiors. Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this constitution. Self-explanatory. Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters,

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taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. Section 6. No candidate who has lost in any election, shall within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of its subsidiaries. Q – Section 6, Article IX, prohibits the appointment of a defeated candidate in any election within one year after the election. What is the rationale behind the prohibition and why can they be appointed after the one (1)-year period? A – The reason adduced for the prohibition is allegedly because the defeated candidate has just been rejected by the electorate and it is as if the appointment contravenes the voice and the will of the electorate. In a sense, this may hold true especially in cases where the results of the election are true and legitimate. If not, the prohibition is seemingly unfair especially if the defeated candidate is highly qualified and with proven integrity. After the one-year period, the defeated candidate can already be appointed to any office in the government or any government-owned or controlled corporations, or in any of their subsidiaries, and the reason for this is because his defeat in an election does not necessarily mean that he is unfit for public office. It seems that the one (1)-year prohibition is merely a rest period during which the emotions during the election will subside; that during the said period, the people will again be busy and occupied by their respective undertakings, business and personal life; and most likely, the appointment after the one (1)-year period will even go unnoticed. The author believes that the prohibition does not have any substantial advantage. In the ultimate analysis, what is important and beneficial to the country is the competence and integrity of the appointee, and for as long as the appointing power has trust and confidence in said competence and integrity, it should not really matter when the appointment takes place. Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. Q – Who are the officials not eligible for appointment or designation in any capacity to any public office or position during their tenure?

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A – Section 7, Article IX, mentions two officials, thus: Section 7, first paragraph, prohibits elective officials from accepting any other appointment or designation in any capacity to any public office or position during their tenure. Section 7, second paragraph, prohibits appointive officials to hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. Q – Can an elective official be appointed to any other public office? A – Yes, but if he/she decides to accept the said appointment, he/she should resign from his elective position. In fact, several senators of the Republic of the Philippines have been appointed as cabinet officials (i.e., Sen. Raul Manglapus, Sen. Orlando Mercado, and Sen. Gloria Macapagal-Arroyo who was appointed as Secretary of the Department of Social Welfare and Development). Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. Q – Simplify Section 8, Article IX, relative to the prohibition to receive additional, double or indirect compensation. A – GENERAL RULE: An elective or appointive public officer and employee shall not receive additional, double, or indirect compensation. (First Sentence, Section 8) EXCEPTION: Except when said elective or appointive public official and employee is “specifically authorized by law” to receive said additional, double, or indirect compensation. PROVISO: Provided that for every instance of additional or double compensation, Section 8 requires the consent of Congress. Q – What is the rationale behind this prohibition? A – This is in accordance with the principle that “a public office is a public trust.” They have accepted a position in government to render public service and not only for themselves. Q – Can an elective or appointive public officer or employee hold another position concurrently with his principal position? A – The said two positions may be held at the same time as long as they are not incompatible with each other. However, the incumbent cannot collect

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additional salaries for services rendered “unless specifically authorized by law.” Can an elective or appointive public officer or employee receive pensions or gratuities in addition to his compensation? Section 8, last paragraph, specifically provides that “pensions or gratuities shall not be considered as additional, double, or indirect compensation.” This means, therefore, that an elective or appointive public officer or employee can receive pensions or gratuities other than his compensation. What is additional or double compensation? There is additional compensation when for one and the same office for which a compensation has been fixed there is added to such fixed compensation an extra reward such as a bonus. This is not allowed if there is no law specifically authorizing such an extra reward. B. COMMISSION ON ELECTIONS (COMELEC)

Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Q – What is the composition and qualifications of the chairman and the six (6) commissioners? A – Composition and qualifications at a glance. COMPOSITION The Commission on Elections is composed of a Chairman and six (6) Commissioners.

QUALIFICATIONS

1.

Natural-born citizen of the Philippines.

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They are appointed by the President with the consent of the Commission on Appointments

2.

3. 4.

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At least thirty-five (35) years of age at the time of their appointment. Holders of a college degree Must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years.

Q – What is the reason for the said proviso? A – The proviso that a “majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years” is indeed a necessity. Experience shows that the cases sought to be resolved by the Commission on Elections are growing in number and they involved complicated legal issues which should better be resolved by Commissioners who have the experience, training and skill of a law practitioner. In fact, there are many cases that remain pending in the Commission on Elections for sometime and resolved only long after the cases have been filed. This is so disappointing and painful to the losers but advantageous, of course, to those who were able to unjustifiably stay in power. In effect, it defeats the will of the people. More than this, the good ones, especially the bright and the honest and the truly deserving but who are not as rich and influential as their adversaries, are necessarily deprived of a chance to be of service to their communities. To a large extent, this is the root cause of evil and corruption in our government. The wicked and the corrupt are those who rob by the millions or billions of pesos and the fruits of their corruption are used to perpetuate themselves and their relatives in power. The more capable and deserving ones who do not have the resources are easily thrown out before, during and after the elections. Sometimes, they are even the ones who are sued and made to suffer for unfounded accusations. They can be acquitted but their lives and the lives of their families have already been made miserable. Q – What is practice of law?

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A – In Cayetano vs. Monsod (G.R. No. 100113, September 31, 1991), the Supreme Court held that engaging in law practice is not only confined to courtroom practice. It includes any activity which requires application of law or knowledge of the law, whether said activity takes place in or outside of the courtrooms. Hence, ten (10) years of work experience as lawyer-manager, lawyer-negotiator of contracts, lawyer-economist or lawyer entrepreneur is considered as within the meaning of the phrase “practice of law.” Q – Can the Chairman and Members of the Commission on Elections be appointed or designated on a temporary or acting capacity? A – The Chairman and Members of the Commission of Elections must be appointed or designated on a permanent capacity (Last sentence, C. Section 1[2], Article IX). On account of this provision, the President must extend permanent appointments to the Chairman and the members of the Commission, subject only to the confirmation of the Commission on Appointments. Q – Can the President appoint or designate a temporary chairman of the Comelec? A – The President has no power to appoint a temporary Chairman. This prerogative belongs to the members of the Commission themselves. They may, by a majority vote, designate one among themselves as temporary chairman pending the appointment of a permanent chairman by the President. (Brilliantes vs. Yorac, 192 SCRA 358) Q – What is the term of office of the commissioners? A – They are appointed for a term of seven (7) years without re-appointment. Of the Commissioners first appointed, three members shall hold office for seven (7) years, two members for five (5) years, and the last members for three (3) years. Q – What is the mechanics of staggering the terms? A – Every two (2) years, the term of one Commissioner expires, leaving behind two experienced Commissioners. If a vacancy occurs, the Commissioner so appointed to fill up the vacancy shall serve only for the unexpired term of the predecessor. Q – What is the reason for the said rule? A – The said rule prevents the incumbent President from having an opportunity to appoint all or majority of the Commissioners during his term. Section 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

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(2)

(3)

(4)

(5)

(6)

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Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on Election contests involving elective municipal and baranggay offices shall be final, executory, and not appealable. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action,

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for violation or disregard of, or disobedience to its directive, order, or decision. Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

SECTION 2[1-4]) Q – What is the nature of the powers of the Commission on Elections? A – Being an administrative agency, the powers of the Commission are supposed to be confined only to executive, quasi-judicial and quasilegislative powers. In actual practice, however, the Commission is the sole judge of all contests relating to the election, returns and qualifications of all regional, provincial and city officials which, in effect, is part of judicial power or function. The difference lies in the fact that while the Commission is performing such power or function, it cannot claim to exercise so called inherent powers of regular courts. It has been held, therefore, that it can only issue writs of certiorari, prohibition and mandamus granted by B.P. Blg. 697, Section 50, but these can only be exercised in connection with its appellate jurisdiction under Article IX(C), Section 2, (2). The Commission on Elections may also cite or declare one in contempt but this power may be exercised only in the furtherance of its quasi-judicial and judicial functions (Masangkay vs. Comelec, 6 SCRA 27 [1962]), and not in connection with its purely executive or ministeral functions. Q – What are the powers of the Commission on Elections? A – Executive Power: It shall enforce and administer all laws relative to the conduct of an election, plebiscite, initiative, referendum, and recall. Legislative Power: It shall issue rules and regulations to implement the election laws. It has the power to exercise such legislative functions as may be expressly delegated to it by Congress. (Ututalam vs. Commission on Elections, 15 SCRA 465, 469 [1965]) Judicial Power: It has the power to resolve all cases or controversies that may arise in the enforcement of election laws. It is the sole judge of all pre-proclamation disputes and all contests relating to the election, returns and qualifications of all regional, provincial and city officials. Its decisions, final orders, or rulings on election contests involving elective municipal and barangay offices shall be final, executory and not appealable. (Section 2[2], Article IX[C]).

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Q – What specifically are the executive powers of the Comelec (specifically with respect to its power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall)? A – The Commission has the following powers: 1. To require compliance with the rules for the filing of certificates of candidacy. 2. To take preventive measures to avoid fraud and other election offenses. 3. To supervise registration of voters. 4. To supervise holding of polls. 5. To see to it that votes are canvassed properly. 6. To proclaim the winners. Ancillary to and in support of the said powers, the Commission can do the following: 1. To annul illegal registry of voters. (Feliciano vs. Lugay, 93 Phil. 744 [1953]) 2. To proclaim winning candidates. (Salcedo vs. Commission on Elections, 108 Phil. 164 [1960]) 3. To annul canvass. (Albano vs. Arranz, 114 Phil. 318 [1962]) 4. To suspend canvass. (Ibid.) 5. To relieve election inspectors and canvassers. (Aquino vs. Commission on Elections, 22 SCRA 388 [1968]) 6. To supervise and control election inspectors and canvassers. (Aratue vs. Commission on Elections, 88 SCRA 251) 7. To register political parties, or to decide whether a party is a political party. (Santos vs. Commission on Elections, 103 SCRA 628) 8. To supervise and regulate use of franchise. (Sanidad vs. Commission on Elections, 181 SCRA 529) Q – What specifically is the legislative power of the Comelec? A – The Commission has the following powers: 1. The Commission can issue rules and regulations to implement election laws. 2. To exercise other legislative functions as may be delegated to it by Congress. Examples: 1.

Rules to supervise or regulate the use of media and advertisement.

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2.

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Q –

A –

Q –

A – Q –

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Rules to implement prohibition against expenditures, or those in excess of the limits authorized by law. 3. To issue any and all other rules to insure free, honest and orderly elections. What specifically is the judicial power of the Comelec? It has the power to resolve all cases or controversies arising from the enforcement of election laws. To be the sole judge of all contests relative to the election, returns and qualifications of local officials. Does the power to enforce and administer election laws and to insure free, orderly and honest elections include the power to annul an election which may not have been free, orderly and honest? The power to decide election contests necessarily includes the power to determine the validity or nullity of the votes questioned by either of the contestants (Nacionalista Party vs. Commission on Elections, 85 Phil. 149). Further, in connection with the power to determine the validity or nullity of the questioned votes, the Supreme Court upheld the authority of the Commission on Elections to exclude election returns on the ground of statistical improbability (Lagumbay vs. Commission on Elections, 16 SCRA 175 [1966]). Election returns which were the products of coercion were also excluded and the power of the Commission on Elections to exclude the same was also upheld (Antonio, Jr. vs. Commission on Elections, 32 SCRA 319 [1970]). Likewise, the Commission on Elections has also the power to obtain the testimony of handwriting experts to be able to determine if the election returns are falsified or not. (Usman vs. Commission on Elections, 42 SCRA 667 [1971]) May the Comelec En Banc directly assume jurisdiction over a petition to correct manifest errors in the tabulation or tallying of results by the Board of Canvassers? Yes. (Torres vs. Comelec, 270 SCRA 583) Is this not a violation of the settled rule that election cases, including pre-proclamation contests, must first be heard and decided by the Comelec in division? Pre-proclamation controversies involving correction of manifest errors in the tabulation or tallying of results may be filed directly with the Comelec (Section 5, Rule 27 of the 1993 Rules of the Comelec). Besides, the Statement of Votes is just a tabulation per precinct of the votes obtained by the candidates, as reflected in the election returns. What is involved is simple arithmetic. In making the correction in the computation, the Board of Canvassers acts in an administrative capacity under the control and supervision of the Comelec. Pursuant to its constitutional function to

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decide questions affecting elections, the Comelec en banc has authority to resolve any question pertaining to proceedings of the Board of Canvassers. Is it the Comelec or the court which has the power to declare failure of election? In Antonio Jr. vs. Comelec (32 SCRA 319 [1970]), the Supreme Court ruled that the power to declare a failure of election involved the power to decide election contests which belonged not to the Commission on Elections but to the courts and the proper Electoral Tribunals. This was also the same ruling in Abes vs. Comelec. (21 SCRA 1252 [1967]) The Supreme Court, however, upheld the power of the Commission on Elections to annul an entire municipal election on the ground of postelection terrorism, not on the basis of its expanded jurisdiction over election contests. This ruling in Biliwang vs. Comelec (114 SCRA 454 [1982]) which modified the ruling in Antonio vs. Comelec (32 SCRA 454 [1982]), is anchored on the broader power of the Commission on Elections to protect the integrity of the election so that the will of the electorate is not defeated. When can failure of the elections be declared? Failure of elections may be declared: (a) When the election in any polling place had been suspended before the hour fixed by law for the closing of the voting due to force majeure, violence, terrorism, fraud and other analogous cases; (b) When the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; (c) After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof of such election results in a failure to elect due to force majeure, violence, terrorism, fraud or other analogous causes. (Borja vs. Comelec, et al., G.R. No. 120140, August 21, 1996; reiterated in Joseph Peter Sison vs. Comelec, G.R. No. 134096, March 3, 1999) What is the requirement before the Comelec can conduct a hearing on a verified petition to declare a failure of election? 1. There must be a verified petition to declare a failure of election; 2. The said petition must show on its face two conditions: (a) That no voting has taken place in the precinct on the date fixed by law, or, even if there was voting, the election nevertheless results in a failure to elect;

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(b)

The votes not cast would affect the results of the election. (Mitmug vs. Comelec, 230 SCRA 54) Q – Does the Comelec have the authority to call a special election? A – The authority to call a special election was upheld in Sanchez vs. Commission on Elections (32 SCRA 319 [1970]) on the ground that failure of election justifies the calling of a special election in order to make the Comelec truly effective in the discharge of its functions. Just like the Biliwang case, the justification in Sanchez is anchored again on the broader power to insure free, orderly and honest elections so that the will of the electorate is not defeated. Q – What is the jurisdiction of the Comelec before and after the proclamation? A – JURISDICTION OF COMELEC BEFORE PROCLAMATION (A PRE-PROCLAMATION CONTROVERSY)

The jurisdiction of the Comelec over a pre-proclamation controversy is administrative or quasi-judicial. Hence, it is governed by the requirements of administrative due process.

JURISDICTION OF COMELEC AFTER PROCLAMATION (CONTEST)

The jurisdiction of the Comelec is judicial. Hence, it is governed by the requirements of judicial due process.

Q – Is there a pre-proclamation controversy in national offices? A – None (Section 15, Republic Act No. 7166), except on questions involving the composition and proceedings of the Board of Canvassers. Q – Can the Comelec annul a proclamation or suspend the effects of a proclamation? A – It can only do so with notice and hearing, otherwise, such an action is a violation of the constitutional right to due process. (Bince vs. Comelec, 218 SCRA 782) RE POWER OF COMELEC “TO MAKE MINOR ADJUSTMENTS OF THE REAPPORTIONMENT” PROVIDED IN SECTION 2 OF THE ORDINANCE APPENDED TO THE 1987 CONSTITUTION Q – Under the said ordinance, can the Comelec transfer municipalities from one legislative district to another?

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A – The Comelec has no authority to re-apportion the congressional districts. This authority is within the power of Congress. (Montejo vs. Comelec, 242 SCRA 415) RE EXCLUSIVE ORIGINAL JURISDICTION OVER ALL CONTESTS INVOLVING ELECTIVE BARANGAY ELECTIVE OFFICIALS DECIDED BY THE MTC Q – Can a motion for reconsideration, instead of an appeal, be filed? A – No. Because it is a prohibited pleading, and it does not interrupt the running of the period for appeal. Q – Within what period should the appeal be filed? A – Appeal to the Comelec from the Regional Trial Court must be filed within five days from receipt of a copy of the decision. Q – What are the requirements for filing the said appeal? A – A Notice of Appeal should be filed accompanied by payment of the correct amount of appeal fee. Q – What is the effect if the said docket fee is not paid? A – The appeal is not perfected. Q – Can the Regional Trial Court order execution of judgment during pendency of the appeal to the Comelec? A – The Regional Trial Court may do so provided there are valid and urgent reasons for doing so. (Gutierrez vs. Comelec, 270 SCRA 413) Q – When should a motion for execution pending appeal be filed? A – It should be filed before the expiration of the period for appeal. (Relampagos vs. Cumba, 243 SCRA 690) Q – Is the provision of Republic Act No. 6679 granting appellate jurisdiction to the RTC over decisions of Municipal Courts and/ or Metropolitan Trial Courts in electoral cases involving elective barangay officials constitutional? A – No. (Calucag vs. Comelec, 274 SCRA 405) Q – Can the RTC review the decision of the Board of Election Supervisors in Sangguniang Kabataan (SK) elections? A – Yes. Reason: The SK Chairman is a member of the Sangguniang Barangay, and he is not an elective barangay official. (Mercado vs. Board of Election Supervisors, 243 SCRA 422) FAILURE OF ELECTION Q – Is the petition to declare a failure of election a pre-proclamation controversy or an election case?

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A – A petition to declare a failure of election is neither a pre-proclamation controversy as classified under Section 5(h), Rule 1 of the Revised Comelec Rules of Procedure, nor an election case. (Borja vs. Comelec, et al., G.R. No. 120140, August 21, 1996) Q – Is an authorized transfer of polling place a sufficient ground to declare failure of election? A – The mere fact that the transfer of polling place was not made in accordance with law does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, unless the number of uncast votes will affect the result of the election. (Balindong vs. Comelec, et al., G.R. No. 124041, August 9, 1996) RECALL ELECTION Q – What are the limitations on recall election of an elective local officials? A – Section 74 of the Local Government Code provides: “Section 74. Limitations on Recall – (a) any elective local official may be the subject of a recall election only once during his term of office for loss of confidence; (b) No recall shall take place within one (1) year from the date of the official’s assumption to office or one (1) year immediately preceding a regular local election.” Q – Does the Comelec have the power to determine whether a person can exercise the right to vote or not, or whether a person is precluded from exercising the right of suffrage? A – It is not within the power of the Commission on Elections to determine whether a person can exercise the right to vote, or whether a person is precluded from exercising the right of suffrage or not. This is a judicial question (Pungutan vs. Abubakar, 43 SCRA 112). Cases involving inclusion or exclusion of voters is within the jurisdiction of our courts. Q – Does the Comelec have the power to decide administrative cases before and after proclamation? A – The Comelec has the power to decide administrative cases up to and including the proclamation except those involving the right to vote. Before proclamation, any problem should be resolved by the Comelec in a pre-proclamation proceeding (Section 2[1] and [3], Article IX[C]). After proclamation, when the controversy should already be a contest, the electoral tribunals and the courts have jurisdiction. Q – Is the power to deputize law enforcement agencies solely vested in the Comelec? A – This power can be exercised only with the concurrence of the President because they are under the jurisdiction of the President as Commanderin-Chief.

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Q – Does the Comelec have the power to discipline the officers it has deputized? A – No, by express constitutional provision. It can only “recommend to the President the removal of any officer or employee it has deputized, or the imposition of any disciplinary action.” (Section 2[8]) Q – It is well established that the enforcement of the Omnibus Election Code and its provisions is within the exclusive jurisdiction of the Comelec, not of the regular courts. Why is it that the DILG has power of direct control and supervision over SK Elections? A – Because the election and contests involving election of SK officials do not fall within the jurisdiction of the Comelec. It is not contrary to the powers granted by the Constitution to the Comelec. (Alunan vs. Mirasol, G.R. Nos. 122250-12258, July 21, 1997) POWER TO REGISTER POLITICAL PARTIES, ETC. (SECTION 2[5]) Q – What is the importance of registering a political party? A – Like an artificial person which is considered born from the time its Articles of Incorporation is approved, a political party also acquires juridical personality from the time it is registered by the Commission on Elections. If it is not registered, it is merely a group of persons who opted to exercise their right of association without the benefits derived from the formal act of registration such as the right to participate under the party-list system. By being registered, a political party serves notice not only to the Commission on Elections but also to the people that it exists and that its members and officers adhere to the ideals and principles outlined in its By-Laws. Q – What are the grounds to refuse registration? A – The second sentence of Section 2(5) mentions four instances when the Commission on Elections can refuse registration and they are the following: 1. Religious denominations and sects shall not be registered; 2. Those which seek to achieve their goals through violence and unlawful means shall not be registered; 3. Those which refuse to uphold and adhere to the Constitution shall also be refused registration; and 4. Those which are supported by any foreign government. (Section 2[5], last sentence) Section 2(5), last paragraph, refers to a situation where one political party is already registered but it has accepted financial contributions from foreign governments. This is a ground for cancellation of registration.

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PROSECUTION OF CASES (SECTION 2[6]) Q – Besides the power to prosecute cases of violation of election laws, what are the other powers of the Comelec under Section 2[6]? A – 1. It can file, upon verified complaint, petitions in court for inclusion or exclusion of voters. 2. It can, on its own initiative, file petitions for inclusion or exclusion of voters. 3. It can investigate violation of election laws, including acts or omissions constituting election frauds, offenses, and malpractice. 4. It can prosecute cases of violation of election laws, including acts or omissions constituting election frauds, offenses and malpractice. Q – Can other government prosecutors investigate and prosecute violations of election laws? A – They can do so only when they have been deputized by the Comelec. Reason: This is an exclusive power of the Commission on Elections. MEASURES TO MINIMIZE ELECTION SPENDING (SECTION 2[7]) Q – What are the powers of the Comelec to recommend effective measures to the Congress? A – Section 2[7] merely states the power of the Comelec to recommend effective measures to the Congress in order: 1. To minimize election spending; and 2. To prevent and penalize all forms of election frauds, offenses, malpractices and nuisance candidates. POWER TO RECOMMEND REMOVAL OF ANY OFFICER OR EMPLOYEE IT HAS DEPUTIZED (SECTION 2[8]) Q – What is the power of the Commission on Elections under Section 2(8)? A – The power of the Commission on Elections under Section 2(8) is merely (1) to recommend to the President the removal of any officer or employee it has deputized; or (2) to recommend the imposition of any other disciplinary action for violation or disregard of, or disobedience to its directive, order or decision. REPORT OF COMELEC TO THE PRESIDENT AND CONGRESS (SECTION 2[9]) Self-explanatory. Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All

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such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Q – How shall election cases be held and decided by the Comelec? A – The Commission on Elections may sit en banc or in two (2) divisions. Each division is composed of three (3) Members. The decisions of a division may be subject of a motion for reconsideration to the Commission sitting en banc. Q – Are the decisions of the Comelec appealable, and if so, where should it be filed? A – It depends. With respect to decisions in election contests relating to the election, returns and qualifications of all regional, provincial and city officials, which are within its original jurisdiction, they may be appealed to the Supreme Court in a petition for certiorari under Rule 65. It is, therefore, based on the determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction. (Section 2[2], Article IX[C]) With respect to decisions in election contests involving municipal or barangay officials as originally decided by regional or municipal trial courts, which are within its appellate jurisdiction, the same shall be final, executory and not appealable. Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media and communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. Q – What is the objective of Section 4? A – The second sentence of Section 4 answers this question: “x x x to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.” Q – What can the Commission on Elections do to achieve said objective?

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A – The Commission may, during the election period, supervise or regulate (1) the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, (2) all grants, special privileges, or concessions granted by the government or any subdivision, agency, or instrumentality thereof or any government-owned or controlled corporation or its subsidiary. Q – Can newspapers, radio broadcasting or television station, or other mass media sell or give print space or air time for free so it can be used for a campaign or political purpose? A – For a clearer understanding of the issue and the cases involved, here is the brief background: (1) It was unlawful under Section 11(b) of Republic Act 6646. They can only be sold for free to the Commission under Sections 90 and 92 of Batas Pambansa Blg. 881. The validity of this law was challenged on the ground that it violates the freedom of expression. The Supreme Court upheld the law and sustained the supervisory and regulatory power of the Commission (National Press Club vs. Commission on Elections, 207 SCRA 1 [1992]). And yet, the Supreme Court ruled in Philippine Press Institute vs. Commission on Elections (G.R. No. 119654, May 22, 1995) that print media may not be compelled to allocate free space to the Commission, that being considered as deprivation of one’s property without just compensation. (2) In Emilio M.R. Osmeña and Pablo Garcia vs. Comelec, the petitioners filed a petition for prohibition and raised the issue that the ban on political advertising has not only failed to level the playing field but actually worked to the disadvantage of the poor candidates depriving them of a medium which they can afford to pay for while their most affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and hardbills. The following issues were raised: (1) Was there a suppression of political ads? (2) Is there a substantial or legitimate interest to justify exercise of the regulatory power of the Comelec? The Supreme Court ruled that: (1) There is no suppression of political ads but only a regulation of the time and manner of advertising; (2) There is a substantial or legitimate government interest justifying the exercise of the regulatory power of the Comelec; and (3) Comelec take-over of the advertising page of newspapers on the commercial time of radio and TV stations, and allocating those to the candidates, is valid.

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Article IX-C, Section 4 is not the only constitutional provision that mandates political equality. Article XIII, Section 1 requires Congress to give the “highest priority” to the enactment of measures designed to reduce political inequalities. Article II, Section 26 declares as a fundamental principle of our government “equal opportunities for public service.” (Emilio M.R. Osmeña and Pablo Garcia vs. COMELEC, G.R. No. 132231, 93 SCAD 233, March 31, 1998) Note: This practice no longer holds true. See next question.

Q – As of now, can the Comelec still procure space and time in the media and allocate the same, free of charge to the candidates? As of now, can the Comelec take over the advertising page of the newspapers or the commercial time of radio and TV stations and allocate these to the candidates? A – Before the elections on May 14, 2001, a law was passed allowing candidates to procure space and time in broadcast and print media. The old practice turned out to be an advantage to those who are already popular and had wide media exposure prior to their candidacy. In other words, the objective then to insure political equality turned out to defeat the very purpose for which the Electoral Reform Law of 1987 was passed and approved. Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. Q – Can the President on his own grant pardon, amnesty, parole or suspension of sentence? A – No. Without the favorable recommendation of the Comelec, the President cannot grant pardon, amnesty, parole or suspension of sentence in the following cases: 1. In violation of election laws; and 2. In violation of election rules and regulations. Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Q – Section 6, Article IX provides as follows: “Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.” Can there indeed be a free choice of the people out of which a free and open party system can evolve?

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A – There can only be freedom of choice if the people who make such choice are indeed free; if those who are allegedly chosen are free; if the true interest of the people are served and taken cared of by those who claim they are free; if the people are liberated from graft, corruption and greed of those in the ladders of government; if the votes are counted truly and freely; if the people are freed from hunger and want. Freedom as it is written may be so easy to read but it cannot feed a hungry stomach. Massive poverty and unemployment prevails all over the land. Ignorance and hunger, aggravated by famine, calamities, insurgency and crimes, have added misery and pain to the people who are expected to make a choice. The problem is they have no choice at all. Between the beautifully worded constitutional mandate and their survival, they will choose first to earn, no matter how modest, to buy just a kilo of rice if only to live for another day. Truly, they cannot have a free choice. And yet, despite the crisis upon crisis that they suffer from day to day, graft and corruption goes on unabated from the streets to the halls of power. There should be an end to this, otherwise, what we could attain is merely independence and freedom on paper but not economic independence which is actually the one that makes us free. Q – For the foregoing reasons, what could be the ideal solution? A – Let political parties be categorized on the basis of the three (3) or four (4) principal philosophies and principles that represent their true interest. Each party, after all, is ably represented by the brilliant and honest minds within the party. By then, we will know the people’s preference. It will be easier to identify themselves within an organized interest which they know so well, instead of identifying themselves with personalities they do not even know. There may not be overnight solutions but the problems affecting the people, particularly the poor and the less privileged, will be addressed promptly. Q – Is there a distinction between an accredited political party and a registered political party? A – All parties, organizations and coalitions are considered equal for purposes of electoral process. The concept of accreditation is not provided in the 1987 Constitution. Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Q – Is block-voting allowed? A – No, by express provision of Section 7 except if the votes cast are for those registered under the party list system. (Section 7, Article IX)

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Section 8. Political parties under the party-list system shall not be represented in the voter’s registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. Q – If political parties, or organizations, coalitions registered under the party-list system shall not be represented in the voters’ registration boards, boards of election inspectors, board of canvassers or other similar bodies, what shall they be entitled to protect themselves? A – They shall be entitled to appoint poll watchers in accordance with law. (Last sentence, Section 8, Article IX) Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety (90) days before the day of election and shall end thirty (30) days thereafter. Q – Distinguish election period from campaign period. A – ELECTION PERIOD It is the time needed to administer an election. It goes beyond the day of the voting by express constitutional provision, thus: “xxx the election period shall commence ninety (90) days before the day of election and shall end thirty (30) days thereafter. CAMPAIGN PERIOD It is the period when votes are solicited. The campaign periods are hereby fixed as follows: 1. For President, Vice President and Senators, ninety (90) days before the day of the election; 2. For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of election. However, in the preparation of the election calendar, the Commission may exclude the day before and the day of the election itself, Maundy Thursday, and Good Friday. Any election campaign or partisan political activity for or against any candidate outside of the campaign period herein provided is prohibited and shall be considered as an election offense punishable under Sections 263 and 264 of the Omnibus Election Code. Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

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Section 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiative, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission. Self-explanatory. C. COMMISSION ON AUDIT Section 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, certified public accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Q – What is the composition and qualifications of the Chairman and two Commissioners of the Commission on Audit? A – COMPOSITION QUALIFICATION The Commission on Audit is 1. Natural-born citizens of the composed of a Chairman and Philippines. two Commissioners. 2. Thirty-five (35) years of age at the time of their appointment. They are appointed by the 3. Certified Public Accountants President with the consent of the with not less than ten (10) Commission on Appointments. years of auditing experience or members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years.

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4. Must not have been candidates for any elective position in the elections immediately preceding their appointment. Q – What is their term of office? A – They are appointed for a term of seven (7) years without reappointment. Of the Commissioners first appointed, the Chairman shall hold office for seven (7) years, one Commissioner for five (5) years, and the other Commissioner for three (3) years. Q – What is the mechanism of staggering the terms? A – The same concept. Every two (2) years, the term of one Commissioner expires leaving behind two experienced Commissioners. If a vacancy occurs, the Commissioner so appointed to fill up the vacancy shall serve only for the unexpired term of the predecessor. Section 2. (1). The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including governmentowned and controlled corporations with original charters, and on a postaudit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government, and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

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Q – What are the broad powers, authority and duty of the Commission on Audit? A – The broad powers, authority and duty of the Commission on Audit are the following: SIMPLIFICATION: 1. CODE – SEE-PRO-DE S-ettle (to settle all accounts of government) E-xamine (to examine and audit all expenditures of government) E-xamine (to examine and audit all revenues of government) PRO-mulgate (to promulgate accounting and auditing rules including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties) DE-fine (to define the scope and techniques for its own auditing procedures) Q – What is the post audit authority of COA? A – The Commission on Audit (COA) has only post-audit authority over: CODE – COGO-NON-GO-AUTO CO-nstitutional bodies, Commissions and offices that have been granted fiscal autonomy under the Constitution. GO-vernment-owned or controlled corporations and their subsidiaries. NON-GO-vernment entities receiving subsidy or equity, directly or indirectly from or through the government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. AUTO-nomous state colleges and universities. Q – What is the extent of the auditing authority of the COA over government-owned corporations? A – The auditing authority of the Commission on Audit over governmentowned corporations extends only to those with original charters (Section 2[1], Article IX[D]). In the exercise of this power, the Commission has authority over accountable officers and other offices who perform accounting functions. Q – Can the COA conduct a post-audit exam if it has already performed pre-audit examination? A – This was sustained in Development Bank of the Philippines vs. Commission on Audit (231 SCRA [1994]).

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Q – The Commission on Audit is the central accounting agency of the government of the Republic of the Philippines. As such, it has the responsibility (a) to protect public funds; (b) to keep track of all receipts and disbursement of public funds and properties; and (c) to have custody and record of all covering vouchers. How can it protect public funds? A – 1. All collections and revenues turned over to the National Treasury cannot be released without corresponding appropriation made by law. In the absence of a law either authorized by the Constitution itself or by Congress, it is the duty of the Commission on Audit to refuse approval of any request to disburse public funds. The reason for this is because every single centavo earned by the government and which are turned over to the National Treasury should only be used for a good and legitimate purpose. 2. To protect public funds, and to see to it that these funds are disbursed and spent properly, the Commission on Audit is not only limited to the exercise of the power and authority provided in Section 2(1). It can also bring to the attention of the President and Congress, through its annual report, its assessment of the financial condition and operation of the government, its subdivisions, agencies and instrumentalities, including government-owned or controlled corporations and non-governmental entities. It can even recommend measures necessary to improve their effectiveness and efficiency. (Section 4, Article IX[D]) 3 Any monetary claim against the government must first be filed with the Commission on Audit, which must act upon it within sixty (60) days. If said claim is rejected, the claimant can elevate the matter to the Supreme Court on certiorari under Rule 65. 4. The constitutional competence of the Commission Audit is only with respect to the administrative aspect of the expenditure of public funds and not with respect to the criminal aspect for the irregular expenditures. Hence, even if a voucher has been approved by the Commission on Audit, the provincial fiscal is not precluded to determine whether criminal liability has been incurred. (Ramon vs. Aquino, 39 SCRA 41 [1991]) Q – What is meant by the power of the Commission to “settle accounts”? A – It means the power to settle liquidated accounts, that is, those accounts which may be adjusted simply by an arithmetical process. It does not include the power to fix the amount of an unfixed or undetermined debt. (Compañia General de Tabacos vs. French and Unson, 39 Phil. 34, 42 [1919])

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Q – The COA has already passed an account in audit, may the prosecutor still look into it to find out if a crime has been committed? A – Yes, because the interest of the Commission on Audit is merely administrative and not criminal. (Ramos vs. Aquino, 39 SCRA 641 [1971]) Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment or public funds, from the jurisdiction of the Commission on Audit. Q – Can Congress pass a law exempting any government entity, or any investment or public funds from the jurisdiction of the Commission on Audit? A – No, by express constitutional provision. D. Section 3, Article IX, provides as follows: “Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment or public funds, from the jurisdiction of the Commission on Audit.” Section 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corporations, and non-governmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency. It shall submit such other reports as may by required by law. Self-explanatory. BITONIO VS. COA G.R. NO. 147392, MARCH 12, 2004 Q – Director X was designated by the Acting Secretary of DOLE to be DOLE’s representative in the PEZA Board of Directors. As representative, Director X was receiving per diem for every board meeting he attended in 1995 and 1997. However, after a post audit of PEZA’s disbursement transactions, the payment of said per diems were disallowed on the reasoning that Cabinet Members, their deputies and assistants holding other offices in addition to their primary office and receiving compensation therefore was declared unconstitutional by the Supreme Court in Civil Liberties Union vs. Executive Secretary. Director X argued that officials given the rank equivalent to a secretary, undersecretary or assistant secretary and other officials below the rank of assistant secretary are not covered by the prohibition. Which contention is correct?

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A – The contention of COA is correct. Director X’s presence in the PEZA Board is solely by virtue of his capacity as representative of the Secretary of Labor. Since the Secretary of Labor is prohibited from receiving compensation for his additional office or employment, such prohibition applies likewise to Director X who sat in the Board only in behalf of the Secretary of Labor. The ex-officio position is actually a part of the principal office, and Director X has no right to receive additional compensation for his services in the said position. BANGKO SENTRAL NG PILIPINAS VS. COMMISSION ON AUDIT, ET AL. G.R. NO. 16894, JANUARY 23, 2006 Respondent retired from the service of BSP on June 30, 1994. However, BSP refused to release his P291,555.00 retirement benefits for failure to settle his property accountabilities for unaccounted spare parts valued at P1,007,236.59. The COA allowed the release of respondent’s retirement benefits. COA ruled the retirement gratuities cannot be withheld, deducted or applied to indebtedness of an employee of the government without his consent. Hence, BSP’s petition for certiorari assailing the decision of COA. RULING: 1. The Supreme Court sustained COA, and cited the ruling in Cruz vs. Tantuico, 166 SCRA 670 (1988), Tantuico, Jr. vs. Domingo, 230 SCRA 391 (1994) and GSIS vs. COA, 441 SCRA 532 (2004), thus: Benefits under retirement laws cannot be withheld regardless of the employee’s monetary liability to the government. Reason: Retirement laws are liberally interpreted in favor of the retiree because the intention is to provide for the retiree’s sustenance and comfort when he is no longer capable of earning his livelihood. 2. Retention of retirement gratuity of a person to satisfy his indebtedness to the government may be resorted to only if the person admits his indebtedness and consents to the retention or when a competent court so directs. 3. Enforcement of BSP’s claim–Petitioner may proceed against the employees by means of proper court action against the latter’s assets. MULTIPLE CHOICE QUESTIONS 1.

Alienable lands of the public domain A. A forest land is an alienable land. B. A timber land is an alienable land. C. A mineral land is an alienable land.

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D.

Alienable lands of the public domain shall be limited to agricultural lands.

2.

Block Voting A. Block voting is no longer allowed. B. Block voting is not allowed because no votes in favor of a political party, organization or coalition shall be valid. C. Block voting is allowed if a political party is allowed, upon appropriate petition, to claim the votes cast for said party. D. No votes casts in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in the 1987 Constitution.

3.

Constitutional Commissions Atty. X is known as an honest and brilliant Assistant Legal Researcher in the COMELEC who, despite being married and with two (2) children, graduated with honors when he finished law. He rose from the ranks. He topped the bar examinations in 2001 at the young age of 26, and was immediately appointed as Chief of the Legal Research Department. He showed more competence and brilliance in his work and he won the admiration of his co-employees and superiors. Six (6) months before the Presidential Elections last May 10, 2010, Atty. X was appointed Chairman of the COMELEC. Atty. A, B & C protested on the ground that he never engaged in the practice of law, and his appointment violates Article IX(c), Section 1. Is his appointment valid? A. Valid, because besides topping the bar examinations, he was already working in the COMELEC and was known to and acknowledged as honest and brilliant by his co-employees and superiors. B. Not valid, because Section 1, Article IX(c) provides that a majority of the members, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. C. Not valid, not because he was not engaged in the practice of law prior to his appointment, but because he is still too young to be the Chairman of the COMELEC, and because there are many more qualified lawyers, both in the government and private sector. D. Valid, because law practice includes any activity which requires application of law or knowledge of the law, whether said activity takes place in or outside of the courtroom. It is not limited to courtroom practice.

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ARTICLE X LOCAL GOVERNMENT PART I REVIEW OF SECTIONS 1 TO 21, ARTICLE X, 1987 CONSTITUTION PART II CORPORATION: ITS NATURE, CLASSIFICATION AND FUNCTIONS PART III POWERS AND ATTRIBUTES OF LOCAL GOVERNMENT UNITS DISCUSSION PART I REVIEW OF SECTION 1 TO 21, ARTICLE X, 1987 CONSTITUTION Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. Q – What are the territorial and political subdivisions of the Republic of the Philippines? A – a. Provinces b. Cities c. Municipalities d. Barangays e. The Autonomous Region Q – How many autonomous regions are allowed by the 1987 Constitution? A – They are only two and they are: (1) the Autonomous Region in Muslim Mindanao; and (2) the Autonomous Region in Cordilleras. Q – Can there be an additional autonomous region? A – Yes, but a constitutional amendment is needed. Q – Is the right of provinces, cities, municipalities, barangays and autonomous regions to exist as the political and territorial subdivisions of one State a constitutional right or a statutory right? A – It is a constitutional right. However, the authority to create, divide, merge or abolish a local government or its boundaries is dependent upon the power of Congress in the case of a province, city, municipality

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or any other subdivision, or by ordinance passed by the Sangguniang Panlalawigan or Sangguniang Panlungsod concerned in the case of a barangay. (Section 6, Chapter 2, Republic Act No. 7160 or LGC) Section 2. The territorial and political subdivisions shall enjoy local autonomy. Q – What is the declared policy of the State regarding local autonomy? A – It is declared policy of the State that the territorial and political subdivisions of the State should enjoy genuine meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. (Section 2, Republic Act No. 7160) It is also the policy of the State to ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum. (Ibid.) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. (Ibid.) Q – How can this be attained? A – Towards the attainment of the said declared policy, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local governments will be given more powers, authority, responsibilities and resources. The process of decentralization shall proceed from the National Government to the local government units. (Ibid.) Q – What is the significance of Section 2, Article X which provides that “the territorial and political subdivision shall enjoy local autonomy”? A – It gives more freedom to local governments to improve their respective territories. The local government will be more free to manage their own affairs and communities without too much intervention from the national government. At the same time, the national government will be relieved from the burden of handling and managing local concerns. Q – What, if any, is the difference between autonomy and decentralization? A – Autonomy also involves decentralization of administration or power and this happens when administrative powers are delegated by the central government to its political subdivision with the end in view of making local government units more responsive, accountable and self-reliant

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communities. In decentralization of power, the same is given in favor of the local government unit so it will be more independent and free to move on its own with the least intervention from the central government. In this manner, the autonomous local government unit becomes accountable not to the central authorities but to its constituency. (Bernas, citing Limbona vs. Conte Mangelin, et al., G.R. No. 80391, February 28, 1989) Q – What are the operative principles of decentralization? A – The following are the operative principles of decentralization: a. There shall be an effective allocation among the different local government units of their respective powers, functions, responsibilities, and resources; (Underlining Supplied) b. There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities; c. Subject to civil service law, rules and regulations, local officials and employees paid wholly or mainly from local funds shall be appointed or removed, according to merit and fitness, by the appropriate appointing authority; (Underlining Supplied) d. The vesting of duty, responsibility, and accountability in local government unit shall be accompanied with provision for reasonably adequate resources to discharge their powers and effectively carry out their functions; hence, they shall have the power to create and broaden their own sources of revenue and the right to a just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas; (Underlining Supplied) e. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribes powers and functions; f. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them; g. The capabilities of local government units, especially the municipalities and barangays, shall be enhanced by providing them with opportunities to participate actively in the implementation of national programs and projects; (Underlining Supplied) h. There shall be a continuing mechanism to enhance local autonomy not only by legislative enabling acts but also by administrative and organizational reforms; (Underlining Supplied)

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i.

j.

k.

l.

m.

Local government units shall share with the National Government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies; Effective mechanisms for ensuring the accountability of local government units to their respective constituents shall be strengthened in order to upgrade continually the quality of local leadership; (Underlining Supplied) The realization of local autonomy shall be facilitated through improved coordination of national government policies and programs and extension of adequate technical and material assistance to less developed and deserving local government units; (Underlining Supplied) The participation of the private sector in local governance, particularly in the delivery of basic services, shall be encouraged to ensure the viability of local autonomy as an alternative strategy for sustainable development; and The National Government shall ensure that decentralization contributes to the continuing improvement of the performance of local government units and the quality of community life. (Underlining Supplied) LIM, ETC. VS. JUDGE PACQUING, ETC., ET AL. G.R. NO. 115044, JANUARY 27, 1995; GUINGONA, JR., ET AL. VS. JUDGE REYES, ET AL. G.R. NO. 117263, JANUARY 27, 1998

FACTS: In a decision dated September 9, 1988, the Regional Trial Court of Manila in Civil Case No. 45660, directed the Mayor of Manila to issue immediately to the Associated Development Corporation (ADC) the license to operate the JaiAlai in Manila under Manila Ordinance No. 765. ADC moved to execute the judgment which became final. On March 28, 1994, the Regional Trial Court of Manila, Branch 40, presided by Judge Felipe G. Pacquing, directed then Manila Mayor Alfredo S. Lim to issue the permit/license. In a petition for certiorari docketed as G.R. No. 115044, Mayor Lim questioned the said order. The Supreme Court dismissed the petition and ruled that Judge Pacquing did not act with grave abuse of discretion. On September 13, 1994, then Executive Secretary Teofisto Guingona directed the Games and Amusement Board to hold in abeyance the grant of authority, or if any had been issued, to withdraw such grant of authority until the following legal questions are properly resolved:

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Whether PD No. 771 which revoked all existing Jai-Alai franchises granted by local governments as of August 20, 1975 is unconstitutional; 2. Assuming that the City of Manila had the power on September 7, 1971, to issue Jai-Alai franchise to ADC, whether such franchise is valid considering that it has no duration and appears to be granted in perpetuity; 3. Whether the City of Manila had the power to issue a Jai-Alai franchise to ADC on September 7, 1971, in view of E.O. No. 392 dated January 1, 1951, which transferred from local governments to the Games and Amusement Board the power to regulate Jai-Alai. On September 15, 1994, Associated Development Corporation (ADC) filed a petition for prohibition, mandamus, injunction and damages with prayer for temporary restraining order and/or writ of preliminary injunction in the Regional Trial Court of Manila against Teofisto Guingona and the Games and Amusement Board (GAB) chairman docketed as Civil Case No. 94-71656, seeking to prevent the GAB from withdrawing the provisional authority earlier granted to ADC. On the same day, the Regional Trial Court of Manila, Branch 4, through Presiding Judge Vetino Reyes, issued a temporary restraining order enjoining GAB from withdrawing ADC’s provisional authority to operate. The temporary restraining order was later converted into a preliminary injunction upon posting by ADC of a bond. In another development in G.R. No. 115044 before the Supreme Court, the Republic of the Philippines, through the GAB, sought to intervene therein by filing a motion for intervention; for leave to file a motion for reconsideration in intervention, and to refer the case to the Court En Banc, and thereafter, a motion for leave to file a supplemental motion for reconsideration in intervention and to admit attached supplemental motion for reconsideration in intervention. In Civil Case No. 94-71651, Judge Vetino Reyes, issued a preliminary mandatory injunction compelling Guingona and GAB to issue to ADC the authority to operate the Jai-Alai. On account of this, Guingona and the GAB Chairman Dominador Cepeda, Jr., filed before the Supreme Court a petition assailing this order of Judge Reyes. This was docketed as G.R. No. 117263. G.R. Nos. 117263 and 115044 were consolidated and at the hearing thereof on November 10, 1994, the following issues were formulated for resolution: 1. Whether the Republic’s intervention in G.R. No. 115044 is proper at that stage of the proceeding where the case has been dismissed and terminated. 2. Assuming that the intervention is proper, whether ADC has a valid and subsisting franchise to operate and maintain the Jai-Alai. 3. Whether Judge Reyes committed grave abuse of discretion in issuing the TRO/preliminary injunction against Guingona and GAB restraining the withdrawal of ADC’s provisional authority.

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Whether Judge Reyes committed grave abuse of discretion in issuing the writ of preliminary mandatory injunction.

HELD: The Republic, in contra distinction to the City of Manila, may be allowed to intervene in G.R. No. 115044. The Republic is intervening in G.R. No. 115044 in the exercise, not of its business or proprietary functions, but in the exercise of its governmental functions to protect public morals and promote the general welfare. Congress did not delegate to the City of Manila the power “to franchise” wagers or betting, including the Jai-alai, but retained for itself such power “to franchise.” What Congress delegated to the City of Manila in Republic Act No. 409, with respect to wagers or betting, was the power to “license, permit, or regulate” which therefore means that a license or permit issued by the City of Manila to operate a wager or betting activity, such as the Jai-alai where the bets are accepted, would not amount to something meaningful UNLESS the holder of the permit or license was also FRANCHISED by the national government to so operate. Moreover, even this power to license, permit, or regulate wagers or betting Jai-alai was removed from local governments, including the City of Manila, and transferred to the GAB on January 1, 1951, by Executive Order No. 392. The net result is that the authority to grant franchises for the operation of Jai-alai frontons is in Congress, while the regulatory function is vested in the GAB. (Underlining Supplied) ADC argued that Presidential Decree No. 771 is unconstitutional for being a violation of the equal protection and non-impairment provisions of the Constitution. On the other hand, the government contends that P.D. No. 771 is a valid exercise of the inherent police power of the State. It should also be remembered that P.D. No. 771 provides that the national government can subsequently grant franchises “upon proper application and verification of the qualifications of the applicant.” ADC has not alleged that it filed an application for a franchise with the national government subsequent to the enactment of P.D. No. 771; thus, the allegations above-mentioned (of preference to a select group) are based on conjectures, speculations and imagined biases which do not warrant the consideration of this Court. On the other hand, it is noteworthy that while then President Aquino issued Executive Order No. 169 revoking P.D. No. 810 (which granted a franchise to a Marcos-crony to operate the Jai-alai), she did not scrap or repeal P.D. No. 771 which had revoked all franchises to operate Jai-alais issued by local governments, thereby re-affirming the government policy that franchises to operate Jai-alais are for the national government (not local governments) to consider and approve. On the alleged violation of the non-impairment and equal protection clauses of the Constitution, it should be remembered that a franchise

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is not in the strict sense a simple contract but rather it is, more importantly, a mere privilege specially in matters which are within the government’s power to regulate and even prohibit through the exercise of police power for the public welfare. CABRERA VS. COURT OF APPEALS G.R. NO. 78673, MARCH 18, 1991 FACTS: The Provincial Board of Catanduanes issued a resolution closing an old road leading to the new capital building to traffic and giving to the owners of the properties traversed by the new road equal area from the old road adjacent to the respective remaining portion of their properties. Pursuant to said resolution, deeds of exchange were executed under which the province conveyed to the persons affected portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the capital building. In 1978, part of the northern end of the old road fronting Cabrera’s house was planted to vegetables in 1977 by Eulogia. Peña, who had bought Varga’s share, also in the same part of the road, converted it into a piggery farm. Learning about the resolution, Cabrera filed a complaint for restoration of Public Road. He alleged that the land fronting his house has a public road owned by the province in its governmental capacity and, therefore, beyond the commerce of man. He said that the said resolution and the deeds of exchange were invalid. He also questioned the closure of the northern portion of the street. The trial judge while holding that the land was not declared public road but a mere “passageway” or “short-cut,” sustained the authority of the provincial board to enact the resolution under existing law. The Court of Appeals found the road to be a public road and not a trail but, just the same, also upheld the resolution. ISSUE: Cabrera insisted that Section 2246 is not applicable because the resolution is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He said that control over public road is with Congress and not with the provincial board. He alleged that the closure of the road injured him as he can no longer use it in going to the national road, but instead pass through a small passageway. For such inconvenience, he is entitled, he said, to damages in accordance with law. The Supreme Court affirmed the decision of the Court of Appeals.

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HELD: Cabrera is not entitled to damages because the injury he has incurred is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated, and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. Whatever inconvenience Cabrera has suffered is insignificant compared to the greater convenience the new road, which is wide and concrete, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. Cabrera must content himself with the altruistic feeling that for the prejudice he has suffered, the price he can expect is the improvement of the comfort and convenience of the inhabitants of the province, of whom he is one. That is not a paltry recompense. MAGTAJAS VS. PRYCE PROPERTIES CORPORATION, INC. AND PAGCOR G.R. NO. 111097, JULY 20, 1994 FACTS: In response to PAGCOR’s expansion of it operations to Cagayan de Oro City, the Sangguniang Panlungsod of Cagayan de Oro City enacted two (2) ordinances: 1. One ordinance prohibits the issuance of business permit and cancelling permit to any establishment for allowing the use of its premises for the operation of casino. 2. The other ordinance prohibits the operation of casino. The government of Cagayan de Oro City contended that it has power and authority to prohibit gambling and this power and authority includes its power and authority to prevent the Philippine Amusements and Gaming Corporation (PAGCOR) from operating a casino in Cagayan de Oro City. On the other hand, PAGCOR maintained that under Presidential Decree 1869, it has the power and authority to centralize and regulate all games of chance in the country. ISSUE: Can the government of Cagayan de Oro City prevent the exercise of the said power and authority under Presidential Decree 1869? HELD: Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local governments units can undo the acts of

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Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. The Supreme Court also ruled, through Justice Isagani Cruz, that: “In the exercise of its own discretion, the legislative power may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting, and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. That is the prerogative of the political departments. It is settled that questions regarding wisdom, morality and practicability of statutes are not addressed to the judiciary but may be resolved only by the executive and legislative departments, to which the function belongs in our scheme of government.” Talks regarding the supposed vanishing line between right and privilege in American constitutional law has no relevance in the context of these cases. On the other hand, jai-alai is not a mere economic activity which the law seeks to regulate. It is essentially gambling and whether it should be permitted and, if so, under what conditions are questions primarily for the lawmaking authority to determine, taking into account national and local interests. Here, it is the police power of the State that is paramount. ALFREDO TANO, ET AL. VS. HONORABLE GOV. SALVADOR P. SOCRATES, ET AL. G.R. NO. 110249, AUGUST 21, 1997 FACTS: 1.

2.

The petitioner assailed the constitutionality of the following: Ordinance No. 50-92 dated December 15, 1992, of the Sangguniang Panglungsod ng Puerto Princesa City which took effect on January 1, 1993 entitled “AN ORDINANCE BANNING THE SHIPMENT OF ALL FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1998 AND PROVIDING EXEMPTIONS PENALTIES AND FOR OTHER PURPOSE THEREOF.” Resolution No. 33 dated February 19, 1993, of the Sangguniang Panlalawigan, Provincial Government of Palawan entitled “A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND EQUIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO), CROMILEPTES ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA GIGAS

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(TAKLOBO) PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CALMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS.” As a result of the implementation of the said ordinance and resolution, all the fishermen of the whole province of Palawan and the City of Puerto Princesa were deprived of their only means of livelihood and other marine merchants were not able to perform their lawful occupation. Without seeking redress from the concerned local government units, procecutor’s office and court, petitioner directly invoked the original jurisdiction of the Supreme Court by filing this petition on June 4, 1993. Their petition is for “Certiorari, Injunction With Preliminary and Mandatory Injunction, with Prayer for Temporary Restraining Order.” ISSUE: 1. 2. 3.

Is the petition that was filed a petition for Certiorari or a Declaratory Relief? Are the ordinances enacted by the said local government units valid and constitutional? Are the petitioners qualified to be called subsistence or marginal fishermen?

HELD: 1.

The instant petition is obviously one for DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a “nullity … for being unconstitutional.” As such, their petition must likewise fail, as this Court does not have original jurisdiction over petitions for declaratory relief even if only questions are law involved, it being settled that the Court merely exercises appellate jurisdiction over such petitions. Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or exceptional and compelling circumstance has been adduced why direct recourse to us should be allowed. While we have concurrent jurisdiction with Regional Trial Courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no unrestricted freedom of choice of court forum, as we held in People vs. Cuaresma (172 SCRA 415, 423-424):

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3.

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x x x There is after all hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for extraordinary writs x x x A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x These Ordinances were undoubtedly enacted in the exercise of powers under the new LGC relative to the protection and preservation of the environment and are thus novel and of paramount importance. It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful argumentative contradiction. After a scrutiny of the challenged Ordinances and the provisions of the Constitution petitioners claim to have been violated, we find petitioners’ contentions baseless and so hold that the former do not suffer from any infirmity, both under the Constitution and applicable laws. There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition, petitioner Airline Shippers Association of Palawan is self-described as “a private association composed of Marine Merchants”; petitioners Robert Lim and Virginia Lim, as “merchants”; while the rest of the petitioners claim to be “fishermen,” without any qualification, however, as to their status. Since the Constitution does not specifically provide a definition of the terms “subsistence” or “marginal” fishermen, they should be construed in their general and ordinary sense. Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but law puts emphasis on the duty of the State to protect the nation’s marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Our survey of the statute books reveals that the only provision of law which speaks of a preferential right of marginal fishermen is Section 149 of the LGC, which pertinently provides: “Sec. 149. Fishery Rentals, Fees and Charges. x x x (b) The Sangguniang bayan may: (1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it: Provided, however, That duly registered organizations and

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cooperatives of marginal fishermen shall have the preferential right to such fishery privileges…” Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Q – Is the enactment of the local government code left alone to the initiative of Congress? A – The enactment of a local government code is left to the initiative of Congress but the Constitution mandates that the said code must provide for the following: 1. It must provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms. (a) For recall; (b) Initiative; and (c) Referendum 2. It must allocate among the different local government units their powers, responsibilities and resources. 3. It must provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local offices, and all other matters relating to the organization and operation of local units. It is on the basis of this mandate, coupled with the long felt need for more local autonomy and decentralization, that Republic Act No. 7160, otherwise known as the Local Government Code of 1991, was enacted. Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed power and functions. Q – Distinguish the president’s power of general supervision over local governments under the 1935 and 1987 Constitution.

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A – 1935 CONSTITUTION

1987 CONSTITUTION

Article VII, Section 10(1)

Article VII, Section 17

“The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that laws be faithfully executed.”

“The President shall of all the executive bureaus, and offices. sure that the laws be ecuted.”

have control departments, He shall enfaithfully ex-

Q – What are the different supervisory powers, as defined by Section 4, Article X? A – The supervisory powers, as defined in Section 4, are as follows: Q – The superior local government unit has the supervisory power to “ensure that the acts of their component units are within the scope of their prescribed powers and functions.” On this basis, can the superior local government unit substitute its judgment for that of the local component local unit? A – It cannot substitute its judgment in discretionary matters for that of the component local unit. Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. Q – What is the significance of Section 5? A – While the prevailing doctrine in this jurisdiction is still to the effect that municipal corporations do not have the inherent power to tax, Section 5 confers on municipal corporations a general power: “To levy taxes, fees and charges” subject to the guidelines and limitations imposed by Congress. This means that municipal corporations may exercise the said power “to levy taxes, fees and charges” even without a statutory grant provided only that the guidelines and limitations imposed by Congress are complied with. Q – What are the sources of revenue of municipal corporations? A – Their sources of revenue are: (1) Those raised from taxes, fees and charges, as aforementioned; (2) Internal Revenue Allotments from the National Government; (3) Lease of public utilities; (4) Funds derived

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from national aid such as the CDF (Countrywide Development Fund); and (5) Donations. Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with inhabitants by way of direct benefits. Q – Is there still a need for enabling law to realize the provisions of Sections 6 and 7, Article X to the effect that local governments shall have a just share and equitable share in national taxes? A – Yes, an enabling law is necessary to determine the shares to the local governments. “Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” “Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with inhabitants by way of direct benefits.” Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Q – What is the term limit of local officials? A – The term limit of elective local officials, except barangay officials, is three (3) years and they cannot serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time “shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.” Q – What is the term of barangay officials and for how many terms can they be allowed to serve? A – The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May, 1994. (Sec. 43[c], LGC)

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Section 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law. Q – Is there a need for an enabling law to realize this constitutional provision that “legislative bodies shall have sectoral representation”? A – Yes, because of the phrase “as may be prescribed by law.” Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q – Simplify Section 10. A – A province, city, municipality, or barangay may be (1) created, (2) divided, (3) merged, (4) abolished, or (5) its boundary can be substantially altered. However, this power is subject to: 1. The criteria established in the Local Government Code. 2. The approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q – Are the said acts still legislative in nature? A – The rule in Pelaez vs. Auditor General (15 SCRA 569, 576 [1965]) that “the authority to create municipal corporations is essentially legislative in nature,” still holds because the power under Section 10 (to create, abolish, merge, alter) is subject to the “criteria established in the Local Government Code.” Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Q – What are the powers and limitations of Congress? A – Section 11 gives Congress the power to create special metropolitan political subdivisions but this power is subject to the following limitations. 1. It is subject to the approval of the majority of the votes cast in a plebiscite in the political units directly affected. 2. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and local assemblies. 3. The jurisdiction of the metropolitan authority that will be created shall be limited to basic services requiring coordination.

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Section 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Q – What are the three (3) kinds of cities? A – The three kinds of cities are the following: 1. Highly urbanized cities as determined by law 2. Cities not raised to the highly urbanized category but whose charters prohibit their voters from voting in provincial elections 3. Component cities which are still under a province in some ways

– They do not vote in provincial elections, which means that they do not vote for provincial elective officials. – Being independent of the province, residents therein are not qualified to run for provincial positions. – Being under a province, residents therein cannot be denied a vote in the election of provincial officials.

Section 13. Local Government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law. Q – What is the authority given to Local Government Units? A – The consolidation and coordination under Section 13 is only with respect to “their efforts, services and resources for purposes commonly beneficial to them,” and not with respect to their corporate personality. Section 14. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. Q – What are the two powers referred to in Section 14? A – There are two powers referred to in Section 14, and they are the power of the President (1) to provide for regional development councils and (2) to provide for other similar bodies composed of:

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a. Local government officials. b. Regional heads of departments and other government offices. c. Representatives of NGOs (non-governmental organizations) within the regions. This power is given to the President for the following purposes: 1. To attain administrative decentralization. 2. To strengthen the autonomy of the units therein. 3. To accelerate the economic and social growth and development of the units in the regions. Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Q – What are the two (2) autonomous regions? A – (1) Autonomous Regions in Muslim Mindanao; and (2) Autonomous Regions in the Cordilleras. Q – What is its composition? A – It shall consist of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. Q – What is meant by “Autonomous regions can be established only within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines”? A – This means that the autonomous regions now existing, or which may exist in the future, are still part and parcel of the Republic of the Philippines and should, therefore, be bound by our Constitution. Q – Can there still be other autonomous regions other than for Mindanao and the Cordilleras? A – There are those who say that the same can still be done, only that it requires a constitutional amendment. The author submits that Section 15 itself authorizes the creation of “autonomous regions in Muslim Mindanao and in the Cordilleras” and for as long as what will be created is in that area and the criteria therein set forth is present, the same can be done, without a constitutional amendment. However, if the autonomous regions sought to be established are in other areas not specified in Section 15, constitutional amendment is required.

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Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Q – What kind of supervision has the President over autonomous regions? A – Section 16 specifically provides that the President’s power over autonomous region is only one of “general supervision” and not of control. Section 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic act shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Q – Simplification of Sections 17, 18 and 19. A – The powers granted to autonomous regions are enumerated by law. If they are not included in the enumeration, they remain vested in the National Government. In order to realize the establishment of the autonomous regions, Congress is mandated by Section 19 to pass the organic acts for each of the autonomous regions within eighteen (18) months from the time of the organization of the First Congress. Now, two organic acts have already been approved by Congress, one creating the Autonomous Regions in Muslim Mindanao and the other, the Cordillera Autonomous Region. After the approval of the said organic acts, the said autonomous regions are created only when the said organic acts were ratified by a

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majority of the votes cast by the constituent units in a plebiscite held for that purpose. Q – What kind of plebiscite will be held? A – –

–

–

–

The plebiscite will be held – in the municipality or city, as the case may be The plebiscite will be held – in the province The plebiscite will be – held in the province to be created a well as in the other province The plebiscite will be held – in the region affected.

If what will be created is a Barangay If what will be created is a municipality or component city If a province will be carved to form another province

If an autonomous region will be formed.

Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (a) (b) (c) (d) (e) (f) (g) (h) (i)

Administrative organization; Creation of sources of revenues; Ancestral domain and natural resources; Personal, family, and property relations; Regional urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Q – What is the legislative power of autonomous regions? A – Section 20, Article X provides as follows: “Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (a) Administrative organization; (b) Creation of sources of revenues; (c) Ancestral domain and natural resources; (d) Personal, family, and property relations;

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(e) (f) (g) (h) (i)

Regional urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.”

Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government. Q – What are the three problems mentioned in Section 21? A – There are three (3) problems mentioned by Section 21, thus: (1) Preservation of peace and order within the regions; (2) Defense of the regions; and (3) Security of the regions. Q – What is the delineation of responsibility of local police agencies and the national government? A – RESPONSIBILITY OF LOCAL POLICE AGENCIES

1. Internal peace and order 2. Ordinary criminality

RESPONSIBILITY OF THE NATIONAL GOVERNMENT

The defense and security of the regions shall be the responsibility of the national government.

PART II CORPORATION: ITS NATURE, CLASSIFICATION AND FUNCTIONS Q – What is a corporation, as defined in the corporation law? A – A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. (Section 2, Batas Pambansa Bilang 68) Q – What is the classification of a corporation according to purpose? A – 1. Public – Organized for the government of a portion of the State. 2. Private – Formed for some private purpose, benefit aim or end. 3. Quasi-public – A private corporation that renders public service or supplies public wants.

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Q – When is a corporation considered public? A – If a corporation is created by the State as its own agency to help the State in performing or exercising governmental functions, said corporation is considered a public corporation. Otherwise, it is private. Q – What are the two kinds of public corporation? A – 1. Quasi-corporation – It is created by the State for a limited purpose. 2. Municipal corporation – It is created for the purpose of local government. Q – What are the elements of a municipal corporation? A – CODE: TILCO T-erritory – (a fixed territory where the inhabitants reside, with the waters [external and internal], and the air space above the land and waters) I-nhabitants – (the people residing in the territory of the new municipal corporation) L-egally created or incorporated – (the law which authorizes the creation of incorporation of the municipal corporation) CO-rporate name – (the name by which the corporation shall be called). Q – What is the dual nature and function of a local government unit? A – It is a body politic and a corporate entity and it exercises dual functions, thus: 1. Public or governmental – It is an agent of the State for the government of the territory and the inhabitants. 2. Private or proprietary – It is an agent of the community for the purpose of administering local affairs. Q – What are the territorial and political subdivisions of the Republic of the Philippines? A – Already answered. See Sections 1 and 11, Article X, 1987 Constitution. Section 1 – Provinces, cities, municipalities, barangays, autonomous regions. Section 11 – Special metropolitan political subdivisions. BRIEF EXPLANATION OF EACH 1.

2.

Province – Composed of a cluster of municipalities, or municipalities and component cities. It helps in governing local government units within its territorial jurisdiction. City – Composed of more urbanized and developed barangays. It helps in governing the inhabitants within its territorial jurisdiction.

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Municipality – Composed of barangays. It helps in governing the inhabitants within its jurisdiction. Barangay – It is a basic political unit. It is a planning and implementing unit of government policies and programs. It is also in the barangay level where differences and disputes among residents are settled amicably. If the case is not settled, the barangay, through the Lupon Tagapayapa, will issue a “certificate to file action.” Autonomous regions – Already discussed. Special metropolitan political subdivisions – Already discussed.

CREATION, DIVISION, MERGER, ABOLITION OF PROVINCES, CITIES, MUNICIPALITIES AND BARANGAYS Q – What is the rule on this matter? A – A province, city, municipality, or barangay may be (1) created, (2) divided, (3) merged, (4) abolished, or (5) its boundary can be substantially altered. However, this power is subject to: (a) The criteria established in the Local Government Code; and (b) The approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q – What is the rule and the basis to create a local government unit or its conversion from one level to another? A – “Section 7. Creation and Conversion – As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: Income – It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; Population – It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and Land Area – It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirement of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).” (Sec. 7, Local Government Code, Republic Act No. 7160)

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Q – Was the creation of Metropolitan Manila valid? A – In Lopez vs. Comelec (136 SCRA 633), the Supreme Court upheld the validity of the creation of Metropolitan Manila. The authority then of the President was authorized by the referendum held on February 27, 1995, and the said authority includes the restructuring of local governments in the 4 cities and 13 municipalities of Metropolitan Manila. Q – What should be included in the computation of the average annual income of the municipality for purposes of determining whether the municipality may be validly converted into a city? A – The Internal Revenue Allotments (IRA) should be included in the said computation. (Alvarez vs. Guingona, 252 SCRA 695) Q – What is the limitation imposed by Republic Act No. 7160 regarding division and merger of existing local government units? A – “Section 8. Division and Merger – Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, that such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, that the income classification of the original local government unit or units shall not fall below its current income classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.” (Sec. 8, Local Government Code, Republic Act No. 7160) Q – When can a local government unit be abolished? A – “Section 9. Abolition of Local Government Units – A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sanggunian concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. (Republic Act No. 7160) DE FACTO MUNICIPAL CORPORATION Q – When is a municipal corporation considered de facto?

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A – When it proceeds to assume or exercise corporate powers on the basis of a law authorizing its corporation, it attempts in good faith to organize under the said law, and it has a colorable compliance with the same. Q – Can the legal existence of a municipal corporation be questioned in a collateral proceeding? A – No. Besides, this action is reserved to the State in a quo warranto proceeding, or in any other direct proceeding. Q – When the legal existence of a municipal corporation is challenged many years after it was created, will it prosper? A – The party making the challenge may be already estopped to question the legal existence of a municipal corporation, especially if on account of various acts on the part of the government, it has, in effect, accorded recognition and acknowledgment to its existence. In this case, what may have started as a de facto municipal corporation, acquired a de jure status in the process. (Municipality of Jimenez, Misamis Occidental vs. Borja, 265 SCRA 182) PART III POWERS AND ATTRIBUTES OF LOCAL GOVERNMENT UNITS Q – What are the different powers of local government units? A – Governmental Powers: 1. Governmental powers – Powers expressly granted, implied therefrom, necessary, appropriate or incidental for their efficient and effective governance, and those which are essential to the promotion of the general welfare. 2. Power to create their own sources of revenue; to levy taxes, fees and charges which shall accrue to their case and disposition; to have a just share in the national taxes; to have equitable share in the proceeds from the utilization and development of the national wealth and resources. 3. Power of Eminent Domain. 4. Power to authorize reclassification of agricultural lands. 5. Power to close and open roads. 6. Local Legislative Power. 7. Authority over police units. 8. To discharge functions and responsibilities of national agencies and offices devolved to them. Corporate Powers: 1. To sue and be sued.

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2. 3. 4. 5. 6.

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To have and use a corporate seal. To acquire and convey real or personal property. To enter into contracts. To have continuous succession in its corporate name. To perform and exercise such other powers that are granted to a corporation, subject to the limitations provided in the Code and other laws.

SCOPE, LIMITATIONS AND REQUISITES OF THE FOUR (4) PRINCIPAL POWERS OF LOCAL GOVERNMENT UNITS 1. General Welfare Clause (Statutory grant of police power) 2. Taxation 3. Eminent Domain 4. Local Legislative Power GENERAL WELFARE CLAUSE Q – What is the general welfare clause? A – It is the statutory grant of police power to local government units. Q – What are the powers included in the general welfare clause? A – They are those powers expressly granted to local government units, including those which are implied from those expressly granted, and including those which are necessary, appropriate, or incidental for its efficient governance, and those which are essential to the promotion of the general welfare. Q – What is the responsibility of LGU’s under the general welfare clause? A – Among others, LGU’s shall ensure and support: 1. The preservation and enrichment of culture 2. Promote health and safety 3. Enhance the right of the people to a balanced ecology 4. Encourage and support the development of appropriate and selfreliant scientific and technological capabilities 5. Improve public morals 6. Enhance economic prosperity and social justice 7. Promote full employment among their residents 8. Maintain peace and order 9. Preserve the comfort and convenience of their inhabitants. (Sec. 16, Republic Act No. 7160)

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Q – What are the limitations on the exercise of powers under the General Welfare Clause? A – CODE: EEDC E (to be exercised only within the territorial limits of the LGU, except for protection of water supply) E (equal protection to the interest of the public in general) D (due process which means that the means employed are reasonably necessary for the accomplishment of the purpose and not duly oppressive to individuals) C (conformity to the Constitution which means that activities allowed by law cannot be prohibited. They can only be regulated) APPLICATION OF THE LIMITATIONS DECLARED INVALID

DECLARED VALID

1. Municipal ordinance prohibiting the operation of night clubs. (De la Cruz vs. Paras, 123 SCRA 569) REASON: It can only be regulated, not prohibited. 2. QC ordinance requiring owners of commercial cemeteries to reserve 6% of their burial lots for burial grounds of paupers (QC vs. Ericta, 122 SCRA 759) REASON: It is an exercise of eminent domain, not an exercise of police power. 3. Opening of Jupiter and Orbit Streets in Bel Air Subdivision, as ordered by Mayor Binay, is a valid exercise of police power (Sanggalang vs. IAC, 176 SCRA 719)

1. Manila ordinance prohibiting barbershops to conduct massage in another room. (Velasco vs. Villegas, 120 SCRA 568) REASON: To protect public morals. 2. Imposition of P100.00 (annual permit/license fee to discourage non-useful occupations is valid). (Physical Therapy Association of the Philippines vs. Municipal Board of Manila)

4. Ordinance penalizing persons charging full payment for admission of children, 7 to 12 years of age, in movie houses

3. Puerto Princesa ordinance which banned the shipment of all live fish and lobster outside Puerto Princesa City from January 1, 1997 to January, 1998. (Tano vs. Socrates, G.R. No. 119249, August 21, 1997) 4. SP Resolution which prohibited the catching, gathering, processing, buying, selling and shipment of live marine

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is not valid exercise of police power. (Balacuit vs. CFI of Agusan Del Norte, 163 SCRA 182) 5. An ordinance which imposed a P0.30 police inspection fee per sack of cassava flour produced and shipped out of the Municipality of Malabang, Lanao del Sur, was declared invalid because it is not a license fee but a tax which is unjust and unreasonable because the service extended by the municipality is only with respect to the verification of the number of sacks actually loaded. (Matalin Coconut vs. Municipal Council of Malabang, Lanao Del Sur, 143 SCRA 404)

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coral dwelling of aquatic organisms for a 5 year period, coming from Palawan waters. (Ibid.) 5. Zoning ordinance which re-classified residential into commercial or light industrial area is a valid exercise of police power. (Ortigas vs. Feati Bank, 94, SCRA 533)

Q – What is the test to determine the validity of police power? A – In order to determine whether or not the exercise of police power is invalid requires the concurrence of the following: 1. The subject matter of the law must be lawful, which means that public interest, as distinguished from those of a particular interest, requires the interference of the State. 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. (NTC vs. Philippine Veterans Bank, 192 SCRA 257) Example: 1. A municipal ordinance providing, among others, that children between 7 and 12 years of age should only be charged half the value of movie tickets. It was held that said ordinance is unduly oppressive and unreasonable. The means employed to attain the purpose of the ordinance is unreasonable, confiscatory and oppressive because the theater owners suffer a loss in revenue besides being penalized for failure to comply with the said ordinance. (Balacuit vs. CFI of Agusan Del Norte, 163 SCRA 187)

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2.

3.

4.

5.

NTC (National Telecommunications Commission) granted a franchise to Express Telecommunications, Co., Inc. (ETCI) to operate and maintain a cellular mobile telephone service and paging system in Metro Manila and Southern Luzon. NTC granted a provisional authority to ETCI provided that ETCI and PLDT shall enter into an interconnection agreement with PLDT and that said agreement should be jointly submitted to NTC approval. PLDT claims that NTC has no jurisdiction to grant ETCI a certificate of public convenience and necessity or interconnection with PLDT. The Supreme Court upheld the authority of NTC to compel PLDT to allow ETCI to interconnect on the ground that although there is an intervention with property rights, it is nevertheless dictated by the objective of the government to promote the rapid expansion of telecommunication services in the Philippines and to maximize the use of telecommunication facilities. (PLDT vs. NTC, 190 SCRA 717) Color coding system and supplementary rules to minimize traffic of the riding public. Is this arbitrary and oppressive? No, following the decision in Bautista vs. Junio (127 SCRA 329). Law requiring government official and employees to file annually a detailed statement of their assets and liabilities. Is this an invasion of privacy? No. It is justified under the police power of the State to minimize graft and corruption and maintain a high standard of honesty in the government service. (Marfe vs. Mutuc, 22 SCRA 424) Ordinance confining prostitutes within prescribed limits. Is this justified under the police power of the State? Yes, to protect public health and morals (L’Hotel vs. New Orleans, 177 U.S. 587). This is different from the case of Villaviciencio vs. Lucban where the Mayor of Manila shipped prostitutes to Davao to clean the City of Manila. In this case, the Supreme Court ruled that there is a violation of liberty of travel and abode.

OTHER CASES WHEN POLICE POWER WAS CONSIDERED AS VALIDLY EXERCISED 1.

Law prohibiting slaughter of work animals like carabaos. REASON: To preserve carabaos which are considered as tractors of Filipino farmers. (U.S. vs. Tonbio, 15 Phil. 85)

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2.

3.

4.

5.

6.

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Law fixing fees of recruitment agencies. REASON: The business is impressed with public interest. (Olsen vs. State of Nebraska, 313 U.S. 236) Ordinance prohibiting theaters to sell tickets beyond their sitting capacity. REASON: To promote convenience, comfort and safety of the viewing public under the police power. (People vs. Chan, 65 Phil. 611) DOLE’s order to suspend temporarily deployment of Filipino domestic workers to a certain country. REASON: To insure that our overseas workers are adequately protected while away from home. (Phil. Association of Service Exporters, Inc. vs. Drilon, 163 SCRA 386) Law inquiring compulsory vaccination of people against small pox, cholera, and sterilization of insane and idiots. REASON: The purpose of the law is to protect and ensure the health of the people. (People vs. Abad Lopez, 62 Phil. 835) Confinement of lepers. REASON: Leprosy is an infectious disease and their exclusion from society will prevent the spread of disease. (Lorenzo vs. Director of Health, 50 Phil. 595)

FROM THE AFOREMENTIONED SUPREME COURT DECISIONS, HERE IS A SUMMARY OF THE IMPORTANT POINTS TO REMEMBER 1.

The test to determine the validity of a police measure is as follows: a. The subject of the police measure in issue must be within the scope of the police power. b. Even if the said police measure is within the scope of police power, the means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. 2. If the above exist or are complied with, the enjoyment of private rights, or the conduct of private affairs or activities, may be subordinated to the interest of the greater number on the time honored principle of Salus Populi Est Suprema Lex. 3. Police power is resorted to in order to protect public welfare. 4. Public welfare is protected and promoted by restraining and regulating the use of liberty and property. Q – If the State, through police power, can interfere and invade private affairs and activities, what are the remaining areas of human activity that are not within the reach of police power? A – a. A person is still free to choose the religion he likes but if the religion he chooses conducts a ritual or activity that is contrary to law, morals

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b.

c.

d.

e. f.

g.

h.

i.

and public policy, the State can interfere with and arrest those who are involved in such illegal activity. A person may or may not work as he chooses but if he works to carry out an illegal recruitment, sale or disposition of prohibited drugs, or other illegal activities, the State can also interfere with and make him liable according to his participation. A person is free to choose his attire, or the color of his skirts, pants, blouse or underwear, and up to that point, the State will not interfere, but if a woman, for instance will choose to walk along Roxas Boulevard only with a panty covering her body, the State can take appropriate action to stop her from doing so to avoid public scandal. A person may construct a residential structure in his lot and the State will not interfere if such house is big or small, but the local government unit can require him to submit a corresponding building permit to insure compliance with engineering requirements and other specifications. A person may acquire a house and lot in a subdivision of his choice but he cannot use it as his base of operation for prohibited drugs. A person is free to sing in his private bathroom and the State is not concerned at all if he sings well or not, but if he sings at the top of his voice at 1:00 o’clock a.m., in the sala of a boarding house thereby bothering the peace and silence of his boardmates, he subjects himself to criminal and civil sanctions. A person who owns several cars is free to use any of his cars but he cannot choose to drive a car and use it to and from his office if the said car cannot be used on a particular day and time because of color coding. A person is free to decorate his bedroom or sala the way he likes, fill it with pictures and flowers as he chooses, and the State is not concerned at all if the same is beautiful or not, but if he uses his bedroom as the place to store prohibited drugs, the State can interfere, through appropriate action, to protect innocent men and women of tender age. Rodman, the famous basketball player of Chicago Bulls, had his hair colored with green, pink, gold, etc., and the State did not even interfere at all with his choices, but if he unlawfully hurts his adversaries inside the basketball court, the State can interfere with and punish him accordingly. There will still be a long list of acts that may or may not be done by private individuals. In any and all of the said cases, the interference of the State, or the validity of the said interference,

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will depend on the circumstances of each particular case, using the following tests: 1. The subject matter of the law must be lawful which means that public interest, as distinguished from those of a particular interest, require the interference of the State; 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. Without compliance with the above criteria, the power of the State to interfere in the private business or affairs of an individual, may likely resort to abuse, and hence, this will result to unlawful and unwarranted intrusion into individual property and property rights. POLICE POWER OF LOCAL GOVERNMENT UNITS While the exercise of police power is principally lodged in the legislature, the President and local government units may exercise such power. In fact, the Local Government Code of 1991 explicitly grants to the local government units the power to enact laws that will promote the welfare of the people. CASES: 1. An ordinance of the City of Manila prohibits any operator of any barbershop to conduct the business of massaging customers in any adjacent room or rooms of said barbershop. Is this ordinance valid? The ordinance is valid. REASON: To arrest the commission of possible immorality that may arise if a separate room for the massage of customers is constructed. (Velasco vs. Villegas, 120 SCRA 568) 2. How about an ordinance which prohibits the establishment and operation of sauna parlors, nightclubs, cabarets. Is this valid? The ordinance is valid. Under Section 458[4][VII] of the Local Government Code, because City Councils may now prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. NEW CASES 1. 2. 3.

Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991 Magtajas vs. Pryce Properties, G.R. No. 111097, July 20, 1994 Lim, etc. vs. Judge Pacquing, etc., et al., G.R. No. 115044, January 27, 1995; Guingona, Jr., et al. vs. Judge Reyes, et al., G.R. No. 117263, January 23, 1998

SUMMARY OF DECISIONS 1. Cabrera vs. Court of Appeals – Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is

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insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. Magtajas vs. Pryce Properties – It is a heresy to suggest that the LGUs can undo the acts of Congress, from which they have derived their power, and negate by mere ordinance the mandate of the statute. In the exercise of its own discretion, the legislature power may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow other for whatever reason it may consider sufficient. The Supreme Court has no authority to review, much less reverse such choices. Lim vs. Pacquing – Congress did not delegate to the City of Manila the power “to franchise” wagers or betting, including Jai-alai, but retained for itself such power “to franchise.” What Congress delegated to the City of Manila under Republic Act No. 409, with respect to wagers or betting, was the power “to license, permit, or regulate.” This means that a license or permit issued by the City of Manila, would not amount to something meaningful UNLESS THE HOLDER OF THE PERMIT OR LICENSE WAS ALSO FRANCHISED BY THE NATIONAL GOVERNMENT TO SO OPERATE.

POWER TO TAX AND REVENUE-RAISING POWERS OF LGU Q – What are the fundamental principles that should be observed regarding the exercise of said powers? A – CODE: U-E-P-C-C U-niform taxation (which means that taxation shall be uniform in each LGU) E-quitable taxation (which means that taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayer’s ability to pay) P-rogressive system of taxation (each LGU shall evolve a progressive system of taxation as far as practicable) C-ollected only for public purposes and shall insure solely to the LGU unless specifically provided by law C-ollection of local taxes, fees, charges and other impositions shall in no case be let to any person (Section 130, Republic Act No. 7160) Q – Can LGU’s tax instrumentalities of the National Government? A – No (Basco vs. Pagcor, 197 SCRA 52). Congress can grant a municipal corporation the power to tax certain matters, and it can also provide for exemptions or even take back the power.

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Q – Under Republic Act No. 6958, the Mactan Cebu International Airport (MCIAA) is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions. Does the City of Cebu have the power to collect real property taxes from MCIAA? A – Yes (MCIAA vs. Marcos, G.R. No. 120082, September 11, 1996) REASON: The exemption may be withdrawn at the pleasure of the taxing authority. Q – Is the said rule absolute? A – No. Although the exemption may be withdrawn at the pleasure of the taxing authority, nevertheless, if the exemption was granted to private parties based on mutual and material considerations, it becomes contractual which is within the protective mantle of the non-impairment clause. (Ibid.) MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY VS. MARCOS, ET AL. G.R. NO. 120082, SEPTEMBER 11, 1996 FACTS: Mactan Cebu International Airport Authority (MCIAA) was created by virtue of Republic Act No. 6958, mandated to “principally undertake the economical, efficient and effective control, management and supervision of the Mactan International Airport in the Province of Cebu and the Lahug Airport in Cebu City, and such other efforts as may be established in the Province of Cebu.” On October 11, 1994, the Treasurer of Cebu City demanded payment for realty taxes on several parcels of land belonging to the petitioner located at Barrio Apas and Barrio Kasambagan, Lahug, Cebu City, in the total amount of P2,229,078.79. Petitioner claims that the demand for payment is baseless and unjustified as it is exempt from payment of realty tax under Section 14 of R.A. No. 6958. Besides, it is an instrumentality of the government performing governmental functions, citing Section 133 of the Local Government Code of 1991, which puts limitations on the taxing powers of local government units. Respondent city claims otherwise and insists that the petitioner is a government-controlled corporation whose tax exemption has been withdrawn by virtue of Sections 193 and 234 of the Local Government Code that took effect on January 1, 1992. Petitioners paid the tax “under protest,” and thereafter, filed a Petition for Declaratory Relief in the Regional Trial Court of Cebu. The said petition was denied.

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ISSUE: Petitioner asserts: (1) that although it is a government-owned or controlled corporation, it is mandated to perform functions in the same category as an instrumentality of Government; and (2) that being an instrumentality of the National Government, the City of Cebu has no power nor authority to impose realty taxes under Section 133 of the Local Government Code. HELD: There can be no question that under Section 14 of R.A. No. 6958, the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies and instrumentalities. Nevertheless, since taxation is the rule and exemption therefrom the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The only exception to this rule is where exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution. The petitioner is now the owner of the land in question and the exception in Section 234(c) of the Local Government Code is not applicable. It cannot claim that it was never a “taxable person.” It was only exempted from the payment of real property taxes. The grant of the privilege only in respect of this tax is conclusive proof of the legislative intent to make it a taxable person subject to all taxes except real property tax. FINANCIAL AFFAIRS, TRANSACTIONS AND OPERATIONS OF LGU’S Q – What are the basic principles to be observed regarding financial transactions and operations of LGU’s? A – BEFORE MONEY IS PAID, SPENT 1. No money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law. 2. Local government funds and monies shall be spent solely for public purposes. 3. Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received. (Sec. 305, Republic Act No. 7160) ACCOUNTABILITY AND RESPONSIBILITY 1.

All monies officially received by a local government officer in any capacity or in any occasion shall be accounted for as local funds, unless otherwise provided by law.

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Every LGU officer whose duties permit or require custody of local funds shall be properly bonded, and said officer shall be accountable and responsible for said funds and for the safekeeping thereof. (Ibid.)

BUDGETING 1. 2.

3. 4.

5.

6.

Local budgets shall be based on functions, activities and projects, in terms of expected results. Local budgets plans and goals shall, as far as practicable, be harmonized with national development plans, goals and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources. Local budgets shall operationalize approved local development plans. LGU’s shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units. National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the LGUs in their respective local development plans are considered in the formulation of budgets of national line agencies or offices. The LGU shall endeavor a balanced budget in each fiscal year of operation. (Ibid.)

SHARING OF FISCAL RESPONSIBILITY 1.

It shall be shared by all those exercising authority over the financial affairs, transactions and operations of the LGUs. (Ibid.)

EMINENT DOMAIN Q – Can LGU’s exercise the power of eminent domain? A – Local government units have no inherent power to exercise eminent domain. It must be explicitly delegated as, in fact, it is so provided by Section 19 of the Local Government Code of 1991, thus: “Section 19. Eminent domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. x x x” Q – What are the limitations on the exercise of said power under Section 19 of the Local Government Code (Republic Act No. 7160)?

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A – The power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted. (Ibid.) Q – Can the LGU immediately take possession of the property subject of eminent domain? A – Yes, upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated. (Ibid.) Q – Who determines the amount to be paid for the expropriated property? A – The proper court, based on the fair market value at the time of the taking of the property. (Ibid.) Q – What is the difference between the power of eminent domain, as exercised by Congress, and the power of eminent domain, as exercised by LGU’s? A – The power of eminent domain, so exercised by Congress, is plenary. It can reach every form of property which may be needed by the State for public use. In fact, it can reach even private property already dedicated to public use, or even property already devoted to religious worship (Barlin vs. Ramirez, 7 Phil. 41). On the other hand, the power of eminent domain as exercised by Local Government Units is not, strictly speaking, a power of eminent domain but merely a power of inferior domain which means that local government units can only exercise such power which is delegated to it. Q – Can a land be expropriated by the Municipality of Parañaque on the basis of a resolution passed by the Sangguniang Bayan? A – What is required by law is an ordinance, not a resolution. The requirement therefore of Section 19 of the LGC was not complied with (Municipality of Parañaque vs. V.M. Realty Corporation, 292 SCRA 676) Q – What is the difference between a resolution and an ordinance? A – Ordinance

1 It is a law.

Resolution

1. It is merely an expression of a sentiment or opinion of a lawmaking body on a specific 2. An ordinance has to undergo matter. three readings before it is 2. This is not required unless definally approved into law cided otherwise by a majority of the members of the Sangguniang Bayan.

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CLOSURE AND OPENING OF ROADS Q – What is the power of LGU’s regarding closure and opening of roads, alley, park or square within its jurisdiction? A – They may, pursuant to an ordinance, close or open the same, permanently or temporarily. (Section 21, Republic Act No. 7160) Q – What are the requirements in case of permanent closure? A – 1. Said ordinance must be approved by at least 2/3 of all the members of the Sanggunian, and when necessary, it shall provide an adequate substitute. 2. Adequate provision for the maintenance of public safety must be made. 3. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. Q – When can the same be temporarily closed? A – During an actual emergency, fiesta celebrations, public rallies, etc. Q – Can the City Mayor of Manila, by himself, withdraw Padre Rada as a public market? A – The same can only be made possible by joint action of the Sanggunian and the Mayor. (Cruz vs. Court of Appeals, 153 SCRA 142) Q – Can a person who allegedly suffered damage and inconveniences on account of a street which was ordered closed, recover compensation for the said closure? A – No. REASON: (1) He has still a reasonable access to the general system of the streets; (2) Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. (Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991) RE-CLASSIFICATION OF LANDS Q – What is the guide on the principal classifications of land? A – PRIMARY AG-FO-TI-MI-NA AG-ricultural FO-rest TI-mber MI-neral NA-tional parks

SECONDARY RE-CO-IN RE-sidential CO-mmercial IN-dustrial

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Q – What is the distinction between primary classification and secondary classification? A – PRIMARY

SECONDARY

The responsibility over primary classification of lands of the public domain is vested in the President upon the recommendation of the DENR. (CA 141 [1936], Section 6; EO 192 [1987]) The said power and responsibility is the sole prerogative of the President.

The authority to reclassify agricultural lands into RECOIN (residential, commercial, industrial) is vested in LGU’s (cities and municipalities). (Republic Act 7160 [1991], Section 20)

Q – Are agricultural lands reclassified by LGU’s into forest conservation zones converted into forest lands? A – They are not converted into forest lands as to be exempted from CARP. The reason for this is because LGU’s have no authority or power to make primary classifications, as already aforementioned. Such power or authority belongs to the President, upon the recommendation of the DENR. Q – Are agricultural lands reclassified by LGU’s into RECOIN covered by CARP? A – It depends. If the said classification was made by LGU and approved by HLURB, or its predecessor agencies, prior to June 15, 1988, the said lands are not covered by CARP. The only requirement, however, is to secure an exemption clearance from DAR. This is what is called as Declaration of Exempt Status under DAR AO No. 6 [1994] If the said lands, however, are reclassified after June 15, 1988, they are covered by CARP. Hence, the law on land conversion will apply. (Section 65, Republic Act No. 6657; AO No. 1, 1999) Q – What is the specific authority of a city or municipality regarding reclassification of agricultural lands? A – A city of municipality may, through an ordinance passed after conducting public hearings for the purpose, authorize the reclassification of agricultural lands and provide for the manner of their utilization or disposition: a) When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture; or

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b)

Where the land shall have substantially greater economic value for residential, commercial or industrial purposes, as determined by the sanggunian; provided that such reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance; [i] for highly urbanized cities and independent component cities: 15%, [ii] for component cities and 1st to 3rd class municipalities: 10%, and [iii] for 4th to 6th class municipalities: 5%; provided that agricultural land distributed to land reform beneficiaries shall not be affected by such reclassification. LOCAL LEGISLATIVE POWER Q – What are those that can be approved by local legislative bodies? A – 1. Ordinance 2. Resolution Q – What is the difference between an ordinance and a resolution? A – Already discussed. Q – What are the requisites of a valid ordinance? A – 1. It must not be contrary to the Constitution and any statute. 2. It must not be unfair or oppressive. 3. It must not be partial or discriminatory. 4. It must not prohibit but may regulate trade. 5. It must not be unreasonable. 6. It must be general in circulation and consistent with public policy. (Tatel vs. Municipality of Virac, 207 SCRA 1579) Q – When is an ordinance (whether it is passed by the Sangguniang Panlalawigan, Sangguniang Barangay, Sangguniang Panlunsod) considered approved? A – It is considered approved (1) when the local chief executive approves the same, affixing his signature on each and every page thereof; (2) when the local chief executive vetoes the same, and the veto is overridden by 2/3 vote of all the members of the Sanggunian; and (3) when it is not acted upon within 15 days in case of a province, or 10 days in case of a city or municipality, otherwise the ordinance shall be deemed approved, as if he signed it. VETO POWER OF THE LOCAL CHIEF EXECUTIVE Q – What is the veto power of a chief executive? A – He may veto an ordinance only once on the ground that it is ultra vires, or that it is prejudicial to public welfare.

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Q – Can he veto a particular item or items of an ordinance? A – Yes. In such a case, the veto shall not affect the item or items which are not objected to. REVIEW OF APPROVED ORDINANCES AND RESOLUTIONS Q – What happens after the said ordinances and resolutions are approved? A – 1. The same shall be forwarded to the Sangguniang Panlalawigan for review. If it finds that the ordinance or resolution is beyond the power of the Sangguniang Panlunsod or Sangguniang Bayan, it shall declare said ordinance or resolution invalid in whole or in part. If no action is taken within 30 days, the same is presumed valid. REVIEW OF BARANGAY ORDINANCE Q – What happens after the enactment of a baranggay ordinance? A – They shall be furnished to the Sangguniang Panlunsod or Sangguniang Bayan for review. If the reviewing sanggunian finds the baranggay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within 30 days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment or modification, in which case the effectivity of the ordinance is suspended until the revision called for is effected. If no action is taken by the sangguniang panlungsod or sangguniang bayan within 30 days, the ordinance is deemed approved. Q – What is the consequence if a disapproved ordinance or resolution is enforced by an official or employee? A – It is a sufficient ground for the suspension or dismissal of an official or employee concerned. EFFECTIVITY OF ORDINANCE OR RESOLUTION Q – When does an ordinance or resolution take effect? A – It takes effect after 10 days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capitol, or city, or municipal or baranggay hall, and in at least two other conspicuous places in the local government unit concerned. (Sec. 59, LGC) Q – What is required if an ordinance imposes penal sanctions? A – 1. It shall be published in a newspaper of general circulation within the province where the local legislative body belongs. 2. If there is no newspaper of general circulation within the province, posting of such an ordinance shall be made in all municipalities and

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cities of the province where the sanggunian of origin is situated. (Sec. 59[c], LGC) Q – What is the requirement in the case of an ordinance approved by highly and independent component cities? A – 1. The same shall be posted; 2. In addition, it shall be published once in a local newspaper of general circulation within the city. If there is no such newspaper, within the city, the publication shall be made in any newspaper of general circulation. (Sec. 59[d], LGC) CORPORATE POWERS OF LGU’S Q – What are the corporate powers of LGU’s? A – Already answered. Q – If a local government unit decides to sue, how is it commenced and who will file it? A – It is commenced by the local executive, upon authority of the Sanggunian, except when the City Councilors, by themselves and as representation of or on behalf of the City, bring the action to prevent unlawful disbursement of City funds. (City Council of Cebu vs. Anzon, 47 SCRA 325) Q – Who can represent a municipality? A – Only the Provincial Fiscal, Provincial Attorney, or the Municipal Attorney may validly represent the municipality. The representation of an unauthorized lawyer may be raised at any stage of the proceedings. (Ramos vs. Court of Appeals, 269 SCRA 34) POWER OF LGU’S TO ACQUIRE AND CONVEY REAL OR PERSONAL PROPERTY Q A Q A Q A

– – – – – –

Can LGU’s acquire real or personal property? Yes, provided it is in a manner provided by law. Can LGU’s alienate the same? It may alienate only a patrimonial property, upon proper authority. What are the kinds of properties owned by a municipal corporation? Public Property – If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it. Patrimonial Property – If the property is owned by the municipality in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control over the same.

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This distinction which was laid down in Province of Zamboanga Del Norte vs. City of Zamboanga (22 SCRA 1334, 1341 [1968]), and which was amplified in Cebu City vs. NAWASA, is different from the classification under Articles 423 and 424 of the Civil Code, thus: “Article 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities. (Underlining supplied) All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.” The phrase “public works for public service,” as used in Article 424 was interpreted in Cebu City vs. NAWASA (107 Phil. 1112) in this manner: “xxx the term “public works for public service” must be interpreted, following the principle of ejusdem generis, in the concept of the preceding words, “Provincial roads, city streets, municipal streets, the squares, fountains, public waters and promenades” which are used freely by all, without distinction. Hence, if the public works is not for such free public service, it is not within the purview of the first paragraph, but the second paragraph of Article 424, and consequently, patrimonial in character. And as already held by this Court, a municipal work system designed to supply water to the inhabitants for profit is a corporate function of the municipality.” Q – What is legua communal or communal lands of a town? A – It is a property held by the municipality for the State in trust for the inhabitants, hence, the State is free to dispose it at will. (Salas vs. Jarencio, 46 SCRA 734 [1972]) TOWN PLAZA, PUBLIC PLAZA, PUBLIC STREETS Q – What kind of property is a town plaza? A – It is a property of public dominion. Q – As a result of the eruption of Taal Volcano, residents of towns and barangays near Taal, Batangas, converged in front of and around the municipal hall prompting the mayor to put up tents in the Taal Town Plaza. Can the said plaza be used and occupied by the people affected by the Taal Volcano eruption? A – Yes, but the same can only be used and occupied during the duration of an emergency or until they can be relocated to a better place. Q – Can a public street or thoroughfare be used for a private purpose by any private person?

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A – No. It is property for public use, outside the commerce of man, and may not be subject of lease or other contracts (Macasiano vs. Diokno, 208 SCRA 404) OPEN SPACES IN A SUBDIVISION Q – What is required by law in the case of open spaces in a subdivision? A – Presidential Decree No. 957, as amended by Presidential Decree No. 1216, mandates that the same shall be donated to the LGU where the subdivision is situated. POWER OF LGU TO ENTER INTO CONTRACTS Q – What are the requisites of a valid municipal contract? A – 1. The local government unit has the express, implied or inherent power to enter into the particular contract. 2. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sanggunian concerned. (Sec. 22[c], LGC) 3. The contract must comply with certain substantive requirements, i.e., when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds. 4. The contract must comply with the formal requirements of written contracts, e.g., the Statute of Frauds. Q – When is a contract ultra vires? A – When it does not comply with the first and third requisite, as aforementioned, it is ultra vires and is null and void. Q – Can it be ratified or validated? A – No. Q – When can a defective municipal contract be ratified? A – When there is non-compliance with the second and the fourth requirements, as aforementioned. The ratification may be express or implied. Q – Can X municipality enter into a contract of lease with a private person granting the latter fishing privileges? A – Yes, it is a valid and binding contract. Q – Can the said municipality adopt a subsequent resolution setting aside the said contract of lease and granting the privilege to another? A – No, unless the subsequent resolution is a police measure, in which case, the exercise of police power prevails over the non-impairment clause. (Manamtan vs. Municipality of Luna, La Union, 82 Phil. 844)

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AUTHORITY TO NEGOTIATE AND SECURE GRANTS Q – Is a local chief executive authorized to negotiate and secure financial grants or donations in kind? A – Section 23 of the LGC (Republic Act No. 7160) provides as follows: “Section 23. Authority to Negotiate and Secure Grants – Local chief executives may, upon authority of the sanggunian, negotiate and secure financial grants or donations in kind, in support of the basic services or facilities enumerated under Section 17 hereof, from local and foreign assistance agencies without necessity of securing clearance or approval therefor from any department, agency, or office of the National Government or from any higher local government unit: Provided, That projects financed by such grants or assistance with national security implications shall be approved by the national agency concerned: Provided, further, That when such national agency fails to act on the request for approval within thirty (30) days from receipt thereof, the same shall be deemed approved. The local chief executive shall, within thirty (30) days upon signing of such grant agreement or deed of donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the President.” LIABILITY OF LGU’S FOR DEATH OR INJURY TO PERSONS OR DAMAGE TO PROPERTY Q – Are LGU’s and their officials exempt from said liability? A – It depends. 1. If the LGU is engaged in governmental functions, it is not liable. 2. If the LGU is engaged in proprietary functions, it is liable. Example: 1. Governmental Function a. In a hurry and in response for immediate help, the firetruck owned by the X Municipality and driven by Pedro, a regular employee of the said Municipality, proceeded to the fire scene. While the said firetruck was moving backward at the fire scene, it accidentally bumped a jeep parked at the place. X Municipality may not be held liable. 2. Proprietary Function a. The stage constructed by X Municipality (where a drama and singing contest it sponsored will be held) collapsed resulting in the death of some participants. The said municipality is liable. b. Operation of the waterworks system established by the municipality is a proprietary function.

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LIABILITY OF LOCAL OFFICIALS Q – Cite instances when a local official can be held personally liable for damages. A – 1. Illegal dismissal of an LGU employee coupled with bad faith. (Rama vs. Court of Appeals, 148 SCRA 496) 2. Persistent defiance to follow the order of the Civil Service Commission to reinstate an LGU employee. (Salcedo vs. Court of Appeals, 81 SCRA 408) LIABILITY OF A MUNICIPAL CORPORATION REGARDING CONTRACTS IT ENTERS INTO Q – What is the liability of a municipal corporation regarding contracts it enters into? A – It is liable just like an ordinary person regarding contracts it enters into provided it is intra vires. Q – What is the doctrine of implied municipal liability? A – Under this doctrine, a municipality becomes obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it. If a municipality therefore derives benefits from a contract it entered into, it cannot question its validity to deny answerability under the contract. Q – Can a municipality engage the services of a private lawyer? A – No. As aforementioned, only the Provincial Fiscal, the Provincial Attorney or the Municipal Attorney can validly represent a province or municipality in law suits. (Ramos vs. Court of Appeals, 269 SCRA 34) Q – When can a municipality engage the services of a private lawyer? A – Only when the Provincial Fiscal is disqualified to represent it. In such a case, the fact of disqualification must appear on record. (Municipality of Pililia, Rizal vs. Court of Appeals, 233 SCRA 484) ELECTIVE OFFICIALS QUALIFICATIONS/DISQUALIFICATIONS Q – What are the qualifications of an elective local official? A – 1. Citizen of the Philippines; 2. A registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, in the district where he intends to be elected; 3. A resident therein for at least one (1) year immediately preceding the day of the election; and

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4.

Able to read and write Filipino or any other local language or dialect.

NOTE: 1. Age requirement for candidates for Governor, Vice-Governor, Member of Sangguniang Panlalawigan, or Mayor, Vice-Mayor, or Member of the Sangguniang Panglungsod of highly urbanized cities: At least 23 years of age on election day; 2. Age requirement for candidates for the position of Mayor, or Vice-Mayor of independent component cities, component cities, or municipalities: At least 21 years of age on election day. 3. Age requirement for candidates for the position of Member of the Sangguniang Panglungsod or Sangguniang Bayan: At least 18 years of age on election day. 4. Age requirement for candidates for the position of punong barangay or member of the Sangguniang Barangay: At least 18 years of age but not more than 21 years of age on election day. 5. Candidates for the sangguniang kabataan must be at least 15 years of age but not more than 21 years of age on election day. Q – Who are disqualified from running for any elective local position? A – The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitive from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. (Sec. 40, LGC) REGARDING THE CITIZENSHIP REQUIREMENT OF AN ELECTIVE LOCAL OFFICIAL Q – When should an elective local official possess Filipino citizenship? Is it from the date of the filing of the certificate of candidacy, from the date of his election, or from the date of his proclamation?

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A – Section 39 of the Local Government Code does not mention any particular date when the candidate must possess Filipino citizenship, but the Supreme Court ruled in Frivaldo vs. Comelec (257 SCRA 727) that Governor Frivaldo was qualified to be proclaimed on the reasoning that an official begins to govern only upon his proclamation and on the day his term begins. REGARDING THE PHRASE “FUGITIVE FROM JUSTICE” Q – Who are included in the phrase “fugitive from justice”? A – It includes (1) those who flee after conviction to avoid punishment; and (2) those who, after being charged, flee to avoid prosecution. In Rodriguez vs. Comelec, 259 SCRA 296, the Supreme Court ruled that Rodriguez is not considered a “fugitive from justice” because he arrived in the Philippines long before the filing of the complaint against him in the court of Los Angeles and the issuance of the warrant of arrest against him. MANNER OF ELECTION Q – How shall the officials mentioned hereinbelow be elected? 1. Governor, vice-governor, city mayor, city vice mayor, municipal mayor, municipal vice mayor and punong barangay. 2. Regular members of the sangguniang panlalawigan, sangguniang panglungsod, and sangguniang bayan. A – Governor, vice-governor, city mayor, city vice mayor, municipal mayor, municipal vice mayor, and punong barangay Regular members of the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan (Section 41, LGC)

They shall be elected at large in their respective units by the qualified voters therein. They shall be elected by district, as may be provided for by law.

DATE OF ELECTION Q – When shall the said election be held? A – Unless otherwise provided by law, the elections for local officials shall be held every three (3) years on the second Monday of May.

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TERM OF OFFICE Q – What is the term of office of all local elective officials? A – (a) The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, except that of elective barangay officials: Provided, That all local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992. (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994. (Sec. 43, LGU) Q – Mayor A who was elected in 1988, died in 1989. Vice-Mayor B succeeded and became Mayor in 1989. Is Mayor B still eligible to run for the position of Mayor in 1998, after succeeding to win the election for the same position in the elections held in 1992 and 1995? A – Yes, because the term of three (3) years refers to the terms for which Mayor B was elected. (Borja vs. Comelec, G.R. No. 133495, September 3, 1998) VACANCIES AND SUCCESSION Q – What are the rules in case of permanent vacancies (1) in the office of the Governor, Vice Governor, Mayor and Vice-Mayor; (2) in the Sanggunian? A – If a permanent vacancy occurs in the office of the Governor, Vice Governor, Mayor and Vice-Mayor (1) The highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (Sec. 44[a], LGC) (2) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member, or

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(3)

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in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (Sec. 44[b], LGC) The successors as defined herein shall serve only the unexpired terms of their predecessors. (Sec. 44[d], LGC)

Q – What causes permanent vacancy? A – 1.

Death

2.

Removal from office

3.

Voluntary resignation

4. 5.

Permanent incapacity to discharge the functions of an office Permanent vacancy also arises when an elective official fills a higher vacant office, refuses to assume office or fails to qualify.

(Sec. 44[d, 5th paragraph], LGC) PERMANENT VACANCIES IN THE SANGGUNIAN Q – How are permanent vacancies in the sanggunian filled? A – Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panglungsod of highly urbanized cities and independent component cities; (2) The governor, in the case of sangguniang panglungsod of component cities and the sangguniang bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. (a) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who cause the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall

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(b)

(c)

be a ground for administrative action against the official responsible therefor. In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. In case of vacancy in the representation of the youth and the baranggay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. (Sec. 45, LGC)

Q – Who should make the appointment to any vacancy caused by the cessation from office of a member of the Sangguniang Barangay? A – The mayor upon the recommendation of the Sangguniang Barangay concerned. (Sec. 45[a][3]) Q – Is the nomination by the political party still needed? A – No more, because the recommendation by the Sangguniang Barangay takes the place of nomination by the political party. REASON: Because Sangguniang Barangay members are prohibited to have party affiliations. Q – Suppose the vacancy to be filled is that of a Sangguniang Bayan member who did not belong to any political party. The Governor appointed A without the recommendation of the Sangguniang Bayan. On the other hand, the Sangguniang Bayan recommended B and the Mayor appointed him. As between A and B, who was validly appointed? A – Both A and B were not validly appointed. A was not validly appointed because although he was appointed by the Governor, he was not recommended by the Sangguniang Bayan. B was not validly appointed because although he was recommended by the Sangguniang Bayan, he was appointed by the Mayor. (Fariñas vs. Barba, 256 SCRA 396) Q – What are the rules in case of temporary vacancy in the Office of the Local Chief Executive? A – 1. When the governor, city or – municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office.

The vice governor, city or municipal vice mayor, or the highest ranking sangguniang barangay member shall automatically exercise powers and perform the duties and functions of the local chief executive concerned, except

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2. When the incumbent local – chief executive is travelling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days.

3. When the local chief executive – concerned fails or refuses to issue such authorization. (Sec. 46, LGC)

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the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. He may designate in writing the officer in charge of the said office. Such authorization shall specify the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees. The vice governor, the city or municipal vice mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof.

Q – In case of vacancy in the representation of the youth and the barangay in the Sanggunian, how shall it be filled? A – It “shall be filled automatically by the official next in rank of the organization concerned.” (Sec. 45[d], LGC) Q – If the SK Chairman (1) refuses to assume office; (2) fails to qualify; (3) convicted of a crime; (4) dies; (5) voluntary resigns; (6) permanently incapacitated; (7) removed from office; or (8) has been absent without leave for more than three (3) consecutive months, who succeeds him? A – The SK member who obtained the next highest number of votes shall succeed him. Q – When shall said temporary capacity terminate? A – The same shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he

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has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist. Q – Can the local chief executive authorize any local official to assume the powers, duties and functions of the office, other than the vice governor, the city or municipal vice mayor, or the highest ranking sangguniang barangay member, as the case may be? A – No, except as provided above. (Sec. 46[e], LGC) APPROVAL OF LEAVES OF ABSENCE Q – How shall the leaves of absence of the local officials hereinbelow be approved? 1. Governor and the mayor of a highly urbanized city or an independent component city 2.

Vice governor or a city or municipal vice mayor

3.

Component city or municipal mayor

4.

Punong barangay

A – 1. Leaves of absence of the governor – and the mayor of highly urbanized city or an independent component city – 2. Leaves of absence of a vice governor – or a city or municipal vice mayor –

Shall be approved by the President or his duly authorized representative. Shall be approved by the local chief executive concerned: Provided, That the leaves of absence of the members of the sanggunian and its employees shall be approved by the vice governor or city or municipal vice mayor concerned. Shall be approved by the governor.

3. Leaves of absence of the component – city or municipal mayor – Shall be approved by the 4. Leaves of absence of a punong city or municipal mayor: barangay

Provided, That leaves of absence of sangguniang barangay members shall be approved by the punong barangay.

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Q – What happens if the said application for leave of absence is not acted upon within five working days after receipt thereof? A – The application for leave of absence shall be deemed approved. PRACTICE OF PROFESSION Q – Can governor, city and municipal mayors practice their profession or engage in any occupation other than the exercise of their functions as local chief executives? A – They are prohibited from doing so. (Sec. 90, LGC) Q – Can Sanggunian members practice their professions or engage in any occupation? A – Yes, except during session hours. However, sanggunian members who are also members of the Bar shall not: 1. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; 2. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; 3. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and 4. Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. (Sec. 90[b], LGC) Q – Can sanggunian members teach in schools? A – Yes, except during session hours. (Ibid.) Q – Can sanggunian members who are doctors of medicine practice their profession during official hours of work? A – Yes, but only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. (Sec. 90[c], LGC) PARTISAN POLITICAL ACTIVITY Q – Can local officials or employees in the career civil service engage directly or indirectly in any partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall? A – They are prohibited from doing so except: (1) that they can vote and they can express their views on current issues, or mention the names of certain candidates for public office whom they support; (2) they may take part in the partisan political and electoral activities, but it shall be unlawful

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for them to solicit contributions from their subordinates or subject these subordinates to any of the prohibited acts under the Omnibus Election Code. (Section 93, LGC) Q – Can they use their official authority or influence to cause the performance of any political activity or body? A – No. (Ibid.) DISCIPLINARY ACTIONS Q – Can an elective local official be disciplined, suspended or removed from office? A – Yes, on the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlunsod, sangguniang bayan, and sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Section 60, LGC) Q – What is required in case a complaint will be filed against an erring local elective official? A – 1. 2.

The said complaint must be verified. It shall be filed in the following offices: (a) In the office of the President: In case of a complaint against any elective official of a province, a highly urbanized city, an independent component city or component city. (Section 61[a], LGC) (b) In the Sangguniang Panlalawigan: In case of a complaint against any elective official of a municipality. The decision of the sangguniang panlalawigan whose decision may be

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appealed to the Office of the President; (Section 61[b], LGC) and (c) In the Sangguniang Panglunsod or Sangguniang Bayan: In case of a complaint against any elective barangay official. The decision of the sangguniang panglunsod or sangguniang bayan shall be final and executory. (Section 61[c], LGC) Q – What is the procedure to be observed after the filing of the said administrative complaint? A – 1. Within 7 days after the filing of administrative complaint: The office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within 15 days from receipt thereof; and commence the investigation of the case within 10 days after receipt of such answer. 2. If an elective official of a province or highly urbanized city: Such hearing and investigation shall be conducted in the place where he renders or holds office. For all other local elective officials, the venue shall be the place where the sanggunian concerned is located. Q – Can an investigation be held prior to a local election? Can preventive suspension be imposed prior to local election? A – No investigation shall be held within 90 days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of aforesaid period. (Section 62[c], LGC) Q – When the evidence of guilt is strong, what penalty can be imposed? A – Preventive suspension may be imposed under Sec. 63 of LGC. Q – Who can impose preventive suspension? A – 1. It may be imposed by the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (Section 63[1], LGC) 2. It may be imposed by the Governor, if the respondent is an elective official of a component city or municipality; (Section 63[2], LGC) or 3. It may be imposed by the Mayor, if the respondent is an elective official of the barangay. (Section 63[3], LGC) Q – What specifically is required before preventive suspension may be imposed? A – Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the

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offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Provided, that, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (Section 63[b], LGC) Q – What happens upon the expiration of the preventive suspension? A – Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (Section 63[c], LGC) Q – What is the consequence if the power to impose preventive suspension is abused? A – It shall be penalized as abuse of authority. (Section 63[d], LGC) EFFECT OF PREVENTIVE SUSPENSION ON THE SALARY OF RESPONDENT Q – What is the effect of preventive suspension on the salary of the respondent official preventively suspended? A – The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. (Section 64, LGC) RIGHTS OF RESPONDENT Q – What exactly are the rights of respondent in case a complaint is filed against him? A – The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum. (Section 65, LGC)

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FORM AND NOTICE OF DECISION Q – When is the investigation terminated? A – The investigation of the case shall be terminated within ninety (90) days from the start thereof. Q – When shall the decision be rendered? A – Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties. (Section 66, LGC) Q – Can an erring local elective official be suspended for more than six (6) months? A – The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. (Section 66[b], LGC) REMOVAL FROM OFFICE Q – What is the effect of a penalty of removal from office? A – The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. (Section 66[c], LGC) ADMINISTRATIVE APPEALS Q – Are decisions in administrative cases appealable? A – Yes, within thirty (30) days from receipt thereof. (Section 67[a], LGC) Q – Where shall the appeal be filed? A – 1. In the Sangguniang Panlalawigan: In the case of decisions of the sangguniang panglungsod of component cities and the sangguniang bayan; (Section 67[a], LGC) and 2. In the Office of the President: In the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. (Section 67[b], LGC) EXECUTION PENDING APPEAL Q – Can an appeal prevent a decision from becoming final or executory? A – An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive

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suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal. (Section 68, LGC) RECALL Q – Who can exercise the power of recall? A – The registered voters of a local government unit to which the local elective official subject to such recall belongs. (Section. 69, LGC) Q – On what ground can such power of recall be exercised? A – On the ground of loss of confidence. (Section 69, LGC) Q – How may it be initiated? A – It may be initiated by a preparatory recall assembly or by the registered voters of the LGU to which the local elective official subject to such recall belongs. PRA (PREPARATORY RECALL ASSEMBLY) Q A Q A

– Is there a PRA in every LGU? – Yes. There shall be a PRA in every province, city, district, and municipality. – What is the composition of the PRA? – LEVELS

COMPOSITION

1. Provincial level

–

2. City level

–

3. Legislative District level

–

4. Municipal

–

All mayors, vice-mayors, and sangguniang members of the municipalities and component cities. All punong barangay and sangguniang barangay members in the city. In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district. All punong barangay and sangguniang barangay members in the municipality.

Q – How shall a recall be initiated? A – 1. It shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. (Section 70[c], LGC)

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2.

Q A Q A

– – – –

It may also be validly initiated upon petition of at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. (Section 70[d], LGC) Can a written petition for recall be filed with the Comelec? Yes, this is allowed under Sec. 70(d)(1). What are the requirements in this case? A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the LGU concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. (Section 70[c], LGC) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. (Section 70[d], LGC)

ELECTION RECALL Q – What happens after the said petition for recall is filed with the appropriate local office of the Comelec? A – The Comelec or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filling of the resolution or petition for recall in the case of the barangay, city or municipal officials, and 45 days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions, and like other candidates, shall be entitled to be voted upon. (Section 71, LGC) EFFECTIVITY OF RECALL Q – When shall the recall of an elective local official be effective? A – It shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. (Section 72, LGC) Q – During the recall process, the elective local official sought to be recalled resigned. Can this be done?

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A – No. Section 73 of LGC provides as follows: “The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress.” LIMITATIONS ON RECALL Q – What are the limitations on recall? A – (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence; (b) No recall shall take place within 1 year from the date of the official’s assumption to office or 1 year immediately preceding a regular local election. (Section 74, LGC) EXPENSES INCIDENT TO RECALL ELECTION Q – Who shoulders the expenses incident to recall elections? A – It shall be borne by the Comelec. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the Comelec for the conduct of recall elections. (Section 75, LGC) HUMAN RESOURCES AND DEVELOPMENT Q – What governs all matters pertinent to human resources and development? A – It shall be governed by the Civil Service Law and such rules and regulations and other issuances promulgated pursuant thereto, unless otherwise specified in this Code. (Section 78, LGC) APPOINTMENT IN THE CAREER SERVICE OF THE LOCAL GOVERNMENT Q – What is the limitation when somebody is appointed in the career service of the local government? A – No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. (Section 79, LGC) REQUIREMENT IF A LOCAL CHIEF EXECUTIVE WILL FILL UP A VACANT CAREER POSITION Q – What should be observed when a local chief executive fills a vacant career position? A – (a) There shall be posted notices of the vacancy in at least 3 conspicuous public places in the local government unit concerned for a period not less than 15 days; (b) There shall be established in every province, city or municipality a personnel selection board to assist the local chief executive

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in the judicious and objective selection of personnel for employment as well as for promotion, and in the formulation of such policies as would contribute to employee’s welfare; and (c) The personnel selection board shall be headed by the local chief executive, and its members shall be determined by resolution of the sanggunian concerned. A representative of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned shall be ex officio members of the board. (Section 80, LGC) COMPENSATION OF LOCAL OFFICIALS AND EMPLOYEES Q – Who determines the compensation of local officials and personnel? A – The Sanggunian concerned, subject to the following limitations: 1. That the increase in compensation of elective local officials shall take effect only after the terms of office of those approving such increase shall have expired; 2. That the increase in compensation of the appointive officials and employees shall take effect as provided in the ordinance authorizing such increase; 3. That said increases shall not exceed the limitations on budgetary allocations for personal services provided under Title Five, Book II of this Code; and 4. That such compensation may be based upon the pertinent provisions of R.A. No. 6758, otherwise known as the “Compensation and Position Classification Act of 1989.” RESIGNATION OF ELECTIVE LOCAL OFFICIALS Q – When is a resignation of an elective local officials effective? A – The same shall be deemed effective only upon acceptance by: 1. The President – In the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities; 2. The Governor – In the case of municipal mayors, municipal vicemayors, city vice-mayors of component cities; 3. The Sanggunian concerned – In the case of sanggunian members; and 4. The City or Municipal Mayor – In the case of barangay officials. (Section 82[a], LGC) Q – Should a copy of the said resignation letter be furnished to the DILG?

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A – Yes. (Section 82[d], LGC) Q – What is the consequence if the resignation is not acted upon by the authority concerned? A – The resignation shall be deemed accepted if not acted upon by the authority concerned within 15 working days from receipt thereof. (Section 82[c], LGC) IRREVOCABLE RESIGNATIONS BY SANGGUNIAN MEMBERS Q – When is this deemed accepted? A – It shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records. Provided, however, that this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations. (Section 82[d], LGC) ADMINISTRATIVE DISCIPLINE AGAINST APPOINTIVE LOCAL OFFICIALS AND EMPLOYEES Q – What is the governing law regarding administrative complaint against appointive local officials and employees? A – Civil Service Law, rules and other pertinent laws. The results of such administrative investigations shall be reported to the CSC. PREVENTIVE SUSPENSION OF APPOINTIVE LOCAL OFFICIALS AND EMPLOYEES Q – May local chief executives preventively suspend any subordinate official or employee under his authority pending investigation? A – Yes, if the charge against such official or employee involves (a) dishonesty; (b) oppression or grave misconduct; (c) neglect in the performance of duties; (d) or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. Q – Is the suspended official or employee entitled to reinstatement upon the expiration of the preventive suspension? A – Yes, but without prejudice to the continuation of the administrative proceedings against him until its termination. (Section 85[b], LGC) Q – If there is a delay in the proceedings of the case, is the time of the delay to be counted in computing the period of suspension? A – Sec. 85(b), last sentence, provides that “if the delay in the proceedings is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension.

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ADMINISTRATIVE INVESTIGATION Q – Who may conduct an administrative investigation in any LGU? A – Any person or committee duly authorized by the local chief executive. Q – What is the responsibility of the said person or committee? A – (1) It shall conduct hearings on the cases brought against the appointive local officials and employees complained of; and (2) It shall submit its findings and recommendations to the local chief executive concerned within 15 days from the conclusion of the hearings. Q – When shall the administrative case be decided? A – 90 days from the time the respondent is formally notified of the charges. DISCIPLINARY JURISDICTION Q – What are the penalties that the local chief executive may impose? A – Except as otherwise provided by law, the local chief executive may impose the penalty of: R-D-S-F-R. 1. Removal from the service. 2. Demotion in rank 3. Suspension for not more than one (1) year without pay 4. Fine in an amount not exceeding 6 months salary 5. Reprimand (Section 87, LGC) Q – What penalty is appealable and what penalty is final? A – If the penalty imposed is suspension without pay for not more than 30 days, his decision shall be final. If the penalty imposed is heavier than suspension of 30 days, the decision shall be appealable to the Civil Service Commission, which shall decide the appeal within 30 days from receipt thereof. (Sec. 87, last sentence) LOCAL GOVERNMENT UNITS I.

BARANGAY A. THE PUNONG BARANGAY B. THE SANGGUNIANG BARANGAY C. BARANGAY ASSEMBLY D. LUPONG TAGAPAMAYAPA E. PANGKAT NG TAGAPAGKASUNDO F. SANGGUNIANG KABATAAN

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THE MUNICIPALITY A. THE MUNICIPAL MAYOR B. THE VICE-MAYOR C. THE SANGGUNIANG BAYAN

III. THE CITY A. THE CITY MAYOR B. THE CITY VICE-MAYOR C. THE SANGGUNIANG PANLUNGSOD IV.

THE PROVINCE A. THE PROVINCIAL GOVERNOR B. THE PROVINCIAL VICE-GOVERNOR C. THE SANGGUNIANG PANLALAWIGAN I. BARANGAY

Q – What is the role of the barangay? A – As the basic political unit, the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects, and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled. (Section 384, LGC) MANNER OF CREATION Q – How is a barangay created, divided, merged, abolished, or its boundary substantially altered? A – (1) By law; or (2) by ordinance of the sangguniang panlalawigan or sangguniang panlungsod, subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the LGU directly affected. (Section 385, LGC) (2) By an act of Congress, a barangay may be created to enhance the delivery of basic services in the indigenous cultural communities. (Section 386, LGC) POPULATION OF A BARANGAY Q – Is there a required population before a barangay can be created? A – No specific number of inhabitants is required. Section 386 of the LGC merely requires that (a) A barangay may be created out of a contiguous territory which has a population of at least 2,000 inhabitants as certified by the National Statistics Office except in cities and municipalities within

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Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least 5,000 inhabitants. Provided, that the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein. To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement. (b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands. (c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan shall be prepared and approved by the sangguniang bayan concerned. (Section 386, LGC) BARANGAY OFFICIALS Q – Who are the barangay officials? A – 1. Punong Barangay 2. Seven (7) Sangguniang barangay members 3. Kabataan Chairman 4. Barangay Secretary 5. Barangay Treasurer (Section 387, LGC) Q – What are the other offices in the Barangay? A – 1. Lupong Tagapamayapa 2. Community Brigades 3. Other offices as may be necessary (Section 387, LGC ) Q – Who are the persons in authority and who are the agents of person in authority?

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A – OFFICIALS

1. Punong Barangay Person in Authority 2. Sangguniang Barangay members Person in Authority 3. Members of the Lupon Tagapamayapa Person in Authority 4. Other Barangay officials charged in the maintenance of public order, protection and security of Agents of persons in authority life and property and any barangay member who comes to the aid of the person in authority. (Section 388, LGC) POWERS, DUTIES AND FUNCTIONS OF THE PUNONG BARANGAY, SANGGUNIANG BARANGAY Q – What are the powers, duties and functions of the Punong Barangay? A – Enumerated in Section 389 of the LGC. Q – What are the powers, duties and functions of the Sangguniang Barangay? A – Enumerated in Section 390 of the LGC. Q – Can the Barangay Chairman possess and carry firearm? A – Yes, but only within his territorial jurisdiction subject to appropriate rules and regulations. (Section 389, LGC) KATARUNGANG PAMBARANGAY Q – What was created to supervise conciliation of disputes in the barangay level? A – The Lupong Tagapamayapa and the Pangkat ng Tagapagkasundo. Q – What are the functions of the Lupon? A – The Lupon shall: (a) Exercise administrative supervision over the conciliation panels provided herein. (b) Meet regularly once a month to provide a forum for matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes; and

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(c)

Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance. (Section 402, LGC) Q – What is the task of the Pangkat ng Tagapagkasundo? A – The members of the Lupon shall serve as conciliators. (Section 404, LGC) AMICABLE SETTLEMENT OF DISPUTES BETWEEN PERSONS RESIDING IN THE SAID BARANGAY Q – Where shall said disputes be brought for amicable settlement? A – Before the Lupon of the said Barangay. Q – What are the different disputes that may be brought for amicable settlement? A – (a) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant. (b) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated. (c) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. (Section 409, LGC) LIMITATIONS BEFORE A COMPLAINT, PETITION, ACTION OR PROCEEDING INVOLVING ANY MATTER WITHIN THE AUTHORITY OF THE LUPON COULD BE FILED IN COURT (Section 412, LGC) Q – What is the limitation? A – (a) Pre-condition to filing of complaint in court. – No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto. (b) Where parties may go directly to court. – The parties may go directly to court in the following instances:

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(1) (2)

(c)

Where the accused is under detention; Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and (4) Where the action may otherwise be barred by the statute of limitations. Conciliation among members of indigenous cultural communities. – The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities. (Section 412, LGC)

CASES WHEN THE PARTIES MAY GO DIRECTLY TO COURT Q – When can the parties go directly to court? A – (1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and (4) Where the action may otherwise be barred by the statute of limitations. PROVISO: If the conciliation is among members of the indigenous cultural communities, their customs and traditions shall be applied in settling disputes. APPEARANCES IN KATARUNGANG PAMBARANGAY PROCEEDINGS Q – Can the parties be represented by counsel or representative? A – In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers. (Section 415, LGC) SANGGUNIANG KABATAAN Q A Q A

– – – –

Is there a sangguniang kabataan in every barangay? Yes. (Section 423, LGC) What is its composition? Chairman, (7) seven members, a secretary and a treasurer.

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Q – What is the composition of the Katipunan ng Kabataan? A – The Katipunan ng Kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary. (Section 424, LGC) Q – What are the powers and functions of the Sangguniang Kabataan? A – The Sangguniang Kabataan shall: (a) Promulgate the resolutions necessary to carry out the objectives of the youth in the barangay in accordance with the applicable provisions of this code; (b) Initiate programs designed to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the members; (c) Hold fund-raising activities, the proceeds of which shall be taxexempt and shall accrue to the general fund of the sangguniang kabataan: Provided, however; That in the appropriation thereof, the specific purpose for which such activity has been held shall be first satisfied; (d) Create such bodies or committees as it may deem necessary to effectively carry out its programs and activities; (e) Submit annual and end-of-term report to the sangguniang barangay on their projects and activities for the survival as development of the youth in the barangay; (f) Consult and coordinate with all youth organizations in the barangay for policy formulation and program implementation; (g) Coordinate with the appropriate national agency for the implementation of youth development projects and programs at the national level; and (h) Exercise such other powers and perform such other duties and functions as the sagguniang barangay may determine or delegate or as may be prescribed by law or ordinance. (Section 426, LGC) FEDERATION OF SANGGUNIANG KABATAAN Q – Is there a federation of Sangguniang Kabataan in all levels? A – Yes, as provided in Section 436 of the LGC, thus 1. Pambansang Pederasyon – in Municipalities 2. Panglungsod na Pederasyon – in Cities 3. Panlalawigan na Pederasyon – in Provinces

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4. 5.

Pangmetropolitang Pederasyon – in Special Metropolitan Subdivisions Pambansang Pederasyon – in the National Level

THE MUNICIPALITY, CITY, PROVINCE AT A GLANCE I.

MUNICIPALITY ROLE: The municipality, consisting of a group of a barangays, serves primarily as a general purpose government for the coordination and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. (Section 440, LGC) MANNER OF CREATION: A municipality may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. Except as may otherwise be provided in the said Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity. (Section 441, LGC) REQUISITES FOR CREATION: (a) A municipality may be created if it has an average annual income as certified by the provincial treasurer, of at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000.00) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands Management Bureau; Provided, that the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income. (d) Municipalities existing as of the date of the effectivity of this code shall continue to exist and operate as such. Existing municipal

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districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.(Section 442, LGC) CITY ROLE: The city, consisting of more urbanized and developed barangays, serves as a general-purpose government for the coordination and delivery of basic, regular, and direct services and effective governance of the inhabitants within its territorial jurisdiction. (Section 449, LGC) MANNER OF CREATION: A city may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. Except as may otherwise be provided in the such Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity. (Section 449, LGC) REQUISITES FOR CREATION: (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and it has either of the following requisites: (i) A contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or (ii) A population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. Provided, that, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers and non-recurring income. (Section 450, LGC)

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III. PROVINCE ROLE: The province composed of a cluster of municipalities, or municipalities and component cities, and as a political and corporate unit of government, serves as a dynamic mechanism for developmental processes and effective governance of local government units within its territorial jurisdiction. (Section 459, LGC) MANNER OF CREATION: A province may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. The plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity of said Act, unless otherwise provided therein. (Section 460, LGC) REQUISITES FOR CREATION: (a) A province may be created if it has an average annual income, as certified by the Department of Finance of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices, and it has either of the following requisites: (i) A contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) A population of not less than two hundred fifty thousand (250,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) 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. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers and non-recurring income. (Section 461, LGC) SETTLEMENT OF BOUNDARY DISPUTES Q – What is the boundary dispute referred to in Section 118 of the LGC? A – It is a boundary dispute between and among LGU’s. More specifically, there are four (4) kinds of boundary disputes mentioned in Section 118, that, as much as possible, shall be settled amicably.

ARTICLE X LOCAL GOVERNMENT

BOUNDARY DISPUTES

1. Involving 2 or more barangays in the same city or municipality. 2. Involving 2 or more municipalities within the same province. 3. Involving municipalities or component cities of different provinces. 4. Involving a component city or municipality on the one hand and a highly urbanized city on the other, or 2 or more highly urbanized cities.

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SHALL BE REFERRED FOR SETTLEMENT

1. To the sangguniang panlungsod or sangguniang bayan. 2. To the sangguniang panlalawigan concerned. 3. To the sanggunian of the provinces concerned. 4. To the respective sanggunian of the parties.

Q – What happens if the sanggunian fails to effect an amicable settlement within 60 days from the date the dispute was referred to? A – It shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within 60 days from the date of the certification referred to above. (Section 118[e], LGC) Q – Is the decision of the sanggunian concerned appealable? A – Yes, within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper RTC having jurisdiction over the area in dispute. (Section 119, LGC) Q – Within what time shall the RTC decide the appeal? A – Within one (1) year from the filing thereof. Q – Pending final resolution of the case in the RTC, what happens to the disputed area? A – The disputed area prior to the dispute shall be maintained and continued for all legal purposes. LOCAL INITIATIVE AND REFERENDUM Q – Define local initiative. A – Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. (Section 120, LGC) Q – Who may exercise local initiative? A – The power of local initiative and referendum may be exercised by all

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registered voters of the provinces, cities, municipalities, and barangays (Section 121, LGC) Q – What is the procedure in local initiative? A – 1. How many registered voters may file a petition? Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the sanggunian concerned proposing the adoption, enactment, repeal, or amendment of an ordinance. (Section 122[a], LGC) 2. What happens if no favorable action is taken by the sanggunian concerned? If no favorable action thereon is taken by the sanggunian concerned within 30 days from its presentation, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sanggunian concerned. (Section 122[b], LGC) 3. How shall the proposition be numbered? The proposition shall be numbered serially starting from roman numeral I. The Comelec or its designated representative shall extend assistance in the formulation of the proposition. (Section 122[c], LGC) 4. How many propositions may be submitted? Two (2) or more propositions may be submitted in an initiative. (Section 122[d], LGC) 5. How many days are given to the proponents to collect the required number of signatures? Proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice mentioned in subsection (b) thereof to collect the required number of signatures. (Section 122[e], LGC) 6. Where shall the petition be signed? The petition shall be signed before the election registrar, or his designated representatives, in the presence of a representative of the proponent, and a representative of the sanggunian concerned in a public place in the local government unit, as the case may be. Stations for collecting signatures may be established in as many places as may be warranted. (Section 122[f], LGC) 7. When shall the certification be issued as to whether or not the required number of signatures has been obtained? Upon the lapse of the period herein provided, the Comelec, through its office in the LGU concerned, shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number defeats the proposition. (Section 122[g], LGC)

ARTICLE X LOCAL GOVERNMENT

8.

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What happens if the required number of signatures is obtained? If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the LGU concerned for their approval within 60 days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Section 122[h], LGC)

EFFECTIVITY OF LOCAL PROPOSITIONS Q – When shall the proposition, as approved by a majority of the votes cast, take effect? A – If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the Comelec as if affirmative action thereon had been made by the sanggunian and local chief executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. (Section 123, LGC) LIMITATIONS ON LOCAL INITIATIVE Q – What are the limitations on local initiative? A – (a) The power of local initiative shall not be exercised more than once a year. (b) Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunians to enact. (c) If at any time before the initiative is held, the sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. (Section 124, LGC) LIMITATIONS UPON SANGGUNIANS Q – Can the sanggunian concerned repeal, modify or amend any proposition or ordinance approved through the system of initiative? A – It cannot do so within 6 months from the date of the approval thereof. The said proposition may be amended, modified or repealed by the sanggunian within 3 years thereafter by a vote of 3/4 of all its members. Provided, that in case of barangays, the period shall be 18 months after the approval thereof. (Section 125, LGC)

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LOCAL REFERENDUM Q – Define local referendum. A – Local referendum is the legal process whereby the registered voters of the local government may approve, amend or reject an ordinance enacted by the sanggunian. Q – How shall a local referendum be held and when can it be held? A – The local referendum shall be held under the control and direction of the Comelec within 60 days in the case of provinces and cities, 45 days in case of municipalities and 30 days in case of barangays. The Comelec shall certify and proclaim the results of the said referendum. (Section 126, LGC) Q – Can the proper courts declare null and void any proposition? A – Yes, on the following grounds: (1) For violation of the Constitution; or (2) For want of capacity of the sanggunian concerned to enact the said measure. INTERGOVERNMENTAL RELATIONS NATIONAL SUPERVISION OVER LOCAL GOVERNMENT Q – Who shall exercise general supervision over LGU’s? A – The President. (Section 25[a], LGC) Q – What is the reason behind the power of the President to exercise general supervision over LGU’s? A – Section 25 of the LGC says that this is “consistent with the basic policy of local autonomy in order” to ensure that their acts are within the scope of their prescribed powers and functions. Q – How shall the President exercise his supervisory authority? A – The President shall exercise supervisory authority directly over: 1. Provinces 2. Highly urbanized cities 3. Independent component cities, through the province with respect to component cities and municipalities, and through the city and municipality with respect to barangays COORDINATION BETWEEN NATIONAL AGENCIES AND LGU’S Q – Does the law provide that they shall coordinate with each other? If so, how? A – National agencies and offices with implementation functions shall coordinate with one another and with the local government units concerned in the discharge of these functions. They shall ensure the participation of

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local government units both in the planning and implementation of said national projects. The President may, upon request of the LGU concerned, direct the appropriate national agency to provide financial, technical, or other forms of assistance to the LGU. Such assistance shall be extended at no extra cost to the LGU concerned. National agencies and offices including government-owned and controlled corporations with field units or branches in a province, city, or municipality shall furnish the local chief executive concerned, for his information and guidance, monthly reports including duly certified budgetary allocations and expenditures. (Section 25[b], [c], [d], LGC) DUTY OF NATIONAL GOVERNMENT IN THE MAINTENANCE OF ECOLOGICAL BALANCE Q – What is the duty of National Government regarding the maintenance of ecological balance? A – To consult with LGU’s, NGO’s and other sectors concerned and explain the goals and objectives of its project; its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. (Section 26, LGC) Q – What is the project or program referred to? A – Any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species. (Section 26, LGC) Q – Is prior consultation mandatory? A – Yes. Section 27 of the LGC provides as follows: “No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained. Provided, that occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. ”(Section 27, LGC) RELATIONS WITH NATIONAL POLICE Q – Does a local chief executive have control and supervision over the units of the PNP? A – Yes, but its operational control and supervision over the police force, fire protection unit and jail management personnel shall be limited to their respective jurisdictions, and this is governed by Republic Act No. 6975, otherwise known as the DILG Act of 1990. (Section 28, LGC)

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INTER-LOCAL GOVERNMENT RELATIONS I. PROVINCIAL RELATIONS WITH COMPONENT CITIES Q – Are highly urbanized cities and independent component cities independent of the province? A – Yes, subject to the following limitations: 1. The governor shall review all executive orders promulgated by the component city or municipal mayor within his jurisdiction, except as otherwise provided under the Constitution and special statutes; (Section 30, LGC) 2. The province, through the governor, shall ensure that every component city and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and functions. (Section 29, LGC) II. CITY OR MUNICIPAL MAYOR AND THE PUNONG BARANGAY Q – Can the city or municipal mayor review all the executive orders promulgated by the punong barangay within his jurisdiction? A – Yes. In fact, Section 30 of the LGC requires the following: 1. Copies of said orders shall be forwarded to the governor or the city or municipal mayor, as the case may be, within three (3) days from its issuance. 2. In all instances of review, the local executive concerned shall ensure that such executive orders are within the powers granted by law and in conformity with provincial, city or municipal ordinances. (Section 30, LGC) Q – What happens if the governor or city or municipal mayor fails to act on said executive orders within thirty (30) days from their submission? A – They shall be deemed consistent with law and therefore valid. (Section 30[b], LGC) Q – Who may be consulted by the municipal government on any legal question affecting the municipality? A – The municipal legal officer, if there is one. If there is none, the provincial legal officer, and in the absence of the latter, the provincial prosecutor. III. CITY OR MUNICIPALITY AND THE COMPONENT BARANGAYS Q – Does the city or municipality have supervision over component barangays? A – Yes, but it shall only exercise “general supervision over component barangays to ensure that said barangays act within the scope of their prescribed powers and functions.”

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IV.

COOPERATIVE UNDERTAKINGS AMONG LOCAL GOVERNMENTS Q – May LGU’s group themselves for purposes commonly beneficial to them? A – Yes. The participating LGU’s involved may, upon approval by the sanggunian concerned after a public hearing conducted for the purpose, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating LGU’s. V. RELATIONS OF LGU’S WITH PEOPLE’S AND NGO’S Q – How do they help one another? A – 1. LGU’s shall promote the establishment and operation of social organizations to become active partners in the pursuit of local autonomy. (Section 34, LGC) 2. LGU’s may enter into joint ventures and other cooperative arrangements of the said organizations to engage in the delivery of certain basic services, capability building and livelihood projects, and to develop local enterprises designed to improve productivity and income, diversify agriculture, special industrialization, promote ecological balance, and enhance the economic and social well-being of the people. (Section 35, LGC) 3. The LGU may, through its local chief executive and with the concurrence of the sanggunian concerned, provide assistance, financial or otherwise, to such organizations for economic, socially oriented, environmental, or cultural projects to be implemented within its territorial jurisdiction. (Section 36, LGC) ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. Q – Explain the principle of “public office is a public trust.” A – Under this principle, public officials in all the ladders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. Their offices are not their own, nor can they be treated as private properties which they can manage or dispose of at their whim and caprice.

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Q – What is a public office? A – It is the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by the individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192) Q – What could be the importance of having this policy when this is in reality breached by many public officials from time to time? A – Despite so many sad experiences in past elections, a majority of the people have never learned from their mistakes. They still believe in empty and false promises and continue to elect people who choose to be masters of their own selfish agenda, at the expense of the people to whom they are committed to serve “with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.” Section 1 may have been breached a thousand times, or even more, but it serves at least as a constant reminder to all public officials that “public office is a public trust.” Q – What is the meaning of the word “office”? A – It is that function by virtue of which a person has some employment in the affairs of another, whether the incumbent holds the position either by virtue of an appointment or by election, and whether the appointment is for a fixed term or at the pleasure of the appointing power. Q – Distinguish public office from contract. A – PUBLIC OFFICE

CONTRACT

1. It is a creation of sovereignty. 1. Contract arises from the agreement or will of the parties. 2. It is more lasting in nature. 2. The effectivity of the contract may be for a long or short period of time, as may be agreed upon by the parties. 3. The obligations arising from 3. Its objective is to carry out the contract is, as a rule, sovereign as well as govenforceable only as between ernmental functions which the parties to the contract involve even persons who are (Article 1311, New Civil Code) not parties to the agreement Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and

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conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Q – What is impeachment? A – In this jurisdiction, it could be defined as the extra-ordinary means of removing the impeachable public officials mentioned in Article XI, Section 2, through a verified complaint filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof, which complaint is tried by the Senate to decide whether any of the grounds provided in Section 2 exist or not and whether a judgment of impeachment will be rendered or not. Q – Who are the officials removable by impeachment? A – The officials removable by impeachment are the following: 1. The President 2. The Vice-President 3. The Members of the Supreme Court 4. The Members of the Constitutional Commissions 5. The Ombudsman Q – What are the grounds for impeachment? A – Section 2 enumerates the grounds for impeachment and they are as follows: 1. Culpable violation of the Constitution 2. Treason 3. Bribery 4. Graft and corruption 5. Other high crimes 6. Betrayal of public trust Q – Define each. A – Culpable violation of the Constitution – It is a willful and intentional violation of the Constitution. It does not, therefore cover violations committed unintentionally, or in good faith, or on account of an honest mistake of judgment. Treason – Treason is defined by Article 114 of the Revised Penal Code in this manner: “Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere,” commits the crime of treason. Treason, in its general sense, is a violation by a subject of his allegiance or his sovereign or to the supreme authority of the State. (The

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Revised Penal Code, Book Two, Luis B. Reyes, citing U.S. vs. Abad, 1 Phil. 437) Bribery – Bribery is defined in Articles 210 and 211 of the Revised Penal Code. Article 210 refers to Direct Bribery which is committed by “any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another x x x.” “If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prison correccional in its medium period and a fine of not less than twice the value of such gift.” “If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prison correccional in its maximum period and a fine of not less than three times the value of such gift.” Article 211 refers to Indirect Bribery. It provides as follows: “The penalties of prison correccional, in its medium and maximum periods, suspension and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office.” Graft and Corruption – This is defined by Section 3 of Republic Act No. 3019 in this manner: “In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared unlawful: a. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offence in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. b. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his capacity has to intervene under the law. c. Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner

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or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. d. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. e. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. f. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. g. Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. i. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong.

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j. Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of mere representative or dummy of one who is not so qualified or entitled. k. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. “The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section 9 of this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the government.” Other High Crimes – They are those offenses “which like treason and bribery are of enormous gravity that they strike at the very life or orderly workings of government.” (Report of the Special Committee on the Impeachment of President Elpidio Quirino). Will this include involvement in drug syndicates? Considering the ill effects of drugs to society and the day to day commission of drug-related offenses which consume the time, effort, and resources of our government and which destroy the lives of many people, especially the young, they will fall within the definition of high crime. Betrayal of Public Trust – This covers any and all offenses or acts which are violations of the oath of office of the impeachable officers aforementioned, even if they are not punishable by statute as penal offenses, as long as they render the public official concerned as unfit to continue in office (i.e., tyrannical abuse of power, inexcusable negligence of duty, betrayal of public interest, breach of official duty, cronyism, favoritism and obstruction of justice). Section 3. (1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and

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by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Q – What is the procedure of impeachment? A – The simplified procedure of impeachment is as follows: 1. Filing of a complaint: This starts the proceedings for impeachment. a. The complaint is filed either by a member of the House of Representatives; or by any citizen upon a resolution of endorsement by any member thereof. 2. Complaint is referred to the proper Committee: a. The Committee conducts deliberation of the complaint that was filed. Thereafter, the Committee should decide whether the complaint is sufficient in form and in substance. b. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty (60) session days from the referral of the complaint, together with the corresponding resolution.

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c.

Q – A –

Q – A –

Q – A –

The resolution shall be calendared for consideration by the House within ten (10) session days from receipt thereof. d. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. 3. Complaint is sent to the Senate which will try and decide cases of impeachment: a. If filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment. 4. Trial and Conviction: The Senate tries the impeachment and convicts by a vote of 2/3 of all the members of the Senate. Who can file a complaint for impeachment? Section 3(2), Article XI, states that “a verified complaint for impeachment may be filed by (a) any Member of the House of Representatives or (b) by any citizen upon a resolution of endorsement by any Member thereof. Can an impeachment proceeding be initiated against the same official more than once within a period of one year? No. Section 3(5) provides that “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” This is intended to prevent impeachment from being an instrument of mere harassment. When is impeachment proceedings considered “initiated”? There are conflicting opinions on this question until the Supreme Court decided the case of “ERNESTO B. FRANCISCO, JR., ETC. VS HOUSE OF REPRESENTATIVES, ET AL.,” docketed as G.R. No. 160261, NOVEMBER 10, 2003, where this issue, among others, was resolved. The pertinent portion of the decision on this point is as follows: “xxx The resolution of this issue thus hinges on the interpretation of the term “initiate.” Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of “initiate” as “to file,” as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of “initiating” included the act of taking initial action on the complaint, dissipates any doubt that indeed the word “initiate” as

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it twice appears in Article XI(3) and (5) of the Constitution means to file the complaint and take initial action on it. “Initiate” of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster’s Third New International Dictionary of the English Language concisely puts it, it means “to perform or facilitate the first action,” which jibes with Justice Regalado’s position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.” (Underlining Supplied) Background: At the time I wrote my reviewer in 2001, this is my opinion; “The author believes that if Section 3 will be strictly construed, the same is considered “initiated” from the time it is filed by a member of the House of Representatives or by any citizen upon a resolution of indorsement by any member thereof. It is from that time when the filing of the complaint is initiated and commenced. It is actually the filing that starts the proceedings. As to whether or not the complaint that was filed is sufficient or insufficient in form and in substance, is another issue which, in fact, may or may not cause the filing of indorsement of the resolution of impeachment in the Senate. The problem with this interpretation, however, is that it may provide a loophole for constitutional officers to invoke it for their own advantage. An officer concerned, for instance, who knows beforehand that an impeachment complaint will be or is about to be filed, may use people of his confidence to pre-empt such an action, by filing a baseless complaint and later on, it will be easier for the said officer to obtain a dismissal of the same. If this happens, the said officer will be protected by the constitutional provision, thus: “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” (Section 3[5]).

Q – Who has the sole power to try and decide all cases of impeachment? A – “The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on

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oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” (Underlining Supplied) (Section 3[6], Article XI) Q – What is the nature of an impeachment proceeding? A – Justice Isagani Cruz said: “Impeachment proceedings are in a sense judicial and penal in character. Hence, the constitutional rights of the accused as guaranteed in Article III, such as the right to due process and against self-incrimination, are available in these proceedings. The Rules of Court, while not strictly applicable as the Congress is not a court of justice, are nonetheless observed in the conduct of the trial. As in ordinary criminal actions, proof beyond reasonable doubt is necessary for conviction.” On the basis of the impeachment trial of President Joseph Estrada, I am more inclined to submit that while impeachment proceeding is in a sense judicial in character, it is not necessarily penal in character for it is clear that in case of conviction of President Joseph Estrada, he shall be punishable only by: 1) Removal from office; and 2) Disqualification to hold any office under the Republic of the Philippines. (Section 3[7], Article XI of the 1987 Constitution) The said penalty is more of a penalty in an administrative proceeding than in a criminal proceeding. Section 7, Article XI provides in full: “Judgment in cases of impeachment shall not extend further that removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.” The fact that the last sentence of Section 7 provides for a situation where a party convicted “shall be nevertheless liable and subject to prosecution, trial, and punishment according to law” does not make impeachment a criminal proceeding because it is clear that it is only in case of his conviction that President Estrada shall be liable and subject to prosecution, trial, and punishment. It is only from there when the President will be subject to a criminal proceeding. Q – What rules apply in impeachment proceeding? A – The rules of the present Senate. The Rules of Court shall supplement the rules of the Senate whenever it is practicable.

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Q – What is the quantum of evidence required for conviction? A – Conviction in the criminal proceeding should be proven by proof beyond reasonable doubt but conviction in the impeachment proceeding will only require substantive evidence because, as already mentioned, the same is only an administrative proceeding and by express provision of Section 3[7], Article XI, “judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines.” The said penalty therefore does not require imprisonment and merely considered as administrative penalty. Q – What is needed in order to convict a person subject of impeachment? A – Section 3(6) “x x x No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” Q – What is the effect of a judgment in case of impeachment? A – (1) Section 7(3), Article XI specifies the following effects: a. Removal from office; b. Disqualification to hold any office under the Republic of the Philippines; c. In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. Q – If President Estrada was acquitted in the impeachment proceeding, can he be subsequently subject to prosecution, trial, conviction and punishment in the regular courts of justice? A – There is no precedent yet on this question. The exact wording of Section 3(7), Article XI which provides, thus: “Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.” (Underlining Supplied), is interpreted by some lawyers to mean that it is only in case of his conviction, that he shall be liable and subject to prosecution, trial and punishment. Many lawyers, including myself, however, are linclined to take the view that he or anybody else similarly situated may still be subject of a criminal prosecution for the following reasons: (1) Impeachment is separate and distinct from a criminal proceeding; (2) The purpose of impeachment is to find out whether the official subject of impeachment is fit or unfit to continue holding on to a position of trust, and if evidence so warrants, that he/she is unfit, to find out whether he/she shall be removed from office and disqualified to hold any office under the Republic of the Philippines; (3) The purpose of a criminal proceeding is to find out if the accused is guilty or not guilty of the offense charged. The alleged guilt shall be proven by proof beyond reasonable doubt and proven, the corresponding penalty of imprisonment shall be imposed

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against the accused; (4) The evidence required in the impeachment case is not proof beyond reasonable doubt but mere substantive evidence, because the same is only an administrative proceeding. Hence, the penalty thereof is merely an administrative penalty; (5) For all the foregoing reasons, the acquittal in the impeachment process means that if the person subject of impeachment is acquitted, the same is based not on proof beyond reaonable doubt but merely on substantive evidence, hence, there is no barrier for the people to pursue their grievances in the regular courts to prove their case based on proof beyond reasonable doubt. Then and only then when the People of the Philippines are ultimately heard and satisfied in their quest for redress of grievances. If President Estrada was convicted in the impeachment proceeding and thereafter criminally prosecuted for the offense which warranted his conviction on impeachment, can he plead the defense of double jeopardy? No. As already stated, the penalty which the Senate may impose shall be limited to removal from office and disqualification to hold any office under the Republic of the Philippines. This penalty is beyond the reach of the President’s power of executive clemency, but does not place the officer beyond liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy. If President Estrada resigned before the rendition of judgment by the impeachment court, does his resignation place him beyond the reach of impeachment for offenses committed during his tenure? No. REASON: While it is true that he is already resigned and can no longer be removed from his office, there is still a penalty which can be imposed even after his resignation and that is the penalty of “disqualification to hold any office under the Republic of the Philippines.” During the process of the impeachment trial, can the President subject of impeachment be suspended pendente lite? This has no precedent in our jurisdiction. It is my opinion that the penalty of preventive suspension pendente lite may be imposed for the following reasons: 1. As aforementioned, the impeachment trial is judicial and administrative in character because precisely of the penalty provided in Section 7, Article XI; 2. The purpose of suspension pendete lite is precisely to prevent the officer sought to be suspended from possibly using his influence against any and all officials of the government and thereby help him influence the outcome of the proceeding. It is for this reason that suspension pendete lite may be justified.

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Q – Is the judgment of Congress in an impeachment proceeding subject to judicial review? A – As a rule, it is not subject to judicial review precisely because of the Constitutional provision that the Senate has the “sole power to try, and decide all cases of impeachment.” However, the courts may annul the proceedings if there is a showing of a grave abuse of discretion committed by the Congress or of non-compliance with the procedural requirements of the Constitution.

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Example: 1. When the charges are instituted without a verified complaint; or by less than one-third (1/3) of all the members of the House of Representatives; or where the judgment of conviction is supported by less than a two-thirds (2/3) vote in the Senate. Can the person subject of conviction in the impeachment be subject to the pardoning power of the President? It is not subject to the pardoning power of the President. However, if the convicted official is prosecuted later on in an ordinary criminal action and later on found guilty, the decision may be the subject of pardon by the President. Section 3(6), Article XI states that no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. Does this refer to two-thirds of twenty four or two-thirds of twenty-two? The Constitution merely states “two-thirds of all the Members of the Senate without any specification as to whether it is two-thirds of the regular membership of twenty-four or two-thirds of the present members of the Senate. This will be a test case in the Supreme Court. However, the old case of Avelino vs. Cuenco gives us a guide on what constitutes a quorum in the Senate. In the said case of Avelino vs. Cuenco, then Senate President Avelino motu-propio adjourned a session of the Senate leaving twelve (12) other Senators in the session hall. The twelve (12) Members continued meeting and replaced Senate President Avelino with Senator Cuenco as acting President. Senator Avelino contended that Senator Cuenco was not validly elected because the twelve (12) Senators did not constitute a majority, or a quorum of the twenty-four-man Senate. The Supreme Court ruled that twelve (12) Senators were sufficient to constitute a quorum thereby using the principle of majority of twenty three (23), and not twenty four (24) Senators. The reason given by the Supreme Court is that one Senator was then outside of the Philippines being then in the U.S. and for this reason, he is therefore outside the coercive jurisdiction of the smaller number of

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Senators who could adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as the Senate might provide. There is more reason to believe that this doctrine will be held applicable because Justice Marcelo Fernan is not only outside of Philippine territory. He already died and therefore he cannot in anyway be capable of voting in the first place. In the case of Gloria Macapagal-Arroyo, she was then already elected Vice-President of the Republic of the Philippines and for this reason she was no longer capable to participate in the impeachment proceeding as a Senator and therefore no longer capable to vote. The actual reality is that the membership of the Senate at that time is only twenty-two (22) and therefore the constitutional requirement of “concurrence of two thirds (2/3)” should be two thirds (2/3) of the members of the Senate at that time who are actually participating in the impeachment proceeding. As a matter of fact, on the basis of this submission, the author even submits that Senator Barbers who is not actually participating in the impeachment trial may not be able to be included because he was outside not only of the territorial jurisdiction of the Senate but also outside the coercive jurisdiction of the smaller number of Members. What is the effect of the judgment of conviction? Section 3(7) provides that the said judgment “shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines.” Can a party convicted in the impeachment proceeding be still subject to prosecution, trial, and punishment according to law? Yes, by express provision of Section 3(7), thus: “Section 3(7). Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.” (Underlining Supplied) JOSEPH ESTRADA VS. ANIANO DESIERTO, IN HIS CAPACITY AS OMBUDSMAN, ET AL. G.R. NOS. 146710-15, MARCH 2, 2001

FACTS: On October 4, 2000, Ilocos Sur Governor Luis “Chavit” Singson, a long time friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. The next day, then Senate Minority Leader Teofisto Guingona delivered a fiery privilege speech. He accused the petitioner of receiving some Php 220 million in jueteng money

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from Governor Singson from November 1998 to August 2000. He also charged that petitioner took from Governor Singson Php 70 million on excise tax on cigarettes intended for Ilocos Sur. The House of Representatives conducted its own investigation. The House Committee on Public Order and Security, then headed by Representative Roilo Goilez, decided to investigate the expose of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Hererra and Michael Defensor spearheaded the move to impeach the petitioner. On October 12, then Vice President Gloria Macapagal-Arroyo resigned as Secretary of the Department of Social Welfare and Development and later asked for petitioner’s resignation. However, petitioner strenuously held on to his office and refused to resign. On November 13, House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. On December 7, 2000, the impeachment trial started. Several witnesses were presented by the prosecution, but it was Clarissa Ocampo and Secretary Edgardo Espiritu who delivered the most serious accusations. Clarissa Ocampo testified that she was one foot away from petitioner Estrada when he affixed the signature “Jose Velarde” on account documents involving a Php 500 million investment agreement with their bank on February 4, 2000. Secretary Espiritu alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading. On January 16, 2001, on a vote of 11-10 (Those who voted “yes” to open the envelope were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, and Osmeña III. Those who voted “no” were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III, and Tatad) the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held Php 3.3 billion in a secret bank account under the name “Jose Velarde.” The public and private prosecutors walked out in protest of the ruling. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their manifestation of Withdrawal of Appearance with the impeachment tribunal. On January 18, 2001, a 10 kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people’s solidarity in demanding petitioner’s resignation. This attracted more and more people. Thereafter, there was a resignation by some cabinet secretaries, undersecretaries, and assistant secretaries and bureau chiefs. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope. There was no turning back the tide. The tide had become a tsunami.

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On January 20, at about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. At 2:30 pm, petitioner and his family hurriedly left Malacañang Palace. He issued the following press statement: “20 January 2001 Statement from President Joseph Ejercito Estrada At twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA” It also appears that on the same day, January 20, 2001, he signed the following letter: “Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA” On the same day, January 20, he signed the following letter and sent the same to former Speaker Fuentebella at 8:30 a.m. Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 pm. On January 22, respondent Arroyo immediately discharged the powers and duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05 SC, to wit:

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“A.M. No. 01-1-05-SC – In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before Chief Justice – Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party.” From day to day after this, respondent Arroyo attended official functions. On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. Senator Miriam Defensor-Santiago stated “for the record” that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. After his fall from the pedestal of power, the petitioner’s legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court G.R. No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from “conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757, and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted.” He prayed for judgment “confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution.” ISSUES: 1. Whether the petitions present a justiciable controversy.

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Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

HELD: 1. WHETHER OR NOT THE CASES AT BAR INVOLVE A POLITICAL QUESTION – Respondent’s claim that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. All these, constitute “the political ticket which the Court cannot enter.” This claim is not applicable and the Supreme Court said: “x x x Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably Section 1 of Article II, and Section 8 of Article VII, and the allocation of governmental powers under Section 11 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury vs. Madison, the doctrine has been laid down that “it is emphatically the province and duty of the judicial department to say what the law is . . .: Thus, respondent’s invocation of the doctrine of political question is but a foray in the dark. (Underlining Supplied) 2. WHETHER OF NOT THE PETITIONER RESIGNED AS PRESIDENT – Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the Office of the President was not vacant when respondent Arroyo took her oath as President. The Supreme Court rejected this claim and said: “x x x In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001, after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001, or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using the totality test, we hold that petitioner resigned as President.”

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These contemporaneous and posterior facts and circumstantial evidence are as follows: 1. The proposal for a snap election for president in May where he would not be candidate is an indicium that petitioner had intended to give up the presidency even at that time. 2. The petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. 3. Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. 4. The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. 5. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner’s reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner’s valedictory, his final act of farewell. His presidency is now in the past tense. The Supreme Court concluded: “Certainly, the national spirit of reconciliation and solidarity cannot be attained if he will not give up the presidency.” (Underlining Supplied) 3. WHETHER OR NOT THE PETITIONER IS ONLY TEMPORARILY UNABLE TO ACT AS PRESIDENT – Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that “Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in Section 11 of Article VII. This contention is the

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centerpiece of petitioner’s stance that he is a President on leave and respondent Arroyo is only an Acting President. The Supreme Court rejected this claim and ruled: Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court. 4. WHETHER OR NOT THE PETITIONER ENJOYS IMMUNITY FROM SUIT. ASSUMING HE ENJOYS IMMUNITY, WHAT IS THE EXTENT OF THE IMMUNITY – (1) Petitioner makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. The Supreme Court held that “When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution.” (2) We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. (Underlining Supplied) What is the scope of immunity that can be claimed by petitioner as a non-sitting President? The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery, and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit

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criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 5. WHETHER OR NOT THE PROSECUTION OF PETITIONER ESTRADA SHOULD BE ENJOINED DUE TO PREJUDICIAL PUBLICITY – Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. Court of Appeals, et al., we laid down the doctrine that: “We cannot sustain appellant’s claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused’s right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavelto-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. x x x” (Underlining Supplied) There is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

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Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law. Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. BRIEF COMPARISON OF THE SANDIGANBAYAN AND THE OMBUDSMAN SANDIGANBAYAN 1. 2.

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It is the court trying the cases falling under the Anti-Graft and Corrupt Practices Act. It is composed of a Presiding Justice and Eight Associate Justices, with the rank of Justice of the Court of Appeals. It sits in three (3) divisions and there are three members in each division. In order that a case may fall under the exclusive jurisdiction of the Sandiganbayan, the following requisites must concur: a. The offense committed is a violation of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. b. The offender is a public official or employee holding any of the positions enumerated in paragraph a, Section 4, Republic Act No. 8249. c. The offense committed is in relation to the office. (Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999) In this connection, it is not enough to state in the information that the offense was committed by an accused public officer “in relation to his office.” The exact offense must be stated with particularity. (Ibid.) The Sandiganbayan was created by Presidential Decree No. 1606, as amended.

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The Ombudsman shall exercise the powers mentioned in Section 13 and it is also vested with prosecutorial functions under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1987.

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There is one Ombudsman; one over-all Deputy; and at least one deputy each for Luzon, Visayas and Mindanao. A separate deputy may be appointed for the military establishment. The qualifications of the Ombudsman and his Deputies are the following: a. Natural born citizens of the Philippines; b. At least forty years of age; c. Of recognized probity and independence; d. Members of the Philippine Bar; and e. Must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have been a judge or engaged in the practice of law for ten years or more. Their term of office is for seven years without re-appointment. Their salary shall not be decreased during their term of office. The Ombudsman and the Deputies are appointed by the President from a list of six nominees prepared by judicial and bar council, and from a list of at least three nominees for every vacancy thereafter. All vacancies must be filled in three months. The Office of the Ombudsman shall enjoy fiscal autonomy. What are the other powers of the Ombudsman? 1. Power to cite for contempt. 2. To exercise other powers, functions and duties as the law may prescribed. 3. To impose preventive suspension on any officer or employee under its authority pending an investigation, whether such officer or employee is employed in the Office of the Ombudsman or in any other government agency. (Buenaseda vs. Flavier, 226 SCRA 645) 4. Investigate criminal offenses committed by a public officers which have no relation to their office. (Vasquez vs. Alino, 271 SCRA 67) 5. The Ombudsman may refer cases involving non-military personnel for investigation by the Deputy Ombudsman for Military Affairs. (Acop vs. Office of the Ombudsman, 248 SCRA 566) Is the Sandiganbayan a “constitutional court”? No. It is a statutory court; that is, it is created not by the Constitution but by statute, although its creation is mandated by the Constitution. What are the respective functions of Tanodbayan and the Office of the Special Prosecutor? Originally, the Tanodbayan was both a prosecutor and an Ombudsman. (Presidential Decree No. 1487, as amended by Presidential Decree No. 1607)

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As it is now, the Sandiganbayan is the court trying the cases falling under the Anti-Graft and Corrupt Practices Act. The Office of the Special Prosecutor is the Office prosecuting the said case. The Ombudsman shall exercise the powers mentioned in Section 13, and it is also vested with prosecutorial functions under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1987. Q – What happened to the Office of the Special Prosecutor? A – In Zaldivar vs. Sandiganbayan, the Supreme Court ruled that the Special Prosecutor would continue to exercise the powers the former Tanodbayan had except those which are passed on to the Ombudsman or new Tanodbayan. The court added that since the power to investigate is granted by Section 13(1) to the Ombudsman, the Special Prosecutor can neither investigate nor prosecute unless authorized by the Ombudsman. (160 SCRA 843, 846 [1988]). The authority to conduct preliminary investigation and to direct the filing of criminal cases with the Sandiganbayan “was lost effective February 2, 1987.” From that time, he has been divested of such authority. (Ibid.) Section 8. The Ombudsman and his deputies shall be natural born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognize probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines. Q A Q A

– – – –

What are the qualifications of the Ombudsman? Already answered. What are the qualifications of his deputies? The same qualifications, to wit: 1. At least forty (40) years of age. 2. Of recognized probity and independence. 3. Members of the Philippine Bar. 4. Must not have been candidates for public office in the immediately preceding election. They shall be subject to the same disqualifications and prohibitions in Section 2, Article IX-A.

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

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Q – Who appoints the Ombudsman? A – The Ombudsman and his Deputies shall be appointed by the President. Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office. Self-explanatory Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. Self-explanatory Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Self-explanatory. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

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(6) (7)

(8)

Publicize matters covered by its investigation when circumstances so warrant and with due prudence. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observe of high standards of ethics and efficiency. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Q – What are the broad powers of the Ombudsman? A – Section 13 enumerates eight powers, functions and duties. Added to all the broad powers granted, the Ombudsman can investigate any act or omission “which appears to be illegal, improper or inefficient.” More than this, the Ombudsman can investigate even if the alleged offense is not related to the performance of the duties of a public official. (Deloso vs. Domingo, 191 SCRA 545, 550 [1990]). Even alleged confidentiality will not prevent the Ombudsman from demanding the production of documents needed during the investigation. (Almonte vs. Vasquez, G.R. No. 95367, May 23, 1995) Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. Self-explanatory. Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. Self-explanatory. Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure. Q – Can any of the above-mentioned officials obtain loan to finance the construction of their residential house? A – Yes, because this is not covered by the prohibition. The loan is being obtained for a personal purpose. Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration

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under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. Section 18. Public officers and employees owe the State and this Constitution at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. MULTIPLE CHOICE QUESTION 1.

When is Impeachment Proceedings considered initiated? A. It is considered initiated from the time the Committee submits a report to the House of Representatives, together with a corresponding resolution which shall be calendared for consideration by the House within ten (10) session days. B. It is considered initiated from the time a vote of at least 1/3 of all the members of the House acts on the resolution of the committee, either by indorsing the complaint for trial by the Senate, or by dismissing the said complaint. This is premised on the reasoning that it is only from that time when the complaint itself is filed and endorsed by the House of Representatives for formal trial by the Senate. C. It is considered initiated from the time a complainant (either a citizen, endorsed by a member of the House of Representatives, or by a member of the House of Representatives itself) signs and verifies his complaint, even if it is not yet filed, on the reasoning that it is from the time of the preparation, signing and verification of the complaint, when the initiation of the complaint has actually commenced. D. The same is considered initiated from the time it is filed by a member of the House of Representatives or by any citizen upon a resolution of endorsement of any member thereof. As to whether or not the complaint that was filed is sufficient or insufficient in form or in substance, is another issue which, in fact, may or may not cause the filing of endorsement of the resolution of impeachment in the Senate.

2.

Nature of Impeachment Proceeding A. It is judicial in character.

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B. C. D.

3.

It is penal in character. It is administrative in character. In a sense, it is judicial in character but not necessarily penal in character because in case of conviction of an official subject of impeachment, he shall be punishable by removal from office and disqualification to hold any office under the Republic of the Philippines.

Quantum of Evidence required for conviction in Impeachment Proceeding. A. Preponderance of evidence. B. Proof beyond reasonable doubt. C. Evidence deemed sufficient by 2/3 of the members of the Senator Judges who participated in the impeachment trial. D. Substantive evidence because impeachment is only an administrative proceeding. ARTICLE XII NATIONAL ECONOMY AND PATRIMONY

Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Q – What are the goals of our national economy? A – 1. A more equitable distribution of opportunities, income, and wealth; 2. A sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and 3. An expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

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Q – How will those goals be attained? A – 1. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. 2. The State shall protect Filipino enterprises against unfair foreign competition and trade practices. 3. All sectors of the economy and all regions of the country shall be given optimum opportunity to develop. 4. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Q – What is our national patrimony? A – When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. (Manila Prince Hotel vs. GSIS, Manila Hotel Corporation, et al.) MANILA PRINCE HOTEL VS. GSIS, MANILA HOTEL CORPORATION, ET AL. G.R. NO. 122156, FEBRUARY 3, 1997 FACTS: Pursuant to the privatization program of the government, the shares of GSIS, owner of 51% of the shares of Manila Hotel Corporation (MHC), was sold by GSIS through public bidding. Manila Prince Hotel and Renong Berhad, a Malaysian firm, participated in the bidding, and both of them offered to buy 51% of MHC shares. Renong Berhad offered a higher bid. MHC sent a check to match the bid of the foreign firm. To prevent the consummation of the bid of Renong Berhad, petitioner filed a petition for prohibition and mandamus. Petitioner’s arguments are as follows: 1. Petitioner invokes Article XII, Section 10(2) of the Constitution and submits that Manila Hotel has been identified with the Filipino nation and has practically become a historical monument that reflects the vibrance of Philippine heritage and culture. 2. Manila Hotel has become a national patrimony. 3. Since Manila Hotel is part of national patrimony and part of the national economy, petitioner should be preferred after it has matched the offer of the Malaysian firm. Respondents argued that Article XII, Section 10(2) is merely a statement of principle and policy since it is not a self-executing provision

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and requires implementing legislation. Respondents added that even if the provision is self-executing, the hotel does not fall under the term “national patrimony.” ISSUE: Does MHC fall under the term “national patrimony”? Is Section 10(2) of Article XII self-executing? HELD: Section 10, second paragraph, Article XII of the 1987 Constitution, is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words, the provision does not require any legislation to put in operation. It is per se judicially enforceable. When our Constitution mandates that in the grant of rights, privileges, and concession covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that – qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances, an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right, there is a remedy. Ubi jus ibi remedium. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark – a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of 1930’s. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government, it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by the Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission. It should be stressed that while the Malaysian firm offered the higher bid, it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has

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negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos, the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Reluctantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee, respondents are mandated to abide by the dictates of the 1987 Constitution, the provisions of which are presumed to be known to all the bidders and other interested parties. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

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The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for largescale exploration, development, and utilization minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Q – What is owned by the State? A – 1. All lands of the public domain 2. Waters 3. Minerals 4. Coal 5. Petroleum 6. Other mineral oils 7. All forces of potential energy 8. Fisheries, forests or timber 9. Wildlife 10. Flora and fauna 11. And other natural resources Q – What cannot be alienated? A – Except agricultural lands, all other mineral resources shall not be alienated. Q – Who shall have full control and supervision in case of exploration, development and utilization of natural resources? A – The State. Q – Can the State do the same in joint venture or co-production with other Filipino private individuals or corporations? A – Yes, but in the case of corporations and associations, it can only do so with corporations and association 60% of the capital of which is owned by Filipino citizens. Q – Is this subject to a limitation? A – Yes. (1) Said agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such

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Q – A –

Q – A –

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terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. Section 2 is a recognition of regalian doctrine. What is the regalian doctrine? Under the regalian doctrine, (1) all agricultural timber and mineral lands of the public domain are owned by the State; (2) all lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. What is the meaning of imperium and dominium? Imperium refers to the government authority possessed by the State which is appropriately embraced in sovereignty. Dominium refers to the capacity of the State to own or acquire property, and it is in this sense, that the said lands are held by the State in its proprietary character. It is in this capacity that the State may provide for the exploitation and use of lands and other natural resources, including their disposition, except as limited by the Constitution.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twentyfive years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor. Q – What is the primary classification of lands of the public domain? A – They are classified as: (AG-FO-TI-MI-NA) AG-ricultural land FO-rest land TI-mber land MI-neral land NA-tional park

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Q – What are the alienable lands of the public domain? A – Alienable lands of the public domain shall be limited to agricultural lands. They are the agricultural lands which may be disposed of by the State either by purchase, homestead or grant, lease. Q – What are the limitations when said lands are disposed of by the State? A – 1. Alienable lands shall be limited to agricultural lands. 2. Only Filipino citizens may acquire not more than 12 hectares by purchase, homestead or grant; or lease not more than 500 hectares. 3. Private corporations may lease not more than 1,000 hectares for 25 years, renewable for another 25 years. Q – What is the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor? A – Congress shall determine this by law considering the requirements of conservation, ecology, development and agrarian reform. Q – What is the definition of agricultural land under Republic Act No. 6657? A – It refers to land devoted to agricultural activity as defined in the said law and not classified as (MINFORECOIN) mineral, forest, residential, commercial or industrial land. (Section 3, Republic Act No. 6657) Q – Who has the power to classify said primary classification of lands? A – The President, upon the recommendation of the DENR. (CA 141 [1936] EO 192 [1987]) Q – When agricultural lands are further classified according to the uses to which they may be devoted, what shall be their classification? A – The further classification shall be referred to as secondary classification. Q – What can be the further classification of agricultural lands? A – They can be further re-classified as RE-CO-IN (residential, commercial or industrial) Q – Who has the power to re-classify agricultural lands? A – The authority to re-classify RECOIN is vested, among others, in cities and municipalities. (Section 20 of Republic Act No. 7160 [1991]) Q – Can local governments re-classify agricultural lands into “forest conservation zones”? A – No. Only the President has the power to do this, upon the recommendation of the DENR. Local governments have no authority or power to make primary classifications, and besides, an agricultural land is already a primary classification.

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Q – How about in the case of secondary classifications, can the local government do this? A – Yes. As already stated, they can re-classify agricultural lands into RE-CO-IN (residential, commercial or industrial lands). (Section 20, Republic Act No. 7160) Section 4. The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas. Q – What is the responsibility of Congress under Section 4? A – (1) The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground; (2) Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas. Section 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. Q – What are ancestral lands? A – Ancestral lands, as defined in Section 9 of Republic Act No. 6657, shall refer to ancestral land of each indigenous cultural community which shall include, but not be limited to, lands in the actual, continuous and open possession and occupation of the community and its members; Provided, that the Torrens System shall be respected. (Section 9, first paragraph) Q – What is the protection given by Republic Act No. 6657 to each indigenous cultural community? A – The right of these communities to their ancestral lands shall be protected to ensure their economic, social and cultural well-being. In line with the principles of self-determination and autonomy, the systems of land ownership, land use, and the modes of settling land disputes of all these communities must be recognized and respected. (Section 9, 2nd paragraph)

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Section 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. Q – What is the meaning of Section 6 in relation to Agrarian Reform as mandated by Republic Act No. 6657? A – Land has a social function, hence, there is a concomitant social responsibility in its ownership and should, therefore, be distributed to the actual tillers/occupants. Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. Q – What is the limitation under Section 7 when lands are transferred or conveyed? A – Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. Q – Can a Filipino citizen who is later on naturalized as an American citizen, acquire private lands in the Philippines? A – Yes, by express provision of Section 8, subject to limitations provided by law. Q – What is the limitation provided by law? A – Former natural-born Filipino citizen may acquire up to 5,000 square meters of urban lands and 3 hectares of rural land which may not be used for business and for other purposes (Republic Act No. 8179, amending Batas Pambansa Blg. 185). Under Batas Pambansa Blg. 185, the said land may be used as residence. Q – Can American citizens and American owned and controlled corporations validly acquire private agricultural lands? A – No. They cannot validly acquire private agricultural lands under the Parity Amendment, since the exceptional rights granted to them under the said Amendment refer only to agricultural, mineral and timber lands of the public domain and natural resources, and conduct and operation of public

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Q – A –

Q – A –

Q – A –

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utilities (Republic vs. Quasha, 46 SCRA 160). This ruling was however abandoned by Section 11, Article XVII of the 1973 Constitution which reads: “Section 11. The rights and privileges granted to citizens of the United State or to corporations or associations owned or controlled by such citizens under the Ordinance appended to the nineteen hundred and thirty-five Constitution shall automatically terminate on the third day of July, nineteen hundred and seventy-four. Titles to private land acquired by such persons before such date shall be valid as against other private persons only.” (Emphasis Supplied). Hence, private land acquired by said persons before July 3, 1973 shall be valid as against other private persons only. Can private lands under the control and possession of disqualified aliens be recovered? The State can institute an action for reversion of said lands under the Public Land Act and the power of the State to do so is imprescriptible. (Baguio vs. Republic, G.R. No. 119682, January 21, 1999) Can private persons or parties institute such kind of action? No. It is the State alone which may institute reversion proceeding under the Public Land Act (Urquiaga vs. Court of Appeals, G.R. No. 127833, January 22, 1999), or file a suit for the conveyance. Private persons are not proper parties to file an action for reconveyance. (Tankiko vs. Cezar, G.R. No. 131277, February 2, 1999) Can the State be held in estoppel for irregular acts and mistakes of its officials? As a rule, estoppel against the State is not favored. However, if for a long time, the State failed to correct and recover alleged increase in the land area of the titles issued, this will amount to laches, and consequently, the State may be held in estoppel for irregular acts and mistakes of its officials. (Republic vs. Court of Appeals, G.R. No. 11611, January 21, 1999)

Section 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens

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of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions, covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. Q – What is the responsibility of Congress and the State under Sections 9 and 10? A – (1) The Congress may establish an independent planning agency headed by the President which will implement continuing integrated and coordinated programs and policies for national development. (Section 9) (2) The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve certain areas of investment to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens. (Section 10, first paragraph) (3) The State shall give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. (Section 10, second paragraph) (4) The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investor in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

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Q – What is the limitation under Section 11? A – (1) Franchise, certificate, or any other form of authorization for the operation of public utility shall be granted only to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least 60% of whose capital is Filipino owned. (2) Said franchise, certificate, or authorization shall be exclusive in character, valid for not more than 50 years. (3) Said franchise or right shall be granted under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. Q – Is Petron a public utility? A – No. There is therefore no merit to the contention of the petitioner that the sale of the block of shares to Aramco violated Section 11, Article XII of the Constitution. A public utility is one organized “for hire or compensation” to serve the public, and the public, in turn, has the right to demand its service. Petron is not engaged in oil refining for hire or compensation to process the oil of other parties. Q – Are radio and television companies, the owners of airwaves and frequencies? A – No. They are merely given the temporary privilege of using them. Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. Section 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. Section 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations.

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Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. Q – What is the responsibility of the State under Sections 12, 13, and 14? A – (1) The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. (Section 12) (2) The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. (Section 13) (3) The State shall promote sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields. The State shall encourage appropriate technology and regulate its transfer for the national benefit. (Section 14) Q – What is the responsibility of Congress under Sections 15 and 16? A – (1) The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. (Section 15) (2) The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. (Section 16) Q – Is the practice of all professions in the Philippines limited only to Filipino citizens? A – Yes, by express provision of Section 14, second paragraph, except in cases prescribed by law. Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribe by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. Q – Can the State temporarily take over or direct the operation of any privately owned public utility or business affected with public interest? A – Yes, by express provision of Section 17, but the same can only be done (1) in times of national emergency; (2) when the public interest so requires. Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

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Q – May the State establish and operate vital industries and transfer them to public ownership utilities? A – Yes, by express provision of Section 18, but the same can only be done in the interest of national interest or defense. Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. Q – Can the State regulate or prohibit monopolies? A – Yes, by express provision of Section 19, but it can only be done when the public interest so requires. Private monopolies are not therefore absolutely prohibited. Hence, the award of stevedoring and arrastre services to only one corporation is valid. (Northern Cement Corporation vs. Intermediate Appellate Court, 158 SCRA 408) Q – Is Republic Act No. 8180 (which provides for the deregulation of the oil industry) constitutional? A – Republic Act No. 8180 was declared unconstitutional for three reasons: (1) It gave more power to an already powerful oil oligopoly; (2) It blocked the entry of effective competitors; and (3) it will sire an even more powerful oligopoly whose unchecked power will prejudice the interest of the consumers and compromise the general welfare. The decision precisely levels the playing field of investors. The Supreme Court said: “Finally, public respondents raise the scarecrow argument that our Decision will drive away foreign investors. In response to this official repertoire, suffice it to state that our Decision precisely levels the playing field for foregoing investors as against the three dominant oil oligopolist. No less than the influential Philippine Chamber of Commerce and Industry whose motive is beyond question, stated thru its Acting President Jaime Ladao that “x x x this Decision, in fact tells us that we are for honest-togoodness competition.” Our Decision should be a confidence-booster to foreign investors for it assures them of an effective judicial remedy against an unconstitutional law. There is need to attract foreign investment but the policy has never been foreign investment at any cost. We cannot trade-in the Constitution for foreign investment. It is not economic heresy to hold that trade-in is not a fair exchange.” Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The

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authority shall provide policy direction in the areas of money, banking and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority. Q A Q A

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What is the responsibility of Congress under Section 20? The Congress shall establish an independent central monetary authority. What is the function of the central monetary authority? 1. It shall provide policy direction in the areas of money, banking and credit. 2. It shall have supervision over the operations of finance companies and other institutions performing similar functions. Q – What are the qualifications of the members of the governing board of the central monetary authority? A – 1. Natural-born Filipino citizens. 2. Of known probity, integrity and patriotism. 3. Majority of the members shall come from the private sector. Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Section 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law. Self-explanatory. MULTIPLE CHOICE QUESTIONS 1.

2.

Alienable lands of the public domain A. A forest land is an alienable land. B. A timber land is an alienable land. C. A mineral land is an alienable land. D. Alienable lands of the public domain shall be limited to agricultural lands. X, a Filipino, was naturalized as an American Citizen. Can he acquire a five (5) hectare of riceland in a mountain area where he was born?

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Yes, subject to limitations provided by law. No, because he is already an American citizen. He can acquire a rural land provided it will only be used for residence. He can acquire not more than three (3) hectares of rural land which may not be used for business and other purposes, but which can be used as residence. ARTICLE XIII SOCIAL JUSTICE AND HUMAN RIGHTS

Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increment. Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and selfreliance. Q – Why should we promote a just and dynamic social order? A – It is the foundation of a strong and prosperous nation. Poverty and injustice are the root causes of public discontent which gives rise to chaos and disorder, and later, to a revolution. Q – What is social justice? A – It is “neither communism, nor atomism, nor anarchy” but the humanization of laws and the equalization of social and economic forces of the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of the society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of “salus populi est suprema lex.” (Calalang vs. Williams, 70 Phil., 726) Q – What, if any, is the expanded meaning of social justice under the 1987 Constitution?

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A – Social justice under the 1987 Constitution is broader than the concept of social justice under the 1935 and 1973 Constitution and, in fact, broader than the definition in Calalang vs. Williams. Social justice under the 1987 Constitution includes all phases of national development, instead of being merely limited to the removal of socio-economic inequities. In fact, Article XIII of the 1987 Constitution, provides for the following specific mandate: Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments. Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and selfreliance. Section 3. The State shall afford full protection to labor, local overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. Q – How can social justice be promoted? A – 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good.

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The State shall regulate the acquisition, ownership, use and disposition of property and its increments. 3. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. In National Service Corporation vs. NLRC, et al., G.R. No. 69870, November 29, 1988, citing Cult of Legalism by Dr. Jorge Bocobo, the Supreme Court said that the principle of social justice was not included in the fundamental law as a mere popular gesture. It was meant to be a vital, articulate and compelling principle of public policy. Does this mean that social justice champion division of property or equality of economic status? Social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, equitable sharing of the social and material goods on the basis of efforts exerted in their production. It is a command to devise social measures; but it cannot be used to trample upon the rights of others. (Guido vs. Rural Progress Administration, G.R. No. L-2089, October 31, 1949) In Ondoy vs. Ignacio, G.R. No. L-436969, February 28, 1978, it was ruled that as between a laborer, usually poor and unlettered, and the employer, who has resources to secure able legal advice, the law has reason to demand from the latter stricter compliance. Is this not a violation of the principle enunciated in the aforementioned case? Social justice in this case is not equality but protection (Ibid.). It is compassionate justice or an implementation of the policy that those who have less in life should have more in law. (Allied Investigation Bureau, Inc. vs. Ople, et al., G.R. No. L-449678, June 29, 1979) Is it only equitable diffusion of wealth that should be promoted by the principle of social justice? Under the 1987 Constitution, social justice contemplates equitable diffusion not only of wealth but also of political power. (Section 1, Article XIII, 1987) Is compassion for the poor an imperative of every human society? Compassion for the poor is an imperative of every human society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be the refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be

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poor. This great policy of our Constitution is not meant for the protection of those who have tainted the cause of labor with the blemishes of their own character. (Philippine Long Distance Co. vs. NLRC, et al., G.R. No. 8060, August 23, 1988; De Vera et al. vs. NLRC, et al., G.R. No. 93212, November 22, 1990; Flores vs. NLRC, et al., G.R. No. 96969, March 2, 1993) Q – The State, and Congress particularly, shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities x x x for the common good. Does this mean that the government is obligated to provide housing for all the poor, or if it cannot, does this mean that the government can just tolerate squatters so that they can have shelter before the government could effectively respond to the problem arising from acute housing shortage? A – No. While it is the responsibility of the government to help in the alleviation of poverty and housing shortage, it has also the responsibility to protect true, lawful and legitimate owners of property who are also protected under the bill of rights. Moreover, the government could not be expected to give houses to all the homeless considering its limited funds and resources. LABOR Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerned activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments and to expansion and growth. Q – What is the responsibility of the State under Section 3? A – The State shall afford:

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1.

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Full protection to labor, local and overseas, organized and unorganized; 2. Promote full employment and equality of employment opportunities for all; 3. It shall guarantee the rights of all workers to: (a) Self-organization; (b) Collective bargaining and negotiations; (c) Peaceful concerned activities; (d) The right to strike in accordance with law. 4. The State shall promote: (a) The principle of shared responsibility between workers and employers; (b) Preferential use of voluntary modes in settling disputes. 5. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments. Q – Does the right of government employees to organize include the right to form unions or associations? A – Yes, but it does not include the right to strike and to engage in similar activities (Social Security System Employees Associations, Inc. vs. Court of Appeals, 175 SCRA 686, July 28, 1989). This was reiterated in Manila Public School Teachers Association (MPSTA) vs. Laguro, Jr., (200 SCRA 323, August 6, 1991). Again this was reiterated in 1993 in Alliance of Government Workers vs. Minister of Labor and Employment, (124 SCRA 1, August 3, 1993). Please note, however, that there are two dissenting opinions on this matter. Although they are dissenting opinions, the arguments of Justice Isagani Cruz and Justice Hugo Gutierrez have persuaded many lawyers, law students and laymen and who knows they may be the majority view in the future. Dissenting opinion of Justice Isagani Cruz: “Being an economic weapon to promote the interest of labor, the denial of the right to strike from government employees is a “derogation of their freedom of expression and a violation of the equal protection clause, besides being contrary to social justice.” “Government workers, whatever their category or status, have as much right as any person in the land to voice their protests against what they believe to be a violation of their interests. The fact that they belong to the civil service has not deprived them of their

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freedom of expression, which is guaranteed to every individual in this country, including even the alien. It would be ridiculous to even suggest that by accepting public employment, the members of the civil service automatically and impliedly renounce this basic liberty. This freedom can at best be regulated only but never completely withdrawn.” Dissenting opinion of Justice Hugo Gutierrez: “To me, the issue is the freedom to effectively speak. When the members of a noble profession are demeaned by low salaries and inattention to their needs, surely their freedom to speak in a manner and at a time as is most effective far outweighs conventional adherence to orthodox service rules on proper conduct and behavior.” AGRARIAN AND NATURAL RESOURCES REFORM Section 4. The State shall, by law, undertake an agrarian reform program on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary landsharing. Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial production, marketing, and other support services. Section 6. The State shall apply the principle of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

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Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice. Q – What is agrarian reform? A – Agrarian Reform means the redistribution of lands, regardless of crops or fruits produced, to farmers and regular farmworkers who are landless, irrespective of tenurial arrangement, to include the totality of factors and support services designed to lift the economic status of the beneficiaries and all other arrangements alternative to the physical redistribution of lands, such as product or profit-sharing, labor administration, and the distribution of shares of stock, which will allow beneficiaries to receive a just share of the fruits of the lands they work. (Section 3, Republic Act No. 6657) Q – Is Republic Act No. 6657 constitutional? ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES VS. SECRETARY OF AGRARIAN REFORM G.R. NO. 78742, JULY 14, 1989 FACTS: PD No. 27, EO Nos. 228 and 229, and RA No. 6657 (Comprehensive Agrarian Reform Program) were assailed as violative of due process and therefore unconstitutional. ISSUE: Is Republic Act No. 6657 constitutional? HELD: The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the

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land in excess of the retention limit and all the beneficial rights accruing to the owner in favor of the former beneficiary. This is within the power of the state to take and regulate private property for which payment of just compensation is provided. Although the proceedings in Section 16 of CARL are described as summary, the landowners and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. DAR’s determination of just compensation is not by any means final and conclusive upon the landowner or any interested party. DAR’s determination is only preliminary unless accepted by all parties concerned. Otherwise, the court of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. Regarding Section 18 thereof which requires the owners of expropriated properties to accept just compensation in less than money, the Supreme Court said: “This is not an ordinary expropriation where only a specific property is sought to be taken by the state from its owner for a specific and perhaps local purpose. WHAT WE DEAL WITH HERE IS A REVOLUTIONARY KIND OF EXPROPRIATION.” Such program will involve not merely millions but billions of pesos. “We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian reform as a top project of the government. There can be no doubt that they were aware of the financial limitation of the government and had no illusions that there would be enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers.” “We may assume their intention was to allow such manner of payment as provided by the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, the title remains with the landowner. No outright change of ownership is contemplated.” Q – What is the concept of stewardship? A – We are mere stewards of God to whatever wealth, talent and property that we have in this world, and at anytime, we shall either leave them or lose them. As stewards, our responsibility is to take care of them, to use them well, but never to abuse them or to use them unjustly. God has given us two gifts without which it shall be impossible for us to survive and to enjoy material wealth. These gifts are given to all without distinction between the rich or poor, the weak or strong. Air, for one, is given to all of us for free. Water is given for free (although the people are now required to use their skill and resources to bring water from the mountains to the urban centers.) If air and water are gifts of

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God, so also are the lands, mountains, and the sea that cleans the air we breathe and which supply the water that we drink. No one in particular owns the lands from the beginning. The passage of time will not change this. Ownership through conquests and grants is the will of the victor over the vanquished, but never the will of God. We cannot bring vast lands with us when we die. Only a portion of that land is needed to cover our dead bodies and our caskets. From then on, our role as stewards is ended. (A Mile To Go For Genuine Land Reform in the Philippines, Suarez, p. 97) What is the retention limit provided for by Republic Act No. 6657? The land to be retained by the landowner shall not exceed five (5) hectares, but three (3) hectares may be awarded to each child of the landowner subject to the following qualifications: a) That he is at least fifteen (15) years of age; and b) That he is actually tilling the land or directly managing the farm. If the lands of a landowner have already been covered by Presidential Decree No. 27, what are his rights under Republic Act No. 6657? He shall have the following rights: a) He shall be allowed to keep the area originally retained by him under Presidential Decree No. 27, provided that the original homestead grantees or direct compulsory heirs who still own the original homestead at the time of the approval of Republic Act No. 6657 shall retain the same areas as long as they continue to cultivate said homestead. (Section 6) b) He has the right to choose the area to be retained which shall be compact or contiguous. What if the area chosen by the landowner is tenanted, what is the option of the tenant? (a) He can remain in the land, in which case, he shall be considered a leaseholder and shall lose his right as a beneficiary under Republic Act No. 6657. (b) He can choose to be a beneficiary in the same or another agricultural land with a similar or comparable features. (Section 6, last paragraph) If the tenant chooses to be a beneficiary in another agricultural land, what is the consequence? He shall lose his right as a leaseholder to the land retained by the landowner. (Section 6, last paragraph)

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Q – If the tenant chooses this option (to be a beneficiary) what is the time frame given to him by Republic Act No. 6657 within which to exercise his option? A – He must exercise this option within one (1) year from the time the landowner manifests his choice of the area to be retained by him. Q – Upon effectivity of Republic Act No. 6657, any sale, disposition, lease, management, contract or transfer of possession of private lands executed by the original landowner, shall be null and void. Suppose there was a sale of a private land from A to B on May 2, 1988, but on account of their jobs abroad, they were not able to register the same in the Registry of Deeds and they were able to come back only in December, 1988, to spend Christmas vacation in the Philippines and to register what they failed to register on May 2, 1988. Is the sale valid? A – No. Section 6, last paragraph, provides that a transaction (i.e., sale, transfer of possession, etc.) shall be valid only when registered with the Registry of Deeds within a period of three months after the effectivity of Republic Act No. 6657. Q – What is the retention limit under Presidential Decree No. 27, Executive Order No. 229 and Republic Act No. 6657? A – P.D. No. 27 – Retention limit is lowered to seven (7) hectares. E.O. No. 229 – There is no provision on retention. R.A. No. 6657 – Landowner shall retain not more than five (5) hectares of agricultural land. Each child of the landowner may be awarded three (3) hectares provided that he is at least fifteen (15) years old and is actually tilling the lands or managing the farm. In case of landowners whose rice and corn lands have been previously covered by P.D. No. 27, they can keep the area originally retained by them under said decree. Q – What are the rights of subsistence fishermen and fish workers? A – 1. The rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. 2. The right of fish workers to receive a just share from their labor in the utilization of marine and fishing resources. Q – What support shall be provided by the State to such fishermen? A – 1. Appropriate technology and research. 2. Adequate financial, production and marketing assistance. 3. Other services. 4. The State shall also protect, develop, and conserve such resources.

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URBAN LAND REFORM AND HOUSING Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing and basic services to underprivileged an homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Section 10. Urban rural dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. Q – What is the responsibility of the State under Sections 9 and 10? A – 1. To undertake, in cooperation with the private sector, a continuing program of urban land reform and housing and basic services to underprivileged a homeless citizens in urban centers and resettlement areas. (Section 9, paragraph 1) 2. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. (Section 9, paragraph 1) 3. Urban rural dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. (Section 10, paragraph 1) 4. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. (Section 10, paragraph 2) Q – Does this mean that the validity of the demolition or eviction hinges in the existence of a resettlement area designated or earmarked by the government? A – No. (People vs. Leachon, G.R. No. 108725, September 25, 1998) HEALTH Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

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Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country’s health needs and problems. Section 13. The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration into the mainstream of society. Q – What is the responsibility of the State under Sections 11, 12 and 13? A – 1. It shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. (Section 11) 2. The State shall endeavor to provide free medical care to paupers, giving priority for the needs of the underprivileged sick, elderly, disabled, women, and children. (Section 11) 3. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country’s health needs and problems. (Section 12) 4. The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration into the mainstream of society. (Section 13) WOMEN Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Q – How shall working women be protected by the State under Section 14? A – By providing them safe and healthful working conditions considering their maternal functions. ROLE AND RIGHTS OF PEOPLE’S ORGANIZATIONS Section 15. The State shall respect the role of independent people’s organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People’s organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure.

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Section 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. Q – Is the right to join a people’s organization part and parcel of the freedom and assembly? A – Yes. Q – Is the right to join the people’s organization absolute? A – No. It is subject to limitations imposed by law and to the dominant police power of the State. It is for this reason that Section 15 requires that the legitimate and collective interests and aspirations of persons in said organizations should be pursued “within the democratic framework,” and must be carried out “through peaceful and lawful means.” HUMAN RIGHTS Section 17. (1) There is hereby created an independent office called the Commission on Human Rights. (2) The Commission shall be composed of a Chairman and four (4) Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the commission shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released. Section 18. The Commission on Human Rights shall have the following powers and functions: (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and for the contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;

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(4) Exercise visitatorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine government’s compliance with the international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. Section 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations. Q A Q A

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What is the composition of the Commission on Human Rights? The Commission shall be composed of a Chairman and four (4) Members. What are the qualifications of the members of the said Commission? 1. Natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. Is the Commission on Human Rights a court of justice, or a quasijudicial agency? It is not a court of justice or a quasi-judicial agency. Its function is merely to receive evidence and make findings of fact regarding human rights violation involving civil and political rights. (Carino vs. Commission on Human Rights, G.R. No. 96681, December 2, 1991) Can it issue writ of injunction or a restraining order against supposed violators of human rights? No. It is not a court of justice. MULTIPLE CHOICE QUESTIONS

1.

Social Justice A. Under the 1987 Constitution, social justice has still the same meaning.

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B.

C. D.

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Social Justice means that the State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. Social Justice is compassionate justice both for the poor and the rich. Social Justice now includes all phases of national development instead of being merely limited to the removal of socioeconomic equities, including diffusion of wealth and political power.

Constitutionality of Agrarian Reform Law In Association of Small Landowners vs. Secretary of Agrarian Reform, the constitutionality of Republic Act No. 6657 was upheld. A. The taking contemplated under Republic Act No. 6657 is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights. B. The taking contemplated is considered an ordinary expropriation where a specific property is sought to be taken by the State from its owner for a specific and perhaps local purpose. C. The proceedings in Sec. 16 of Republic Act No. 6657 is described as summary and the landowner concerned is required to surrender his land and the physical possession of the land in excess of the retention limit. D. The taking is not an ordinary expropriation where only a specific property is sought to be taken by the State from its owner for a specific or perhaps local purpose. What we deal with here is a revolutionary kind of expropriation, but the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or deposit by the DAR of the compensation in cash or LBP Bonds with an accessible bank. Until then, the title remains with the landowner.

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ARTICLE XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Section 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Q – What shall the State protect and promote under Section 1? A – (1) The State shall protect and promote the right of all citizens to quality education at all levels; (2) The State shall take appropriate steps to make such education accessible to all. Section 2. The State shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; (2) Establish and maintain a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age; (3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; (4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills. Q – What is compulsory for all children of school age? A – Elementary education is compulsory for all children of school age. (Section 2[2]) Q – What shall be established and maintained by the State under Section 2? A – (1) Free public education in the elementary and high school levels; (Section 2[2]) (2) A system of scholarship grants, student loan program, subsidies, and other incentives which shall be available to deserving students in

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both public and private schools, especially to the underprivileged; (Section 2[3]) (3) A complete, adequate, and integrated system of education relevant to the needs of the people and society. (Section 2 [1]) In compliance with the said constitutional mandate regarding free public education in the high school level, what law was enacted by Congress in 1988? Free Public Secondary Act of 1988. Is the right to secondary education demandable in an institution of higher learning like the U.P.? No. Secondary education is not the mandated function of the U.P. The purpose of the said university, according to its charter, “shall be to provide advance instruction in literature, philosophy, sciences and arts, and to give professional and advanced technical training.” The U.P. cannot be compelled to provide for secondary education. For this reason, the petitioners have no clear legal right to demand secondary education at the U.P. (U.P. vs. Ayson, 176 SCRA 571, August 17, 1989) The right of all citizens to quality education at all levels, as provided in Section 1, shall be protected and promoted by the State. Except, however, for the alleged huge budget allocated for the Department of education, “quality education” is seemingly getting harder to attain as years go by. Every year, the government cannot afford to build more rooms and libraries; the scarcity in the countryside is even more depressing either because the rooms or the structures themselves have not been repaired, or because of lack of classrooms, the teachers conduct their classes under the trees in school compound; the teachers are not commensurately paid; the roads leading to the school in remote towns and barrios are dirty and flooded roads; and worst, teachers who have dedicated and sacrificed the best years of their lives teaching the young, have no adequate pension and health plans, rendering their lives more miserable in their old age. Under the said conditions, can quality education still be a demandable right from the State? Education is a key to our progress as a nation, hence, Section 1 makes it the corresponding duty of the State to support the right to quality education. There are no “ifs” and “buts” insofar as the said duty of the State is concerned, hence, it is demandable. The people cannot forever be victims of the incompetence and corruptions in government which is perceived to be the root causes of our ills as a nation and as a people. They should be vigilant in demanding what is due them because the ills that are prevailing today will even be more compounded in the days to come.

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The future of the young is more at stake than those who are already old to be recipients of quality education. And not only for this reason, it is their generation that will manage the affairs of our nation in the near future. Section 3. (1)All educational institutions shall include the study of the Constitution as part of the curricula. (2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency. (3) At the option expressed in writing by the parents of guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. PART OF THE CURRICULA Q – What shall educational institutions include as part of the curricula? A – All educational institutions shall include the study of the Constitution as part of the curricula. (Section 3[1]) CONSTITUTIONAL OBJECTIVES Q – What are the constitutional objectives? A – The educational institutions shall: (1) Inculcate patriotism and nationalism; (2) Foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country; (3) Teach the rights and duties of citizenship; (4) Strengthen ethical and spiritual values; (5) Develop moral character and personal discipline; (6) Encourage critical and creative thinking; (7) Broaden scientific and technological knowledge; and (8) Promote vocational efficiency OPTIONAL RELIGIOUS INSTRUCTION IS ALLOWED SUBJECT TO LIMITATIONS Q – What are the limitations?

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A – 1. 2.

3.

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The option must be expressed in writing by the parents or guardians; Religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours; and Religion shall be taught by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Section 4. (1)The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions. (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. (3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. (4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax. OWNERSHIP OF EDUCATIONAL INSTITUTIONS Q – What is the constitutional limitation insofar as ownership of an educational institution is concerned? A – Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of

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which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. (Section 4[2], first paragraph) Q – What is the constitutional limitation insofar as control and administration of an educational institution is concerned? A -- The control and administration of educational institutions shall be vested in citizens of the Philippines. (Section 4[2], 2nd paragraph) ALIEN SCHOOLS Q – Can an educational institution be established exclusively for aliens? A – No, by express constitutional provision (Section 4[2], 3rd paragraph). This provision does not apply, however, to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. TAX EXEMPTIONS Q – What shall be exempt from taxes and duties? A – (1) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. (2) Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. (3) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax. Section 5. (1)The State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs. (2) Academic freedom shall be enjoyed in all institutions of higher learning. (3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements. (4) The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State.

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(5) The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment. RATIONALE OF SECTION 5[5] Q – What is the rationale for giving “the highest budgetary priority”? A – Education is the key to the progress of the nation. Young men and women who are being trained and educated today will be the future leaders who will manage the affairs of our country in the years to come. They will carry on the burden and responsibility of molding good governance, enlightened and responsible citizenry, and who, in the course of time, will improve our present quality of education. ACADEMIC FREEDOM Q – What is the constitutional guarantee under Section 5[2]? A – “Academic freedom shall be enjoyed in all institutions of higher learning.” Q – What is academic freedom? A – Section 5[2] merely states that “academic freedom shall be enjoyed in all institutions of higher learning.” Its meaning could be viewed from the point of view of (a) the freedom of a faculty member; and of (b) the freedom of an academic institution of higher learning. Q – Explain the first aspect (Freedom of a faculty member) A – 1. Full freedom in research and publication of the same – This freedom, however, is subject to the adequate performance of his academic duties; 2. Freedom to discuss his subject in the classroom – This freedom, however, is subject to the responsibility not to teach matters not related to his subject; 3. Freedom from institutional censorship or discipline – This freedom, however, is subject to the responsibility to be accurate; to respect the opinions of others; and to exercise restraint. (Bernas, citing the 1940 Statement of Principles of the American Association of University Professors) Q – Explain the second aspect (Freedom or autonomy of an academic institution of higher learning). A – It is the freedom of the school or college to decide on what its aims and objectives will be and what is the best manner to attain the same. It is free to determine for itself on academic grounds who may teach, what may be

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taught, how it shall be taught, and who may be admitted to study. (Ateneo De Manila vs. Capulong, 222 SCRA 644, May 27, 1993) Can a school of higher learning be compelled to admit students who desire to enroll in said school? No. A school of higher learning has the discretion to admit or not to admit students. Admission is not a right but merely a privilege. (Isabelo, Jr. vs. Perpetual Help College of Rizal, 227 SCRA 591, November 8, 1993) Is the requirement to pass the National Medical Admission Test as a pre-condition for admission to the medical school a violation of the right to education which, according to Section 1, Article XIV of the Constitution, should be “accessible to all”? No. It is not a violation of the right to education. It ensures to protect the public from “potentially deadly effects of incompetence and ignorance in those who would undertake to treat the human bodies and minds for disease or trauma.” (Tablarin vs. Gutierrez, 152 SCRA 730, July 31, 1987) After failing in the bar examinations for three times, a bar flunker is required to enroll again in the College of Law where he will study again the law subjects he previously passed. Is this a violation of the right to education? No. A person may have a right to choose the profession he wants but if he does not have the capability to comply with the academic requirements and qualifications required of a lawyer, this only means that he is not fit to be one. As Justice Isagani Cruz puts it, if one who wants to be a lawyer may prove better as a plumber, he should be so advised. Of course, he may not be forced as a plumber, but on the other hand, he may not force his entry into the bar. x x x (DECS vs. San Diego, 180 SCRA 533, December 21, 1989) Can a school be compelled to re-admit a student for academic deficiencies? No. To do so will violate the academic freedom of the school. (Tangonan vs. Pano, 137 SCRA 245, June 27, 1985) Is the said rule which allows schools a latitude of discretion on the admission of students absolute? As a rule, the courts cannot interfere with the academic judgment of the school, of its faculty and the proper authorities as to the competence and fitness of an applicant for enrollment. The only exception to this rule is if the action of the school is tainted with arbitrariness (Garcia vs. Faculty Admission Committee, Loyola School of Theology, 68 SCRA 277, November 28, 1975). In 1991, the Supreme Court ruled that

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a school is not liable for damages for refusing to re-admit a high school student who failed to fulfill the academic standards established by the school. (San Sebastian College vs. Court of Appeals, 197 SCRA 138, May 15, 1991) Q – Can a nursing school be compelled to re-open at the instance of the striking students? A – No. (Capitol Medical Center vs. Court of Appeals, 178 SCRA 493) RIGHT OF PRIVATE SCHOOLS TO ADMIT OR REFUSE TO ADMIT STUDENTS Q – What is the termination of contract rule? A – It means that when a student enrolls in a given school, he is registering for the entire semester and after the semester ends, the school has no duty to accept him because the contract is deemed terminated. Q – Can a school refuse the re-admission of students based on the termination of contract rule? A – Yes. (Alcuaz vs. PSBA, 161 SCRA 7, May 2, 1988) Q – What are the other valid grounds to deny re-admission of students? A – (1) Academic deficiency; and (2) breach of school’s reasonable rules of conduct. Q – What are the minimum standards of procedural due process when disciplinary sanctions are imposed to students of a school? A – (1) The students must be informed in writing of the nature and cause of the accusation against them; (2) They shall have the right to answer the charges against them; (3) They shall be informed of the evidence against them; and (4) The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. (Guzman vs. National University, 142 SCRA 699) Q – Does compliance with the three year probation for teachers result to his permanent status? A – Not necessarily. It is still the discretion of the school to determine whether the performance of the said teacher is satisfactory or not and whether the said teacher has met its standards. (Cagayan Capitol College vs. NLRC, 189 SCRA 658) Q – Does a university have the right to revoke or withdraw the honor or distinction it has awarded compared to a student who already graduated?

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A – Yes, if there is evidence that said honor or distinction was obtained through fraud. (U.P. Board of Regents vs. William, G.R. No. 134625, August 31, 1999) Q – Can a medical school be closed for being “inadequate”? A – Yes. (Board of Medical Education vs. Judge Alfonso, 176 SCRA 304) LANGUAGE Section 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages. Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system. Section 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein. Spanish and Arabic shall be promoted on a voluntary and optional basis. Section 8. This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic and Spanish. Section 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages. Q A Q A

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What is the national language of the Philippines? Filipino. (Section 6) What are the official languages of the Philippines? Section 7 designates Filipino and English as the official languages of the Philippines “for purposes of communication and instruction.” Q – Are regional languages used for purposes of communication and instruction? A – Yes, but they will only be auxiliary official languages in the regions and shall serve “as auxiliary media of instruction therein.” Q – Can the Spanish and Arabic language be used?

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A – They are no longer required for degree purposes but the schools may continue to require them for certain major specializations or special studies. The Constitution only provides that the said languages “shall be promoted on a voluntary and optional basis.” Q – Section 8 provides that “this Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic and Spanish.” If there is a conflict in meaning among the different text, which shall prevail? A – The Constitution is silent on this point but the language used during the discussions, from the opening of the entire proceedings to the termination of the same, were predominantly in English. It is submitted that the English text should prevail. SCIENCE AND TECHNOLOGY Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country’s productive systems and national life. Section 11. The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and especially gifted citizens. Section 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology. Section13. The State shall protect and secure the exclusive rights of scientists, investors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law. Q – Why should priority be given to research and development, invention, innovation, and their utilization, and to science and technology education, training and services? A – Science and technology are essential for national development and progress. (Section 10)

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Q – Is the private sector encourage to participate the programs of basic and applied scientific research? A – Yes. In fact, Congress may provide for incentives, including tax deductions. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologies, and specially gifted citizens. (Section 11) Q – What specific protection shall the State give to scientists, inventors, artists, and other gifted citizens to their intellectual property and creations? A – The State shall protect and secure the exclusive rights to their intellectual property and creations. ARTS AND CULTURE Section 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression. Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources as well as artistic creations. Section 16. All the country’s artistic and historic wealth constitute the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. Section 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. Section 18. (1) The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues. (2) The State shall encourage and support researches and studies on the arts and culture. Q – Summarize the concerns of the State regarding arts and culture (Section 14 to Section 18). A – Section 14 – Preservation, enrichment and dynamic evolution of a Filipino national culture. Section 15 – Conservation, promotion and popularization of the nation’s historical and cultural heritage and resources as well as artistic resources. Section 16 – Protection of the country’s artistic and historic wealth.

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Section 17 – Preservation and development of the rights, cultures, traditions and institutions of indigenous cultural communities. Section 18 – Equal access to cultural opportunities through the educational system. SPORTS Section 19. (1) The State shall promote physical education and encourage sports league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry. (2) All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors. Q – What are the concerns of the State under Section 19? A – (1) Promotion of physical education. (2) Development of a healthy and alert citizenry. (3) Regular sport activities throughout the country in cooperation with athletic clubs and other sectors. ARTICLE XV THE FAMILY Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Q – What are the three responsibilities of the State when the Constitution states that “The State recognizes the sanctity of family life.”? A – This recognition carries with it three responsibilities of the State, thus: 1. It shall protect and strengthen the family as a basic autonomous social institution. 2. It shall equally protect the life of the mother and the life of the unborn from conception. 3. The natural primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and support of the government. Q – Why is the family considered as a basic autonomous social institution? A – The family is a social institution because it forms part of the community. Without a family or a group of families, the community has no one to depend on for any project it wishes to carry out. The government in every community is the agency or instrumentality through which the wishes of

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the people are made known and implemented. All the governments, taken together, form part of the Republic of the Philippines. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Q – When Section 2 provides that marriage is “an inviolable social institution,” does this mean that marriage cannot be annulled? A – No. Precisely, the New Family Code, Article 45 thereof, provides that marriage can be annulled on the grounds enumerated in said section in addition to the ground stated in Article 36 of the Family Code. Section 3. The State shall defend: (1) (2)

(3) (4)

The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; The right of the family to a family living wage and income; and The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

Section 4. The family has the duty to care for its elderly members but the Senate may also do so through just programs of social security. Q – What is the constitutional protection to elderly members of our society? A – Section 4 requires that the “family has the duty to care for its elderly members but the Senate may also do so through just programs of social security.” ARTICLE XVI GENERAL PROVISIONS Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law. Section 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.

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Q – What shall be submitted to the people in a national referendum under Section 2? A – A law passed by Congress which adopts either: (1) a new name for the country; (2) a new national anthem; (3) or a new national seal. Section 3. The State may not be sued without its consent. Q – What is the rationale of Section 3? A – (1) A State has the inherent right to exist and to protect itself and its citizens from any act or acts which will defeat the greater interest of the people which it is obligated to serve. This includes the right to protect itself against indiscriminate suits which will necessarily require its attention, time and resources. All these could otherwise be used more for the benefit and interest of the general welfare, in line with the provisions of Sections 4 and 5, Article II of the 1987 Constitution. (2) At a time when our country and the citizenry are confronted with serious problems arising not only from economic depression but also from rampant criminality, kidnapping, drug-related crimes, massacres, agrarian unrest, labor strikes, and many others, the interest of public welfare demands that the time and resources of the State should better be used for more pressing matters instead of indiscriminate suits. To a greater number of people, this basis is perhaps more understandable than what Justice Holmes said that “there can be no other legal rights against the authority which makes the law on which the right depends.” Q – Is the doctrine of State immunity available to member States if they are sought to be sued in the court of the local State? A – It is not conducive to harmony and peace in the community of nations if one State can assert jurisdiction over another State. The better view is to uphold the principle of sovereign equality of States under the time-honored principle of “PAR IN PAREM IMPERIUM NON HABET.” Q – Can the government of the Republic of the Philippines be sued? Explain. A – As a rule, the government of the Republic of the Philippines cannot be sued without its consent. The consent of the State to be sued may be given expressly or impliedly. Express consent may be manifested either through a general law or special law.

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When is there an express consent? There is express consent when a law expressly grants authority to sue the State or any of its agencies. Another example of express consent is the special law enacted by the Philippine Legislature authorizing an individual to sue the Philippine Government for injuries he had sustained when his motorcycle collided with a government ambulance. (Merit vs. Government of the Philippine Islands, 34 Phil. 311) When is there an implied consent? (1)

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When the State enters into a private contract, unless the contract is only incidental to the performance of a government function. (Santos vs. Santos, 92 Phil. 281) (2) When the State enters into an operation that is essentially business operation, unless the business operation is only incidental to the performance of a governmental function (i.e. arrastre service). (Mobil Philippines vs. Customs Arrastre Service, 18 SCRA 1120 [1966]) (3) When the State sues a private party, the defendant can file a counterclaim against the State, unless the suit is entered into only to resist a claim. (Lim vs. Brownell, 107 Phil. 344 [1969]) What is the procedure to prosecute the claim of government? Under C.A. No. 327, as amended by P.D. No. 1445, a claim against the government must first be filed with the Commission on Audit, which must act upon it within sixty days. If the claim is rejected, the claimant is authorized to elevate the matter to the Supreme Court on certiorari and in effect sue the State with its consent. (P.D. No. 1445, Sections 49-50) Can the express consent of the State be given by a mere counsel of the Government? In Republic vs. Purisima (78 SCRA 470), the Supreme Court ruled that the waiver made by the lawyer of the Rice and Corn Administration is not binding upon the State. The express consent of the State to be sued should, therefore, be provided by law. Can the agencies of the Government of the Republic of the Philippines be sued? It depends on whether the government agency to be sued is incorporated or unincorporated. If it is incorporated, the rule is that it is suable if its charter says so and regardless of the functions it is performing. If it is unincorporated, the rule is that it is suable if it is performing proprietary functions, and not suable if it is performing governmental functions.

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Note: The old cases are Meritt vs. Government of the Philippine Islands, 34 Phil. 311; Rosette vs. Auditorial General, 81 Phil. 453 and Palafox vs. Ilocos Norte. Q – Briefly, what is the decision of the Supreme Court in the said cases? A – In Meritt vs. Government, the driver of the ambulance of the Philippine General Hospital was not considered as an agent and the said hospital is not therefore liable for the negligence of the ambulance driver. In Rosette vs. Auditor General, it was held that the officers of the Emergency Control Administration did not act as special agents of the government in storing gasoline in the warehouse of the Emergency Control Administration. Hence, the government is not responsible for the damages caused through such a negligence. In Palafox vs. Province of Ilocos Norte, the latter was not liable for the acts of the driver of the truck because he was not a special agent of the government as the term was used in Article 1903 of the Spanish Civil Code. The judgment of the lower court dismissing the complaint of plaintiff’s father on the ground that the province was not engaged in industry and therefore not liable under Article 103 of the Penal Code (where the employer’s liability is subsidiary), was affirmed by the Supreme Court. FONTANILLA VS. MALIAMAN, ET AL. G.R. NO. 55963; NATIONAL IRRIGATION ADMINISTRATION VS. FONTANILLA, ET AL. G.R. NO. 610-45, DECEMBER 1, 1989 FACTS: NIA, a government agency, owns and operates a pick-up, and it is officially driven by Hugo, the one employed by NIA as its regular driver. Said pick-up bumped a bicycle ridden by Francisco, son of petitioners. Because of the impact, Francisco was thrown 50 meters away from the point of impact, while Restituto, another passenger, was thrown a little bit further. Francisco died. Hugo was a licensed professional driver and he passed the written and oral examinations on traffic rules and maintenance given by NIA. The parents of Francisco sued NIA for damages. NIA’s contention: NIA alleged that it does not perform solely or primarily proprietary functions, and that it is an agency of the government tasked with governmental

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functions. It cannot therefore be held liable for damages for injuries caused by its employees to a third person. ISSUE: Is NIA liable for damages? HELD: The NIA is an agency of the government exercising proprietary functions, by express provision of Republic Act No. 3601. Indubitably, it is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee. In this case, the NIA assumes the responsibility of an ordinary employee and as such, it becomes answerable for damages. This assumption of liability, however, is predicated upon the existence of negligence of supervision. The matter of due diligence on the part of NIA is a crucial issue in determining its liability since it is a government agency performing proprietary functions and as such assumes the posture of an ordinary employer which, under paragraph 5 of Article 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision of the driver. Evidently, there was negligence in the supervision of the driver for the reason that they were traveling at a high speed within the city limits and yet the supervisor of the group failed to caution and make the driver observe the proper and allowed speed within the city. Under the situation, such negligence is aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and recklessness on the part of both the driver and the group supervisor. Therefore, NIA may be held liable for damages caused by the negligent act of its driver who was not its special agent. Q – Can a public officer be sued in his official capacity without obtaining first the consent of the State to be sued? A – This is allowed in cases where said public officer is merely being required to do or perform a duty which is required by law, or if he is merely being restrained to do or perform an act which is alleged to be illegal or unconstitutional, or if he is being sued to be able to recover from him the possession of a property which is under his custody in his official capacity as a public officer. However, if in the enforcement of a judgment rendered in connection with said cases, an appropriation of public funds will be needed to satisfy the judgment, the State should be

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Q A

Q A

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included in the suit as party defendant. In other words, the State need not be a party defendant if such claim can be satisfied and complied with by the said public officer. – Can a public officer who claims to have exercised an act in the performance of his official duties incur personal liability? – It is not enough that a public officer complies with his official duties. He should perform his duties in accordance with law and he should act within the scope of his authority and jurisdiction. Hence, if a public officer acts without jurisdiction or in excess of jurisdiction, any injury caused by him is his personal liability and cannot be imputed to the State. – When the State gives its consent to be sued, does it also consent to the execution of the judgment against it? – This question was raised in Republic of the Philippines vs. Villasor (54 SCRA 84). In this case, a writ of execution was issued by the court against the funds of the Armed Forces of the Philippines to satisfy a judgment rendered against the Philippine Government. It was ruled that public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and even if the State liability has been adjudged. This ruling upholds the view that when the State give 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 proceedings anterior to the stage of execution and that the power of Courts ends when the judgment is rendered. In other words, judgment is one thing and disbursement of public funds to satisfy the said judgment is another. The first is well within the scope of the power and authority of the court. The seconds depends on whether or not there is a corresponding appropriation, as required by law, to satisfy the judgment of the court. – Are there instances when funds belonging to government corporations and deposited in a bank, were garnished? – In Philippines National Bank vs. Pabalan (83 SCRA 595), a writ of execution was issued against PVTA (Philippine Virginia Tobacco Administration). Its funds on deposit with PNB were garnished. Here the funds belong to a government corporation whose charter provides that it can sue and be sued. In National Housing Authority vs. Heirs of Quirelondo, G.R. No. 154411, June 19, 2003, it was held that funds belong to a government owned or public corporation which is clothed with a personality of its own, hence, the same are not exempt from garnishment. Here, the NHA was considered like any other corporation because it has entered into a commercial transaction, and for which reason, it has abandoned its sovereign capacity.

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There is another case where the City Government approved and passed an ordinance, allocating a certain amount to be able to pay back salaries. Here, there is already an appropriated amount intended to be used and to satisfy the said obligation. (City of Caloocan vs. Allarde, G.R. No. 107271, September 10, 2003). Q – Suppose there is already a final money judgement against a municipality but despite this, the later still fails and refuses to pay the same, what coercive measure, if any, can be availed of to compel the payment of the said judgment? A – The claimant may file a petition for mandamus to compel the enactment and approval of the necessary appropriation ordinance and the corresponding disbursement of municipal funds. (Municipality of Makati vs. Court of Appeals, 190 SCRA 206) Section 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State. Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. (2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people’s rights in the performance of their duty. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries. (5) Laws on retirement of military officers shall not allow extension of their service. (6) The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable. (7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.

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Q – What is required and expected of the Armed Forces of the Philippines? A – (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. (2) The armed forces shall be insulated from partisan politics. (3) No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries. Q – Can there be law which will allow extension of service of military officers? A – Laws on retirement of military officers shall not allow extension of their service. Q – Can the tour of duty of the Chief of Staff of the Armed forces exceed three years? A – The tour of duty of the Chief of Staff of the Armed Forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. Section 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. Q – Who has control and administration over all police units in the Philippines? A – The National Police Commission. Q – What is the nature of our police force? A – We shall have “one police force, which shall be national in scope and civilian in character.” Section 7. The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources. Section 8. The State shall, from time to time, review to upgrade the pensions and other benefits due to retirees of both the government and the private sectors.

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Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products. Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. Q – What are the constitutional limitations regarding ownership and management of mass media? A – (1) It shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. (2) The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (3) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. (4) Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. (5) The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share

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in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. Section 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, MULTIPLE CHOICE QUESTIONS 1.

Immunity of agencies of the government of the Republic of the Philippines Can agencies of the Government of the Republic of the Philippines be sued? A. They can be sued if they give their consent to be sued. B. They cannot be sued if they are performing a work in the exercise of their governmental function. C. They cannot be sued because they are merely agents of the national government and it is the latter that should be sued. D. It depends on whether government to be sued is incorporated or unincorporated. If it is incorporated, the rule is that it is suable if its charter says so and regardless of the functions it is performing. If it is unincorporated, the rule is it is suable if it is performing proprietary functions, and not suable if it is performing governmental functions.

2.

Enforcement of judgment against a municipal government A complaint for sum of money with damages was filed against X Municipality in connection with a construction project entered into by and between said municipality and Strong Contractors, Inc. After trial and hearing, judgment was rendered against X Municipality and subsequently, a writ of execution was issued by the court to enforce judgment. A. The money owned by X Municipality and deported in Rizal Bank can be garnished to satisfy the judgment. B. The power of the courts and when the judgment is rendered and the writ of execution or garnishment cannot be enforced. C. Public funds cannot be the object of garnishment proceedings even if the consent to be sued has been previously granted on account of the contract. D. It is within the power of the court to render judgment but the power to disburse public funds to satisfy the judgment will

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depend on whether there is a corresponding appropriation, as required by law. ARTICLE XVII AMENDMENTS OR REVISION Section 1. Any amendment to, or revision of, this Constitutional may be proposed by: (a) The Congress, upon a vote of three-fourths of all its Members; or (b) A constitutional convention. CAN THE 1987 CONSTITUTION BE CHANGED? IF SO, HOW CAN IT BE CHANGED? Yes. By express Constitutional provision. It can be changed either by amendment or revision. DISTINCTION BETWEEN REVISION AND AMENDMENT Revision is the rewriting or overhauling of the entire instrument. Amendment is a change or alteration for the better, an amendment or change within the lines of the original instrument which will bring about improvement. STEPS REQUIRED IN THE REVISION OR AMENDMENT OF THE CONSTITUTION There are two (2) steps required in the process of revising or amending the Constitution, namely: (a) Proposal; and (b) Ratification. (a) PROPOSAL. Proposal is the motion of initiating suggestions or proposals on the amendment or revision which may either be by: • Congress upon a vote of three-fourths of all its Members; or • A Constitutional Convention; or • The people through initiative. (b) RATIFICATION. Ratification is the sovereign act vested in the Filipino people to either reject or approve the proposals to amend or revise the Constitution. The ratificatory process is found and outlined in Section 4, Article XVII of the Constitution, to wit: “Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety (90) days after the approval of such amendment or revision.

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“Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety (90) days after the certification by the Commission on Elections of the sufficiency of the petition.” HOW MAY THE CONSTITUTION BE REVISED? There are two (2) modes of revising the Constitution, to wit: (a) By the Congress, upon a vote of three-fourths of all its Members; or (b) By a Constitutional Convention. If Congress chooses to call a Constitutional Convention to revise the Constitution, it may either: (a) Call a Constitutional Convention by a vote of two-thirds of all its Members; or (b) Submit to the electorate the question or calling such a body by a majority vote of all its Members. HOW MAY THE CONSTITUTION BE AMENDED? Amendment may be effected: (a) By Congress, upon a vote of the threefourths of all its Members; (b) By a Constitutional Convention; (c) By People’s Initiative. Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. PEOPLE’S INITIATIVE Initiative is the power of the people to propose amendments to the Constitution, or to propose and enact legislations through an election called for the purpose.

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THREE (3) SYSTEMS OF INITIATIVE (a) Initiative on the Constitution – which refers to a petition proposing amendments to the Constitution. (b) Initiative on Statutes – one referring to a petition to enact a national legislation. (c) Initiative on Local Legislation – it refers to a petition proposing to enact a regional, provincial, city or municipal or barangay law, resolution or ordinance. REQUIREMENTS AND LIMITATIONS TO PEOPLE’S INITIATIVE Initiative to amend the Constitution may be effected through a petition, subject to the following conditions: (a) The petition must have at least twelve (12%) per centum of the total number of registered voters as signatories. (b) Of the twelve (12%) per centum total registered voters, at least every legislative district must be represented by three (3) per centum of the registered voters therein. THE LIMITATIONS ON THE EXERCISE OF SUCH RIGHT ARE: (a) The power of initiative shall be exercised five years after the ratification of the 1987 Constitution. (b) The power may be exercised only once every five years thereafter. CONTENTS OF THE PETITION ON INITIATIVE The petition must state the following: (a) Contents or text of the proposed law sought to be enacted, approved, or rejected, amended or repealed, as the case may be. (b) The proposition. (c) The reason or reasons thereof. (d) That it is not one of the exceptions provided therein. (e) Signatures of the petitioners or registered voters. (f) An abstract of summary proposition in not more than one hundred words which shall be legibly written or printed at the top of every page of the petition. Section 4. Any amendment to, revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier

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than sixty days nor later than ninety days after the certification by the Commission on Election of the sufficiency of the petition. RATIFICATION It is the direct approval of the people of the amendment to, or revision of, the Constitution. WHEN SHOULD THE AMENDMENT TO OR REVISION OF THE CONSTITUTION BE SUBMITTED TO THE PEOPLE IN A PLEBISCITE? The amendment to or revision of the Constitution must be submitted to the people in a plebiscite called for the purpose not earlier than sixty (60) days nor later than ninety (90) days after the approval of such amendment or revision. Any amendment to the Constitution undertaken by virtue of the people’s right on initiative shall be submitted also within the same period after the certification by the COMELEC of the sufficiency of the petition. (Section 4, Paragraph 2, Article XVII) CAN PROPOSED AMENDMENTS TO THE CONSTITUTION BE SUBMITTED AT A PLEBISCITE WHICH IS SCHEDULED ON THE SAME DAY AS THE REGULAR ELECTIONS? In Gonzales vs. Commission on Elections (21 SCRA 774), the petitioner questioned the validity of the submission of some proposed amendments to the Constitution at a plebiscite which is scheduled on the same day as the regular elections. It was the contention of the petitioner that it being the same day when the regular elections shall be held, the people would have more interest on the election issues rather than on the proposed amendments to the Constitution. The Supreme Court, however, did not uphold the said contention and held that “x x x The circumstance that the previous amendment to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.” IS THE POWER TO AMEND OR REVISE THE CONSTITUTION INCLUDED IN THE GENERAL GRANT OF LEGISLATIVE POWER TO CONGRESS? The power to amend or revise the Constitution is not included in the general grant of legislative power to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a Republican State. It cannot be exercised by Congress unless expressly granted to it in the Constitution.

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Congress may propose amendments to the Constitution merely because the same expressly grants such power. Thus, when exercising the same, it is said that the Senators and Members of the House of Representatives act, not as Members of Congress, but as component elements of a constituent assembly. When acting as such, the Members of the Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution – they are the very source of all powers of government, including the Constitution itself. (Gonzales vs. Commission on Elections, 21 SCRA 774) IS AN AMENDMENT OR REVISION AND RATIFICATION OF THE CONSTITUTION A JUSTICIABLE QUESTION? It is a justiciable question. (Majority view in Javellana vs. Executive Secretary, et al., L-36142, March 31, 1973) In Sanidad vs. Comelec (supra), the Court held that the amending process, both as to proposal and ratification raises a justiciable question. Said the Court in Sanidad: “The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. This is specifically true in cases where the power of the President to initiate the amending process by a proposal of amendment, a function normally exercised by the legislature, is seriously doubted.” CAN THE CONSTITUTION BE VALIDLY AMENDED BY “TRANSPOSITION”? No. The Constitution can only be validly amended by the three (3) modes explicitly enumerated in Sections 1 and 2, Article XVII. Amendment by transposition is not one of them, hence, impermissible. (Bautista vs. Salonga, 172 SCRA 160, April 13, 1989) IS IT POSSIBLE THAT THE PROCEDURAL REQUIREMENTS FOR AMENDMENT OR REVISION OF THE CONSTITUTION ARE NOT COMPLIED WITH, AND YET, IT IS CONSIDERED VALIDLY RATIFIED? The majority view in Javellana vs. Executive Secretary confirmed that this is possible. The dispositive portion of the decision in the said case states: “Accordingly, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makaisar, Antonio and

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Esguerra with the four dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. (Underlining Supplied) ARTICLE XVIII TRANSITORY PROVISIONS Section 1. The first elections of Members of the Congress under this Constitution shall be held on the Second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Q – What is the purpose of the transitory provisions provided for in Sections 1 to 27 of Article XVIII of the 1987 Constitution? A – Transitory provisions are transient or temporary in nature. They are intended to attain smooth transition from the old government to the new one under the new Constitution. The purpose for which a transitory provision is enacted is deemed accomplished after the said provision is carried out, implemented or fulfilled. There being no specific date that is fixed for the exact fulfillment of the same, except as otherwise indicated in some instances, they shall continue to exist until the purpose or purposes for their enactment are attained or fulfilled. Q – What are the three (3) elections mentioned or referred to under Section 1? A – There are three (3) elections mentioned in or referred to under Section 1 and they are as follows: 1. The first elections of – The first elections of Members of the Congress under the Constitution members of Congress shall be held on the second Monday of May, 1987. – The first local elections shall be 2. The first local held on the date to be determined elections by the President which may be 3. Election of all simultaneous with the election of members of the city the members of the Congress. It shall or municipal councils include the election of all Members in the Metropolitan of the City or Municipal councils in area the Metropolitan Manila area.

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Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years. Q – What is the definition of the term of office of Senators, Members of the House of Representatives, and the local officials first elected under the 1987 Constitution? A – Section 2 defines the term of the following: 1. Senators, Members of the House of Representatives – They shall serve until noon of June 30, 1992. 2. The first twelve (12) senators elected in the 1992 election who obtained the highest number of votes – The first twelve Senators obtaining the highest number of votes shall serve for six (6) years. 3. The next twelve senators elected in the 1992 Election – The remaining Senators – 13th to 24th place – shall serve for three (3) years. Q – How is synchronization attained with respect to the term of President and Vice-President? A – The first elections for the President and Vice-President under the 1987 Constitution was held on the second Monday of May, 1992, because the six-year term of then President Corazon C. Aquino and then VicePresident Salvador H. Laurel who won in the election on February 7, 1986, was extended, for purposes of synchronization, to noon of June 30, 1992, an extension of about four (4) months. For the foregoing reasons, the 1987 Constitution paves the way for the synchronization of elections for local and national officials, including the President and Vice-President of the Philippines. Section 3. All existing laws, decrees, executives orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. Q – What is the rationale of Section 3? A – Existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances shall remain operative until amended, repealed or revoked, for as long as they are not inconsistent with the 1987 Constitution. In this manner, there shall be no disruption in the orderly operations of the government during the transition period. It will also insure protection and respect for vested rights and

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obligations derived under the existing statutes “not inconsistent with this Constitution.” Section 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate. Q – What is the constitutional limitation with respect to existing treaties or international agreements which have not been ratified? A – Section 4 refers to treaties or international agreements which may have been entered into by President Ferdinand E. Marcos during his incumbency but which have not been ratified. They may continue, as agreed upon, but they shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate. Section 5. The six-year term of the incumbent President and Vice-President elected in February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. Q – Why is the term of President Corazon Aquino and Vice-President Salvador Laurel extended to noon of June 30, 1992? A – As already stated, the six-year term of then President Corazon Aquino and then Vice-President Salvador H. Laurel was extended to noon of June 30, 1992, an extension of about four (4) months. Section 5 states that the purpose of the said extension is to attain “synchronization of elections.” Section 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened. Q – What is the purpose of Section 6? A – This means that from the ratification of the 1987 Constitution up to the fourth Monday of July 1987, President Corazon C. Aquino shall continue to exercise legislative powers. This is the basis of her authority to implement some provisions of the Constitution that are not self-executory. Section 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (1), Section 5 of Article VI of this Constitution. Self-explanatory. Section 8. Until otherwise provided by the Congress, the President may constitute the Metropolitan Manila area. Self-explanatory.

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Section 9. A sub-province shall continue to exist and operate until it is converted into a regular province or until its component municipalities are reverted to the mother province. Section 10. All courts existing at the time of the ratification of this Constitution shall continue to exercise their jurisdiction, until otherwise provided by law. The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress. Section 11. The incumbent Members of the Judiciary shall continue in office until they reach the age of seventy years or become incapacitated to discharge the duties of their office or are removed for cause. Section 12. The Supreme Court shall, within one year after the ratification of this Constitution, adopt a systematic plan to expedite the decision or resolution of cases or matter pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. Section 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable. Q – Simplify Sections 9, 10, 11, 12, and 13. A – Under Section 9, a sub-province may either be converted into a regular province, or its component municipalities may be reverted to the mother province. Under Section 10, all courts existing at the time of the ratification of the 1987 Constitution shall continue to function, until otherwise provided by law. The same thing is true for the existing Rules of Court, judiciary acts and procedural laws not inconsistent with the Constitution. They shall remain operative unless amended or repealed by the Supreme Court or the Congress. Because of the mandate in Section 11, all pending resignations of incumbent judges then became functus officio upon ratification of the 1987 Constitution. Section 12 gives the Supreme Court a period of one (1) year after the ratification of the 1987 Constitution within which to adopt a systematic plan to expedite the decision or resolution of pending cases not only in the Supreme Court but also in all lower courts, special courts and quasi-judicial bodies.

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Under Section 13, the Supreme Court is mandated to determine the legal effect of the lapse of the applicable period for the decision or resolution of cases or matters submitted for adjudication. Section 14. The provisions of paragraphs (3) and (4), Section 15 of Article VIII of this Constitution shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification. Section 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution. Q – Is the right of the member of three Constitutional Commissions to continue in office for one year after the ratification of the 1987 Constitution absolute? A – Their continuancy in office is subject only to three (3) restraints, to wit: 1. Unless they are sooner removed for cause. 2. Unless they become incapacitated to discharge the duties of their office. 3. Unless they are appointed to a new term. Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. Q – What are the two (2) kinds of reorganization contemplated in Section 16? A – Section 16 contemplates of two (2) kinds of reorganization: 1. Reorganization by virtue of Proclamation No. 3. 2. Reorganization following the ratification of the 1987 Constitution.

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In either case, career civil service employees separated from the service not for cause “shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. x x x” Section 17. Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each. Self-explanatory. Section 18. At the earliest possible time, the Government shall increase the salary scales of the other officials and employees of the National Government. Section 19. All properties, records, equipment, buildings, facilities, and other assets of any office or body abolished or reorganized under Proclamation No. 3 dated March 25, 1986 or this Constitution shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. Section 20. The first Congress shall give priority to the determination of the period for the full implementation of free public secondary education. Section 21. The Congress shall provide efficacious procedures and adequate remedies for the reversion to the State of all lands of the public domain and real rights connected therewith which were acquired in violation of the Constitution or the public land laws, or through corrupt practices. No transfer or disposition of such lands or real rights shall be allowed until after the lapse of one year from the ratification of this Constitution. Section 22. At the earliest possible time, the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program. Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein. Section 24. Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces

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including Civilian Home Defense Forces not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force. Q – What are the concerns of the government in connection with Sections 18, 19, 20, 21, 22, 23, and 24? A – Said concerns are as follows: 1. Increase of the salary scales of all officials and employees of the national government. (Section 18) 2. Properties, records, equipment, buildings, facilities and other assets of any office abolished or reorganized shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. (Section 19) 3. Priority to the determination of the period for the full implementation of free public secondary education. (Section 20) 4. Reversion to the State of all lands of the public domain and real rights connected therewith which were acquired unlawfully. (Section 21) 5. Expropriation of idle or abandoned agricultural lands. (Section 22) 6. Filipino ownership requirement for advertising entities. (Section 23) 7. Dismantling of private armies and armed groups. (Section 24) Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Q – What shall not be allowed after the expiration in 1991 of the RP-US Military Bases Agreement? A – 1. Foreign military bases 2. Foreign troops 3. Foreign facilities Exception: Except if there is treaty duly concurred in by the Senate. Q – If there is already a treaty concurred in by the Senate, does said treaty still need the ratification of the majority of the votes cast by the people in a national referendum held for that purpose?

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A – Yes, but only when Congress so requires. Q – If Congress requires ratification and the said treaty is actually ratified by the majority of the votes cast in a national referendum held for that purpose, can it be implemented already? A – No, because said treaty has still to be recognized as a treaty by the other contracting State. Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of illgotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period. A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. Q – What are the constitutional limitations for issuing a request or freeze order? A – A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. AUTHORITY TO ISSUE SEQUESTRATION OR FREEZE ORDERS UNDER PROCLAMATION NO. 3 DATED MARCH 25, 1986 IN RELATION TO THE RECOVERY OF ILL-GOTTEN WEALTH Q – How long shall it be operative? A – It shall remain operative for not more than eighteen months after the ratification of the 1987 Constitution.

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Q – Can Congress extend said period? A – In the national interest, as certified by the President, the Congress may extend said period. Q – When can it be issued? A – A sequestration or freeze order shall be issued only upon showing of a prima facie case. Q – What is required when the said order is issued? A – The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. FILING OF CORRESPONDING JUDICIAL ACTION OR PROCEEDING Q – When shall it be filed? A – 1. For orders issued before the ratification of the 1987 Constitution: It shall be filed within six months from its ratification. 2. For orders issued after the ratification of the 1987 Constitution: It shall be commenced within six months from the issuance of the order. CASES Q – Is a sequestration order issued by the PCGG Task Force Regional Head valid? A – No. REASONS: (1) A writ of sequestration may be issued only upon authority of at least two PCGG Commissioners; (2) The PCGG Task Force Regional Head does not have specific authority to act on behalf of the commission; and (3) Even assuming that the said regional head is authorized, the PCGG may not validly delegate its authority to sequester. (Republic vs. Sandiganbayan, 258 SCRA 685) Q – Can the PCGG exercise the prerogatives of ownership such as the sale of property or the selection of people who should manage a corporation under sequestration? A – No, without the permission of the courts. (Republic vs. Sandiganbayan, 192 SCRA 743 [1990]; Republic vs. Sandiganbayan, 221 SCRA 189 [1993]) Q – Does sequestration automatically deprive the stockholders of their right to vote their shares of stocks? A – No. The test on whether there is right to vote sequestered shares of stocks depends on two tests: 1. Whether there is prima facie evidence to show that the said shares are ill-gotten over which the government has a legitimate claim for recovery;

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2.

Q –

A – Q – A –

Whether there is an immediate danger of dissipation complaints, hence, there is a need for continued sequestration in voting by the PCGG during the pendency of the principal issue with the Sandiganbayan. (PCGG vs. Cojuanco, G.R. No. 133197, January 22, 1999) Can the PCGG enter into a compromise agreement involving illgotten wealth and the granting of immunity in civil and criminal cases without the necessity of prior approval of Congress? This was allowed in Benidicto vs. Board of Administrators, 207 SCRA 659. What are the violations of the Anti-Graft Law that are within the authority of the PCGG to investigate? They are those violations: (1) which must relate to ill-gotten wealth; (2) belonging to Ex-President Ferdinand Marcos, his immediate family, relatives, subordinates, and close associates; (3) who took advantage of their public office and or their power authority, influence, connections or relationship (Romualdez vs. Sandiganbayan, 244 SCRA 152); and (4) there must be a showing that the accused has unlawfully accumulated wealth due to the close relationship with Ex-President Ferdinand E. Marcos. (Cruz vs. Sandiganbayan, 194 SCRA 474)

Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. Q – When did the Constitution take effect? Was it on February 2, 1987, the date when the plebiscite was called, or on February 11, 1987, when the results were made public pursuant to the presidential proclamation? A – On February 2, 1987, the date when the people voted and ratified the 1987 Constitution. This is the majority view. Reason: the canvass of the votes is merely the mechanical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. Justice Sarmiento dissented. His view is to the effect that the 1987 Constitution became effective on February 11, 1987, and not on February 2, 1987, because it was on February 11, 1987 when the true and sovereign will of the people who ratified it became officially and publicly known through the issuance of Presidential Proclamation No. 58.

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ADMINISTRATIVE LAW REVIEWER GUIDE: AT A GLANCE I. General principles II. Administrative agencies: Their nature, creation, establishment and abolition III. Powers of administrative agencies:(a) Quasi-legislative or rule making power; (b) Quasi-judicial power A. Quasi-legislative or rule making power I. II. III. IV. a) V. VI. VII. VIII. IX. X. XI. XII. XIII.

Kinds of administrative rules or regulations Requisites of a valid administrative regulation Discuss each requisite Requisites of administrative regulation with a penalty Cases Powers and functions exercised in the course of exercising quasilegislative power Is notice and hearing necessary in the promulgation of a general regulation issued or to be issued by an administrative body? When is it necessary? Can legislative powers be delegated? What is the test to determine whether a given power has been validly exercised by a particular department? Distinguish legislative power from quasi-judicial power. What is the guideline to observe in order to ensure that there is a valid and lawful delegation of power? What is the classification of administrative regulations? Distinguish legislative regulations from interpretative regulations. B. Quasi-judicial power

1. 2. 3. 4.

5.

Definition of quasi-judicial power. Why is quasi-judicial power granted to an administrative agency? What is the limitation to the legislature whenever it grants quasijudicial power to an administrative agency? What is the main function of administrative agencies and the administrative officers in-charge of said boards, bureaus and offices? Powers included in the term quasi-judicial — (1) determinative power (2) summary power.

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6. 7.

IV. V.

Different powers. What is the nature of the proceedings arising from the exercise of the said powers? 8. Why do they partake of the nature of judicial proceedings? 9. Are the proceedings before administrative agencies adversarial in nature? 10. When are proceedings adversarial and when are they held exparte? 11. Jurisdiction. Classifications of jurisdiction. 12. Source of authority and jurisdiction of administrative boards, bureaus and offices. 13. Are the orders and the decisions of administrative boards, bureaus and offices final? 14. When is an administrative decision considered res judicata? 15. What is the doctrine of res judicata in administrative proceedings? a) Cases Important principles in administrative law Other ancilliary principles Relief from within the administrative agency itself Relief after the resolution of the highest level of authority in the administrative agency concerned Appeal from, or review of, decisions of administrative agency Methods of review of administrative action a) Cases Adminstrative agencies created by the Constitution DISCUSSION I. GENERAL PRINCIPLES

Q – What is administrative law? A – Administrative law is the branch of public law which fixes the organization and determines the competence of administrative authorities, and indicates to the individual remedies for the violation of his rights. (Goodnow, Comparative Administrative Law, p. 8) Q – What is administrative law in actual practice in the Philippines? A – On the basis of the different definitions of administrative law, and considering how administrative law presently operates in this jurisdiction from day to day, it is perhaps easier to understand administrative law by having in mind that:

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3)

4)

5)

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It is a branch of public law; It deals with the activities of executive or administrative agencies, known and referred to as “boards,” “bureaus,”, “commissions,” “authority,” “office” and “administration”; These “boards,” “bureaus,” “commissions,” “authority,” “office,” and “administration” can exercise quasi-legislative and quasijudicial powers and functions in the sense that they can issue rules and regulations not contrary to the guidelines set up by law and they can resolve the issues or the cases submitted to them; Administrative regulations and policies enacted by administrative bodies to interpret the law which they are entrusted to enforce have the force of law and are entitled to great respect. They have in their favor a presumption of legality. (Gonzales vs. Land Bank of the Philippines, G.R. No. 7675, March 22, 1990) Example: There is a legal presumption that the rates fixed by the National Telecommunications Commission are reasonable. It must be conceded that the fixing of the rates by the government through its authorized agent involves the exercise of reasonable discretion and unless there is an abuse of that discretion, the courts will not interfere. Courts do not interfere with administrative action prior to its completion or finality. (Radio Communications of the Philippines vs. NTC, G.R. No. 66683, April 23, 1990) In the resolution of cases or issues presented to administrative bodies and offices, they are not bound by the technical rules of evidence. Strict observance of the same is not indispensable in administrative cases. (Daduvo vs. CSC, 42 SCAD 750, 223 SCRA 747) An administrative decision may properly be amended or set aside only upon clear showing that the administrative official or tribunal has acted with grave abuse of discretion amounting to lack or excess of jurisdiction. There is an abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, such as when the power is exercised in an arbitrary or despotic manner by reason of passion of personal hostility. (Heirs of Tanjuan vs. Office of the President, et al., G.R. No. 126847, December 4, 1996)

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Factual findings of administrative bodies should be accorded not only respect but also finality if they are supported by substantial evidence even if not overwhelming or preponderant. (Casa Filipino Realty Corporation vs. Office of the President, 241 SCRA 165) 8) Although findings of facts of an administrative agency is persuasive in courts and carries with it a strong presumption of correctness, nonetheless, the interpretation and application of laws is the court’s prerogative. (Prudential Bank vs. Serrano,G.R. No. 49293; Prudential Bank vs. Gapultos, G.R. No. 41835, January 19, 1990) 9) Administrative remedies should first be exhausted before filing a petition for relief. (Walstrom vs. Mapa, Jr., G.R. No. 38387, January 29, 1990) 10) On purely legal question, however, the aggrieved party need not exhaust administrative remedies. REASON: Nothing of an administrative nature is to be done or can be done in the administrative forum. (Prudential Bank vs. Serrano, supra) 11) If a case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 8, 1990). This is known as the principle of primary jurisdiction. Q – Trace the origin of administrative law. A – The origin of administrative law could be traced to the following: 1. Statutes – Setting up administrative authorities either by creating boards and commissions or administrative officers or by confiding the powers and duties to existing boards, commissions, or officers, to amplify, apply, execute, and supervise the operation of, and determine controversies arising under particular laws in the enactment of which the legislature decided for matters of convenience or for quicker or more efficient administration to withhold the controversies, at least in the first instance, from the courts of law. 2. Increase of government functions and concerns – Complexities of modern life necessarily increase the functions and concerns of government which, in turn, requires the legislature to create more

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administrative agencies which will take charge in attending to matters that demand their special competence and expertise. 3. Necessity of government control and regulation – The government has intervened in contractual relations that are affected with public interest. As it is now, the government has exercised control and regulation of many aspects of business such as but not limited to labor and management relations, immigration and deportation, banking, recruitment of overseas workers, insurance, telecommunication industry, water services, finance, foreign exchange, health, food and drugs, regulation of profession, regulation of sports activities, including the monitoring of player’s credentials and citizenship, morals, investment, energy regulation, forest development, mining, land conversion, election, tax collection and administration, human settlements and regulation of subdivisions, civil service and eligibility of government employees, and many other businesses and activities that are impressed with public interest. In the course of the exercise of the above-mentioned functions and responsibilities, rules, regulations, decisions and orders are issued every now and then by the different agencies of the government. All of these, in turn, contribute to the growth and development of administrative law. Q – What are the sources of administrative law? A – Administrative law is derived from the following sources: 1. The Constitution (i.e., Article IX, Section 1 of the 1987 Constitution which provides as follows: “The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit”). 2. Statutes creating administrative bodies Example: The Board of Energy was created by Presidential Decree No. 1208, dated October 6, 1977. The Philippine Overseas Employment Administration (POEA) took over the functions of the Overseas Employment Development Board (OEDB). It was created by Executive Order No. 797 dated May 1, 1972. The Workmen’s Compensation Commission was abolished on March 31, 1976, and it was replaced by the Employees Compensation Commission as provided by Article 176 of the New Labor Code of the Philippines, Presidential Decree No. 442, as amended.

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3.

4.

Court decisions – interpreting the charters of administrative agencies and defining their powers and responsibilities. Example: Jurisprudence laid down by the Supreme Court containing interpretations involving the principle of primary jurisdiction; exhaustion of administrative remedies; due process in administrative proceedings, etc. The body of rules, regulations and orders issued by administrative agencies.

Examples: Rules, regulations, circulars issued by the different administrative agencies of the government. Decisions and orders of administrative bodies in cases submitted to them (i.e. decisions of the National Labor Relations Commission on complaints filed by employees against their employers). Q – What are the administrative bodies or agencies in the Philippines? A – 1) Administrative bodies for regulation under police power.

2)

Example: a) Commission on Immigration and Deportation b) Securities and Exchange Commission c) Professional Regulation Commission d) Bureau of Food and Drug e) Housing and Land Use Regulatory Board f) Board of Food Inspectors g) Monetary Board h) Land Transportation Office Administrative bodies for regulation of public utilities.

3)

Example: a) Land Transportation Franchising and Regulatory Board b) National Telecommunications Commission c) Board of Energy d) National Water and Resources Council e) Civil Aeronautics Board f) Board of Marine Inquiry Administrative bodies to carry on governmental functions.

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Example: a) Bureau of Internal Revenue b) Bureau of Customs c) Civil Service Commission d) Board of Special Inquiry e) Bureau of Lands f) Land Registration Authority Administrative bodies that adjudicates and decides industrial controversies.

5)

Example: a) National Labor Relations Commission b) Philippine Overseas Employment Adjudication Office c) Human Settlement Regulatory Commission or The Housing and Land Use Regulatory Board Administrative bodies making the government a private party.

6)

Example: a) Commission on Audit b) Social Security System Adjudication Office Administrative bodies that grant privileges.

Example: a) Philippine Veterans Affairs Office b) Board of Pardons and Parole c) Bureau of Lands d) Land Transportation and Franchising Regulatory Board In the case of PLDT vs. City of Bacolod (G.R. No. 149179, July 15, 2005), the Supreme Court ruled that the Bureau of Local Government Finance under the Department of Finance is NOT an administrative agency whose findings on questions of facts are given weight by the courts. Q – Define administration. A – It is an activity of the executive officer of the government. The government administers when it appoints an officer, instructs its diplomatic agents, assesses and collects its taxes, drills its army, investigates a case of the commission of crime and executed the judgment of court. Whenever we see the government in action as opposed to deliberation or the rendering of a judicial decision, there we say is administration. Administration is thus to be found in all the manifestation of executive action. (Goodnow, Comparative Administrative Law, p. 12)

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Q – A –

Q –

A –

Administration, as it is presently understood, refers to the aggregate of those persons in whose hands the reigns of government are for the time being. (U.S. vs. Dorr, 2 Phil. 332) What are the two aspects of administration? There are two (2) aspects of administration, namely: 1. Internal administration – This includes the legal structure or organization of public administration and the legal aspects of each institutional activity (i.e., personnel, material, physical and planning activities). 2. External administration – This is concerned with the problems of administrative regulations or the exercise of power for carrying out the ends for which such powers were delegated. (42 Am. Jur., 290) Distinguish the following: (a) Administration and politics; (b) Administration and law; (c) Administration of government and administration of justice; (d) Administration as an organization and administration as a government. (a) Administration and politics ADMINISTRATION

POLITICS

Administration has something Politics has something to do with to do with the execution of the policies or expressions of the State’s will. policies of the State. Execution of said policies is entrusted to the body of officers, called administrative officers.

(b)

Administration and law ADMINISTRATION

LAW

Administration achieves public security by preventive measures. It selects a hierarchy of officials to each of whom definite work is assigned, and it is governed by ends rather than rules. It is personal. Hence, it is often arbitrary and is subject to the abuse incident to personal as contrasted with impersonal or law-regulated action.

It operates by redress or punishment rather than by prevention. If formulates general rules of action and visits infraction of these rules with penalties. It does not supervise action. It leaves individuals free to act, but imposes pains on those who do not act in accordance with the rules prescribed. (Roscoe Pound in Proclamation, Pol. Sci Association, pp. 232-233)

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Administration of government and administration of justice ADMINISTRATION OF GOVERNMENT

ADMINISTRATION OF JUSTICE

The administrative officers who are charged with the administration of government determine what is the law to find out whether they are competent to act and if so, whether it is wise for them to act.

The judicial officers who are charged with the administration of justice decides controversies between individuals and government officers as to the applicability in the cases in a question of a particular rule of law. Hence, they determine what law is applicable to the facts brought before them.

(d)

Administration as an organization and government ADMINISTRATION AS AN ORGANIZATION

ADMINISTRATION AS A GOVERNMENT

Administration refers to that group of aggregate of persons in whose hands, the reigns of government are for the time being (U.S. vs. Dorr, 2 Phil. 332). It indicates the entire administrative organization extending down from the Chief Executive to the most humble of his subordinates. It is thus the totality of the executive and administrative authorities. (Goodnow, op. cit., p. 5)

As an element of the State, a government is defined as “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.” (U.S. vs. Dorr, 2 Phil. 332; Bacani vs. National Coconut Corporation, 53 O.G. 2798)

Q – What are the weaknesses of administrative action? A – Administration suffers from the following weaknesses: 1. Tendency towards arbitrariness; 2. Lack of legal knowledge and attitude in sound judicial technique; 3. Susceptibility to political bias or pressure, often brought about by uncertainty of tenure and lack of sufficient safeguards for independence; 4. A disregard for the safeguards that insure a full and fair hearing; 5. Absence of standard rules of procedure suitable to the activities of each agency; and

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A dangerous combination of legislative, executive, and judicial functions. (Lawyer’s Journal, Vol. 7, p. 560; Macapagal, Judicial Supremacy over Administrative Bodies, Lawyer’s Journal, Vol. 12, pp. 312-314) II. ADMINISTRATIVE AGENCIES: THEIR NATURE, CREATION, ESTABLISHMENT AND ABOLITION

Q – What is the nature of administrative agencies? A – An administrative agency is an organ of government entrusted with the task of enacting specific rules and regulations to effectuate the purpose of the statute creating it. Its functions and powers are quasi-legislative or quasi-judicial, or in some instances, it acts as an agent of the executive branch of the government, in which case, it is entrusted with the duty to exercise executive and administrative functions. Q – What are the two principal powers and functions of administrative agencies? A – Administrative agencies have two principal kinds of powers and functions namely: 1. Rule-making power or quasi-legislative function. 2. Power of adjudication or quasi-judicial function. (Stasoni Cases and other Materials on Administrative Tribunals, 2nd Ed., 71) Q – How are administrative bodies created and established? A – Administrative agencies may be created by: (1) the Constitution; (2) the legislature in legislative enactments; or (3) by authority of law. Q – Does the legislature exercise control over administrative agencies? A – Yes. The legislative branch of government enacts the law that creates an administrative agency: (1) It prescribes the mode of appointment, the term of office and the compensation; (2) It fixes its authority and procedure; (3) It determines the size of its personnel and staff; (4) It exercises continuing surveillance over its activities; (5) It may investigate its operations for remedial/corrective legislation. At present, the Senate Blue Ribbon Committee as well as the appropriate committees in each House of Congress play an important role in the investigation of anomalies and irregularities of the different administration offices and agencies. Likewise, the Ombudsman, a Constitutional Office organized precisely to look into and investigate any irregularity of government officials and employees, exercise an important role in filing appropriate criminal cases against erring government officials and employees.

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Of course, the Sandiganbayan takes part in the trial of complaints filed by the Ombudsman. III. POWERS OF ADMINISTRATIVE AGENCIES A. QUASI-LEGISLATIVE OR RULE MAKING POWER 1.

DIFFERENT KINDS OF ADMINISTRATIVE RULES AND REGULATIONS a) Supplementary or detailed legislation – They are rules and regulations “to fix the details” in the execution and enforcement of a policy set out in the law, e.g., Rules and Regulations Implementing the Labor Code. b) Interpretative legislation – They are rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed, e.g. BIR Circulars, CB Circulars, etc. They have the effect of law and are entitled to great respect; they have in their favor the presumption of legality (Gonzalez vs. Land Bank, 183 SCRA 520). The erroneous application of the law by public officers does not bar a subsequent correct application of the law. (Manila Jockey Club vs. Court of Appeals, G.R. No. 103533, December 15, 1998) c) Contingent legislation – They are rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends. (Cruz vs. Youngberg, 56 Phil. 234) Contingent Regulation – It is issued on account of the concurrence of a certain contingency, as determined by the administrative agencies. On the basis of the latter’s determination, the operation of a law may either be enforced or suspended. Example: Authority of the Governor General to lift the prohibition against the importation of foreign cattle upon determination that there was no longer a threat of contagion caused by ruinderpest epidemic, was sustained by the Supreme Court in Cruz vs. Youngberg (56 Phil. 234).

2.

REQUISITES OF A VALID ADMINISTRATIVE RULE OR REGULATION Q – What are the requisites of a valid administrative regulation? A – The following requisites must be complied with: CODE: ASAR A-uthorized (Its promulgation must be authorized by the legislature.)

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S-cope of authority (It must be within the scope of the authority given by the legislature.) A-ccording to prescribed procedure (It must be promulgated in accordance with the prescribed procedure.) R-easonable (It must be reasonable.) DISCUSSION OF EACH REQUISITE 1.

Authority to promulgate an administrative regulation – This is granted either by the charter itself of an administrative body, or by the law it is supposed to enforce. Hence, any and all administrative regulations issued by the administrative agency should not be contrary to the said charter or law that creates them, and that they should be in conformity with the standards prescribed by law. Explanation of each requisite

2.

The promulgation of the said rules and regulations must be authorized by the legislature – The authority to promulgate administrative rules and regulations is found in the charter itself of the administrative body or in the law which it seeks to enforce. Example: (a) Implementing rules and regulations regarding employment of women and minors; employment of househelpers and employment of home workers were promulgated to implement Articles 153 to 155 of the Labor Code of the Philippines. (b) Implementing rules and regulations to improve telecommunications industry is authorized under Republic Act No. 7925. (c) Implementing rules and regulations to promote liberalized foreign investment is authorized under Republic Act No. 8179. The said rules and regulations must be within the scope of legislative authority – Rules and regulations which are beyond the limits of legislative authority are not valid rules and regulations. It has been the consistent rule of the Supreme Court that rules and regulations are valid only when they are within the framework of the policy which the legislature seeks to implement. (U.S. vs. Barias, 11 Phil. 327) Administrative rules and regulations must be germane to the object and purpose of the law and must conform to the standards, policies and limitations prescribed by law. (Delman vs. Philippine Veterans Administration, 51 SCRA 340)

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An administrative agency cannot amend an act of Congress. (Santos vs. Estenzo, 109 Phil. 419) NOTE: In People vs. Maceren, 79 SCRA 450, the Secretary of Agriculture exceeded his authority in penalizing electro-fishing by means of an administrative order. Q – Can traffic enforcers remove license plates of illegally parked vehicles? A – No. This was declared illegal in Metropolitan Traffic Command vs. Gonong (187 SCRA 432). The alleged justification to the practice of removing license plates of illegally parked vehicles was LOI 43, but another law, Presidential Decree No. 1605, was issued, and under this law, the authority of the Metro Manila Commission is limited only to suspension or revocation of the license of the driver who violated traffic rules. Said Presidential Decree No. 1605 did not include the authority to remove license plates or the confiscation of license of the erring driver. Q – Can the impounding of a vehicle be sustained under a letter of instruction prohibiting private extra heavy and heavy vehicles from using public streets on weekends and holidays? A – No, as declared in Bautista vs. Junio, (127 SCRA 329) on the ground that the impounding of a vehicle finds no statutory justification, and therefore ultra vires. The prohibition itself, however, to said vehicles from using public streets on weekends and holidays, was sustained. NEW CASE: METROPOLITAN DEVELOPMENT AUTHORITY VS. DANTE O. GARIN G.R. NO. 130230, APRIL 15, 2005 There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. The power to confiscate and suspend or revoke driver’s license without the need of legislative enactment is an unauthorized exercise of police power. FACTS: 1. Atty. Dante Garin parked his vehicle illegally along Gandara Street, Binondo, Manila.

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2. Atty. Garin sent a letter to Prospero Oreta, then the MMDA Chairman with these requests: (a) that his driver’s license be returned to him. On the same date, he expressed his preference that his case be filed in court. 3. He did not receive a reply. Subsequently, he filed a complaint with the RTC of Paranaque City. His contentions are as follows: a. Without implementing rules and regulations, Section 5[f] of Republic Act No. 7924 grants MMDA the unbridled discretion to deprive erring motorists of their licenses. b. It will pre-empt a judicial determination of the validity of the deprivation, hence, it violates the due process clause. c. Said law also violates the constitutional prohibition against undue delegation of legislative authority. d. Said law will also allow MMDA to fix and impose unspecified and therefore unlimited fines and other penalties on erring motorists. MMDA, on the otherhand, invoked its police power. ISSUE: Are the said contentions valid? HELD: 1. There is no syllable in Republic Act No. 7924 that grants the MMDA police power, let alone legislative power. 2. Even the Metro Manila Council has not been delegated any legislative power. 3. Unlike the legislative bodies of the local government units, there is no provision in Republic Act No. 7924 that empowers the MMDA or its council to “enact ordinances, approve resolutions and appropriate funds for general welfare” of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a “development authority.” It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organization and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature xxx. 4. Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate its administrative rules and regulations in the implementation of the MMDA’s functions.

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5. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. 6. The power therefore to confiscate and suspend or revoke driver’s license without the need of legislative enactment is an unauthorized exercise of police power. It must be promulgated in accordance with prescribed procedure. Administrative regulations of general application does not require previous notice and hearing except where the legislature itself requires it and mandates that the same shall first require the ascertainment of facts elicited from an appropriate investigation. Q – What is the prescribed procedure referred to as the third requisite? A – The prescribed procedure is notice and hearing, if this is so required by law, and publication, as required by Executive Order No. 200. Q – Is previous notice and hearing always required in the promulgation of administrative regulations of general circulation? A – It is not required unless the legislature requires it, or unless the regulation is in effect a settlement of a controversy between specific parties in which case it is considered as an administrative adjudication, hence, it will require notice and hearing. Q – Regarding rates prescribed by administrative agencies, when is prior notice and hearing required and when is it not required? A – When the administrative agency prescribes the rates in the exercise of its legislative functions, prior notice and hearing to the affected parties is not a requirement of due process. However, when said rates are prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of said rates. (Philippine Consumers Foundation, Inc. vs. Secretary of Education, Culture and Sports, 153 SCRA 622) Q – When are rules/rates issued in the exercise of a legislative function and when are they issued in the exercise of a quasi-judicial function? A – When legislative in character: When the rules or rates issued or prescribed by an administrative agency are meant to apply to all enterprises

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of a given kind throughout the century, they may partake of a legislative character. When quasi-judicial in character: Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. EXAMPLE: A Department Order of the Department of Education and Culture which prescribed maximum school fees that may be charged by all private schools in the country for school year 1987 to 1988. Was that order issued in the exercise of a legislative function or quasi-judicial function? It was issued in the exercise of legislative function, according to the Supreme Court in Philippine Consumers Foundation, Inc. vs. Secretary of Education, Culture and Sports. (Supra) Q – Will a violation of an administrative regulation give rise to a criminal presecution? A – No, unless the law makes the violation punishable and prescribes a penalty. The administrative rule or regulation must be reasonable – An administrative rule or regulation must be reasonable, not arbitrary and capricious. The reasonableness of a regulation depends on the reason or the purpose for which a regulation is issued. Example: In Agustin vs. Edu, Letter of Instruction No. 229 which required the use of “early warning devices” (EWD) is not repugnant to the due process clause. It was considered justified for traffic safety. In Taxicab Operators of Metro Manila vs. Board of Transportation, a regulation phasing out taxicabs more than six years old was reasonable as it is intended to promote not only the safety of the passengers but also the comfort and the convenience of the passengers. Prohibition to private extra heavy and heavy vehicles from using public streets on weekends and holidays was sustained by the Supreme Court in Bautista vs. Junio. It is apparently intended to improve traffic conditions during the designated days. In Tablarin vs. Gutierrez, MECS Order No. 52, Series of 1985, which mandates the taking and passing of the National Medial Admission Test (NMAT) as a condition for securing certificates

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of eligibility for admission, was held to be a valid exercise of the police power of the State. The rationale for issuing the said order is the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. AGUSTIN VS. EDU 88 SCRA 195 FACTS: Then President Ferdinand E. Marcos issued Letter of Instruction No. 229 requiring the use of “Early Warning Devices (EWD).” Petitioner claims that the use of the said early warning devices is not necessary because his car is already equipped with blinking lights. ISSUE: Is the said Letter of Instruction arbitrary? HELD: It is not arbitrary and not repugnant to the due process clause. There is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. BAUTISTA VS. JUNIO 127 SCRA 329 FACTS: Letter of Instruction No. 869 is an energy conservation measure which prohibits the use of heavy and extra-heavy private vehicles from using public streets on weekends and holidays. Pursuant thereto, Memorandum Circular No. 39 was issued, imposing penalties of “fine, confiscation of vehicle, and cancellation of registration.” Petitioner contends that: (1) said letter of instruction is a violation of his right to use and enjoy private property and of his right to travel, hence, a violation of due process; and (2) that said memorandum circular was likewise unconstitutional for it violates the doctrine of undue delegation of power. ISSUE: Is the said letter of instruction and memorandum circular constitutional? Is the confiscation or impounding of the vehicle under Memorandum Circular ultra vires or not?

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HELD: The said Letter of Instruction was sustained but the confiscation or impounding of the vehicle was ultra vires because a penalty can only be imposed in accordance with the procedure required by law. While the imposition of a fine or the suspension of registration is valid under the Land Transportation and Traffic Code, the impounding of the vehicle finds no statutory justification. TABLARIN VS. GUTIERREZ 152 SCRA 730 FACTS: Pursuant to Republic Act No. 2382 or the Medical Act of 1959, MECS Order No. 52, Series of 1985, was issued. It mandates the taking and passing of the National Medical Admission Test (NMAT) as a condition for securing certificates of eligibility for admission. Petitioner assails the constitutionality of said law and MECS Order No. 52, and sought to be admitted to the College of Medicine for 1987-1988, without successfully taking the NMAT. ISSUE: Are the said law and regulation constitutional? Whether there is some reasonable relation between requirement of passing NMAT as a condition for admission to the medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. HELD: The Medical Act of 1959, as amended, and MECS Order No. 52, Series of 1985, are constitutional. They constitute a valid exercise of the police power of the State as it is intended to promote the public order, the health and physical safety and well being of the population. Likewise, the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine. There is a violation between the requirement of passing the NMAT and the securing of the health and safety of the general community because the regulation of the practice of medicine is a reasonable method of protecting the health and safety of the public. The said requirement is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma.

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REQUISITES OF ADMINISTRATIVE REGULATIONS WITH A PENALTY The requisites for the validity of administrative regulations with penal sanctions are the following: 1. The law itself which authorizes administrative authorities to issue the same must declare as punishable the violation of the rules and regulations issued under its authority; 2. The law should define or fix the penalty for the violation of the said rules and regulations; 3. Publication of said rules and regulations must be made. CASES: PEOPLE VS. MACEREN 79 SCRA 450 FACTS: Section 11 of the Fisheries Law prohibits “the use of any obnoxious or poisonous substance in fishing.” The Secretary of Agriculture and Natural Resources subsequently promulgated Fisheries Administrative Order No. 84 prohibiting electro-fishing in all Philippine waters. Said order was amended by A.O. 841, by instructing the ban against electrofishing to fresh water fishes. The respondents were charged for having violated A.O. 841. The complaint alleged that the five accused used an electro-cutting device locally known as “senso” to catch fish through electric current, in the waters of Barrio San Pablo, Sta. Cruz. The criminal complaint was dismissed. The dismissal was affirmed by the CFI. Hence, this appeal. ISSUE: Whether A.O. 84 and 841, penalizing electro-fishing, are devoid of any legal basis, and hence, invalid? HELD: Yes. The Secretary of Agriculture and Natural Resources exceeded its authority in issuing F.A.O. Nos. 84 and 84-1 and that those orders are not warranted by R.A. No. 8512. The reason is that the Fisheries Law does not expressly prohibit electro-fishing. Since electro-fishing is not banned under the law, and the Secretary is powerless to penalize it, hence, A.O. Nos. 84 and 84-1 are devoid of any legal basis. Had the lawmaking body intended to punish electro-fishing, a penal provision to that effect could have been easily embodied in the Old Fisheries Law.

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The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute a criminal offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. But a mere administrative regulation is not legally adequate to penalize electro-fishing. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the visions of the law, and should be for the sole purpose of carrying into effect its general provisions. An administrative agency cannot amend the act of Congress. The rulemaking power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. PEOPLE VS. QUE PO LAY 51 O.G. 48850 FACTS: Central Bank issued a circular (Circular No. 20) requiring those who had foreign currency to sell the same to Central Bank. Que Po Lay was accused of violating Circular No. 20 but he claimed that the said circular has not yet been published in the Official Gazette before his alleged violation of the same and he should therefore be acquitted. HELD: The Supreme Court sustained the defense and held that before the public is bound by its contents, a law, regulation or circular must first be published so the people will be officially informed of the same, particularly the penalties for violating thereof. GIL BALBUENA VS. SECRETARY OF EDUCATION 110 PHIL. 150, G.R. NO. L-14283 NOVEMBER 21, 1960 FACTS: Petitioners, members of the religious sect “Jehovah’s Witnesses,” challenged the constitutionality of Republic Act No. 1265, by virtue of which the Secretary of Education issued Department Order No. 8, prescribing compulsory flag ceremony in all schools as an undue delegation of legislative power. Section 1 of the Act requires all educational institutions to observe daily flag ceremony, which shall be simple and dignified and shall include the playing or singing of the Philippine National

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Anthem. Section 2 thereof authorizes the Secretary of Education to issue rules and regulations for the proper conduct of the flag ceremony. HELD: The requirements constitute an adequate standard to wit, simplicity and dignity of the flag ceremony and the singing of the national anthem – especially when contrasted with other standards heretofore upheld by the courts such as “public interest,” “public welfare,” “interest of law and order,” “justice and equity” and the “substantial merits of the case,” or “adequate and efficient instruction.” That the legislature did not specify the details of the flag ceremony is no objection to the validity of the statute, or all that is required of it is the laying down of standard and policy that will limit the discretion of the regulatory agency. To require the statute to establish in detail the manner of exercise of the delegated power would be to destroy the administrative flexibility that the delegation is intended to achieve. Without a definite standard, there would be no reasonable means to ascertain whether or not the administrative agency concerned has acted within the scope of authority as determined by the legislature. When this happens, the power of legislation would eventually be exercised by a branch of the government other than that in which it is lodged by the Constitution. (Vigan Electric Light Co., Inc. vs. Public Service Commission, G.R. No. L-19850, January 30, 1964) REQUIREMENT AS TO PUBLICATION OF ALL LAWS AS A CONDITION FOR THEIR EFFECTIVITY Q – What should be published? A – 1. All statutes, including those of local application and private laws. 2. Presidential Decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. (Tanada vs. Tuvera, 146 SCRA 446) Q – How should the publication be made? A – Borrowing the words of Justice Isagani Cruz, the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law. Q – Where should the law be published? A – The law shall be published in the Official Gazette, and not just in newspapers of general circulation. (Tanada vs. Tuvera, Ibid.) Q – When does a law take effect? A – A law takes effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general

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Q – A –

Q – A –

Q – A –

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circulation in the Philippines, unless it is otherwise provided. (Art. 2, New Civil Code). As enunciated in Tanada vs. Tuvera, however, laws shall be published in the Official Gazette, and not just in newspapers of general circulation. Should administrative rules and regulations be published? It depends. If the purpose of the administrative rules and regulations is to enforce or implement existing law, they must be published. If the administrative regulation is of general circulation or penal in nature, it should be published. If regulations are merely interpretative or merely internal in nature, they need not be published. From what day shall the fifteen-day period (required for the effectivity of a law or regulation) be counted? The fifteen-day period is counted from the date of release for circulation of the edition in the Official Gazette, not from the date or printed date of the edition of the Official Gazette. (People vs. Verdicano, 132 SCRA 523) What is the meaning of the phrase “unless otherwise provided”? This means that the law itself can provide when it shall become effective. The law can provide that it shall become effective thirty (30) days, or twenty (20) days, after its publication in the Official Gazette, but in no case can it provide that it shall take effect immediately and without publication, if it imposes a penalty, following the rationale in Tañada vs. Tuvera, Pesigan vs. Angeles (129 SCRA 174), and People vs. Que Po Lay “that before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially informed of said contents and its penalties.” POWERS AND FUNCTIONS EXERCISED IN THE COURSE OF EXERCISING QUASI-LEGISLATIVE POWERS An administrative agency merely exercises the power of subordinate legislation which means that it can promulgate rules and regulations intended to carry out the provisions of the law and implement legislative policy. In the course of exercising said function, an administrative agency is vested with different powers and functions, to wit: 1. Enabling Powers – They are those powers that enable an administrative agency to do an act which the law precisely entrust to it. Example: a. The Land Transportation Office, or LTO, is the one entrusted with the function of registering all motor vehicles including driver’s license.

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b.

2.

The Housing and Land Use Regulatory Board is the one entrusted with the function of approving application of subdivision developers. c. The Commission on Higher Education or CHED is the one entrusted with the function of issuing accreditation of colleges in the Philippines. Summary Powers – They are those powers exercised by administrative authorities to perform coercive measures upon persons or things without the need of securing judicial warrant. Example: a.

3.

4.

An order issued by the Bureau of Immigration and Deportation not to allow a Fil-Am player from playing in the PBA on the ground of citizenship. b. The forcible evacuation of people for residing within the six (6) km. radius of Mayon Volcano to avoid loss of lives and properties. Examining Powers – This is the power of an administrative agency to examine and inspect books, papers, and records to investigate the activities of persons under its jurisdiction. Example: a. The Bureau of Internal Revenue, or BIR, can lawfully examine the financial statements and books of accounts of persons and companies. b. The Bureau of Immigration and Deportation, or BID, can examine the citizenship papers of any Fil-Am player whose citizenship is under question. c. The Bureau of Labor Standard can inspect business establishments to determine whether they comply or not with occupational help and safety standards as provided for by the Labor Code of the Philippines. Dispensing Power – This is the power of an administrative officer to grant exemption from the performance of a general duty. Example: a. The Bureau of Internal Revenue can exempt some business establishments from compliance with some laws or rules which are entrusted to it for enforcement. b. The Movie and Television Regulatory and Classification Board, or MTRCB, can grant exemption or relax a rule or rules regarding the showing of a film.

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NOTICE AND HEARING Q – Is notice and hearing necessary in the promulgation of a general regulation issued or to be issued by an administrative body? A – It is not necessary when the rules are merely legal opinions. It is not also necessary when substantive rules are being prepared and when the class to be affected is large and the questions to be resolved involved the use of discretion committed to the rule making body.

6.

WHEN IS IT NECESSARY? An administrative rule in the nature of subordinate legislation which will implement a law by providing its details, must be heard before they are adopted. In other words, when a rule or regulation is being issued by an administrative agency in the exercise of its quasilegislative authority, the requirement of notice, hearing and publication shall be complied with. CRUZ VS. CSC G.R. NO. 144464, NOVEMBER 27, 2001 FACTS: Private individual Esteban wrote a letter to the Chairperson of the CSC claiming that during the examinations for non-professional in the career civil service, Paitim, the Municipal Treasurer of Norzagaray, Bulacan, falsely pretended to be the examinee, Cruz, a co-employee in the said office, and took the examination for the latter. The Director IV of the CSC wrote a Memorandum to the Civil Service Commissioner declaring that based on the record, she found a prima facie case against petitioners Paitim and Cruz. A fact finding investigation was conducted and a ‘Formal Charge’ for “Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service” was filed against petitioners before the CSC. After filing their Answer, petitioners filed a Motion to Dismiss averring that if the investigation will continue, they will be deprived of their right to due process because the CSC was the complainant, the Prosecutor and the Judge, all at the same time. Said motion was denied as well as their motion for reconsideration. The Attorney III of CSC was directed to conduct the formal administrative investigation. She found petitioner guilty of ‘Dishonesty’ and ordered their dismissal from the government service. The CSC thereafter issued a Resolution finding the petitioners guilty of the charges and ordered their dismissal from the government service.

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ISSUE: Whether petitioners were denied due process because the CSC acted as the investigator, the complainant, the prosecutor and the judge all at the same time. RULING: No. Petitioners were not denied due process. The CSC is mandated to hear and decide administrative cases instituted by it or instituted before it directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1, Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states: (11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its officers and of the agencies attached to it. x x x The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. Petitioners were also properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners cannot, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. 7.

CAN LEGISLATIVE POWERS BE DELEGATED? Legislative powers may be delegated in the following cases: 1. When authorized by the Constitution such as in the following cases: (a) The Congress may by law grant emergency powers to the President. (Section 23[2], Article VI) (b) Congress may by law grant tariff powers to the President (Section 28[2], Article VI) 2. Legislative powers may be delegated to local governments: (a) Police power has been expressly delegated by the legislature to the local law-making bodies; (b) Eminent Domain. 3. Legislative powers may be delegated to the people at large: (a) REFERENDUM – a method of submitting an important legislative measure to a direct vote of the whole people;

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PLEBISCITE – a device to obtain a direct popular vote on a matter of political importance. Legislative powers may be delegated to administrative bodies (e.g. POEA, LTFRB, CAB, OWWA, BOI, BMI, etc.). (b)

4. 8.

TEST TO DETERMINE WHETHER A GIVEN POWER HAS BEEN VALIDLY EXERCISED BY A PARTICULAR DEPARTMENT. FIRST TEST: The first test is to determine whether or not the power in question, regardless of its nature, is granted by the Constitution to the department which seeks to exercise such power. If it is granted by the Constitution, the exercise of the power is sustained. SECOND TEST: If the power sought to be exercised is not expressly conferred by the Constitution, can the power sought to be exercised be reasonably inferred from, or is it necessary to the proper exercise of, the express power granted to the department seeking to exercise said power, hence, justified under the DOCTRINE OF IMPLICATION. What is the doctrine of implication? This means that even in the absence of an express conferment, the exercise of a given power may be justified or reasonably inferred from the express power already granted, or that it may be necessary to the proper exercise of the express power granted to the department seeking to exercise the said power. Example: 1. Rules of procedure promulgated by the Electoral Commission were challenged because they were allegedly not expressly authorized by the 1935 Constitution. In Angara vs. Electoral Commission, the Supreme Court upheld the promulgation of the said rules of procedure because they were found out to be necessary to the proper exercise of the express power of the Electoral Commission to hear and decide election contests involving members of the legislature. 2. The power of Congress to conduct legislative investigation may be implied from the express power of legislation. This power, however, is now subject to the following restraints: (a) The legislative inquiry must be in aid of legislation; (b) The conduct of the investigation must be strictly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; (c) The rights of persons appearing in or affected by such inquiries shall be respected.

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THIRD TEST: If the power sought to be exercised is not granted by the Constitution, either expressly or impliedly, can its exercise be justified as inherent or incidental? If they are, the exercise of the said power may be sustained. FOURTH TEST: Assuming that the power of the act sought to be performed is expressly or impliedly granted by the Constitution, or that it is justified as inherent, the fourth is whether or not the act of power in question has been performed in accordance with the rules laid down by the Constitution. A good example is the compliance required by Section 21, Article VI of the 1987 Constitution, which provides that the power to conduct legislative investigation, although implied from the power of legislation, is now subject to the following restraints: (a) The legislative inquiry must be in aid of legislation; (b) The conduct of investigation must be strictly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; (c) The rights of persons appearing in, affected by such inquiries, shall be respected. (Principles, Comments and Cases in Constitutional Law I, First Edition, by Suarez, citing Section 21, Article VI, 1987 Constitution) The other example is when the President extends an appointment to a person who does not possess the prescribed qualifications. The courts may exercise its power to intervene. 9.

DISTINGUISH LEGISLATIVE POWER FROM QUASI-LEGISLATIVE POWER. Legislative power is the power to make laws and the power to fix a legislative policy. This cannot be delegated by the legislature to administrative agencies. Quasi-legislative power is also known as the power of subordinate legislation. It is the power of administrative agencies to issue administrative rules and regulations in order to implement the law and the legislative policy fixed by the legislature.

10.

WHAT IS THE GUIDELINE TO OBSERVE IN ORDER TO INSURE THAT THERE IS A VALID AND LAWFUL DELEGATION OF POWER? The legislature should lay down (1) A policy and a (2) definite standard by which the executive or administrative officer or board may be guided in the exercise of his discretionary authority. If this is observed, there is a valid delegation of legislative power (Cervantes vs. Auditor General, G.R. No. L-4043, May 26, 1952). If, on the other hand, the statute furnishes no standard and the officer or board is granted uncontrolled or

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unlimited discretion, such a statute is an unconstitutional delegation of power. 1. POLICY – The determination of legislative policy is vested in the legislature and this cannot be delegated to the administrative agencies. It must be clearly declared in the language of the statute and should not be left to the discretion of the said administrative agencies. 2. STANDARD – The statute must pronounce a definite standard which will guide the administrative agency concerned. A standard defines the policy fixed by the legislature and marks and limits. 11.

WHAT IS THE CLASSIFICATION OF ADMINISTRATIVE REGULATIONS? An administrative agency may either be involved in the task of adopting rules and regulations intended to carry out the provisions of a law and to implement legislative policy, or in the task of interpreting the statute being administered. The rules they adopt to implement the law and the said policy are called legislative rules or regulations. The rules arising from their interpretation of the law are called interpretative regulations.

12.

DISTINGUISH LEGISLATIVE REGULATIONS INTERPRETATIVE REGULATION A –

FROM

Legislative regulations

Interpretative regulations

What is employed in promulgating this regulation is not the discretion to determine what the law shall be, as this is exclusively vested in the legislature, but the discretion on how the law shall be enforced.

They constitute the administrator’s construction of a statute and they are valid if they construe the statute correctly. If not, they are subject to judicial review.

MTRCB IS AUTHORIZED TO ISSUE PREVENTIVE SUSPENSION UNDER PRESIDENTIAL DECREE NO. 1986 MTRCB has the power to supervise, regulate, grant, deny or cancel permits for the exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, and in accordance with this power, the MTRCB shall see to it that no such pictures, programs and materials as it determines to be objectionable, shall be exhibited and subject of

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broadcast. In the exercise of said express regulatory and supervisory statutory mandate, it has the power to issue preventive suspension. In otherwords, the power to discipline and impose penalties, if granted, carries with it the power to imvestigate administrative complaints, and during such investigation, to preventively suspend the person subject of the complaint. (Soriano vs. Laguardia, G.R. No. 164785, April 29, 2009) B. QUASI-JUDICIAL POWER 1.

DEFINE QUASI-JUDICIAL POWER. Quasi-judicial power is the power of an administrative agency to hear, determine, and make findings of facts, and to resolve the case presented to it on the basis of the said findings of facts and on the basis of its interpretation of the laws and jurisprudence concerning the issues of the case, subject only to the power of the courts to review and scrutinize the same on questions of law and jurisdiction.

2.

WHY IS QUASI-JUDICIAL POWER GRANTED TO AN ADMINISTRATIVE AGENCY? Quasi-judicial power is needed so that the administrative officers in the different boards, bureaus and offices can perform their executive duties as well as their quasi-judicial authority. For this purpose, the legislative may grant to such boards, bureaus and offices quasi-judicial powers involving the exercise of judgment and discretion as an incident to the performance of administrative functions.

3.

WHAT IS THE LIMITATION TO THE LEGISLATURE WHENEVER IT GRANTS QUASI-JUDICIAL POWER TO AN ADMINISTRATIVE AGENCY? The legislature must state its intention in express terms that would leave no doubt that the power and jurisdiction being transferred are not those vested in the courts but only those powers and jurisdiction which are incidental to or in connection with the performance of administrative duties. The case of Miller vs. Mardo, et al. (Supra) which was cited earlier, illustrates this limitation to the power of the legislature in granting quasi-judicial power to administrative agencies.

4.

WHAT IS THE MAIN FUNCTION OF ADMINISTRATIVE AGENCIES AND THE ADMINISTRATIVE OFFICERS INCHARGE OF SAID BOARDS, BUREAUS AND OFFICES? Their main function is to enforce the law entrusted to them for implementation. The exercise of quasi-judicial power is only incidental to their main function of enforcing the law.

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5.

POWERS INCLUDED IN THE TERM “QUASI-JUDICIAL.” The following powers are included: (1) Determinative Powers; and (2) Summary Powers Two kinds of determinative powers: a) Enabling Powers – Powers of administrative bodies to act, to grant or deny applications for licenses to engage in a particular business or occupation. (i.e., Power of the Land Transportation Office to grant professional or non- professional driver’s license). b) Directing Powers – Powers of administrative agencies to see to it that laws and regulations are duly complied with. (i.e., The Housing and Land Use and Regulatory Board may require subdivision developers to submit subdivision plans and other requirements to see to it that the Cherry Ville incident in Antipolo, Rizal, may not happen again).

6.

DIFFERENT POWERS Directing powers are further classified into: a) Dispensing Powers – Authority to grant exemption, or be relieved, from complying with a law or regulation. (i.e., Authority of the Land Transportation Franchising and Regulatory Board to relieve school bus operators from an earlier requirement to paint their school buses with yellow every beginning of the school year). b) Examining Powers – This refers to the investigatory or inquisitorial powers of administrative agencies which includes the following: (b.1) Power to conduct inspection of accounts, records, documents, and other papers relative to its investigation. (b.2) Power to obtain other information which it finds relevant to a matter being investigated. (b.3) Power to issue subpoena and notices. (b.4) Power to swear and interrogate witnesses. (b.5) Power to inspect premises. (b.6) Power to require written answers to questionnaires. (b.7) Power to require periodic or special reports. (b.8 Power to require the filing of statements. (Am. Jur. p. 323) c) Summary Powers – This refers to the power of administrative agencies to apply compulsion or force against a person or property without the need of prior judicial warrant. (i.e., Authority of the Bureau of Immigration and Deportation to prohibit certain persons

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and animals from leaving the NAIA and to order that they be subject first to quarantine regulations and procedures. 7.

WHAT IS THE NATURE OF THE PROCEEDINGS ARISING FROM THE EXERCISE OF THE SAID POWERS? They are administrative proceedings that partake of the nature of a judicial proceeding, hence, they are described as a proceeding of a quasijudicial character. (Morgan vs. U.S. 468)

8.

WHY DO THEY PARTAKE OF THE NATURE OF JUDICIAL PROCEEDINGS? They partake of the nature of judicial proceedings because they involve the task of hearing, taking and evaluating the evidence, and the making of factual findings based on the evidence presented, and issuing the order or decision on the basis of the said findings and their interpretation of the law entrusted to their enforcement, subject only to the ultimate power of the courts to review the same on questions of law and jurisdiction.

9.

ARE THE PROCEEDINGS BEFORE ADMINISTRATIVE AGENCIES ADVERSARIAL IN NATURE? Some proceedings before administrative agencies are adversarial in nature and some are held ex-parte.

10.

WHEN ARE PROCEEDINGS ADVERSARIAL AND WHEN ARE THEY HELD EX-PARTE? They are adversarial when the order or decision of an administrative agency is in favor of one person or party and against another. In such a case, the said order or decision is issued to protect public interest (2 Am. Jur. 2nd, 143-144). EXAMPLE: Complaint for unlawful dismissal filed by the employees of Philippine Airlines in the National Labor Relations Commission. A decision for or against the employees or for or against Philippine Airlines is adversarial in nature. A return to work order that may be issued in the process of an ongoing strike is designed to protect public interest. An administrative proceeding may be held ex-parte if there is an urgent and compelling reason to take an immediate action on a matter that is injurious to public interest, health and sanitation, public safety and morals. EXAMPLE: (1) An order directing policemen to confine lepers to Culion Leper Colony to protect the people from being adversely affected by the contagious disease of leprosy; (2) An order directing that restaurants operating as fronts of prostitution and illegal gambling activities be closed to protect morals.

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JURISDICTION 11. WHAT IS JURISDICTION? Jurisdiction is the authority to hear and determine a case; the right to act in a particular case (Palma vs. Q.S., Inc., 17 SCRA 97). The authority to decide a case and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction over the person and the subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. Any error that the Court may commit in the exercise of its jurisdiction is merely an error of judgment, and it is a settled rule in this jurisdiction that, while errors of jurisdiction may be reviewed and corrected by certiorari, errors of judgment may be reviewed only by appeal. Q – What are the classifications of jurisdiction as to its nature? A – General Jurisdiction – Extends to all controversies which may be brought before a court within the legal bounds of rights and remedies. Limited or Special Jurisdiction – Jurisdiction which is confined to particular cases, or which can be exercised only under the limitations and circumstances prescribed by the statute. Original Jurisdiction – Jurisdiction conferred upon, or inherent in a court in the first instance. Original jurisdiction is the jurisdiction of regional trial courts, when it is exclusive or concurrent; exclusive jurisdiction exists when no other court has the power to render a judgment in a particular case or class of cases; concurrent jurisdiction exists when anyone of several distinct courts has the power to render a judgment in a particular case or class of cases; appellate jurisdiction is the power to hear, reverse, affirm or modify a judgment rendered by an inferior court, whether a city/municipal trial court or regional trial court; general jurisdiction is the largest power any regional trial court can have in that political unit. Appellate Jurisdiction – The power and authority conferred upon a superior court to rehear and determine cases which have been tried in the lower court, or the review by a superior court of the final judgment or order of some lower courts. Exclusive Jurisdiction – Jurisdiction conjorned to a particular tribunal or grade of courts to the exclusion of all others. Criminal Jurisdiction – That which exists for the punishment of crimes. Civil Jurisdiction – That which exists for the determination of controversies that are civil in character.

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Territorial Jurisdiction – The power of the tribunal considered with reference to the territory within which it is to be exercised. This classification, however, is applicable to jurisdiction in civil and criminal cases tried by the regular courts. Q – Who has exclusive jurisdiction over courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk? A – This Court, in the case of Sanz Maceda vs. Vasquez, 221 SCRA 464, held that: “Article VIII, Section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judge’s and court personnel’s compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. Public respondent Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme court over all courts and their personnel, but likewise undermines the independence of the judiciary.” 12. SOURCE OF AUTHORITY AND JURISDICTION OF ADMINISTRATIVE BOARDS, BUREAUS, AND OFFICES. Said authority and jurisdiction is derived from the Constitution, or from the statute that created the administrative boards, bureaus, and offices. The administrative agencies created under the 1987 Constitution are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. All other agencies are created by law or by the legislature. 13. ARE THE ORDERS AND THE DECISIONS OF ADMINISTRATIVE BOARDS, BUREAUS AND OFFICES FINAL? The factual findings of said administrative boards, bureaus and offices are final if they are supported by substantial evidence. They are, however, appealable on questions of law and jurisdiction.

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14.

WHEN IS AN ADMINISTRATIVE DECISION CONSIDERED RES JUDICATA? The Supreme Court ruled that whenever any board, tribunal or person is by law vested with authority to judicially determine a question, such determination, when it has become final, is as conclusive between the same parties litigating for the same cause as though the adjudication had been made by a court of general jurisdiction. (174 SCRA 258)

15.

WHAT IS THE DOCTRINE OF RES JUDICATA IN ADMINISTRATIVE PROEEDINGS? The decisions and orders of administrative agencies, rendered pursuant to their quasi-judicial authority, have upon their finality, the force and binding effect of a final judgment. (Brillantes vs. Castro, 99 Phil. 497) ROXAS VS. SAYOC 200 PHIL. 448

FACTS: The petitioner claimed that when Republic Act No. 650, also known as the Import Control Law, expired, the Commissioner of Customs also lost jurisdiction over the case involving the forfeiture of goods in favor of the government. The said forfeiture was declared by the Collector of Customs on May 19, 1953 and was affirmed by the Commissioner of Customs on June 16, 1953. ISSUE: Did the Commissioner of Customs retain the jurisdiction of the case when Republic Act No. 650 expired on June 16, 1953? HELD: The Supreme Court held that once the Commissioner of Customs has acquired jurisdiction over the case, the expiration of Republic Act No. 650 did not divest said Commissioner of his jurisdiction duly acquired while said law was in force. RCPI VS. BOARD OF COMMUNICATIONS 80 SCRA 471 FACTS: There were two separate complaints for damages that were filed against petitioner RCPI, one is BC Case No. 75-01-C where a certain Diego Morales alleged that he failed to receive a telegram sent by his daughter to him through RCPI on October 15, 1974, informing him about the death of his wife. He prayed for damages. Another case is BC Case No. 75-08-0C where a certain

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Pacifico Inocencio alleged that he also failed to receive a telegram sent by Lourdes Inocencio to him through RCPI on July 13, 1975. As a result, he was not allowed to attend the internment of his father at Moncada, Tarlac. He also prayed for damages. The Board of Communications imposed a disciplinary fine of P200.00 against RCPI pursuant to Section 21 of Commonwealth Act No. 146, as amended and held that RCPI’s service was inadequate and unsatisfactory. RCPI filed two petitions to review by certiorari which were consolidated. ISSUE: Does the Board of Communications have jurisdiction over the said claims for damages arising from the failure to receive telegrams through RCPI’s facilities? HELD: The Supreme Court held that the complaints that were filed do not involve RCPI’s failure to comply with its certificate of public convenience or any order, decision or regulation of the respondent Board of Communications. The claim for damages should be ventilated in the proper courts and not in the Board of Communications. The only power of the latter is to fix rates. It could not take to task a radio company for any negligence or misfeasance. It was not vested with such authority. The claim for damages should be ventilated in the proper courts and not in the Board of Communications. The only power of the latter is to fix rates. It could not take to task a radio company for any negligence or misfeasance. It was not vested with such authority. Hence, the decisions of the Board of Communications in both cases were set aside and nullified for lack of jurisdiction to take cognizance of both cases. MONTEMAYOR VS. ARANETA UNIVERSITY FOUNDATION 77 SCRA 321 FACTS: On two separate occasions in 1974, a complaint was filed against petitioner, a full time professor of Araneta University and was serving as head of the Department of Humanities and Psychology. The first is a complaint of immorality filed on April 17, 1974. The second is a complaint for conduct unbecoming of a faculty member which was filed on November 8, 1974. On the first complaint, an investigation was conducted by a committee created by the President. Petitioner was able to cross-examine the witnesses against him and he filed an affidavit to explain his defenses. The committee’s

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recommendation was to demote petitioner’s ranking by one degree. This was digested by the President and later was referred to the Board of Trustees. On the second complaint, another committee was created. After investigation, the committee recommended his separation from the university the charges against him having been established. Subsequently, his dismissal was ordered on December 10, 1974, effective on November 15, 1974. On December 12, 1974, an application for clearance to terminate him was filed. Petitioner filed a complaint for reinstatement in the NLRC on November 21, 1974, with a prayer for payment of back salaries and all the benefits payable to him. The NLRC granted the petition but the University appealed to the Secretary of Labor. The latter ruled that the dismissal was justified. Hence, a petition for certiorari was filed in the Supreme Court on the ground that there was a denial of due process. ISSUE: Is petitioner’s contention tenable? HELD: There was compliance with procedural due process regarding the first complaint but it appears that the hearing of the committee on the second complaint proceeded despite the absence of petitioner who, in fact filed a motion for postponement of the hearing on November 18 and 19, 1974. This deficiency, however, was cured because petitioner was able to present his case as well as his evidence before the NLRC. More than this, the entire record of the proceedings were elevated to NLRC for review. He was therefore afforded his day in court. Montemayor’s petition for certiorari was dismissed. IV.

IMPORTANT PRINCIPLES IN ADMINISTRATIVE LAW

Q – What are the important principles in administrative law? A – Among the many principles discussed in the books of administrative law, and oftentimes referred to by the Supreme Court in cases involving administrative law, the following are considered to be important, to wit: PRINCIPLES OF MAJOR IMPORTANCE 1) 2) 3) 4)

Doctrine of finality of administrative decisions Doctrine of exhaustion of administrative remedies Doctrine of primary jurisdiction Doctrine of qualified political agency

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Doctrine of res judicata in administrative proceedings Due process in administrative proceedings Requisites of judicial review

DISCUSSION OF EACH PRINCIPLE 1.

DOCTRINE OF FINALITY OF ADMINISTRATIVE DECISIONS Q – What is necessary before a decision of an administrative body may be subject of judicial review? A – Administrative action must have been fully completed before a decision of an administrative body may be subject of judicial review. Otherwise, it will only cause delay to the disposition of administrative proceedings. Q – Is there an instance when the court can intervene prior to the completion of an administrative action? A – Yes, such as in the following cases: 1. When the administrative officer assumes to act in violation of the Constitution and other laws; 2. When a questioned order is not reviewable in any other way, and the complainant will suffer great and obvious damage if the order is carried out, or when such relief is expressly allowed by law; 3. When the questioned order is made in excess of power and therefore a deprivation of a right granted by the statute. (2 Am. Jur. 2nd, pp. 424-425) Q – Are the orders and decisions of administrative boards, bureaus and offices, final? A – Already answered. Q – What is the doctrine of res judicata in administrative proceedings? A – Already answered.

2.

DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES Q – What is the doctrine of exhaustion of administrative remedies? A – Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts for reasons of law, comity and convenience, will not entertain a case unless available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct errors committed in the

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Q – A –

Q – A –

Q – A–

Q– A–

administrative forum. (Teotico vs. Ageda, Jr., G.R. No. 87437, May 29, 1991) The doctrine of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) What is the consequence of the non-observance of the doctrine of exhaustion of administrative remedies? It results in lack of a cause of action which is one of the grounds allowed in the Rules of Court for the dismissal of the complaint. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) Is the deficiency (non-observance of the doctrine of exhaustion of administrative remedies) jurisdictional? It is not jurisdictional. Failure to invoke it operates as a waiver of the objection as a ground for a motion to dismiss and the court may then proceed with the case as if the doctrine had been observed. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) What are the reasons for the doctrine of exhaustion of administrative remedies? Under the principle of separation of powers, the judiciary is enjoined not to interfere on matters which are within the competence of the other departments. The theory is that the administrative authorities are in a better position to resolve questions addressed to their particular expertise and that errors committed by subordinates in their resolution may be rectified by their superiors if given a chance to do so. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) Is the observance of the doctrine of exhaustion of administrative remedies absolute? No. The said doctrine yields to the following exceptions as enumerated in Paat vs. Court of Appeals (266 SCRA 167): 1. When there is violation of due process; 2. When the issue involved is purely legal; (see also Duenas vs. SSHA, G.R. No. 14917, June 4, 2004) 3. When the administrative action is patently illegal amounting to lack or excess of jurisdiction; (see also Mangubat vs. Osmeña, 105 Phil. 1308)

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When there is estoppel on the part of the administrative agency concerned; (see also Tan vs. Veterans Backpay Commission, 105 Phil. 377) 5. When there is irreparable injury; (see also De Lara vs. Plaribel, 14 SCRA 291) 6. When the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter; (see also Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. vs. Dominguez, G.R. No. 85439) 7. When to require exhaustion of administrative remedies would be unreasonable; 8. When it would amount to a nullification of the claim; 9. When the subject matter is a private land in land case proceedings; (see also Marcoso vs. Court of Appeals, G.R. No. 96605, May 8, 1992) 10. When the rule does not provide a plain, speedy and adequate remedy; (see also National Development Co. vs. Collector of Customs, 9 SCRA 429; National Food Authority vs. Court of Appeals, G.R. Nos. 115121-25, 68 SCAD 246, February 9, 1996) and 11. When there are circumstances indicating the urgency of judicial intervention. (see also Aquino vs. Luntok, 184 SCRA 177) Other exceptions: 1. When the claim involved is small; (Cipriano vs. Marcelino, 43 SCRA 291) 2. When strong public interest is involved; (Arrow Transportation Corp. vs. Board of Transportation, 63 SCRA 193; Sison vs. Court of Appeals, G.R. No. 124086, June 26, 2006) 3. In quo warranto proceedings; (Corpus vs. Cuaderno, 4 SCRA 749); and 4. When the issue is rendered moot and academic. (Land Bank of the Philippines vs. Celada, G.R. No. 164876, January 23, 2006) OLD CASES: 1. 2. 3.

Pascual vs. Provincial Board, 106 Phil. 466 Dimaisip vs. Court of Appeals, 106 Phil. 237 Mangubat vs. Osmeña, 105 Phil. 1308

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4. 5.

Gonzales vs. Hechanova, 9 SCRA 230 Tapales vs. President, 7 SCRA 553 SUBSEQUENT CASES:

1.

2. 3.

Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, et al. vs. Dominguez, G.R.No. 85439, January 13, 1992 Bunye, et al. vs. Sandiganbayan, G.R. No. 91927, January 13, 1992 Heirs of Tanjuan vs. Office of the President, et al., G.R. No. 126847, December 4, 1996

SUNVILLE TIMBER PRODUCTS, INC. VS. JUDGE ABAD G.R. NO. 85502, FEBRUARY 24, 1992 FACTS: A Timber License Agreement (TLA) was granted to Sunville Timber Products, Inc. for a period of ten (10) years expiring on September 31, 1992. On July 31, 1987, Gilbolingco filed a petition with the DENR praying for the cancellation of the said TLA on the ground of serious violations of its conditions, and forestry laws and regulations. The same charges were later made in complaint for injunction with damages against Sunville. Sunville moved for the dismissal of the case on the following grounds: (1) The court had no jurisdiction over the complaint; (2) The plaintiffs had not yet exhausted administrative remedies; and (3) The injunction was expressly prohibited by Section 1 of Presidential Decree No. 605. The said motion to dismiss was denied by the trial judge and this was sustained by the Court of Appeals on the ground that administrative remedies need not be exhausted if there is an urgent need for judicial intervention. The Court of Appeals also declared invalid Section 1 of Presidential Decree No. 605 as this is an encroachment on the judicial power vested in the Supreme Court and the lower courts by Article VII, Section 1 of the Constitution. ISSUE: Does the alleged urgent necessity for judicial action justify the court’s intervention without giving the DENR the opportunity to rule first on the alleged unlawful logging activities of Sunville? HELD: No. The charge involves factual issues calling for the presentation of supporting evidence. Such evidence is best evaluated first by the administrative authorities employing their specialized knowledge of the agreement and the

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rules allegedly violated before the courts may step in to exercise their powers of review. There is no need to declare the unconstitutionality of Section 1, PD No. 605. The rule is that a question of unconstitutionality of Section 1, PD No. 605. The rule is that a question of unconstitutionality must be avoided where the cases can be decided on some other available ground. The resolution of this question must await another case, where all the indispensable requisites of judicial inquiry into a constitutional question are satisfactorily established. In such an event, it will be time for the Court to make the hammer fall, and heavily. MORCOSO VS. COURT OF APPEALS G.R. NO. 96605, MAY 8, 1992 FACTS: Tirol claims to be the owner of a 4.5 hectares of land by way of inheritance from his father in 1930. On December 28, 1979, she entered into a lease agreement with Morcoso, allowing the latter without paying rental and for a period of six years, to develop a fishpond in a 85,880 sq. meters of land within the 4.5 hectares of land, with usufructuary rights. While working on the fishpond, Morcoso was informed by the personnel of the Bureau of Fisheries and Aquatic Resources that said portion of land which Tirol leased to Morosco is within the alienable and public land. Records show that Morcoso applied for a fishpond permit with BFAR in 1973, and that Morocoso refused to surrender possession of the fishpond to Tirol in 1976 when the term of the lease expired. It is for this reason that Tirol filed an unlawful detainer case agains Morcoso but the same was dismissed for not having been filed on time. The trial court ruled that the fishpond belongs to Tirol, and this was sustained by the Court of Appeals. Morcoso questioned the said decision on the ground that the trial court erred in taking cognizance of a conflict of claims involving a parcel of land under the administration and control of another government agency. ISSUE: Is the contention of Morcoso correct? HELD: No. The technical descriptions of the fishpond stated in the lease contract and in the sketch plan of the BFAR personnel who conducted an ocular inspection of the fishpond areas applied for by Morcoso explicitly show that the latter was the subject of the lease contract between Tirol and Morcoso.

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The fishpond not having been part of the public domain, the trial court correctly adjuged Tirol as the rightful owner thereof. Hence, the doctrine of exhaustion of administrative remedies is not applicable, it being clear that the subject of controversy is a private land. NATIONAL FOOD AUTHORITY, ET AL. VS. COURT OF APPEALS, ET AL. G.R. NOS. 115121-25, 68 SCAD 246 FEBRUARY 9, 1996 FACTS: Private respondent’s contacts were terminated in the midst of bidding preparation and their replacements were hired barely five days after the termination. Masada, another respondent, is a pre-qualified bidder who submitted all requirements and was preparing for the public bidding only to find out that contract had already been awarded by negotiation. Because of the urgency of the situation, the private respondents were compelled to go to court to stop the implementation of said negotiated security contracts. ISSUE: Should there still be an exhaustion of administrative remedies before going to court to stop implementation of the negotiated security contracts? HELD: The case is an exception to the doctrine of exhaustion of administrative remedies. An appeal to the NFA Board of Council of Trustees and to the Secretary of Agriculture pursuant to the provisions of the Administrative Code of 1987 was not plain, speedy and adequate remedy in the ordinary course of law. ESPIRITU VS. MELGAR G.R. NO. 100874, FEBRUARY 13, 1992 FACTS: Ramir Garing filed three complaints against Mayor Melgar of Narjan, Oriental Mindoro. The first is a letter-complaint for grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of public service, filed with the Secretary of the Department of Interior and Local Government. The same letter-complaint was filed with the Provincial Governor of Mindoro requesting that the Mayor be placed under preventive suspension pending investigation. The third complaint was filed with the Presidential Action Center, Office of the President, which forwarded the same to the Governor.

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After Mayor Melgar submitted his answer to the Sangguniang Panlalawigan, the latter recommended to the Provincial Governor that the Mayor be preventively suspended for forty-five (45) days pending the investigation of the complaint. Mayor Melgar moved to dismiss the complaint but the same was denied by the Sangguniang Panlalawigan. Meanwhile, Governor Espiritu placed Mayor Melgar under preventive suspension on May 28, 1991. Upon receipt of the order of suspension, Mayor Melgar filed a petition for certiorari with Preliminary Inspection with prayer for a restraining order in the Regional Trial Court which was granted. ISSUE: Whether the judge of the Regional Trial Court has jurisdiction to stop the governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter? Can Mayor Melgar go to court without exhausting administrative remedies? HELD: The Regional Trial Court had no jurisdiction over the special civil action and gravely abused its discretion in refusing to dismiss the case. There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. Mayor Melgar’s direct recourse to the courts without exhausting administrative remedies was premature. NEW CASES: NICANOR T. SANTOS DEV’T. CORP. VS. HON. SEC., DAR G.R. NO. 159654, FEBRUARY 28, 2006 FACTS: Petitioner is a domestic corporation which owns a large tract of land known as the Santos Farm in Tuba, Benguet. A portion of said farm, according to the Municipal Agrarian Reform Officer (MARO) of Tuba, Benguet, would be placed under the coverage of the Comprehensive Agrarian Reform Program (CARP) for acquisition and distribution to prospective beneficiaries. Petitioner wrote to the DAR Secretary and to the MARO that the Santos Farm should be exempted from the coverage of the CARP program because the property is untenanted, mountainous and is not planted with rice and corn. The DAR Regional Director advised petitioner to pursue the exemption of the Santos Farm in accordance with the mandates of two DAR Administrative

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Orders. Instead, petitioner filed a Protest with the DAR and a protest letter to the DAR Secretary reiterating the grounds for the exemption of the Santos Farm from the CARP program. Petitioner also filed a Complaint before DARAB. DARAB ruled that it has no jurisdiction and referred the Complaint to the DAR Regional Director. The Complaint was dismissed for being time-barred and for failure to observe proper formalities. Aggrieved, petitioner instituted a Petition for Mandamus with the CA to compel the DAR, DARAB, and MARO to act on its petition for exemption of the Santos Farm from the CARP coverage. The CA dismissed the petition for lack of merit and for being the improper remedy. ISSUE: Whether petitioner was able to exhaust all the administrative remedies. RULING: Petitioner was not able to exhaust all administrative remedies hence the CA rightfully dismissed the Complaint. As a general rule, before a party may be allowed to invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress. In the instant case, it is beyond dispute that petitioner failed to resort to proper administrative recourse in resisting the Notice of Coverage issued by respondent MARO. Unsuccessful in its attempt to oppose the Notice of Coverage when it lodged its protest with the incorrect administrative offices, petitioner resorted to a judicial remedy. The petition for mandamus, which it filed, however, was correctly denied by the CA. Truly, a petition for mandamus is premature if there are administrative remedies available to petitioner. There are instances when judicial action may be resorted to immediately. Among these exceptions are: (1) when the question raised is purely legal; (2) when the administrative body is in estoppels; (3) when the act complained of is patently illegal; (4) when there is urgent need for judicial intervention; (5) when the respondent acted in disregard of due process; (6) when the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied or assumed approval of the latter; (7) when irreparable damage will be suffered; (8) when there is no other plain, speedy and adequate remedy; (9) when strong public interest is involved; (10) when the subject of the controversy is private land; and (11) in quo warranto proceedings. In the case at bar, none of these exceptions are present. Hence, petitioner should have exhausted all administrative remedies before he can invoke the jurisdiction of the courts of justice.

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LAGUNA CATV NETWORK, INC. VS. MARAAN G.R. NO. 139492, NOVEMBER 19, 2002 FACTS: Private respondents filed with the Department of Labor and Employment, Regional Office No. IV (DOLE Region IV), separate complaints for underpayment of wages and non-payment of other employee benefits against their employer, Laguna CATV Network, Inc., petitioner herein. DOLE Regional Director Maraan, after a summary investigation, issued an Order directing petitioner to pay the concerned employees their unpaid claims. Petitioner filed a motion for reconsideration. Petitioner failed to comply with said Order so DOLE Regional Director issued a writ of execution. Petitioner filed a motion to quash but the same was denied. Instead of appealing to the Secretary of Labor, petitioner filed with the Court of Appeals a motion for extension of time to file a petition for review. Petitioner was of the view that an appeal to the Secretary of Labor ‘would be an exercise in futility considering that the said appeal will be filed with the Regional Office and it will surely be disapproved.’ The Court of Appeals denied said motion ruling, among others, that petitioner failed to exhaust administrative remedies. ISSUE: Whether the Court of Appeals erred in denying its motion for extension and in dismissing the case on the ground that petitioner failed to exhaust administrative remedies. RULING: No. The Court of Appeals was correct in holding that petitioner failed to exhaust all administrative remedies. As provided under Article 128 of the Labor Code, as amended, an order issued by the duly authorized representative of the Secretary of Labor may be appealed to the latter. Thus, petitioner should have first appealed to the Secretary of Labor instead of filing with the Court of Appeals a motion for extension of time to file a petition for review. This Court, in a long line of cases, has consistently held that if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought. The party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter itself correctly and prevent unnecessary and premature resort to the court. The

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underlying principle of the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter will decide the same correctly. Therefore, petitioner should have completed the administrative process by appealing the questioned Orders to the Secretary of Labor. CSC vs. DBP G.R. NO. 158791, JULY 22, 2005 FACTS: The CSC (petitioner) via the present petition for mandamus seeks to compel the Department of Budget and Management (respondent) to release the balance of its budget for fiscal year 2002. At the same time, it seeks a determination by this Court of the extent of the constitutional concept of fiscal autonomy. According to petitioner, the balance was intentionally withheld by respondent on the basis of it’s “no report, no release” policy whereby allocations for agencies are withheld pending their submission of documents mentioned in the National Budget Circular No. 478. Petitioner contends that the application of the “no report, no release” policy upon independent constitutional bodies (of which it is one) is a violation of the principle of fiscal autonomy and, therefore, unconstitutional. Respondent, at the outset, opposes the petition on procedural grounds. It contends, among others, that petitioner did not exhaust administrative remedies as it could have sought clarification from respondent’s Secretary regarding the extent of fiscal autonomy before resorting to this Court. ISSUE: Whether the doctrine of exhaustion of administrative remedies applies. RULING: The rule on exhaustion of administrative remedies invoked by respondent applies only where there is an express legal provision requiring such administrative step as a condition precedent to taking action in court. As petitioner is not mandated by any law to seek clarification from the Secretary of Budget and Management prior to filing the present action, its failure to do so does not call for the application of the rule. LAND BANK OF THE PHILIPPINES (LBP) VS. CELADA G.R. NO. 164876, JANUARY 23, 2006 FACTS: The Department of Agrarian Reform (DAR) expropriated 14.19343 hectares of respondent Celada’s land in Bohol. Petitioner LBP valued respondent’s land at P21,106.22 per hectare. DAR offered said amount to

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respondent but the latter rejected it. Nevertheless, LBP deposited said sum in the name of respondent. The matter was referred to the DAR Adjudication Board (DARAB) for summary administrative hearing on determination of just compensation. While the case was pending before the DARAB, respondent filed a petition for judicial determination of just compensation against LBP, DAR and the Municipal Agrarian Reform Officer (MARO) of Carmen, Bohol before the RTC. Respondent claims that her land is worth at least P15,000 per hectare. LBP, in its answer, raised non-exhaustion of administrative remedies and forum shopping. It contended that respondent should first await the outcome of the DARAB case before taking any judicial recourse. The DARAB Provincial Adjudicator (PARAD) issued an order affirming the valuation of LBP. Thereafter, the Special Agrarian Court (SAC) ruled that recourse to DARAB is only for purposes of conciliation. ISSUE: Whether or not the doctrine of exhaustion of administrative remedies is still applicable despite the order issued affirming the valuation made by LBP. RULING: There is no merit to petitioner’s contention that respondent failed to exhaust administrative remedies when she directly filed the petition for determination of just compensation with the SAC even before the DARAB case could be resolved. The issue is now moot considering that the valuation made by petitioner had long been affirmed by the DARAB in its Order dated April 12, 2000. As held in LBP vs. Wycoco ,(419 SCRA 67 [2004]) the doctrine of exhaustion of administrative remedies is not applicable when the issue is rendered moot and academic, as in the instant case. CORSIGA VS. DEFENSOR G.R. NO. 139302, OCTOBER 28, 2002 FACTS: Private respondent Ortizo was the Senior Engineer B in the National Irrigation Administration (NIA), Jalaur-Suague River Irrigation System, Region VI. Petitioner Corsiga, then Regional Irrigation Manager of NIA, Region VI, reassigned private respondent to Aganan-Sta. Barbara River Irrigation System. Aggrieved, private respondent wrote petitioner requesting exemption from the policy of rotation. When petitioner denied the said request, private respondent filed with the RTC of Iloilo City a complaint for prohibition and injunction. Petitioner moved to dismiss the petition for lack of jurisdiction and nonexhaustion of administrative remedies but the motion was denied. The appellate

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court affirmed the trial court’s decision saying that the doctrine of exhaustion of administrative remedies does not apply where the controverted act is patently illegal, arbitrary, and oppressive. ISSUE: Whether private respondent has a cause of action despite his failure to exhaust administrative remedies. RULING: Being a NIA employee covered by the Civil Service Law, in our view, private respondent should have first complained to the NIA Administrator, and if necessary, then appeal to the Civil Service Commission. As ruled in Abe-Abe vs. Manila, 90 SCRA 524 (1979), if a litigant goes to court without first pursuing his administrative remedies, his action is premature, and he has no cause of action to ventilate in court. Hence, petitioner asserts that private respondent’s case is not ripe for judicial determination. There is no convincing evidence of grave abuse of discretion on petitioner’s part. Private respondent’s arguments are mere allegation which he failed to substantiate. Official functions are presumed to be regular unless proven otherwise. Therefore, the instant case is not an exception to the general rule on exhaustion of administrative remedies. 3. DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT Q – What is the doctrine of primary jurisdiction or prior resort? A – The doctrine of primary jurisdiction dictates that courts cannot determine a dispute on a question requiring the special knowledge and expertise of the administrative tribunals (Septimo vs. Judge Villarama, G.R. No. 101943, February 18, 1992). If the case therefore is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the jurisdiction of a court. (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 18, 1990) Q – What happens when a claim which is originally cognizable in court, requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body? A – In such a case, the judicial process is suspended pending referral of such issues to the administrative body for its view. (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 18, 1990)

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Q – What is the rationale behind the observance of the doctrine of primary jurisdiction or prior resort? A – 1. Uniformity and consistency in the regulation of business entrusted to an administrative agency are secured. 2. The limited function of review by the judiciary are more rationally exercised, by preliminary report, for ascertaining and interpreting the circumstances underlying legal issues, to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure. (Ibid.; Antipolo Realty Corp. vs. National Housing Authority, 153 SCRA 399) Q – What is the purpose of the doctrine of primary administrative jurisdiction? A – The purpose of the doctrine of primary administrative jurisdiction, as enunciated in Director of Lands vs. Court of Appeals (G.R. No. 79684, February 19, 1991), is more in consonance with reality. Its purpose, according to the Supreme Court, is “not only to give the administrative agency the opportunity to decide the controversy by itself correctly, but also to prevent unnecessary and premature resort to courts.” Q – What is the difference between the doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction? A – Doctrine of exhaustion of administrative remedies

Doctrine of primary jurisdiction

1. The administrative agency 1. Both the court and administrahas authority to pass on every tive agency have jurisdiction question raised by a person to pass on a question when a resorting to judicial relief and particular case is presented to enables the court to withhold court, as an original matter, its aid entirely until the adrather than a matter of review. ministrative remedies had been exhausted. 2. The claim or matter is cogni- 2. The claim or matter is cognizable in the first instance by an zable by both the court and administrative agency alone. administrative agency. 3. The purpose of the rule is to 3. Doctrine of primary jurisdiction control the timing of judicial is not concerned with judicial relief from adjudicative action review but determines in some of an agency. instances whether initial action should be taken by a court or administrative agency.

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Note: Both principles do not apply where the issue involved is a pure question of law. 4. DOCTRINE OF QUALIFIED POLITICAL AGENCY Q – What is the doctrine of qualified political agency? A – The doctrine of qualified political agency is a corollary rule to the control powers of the President. Under this doctrine, which recognizes the establishment of a single executive, “all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by Constitution or law to act in person as the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.” (Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, En Banc, Paras, J.) Q – What is the extent of the President’s power of control over the executive branch of the government? A – The presidential power of control over the executive branch of the government extends over all executive officers from Cabinet Secretary to the lowliest clerk and has been held to mean, “the power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. It is at the very heart of the meaning of Chief Executive.” (Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, En Banc, Paras, J.) The President’s power of control is directly exercised by him over the members of the Cabinet, who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department. (Supra) 5. DOCTRINE OF RES JUDICATA IN ADMINISTRATIVE PROCEEDINGS Q – What is the doctrine of res judicata in administrative proceedings? A – The doctrine of res judicata forbids the reopening of a matter that has been determined by competent authority. The prevailing rule is that the doctrine applies to judicial and quasi-judicial acts of public, executive and administrative officers acting within their jurisdiction. The principle of conclusiveness of prior adjudication extends to all bodies upon whom judicial power has been confirmed.

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Q – What is the basis of the doctrine of res judicata in administrative proceedings? A – The judgment of courts and awards of quasi-judicial agencies must become final at some definite date fixed by law. (Carreon vs. W.C.C., 77 SCRA 297) Q – What are the instances when the doctrine of res judicata is not applicable to administrative proceedings? A – In Nasipit Lumber Company, Inc. vs. NLRC, (Section 5, Rule XIII, Books of Rules and Regulations Implementing the Labor Code) for instance, the Supreme Court ruled that the doctrine of res judicata does not apply to labor relations proceedings “considering that Section 5, Rule XIII, Book V of the Rules and Regulations Implementing the Labor Code provides that such proceedings are non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law.” Said pronouncement, added the Court, is in consonance with the jurisprudential dictum that the doctrine of res judicata applies only to judicial or quasijudicial proceedings and not to exercise of administrative powers. Neither does the doctrine apply to judgments based on prohibited or void contracts. (B.F. Goodrich Philippines, Inc. vs. Workmen’s Compensation Commission, 159 SCRA 355) NEW CASE: MONTEMAYOR VS. BUNDALIAN G.R. NO. 149335, JULY 1, 2003 FACTS: In a letter-complaint addressed to the Philippine Consulate General in San Francisco, California, USA, private respondent accused petitioner, then OIC-Regional Director, Region III, of the DPWH, of accumulating unexplained wealth, in violation of Section 8 of RA No. 3019. The letter was indorsed to the Philippine Commission Against Graft and Corruption (PCAGC) for investigation. Petitioner pointed out that the charge against him was the subject of similar cases filed before the Ombudsman. He attached to his counter-affidavit the Consolidated report of the Ombudsman dismissing similar charges for insufficiency of evidence. Nevertheless, the PCAGC conducted its own investigation. Based on its findings, PCAGC recommended petitioner’s dismissal from service. The Office of the President, concurring with the findings and adopting the recommendation of the PCAGC, issued Administrative Order No. 12, ordering petitioner’s dismissal from service with forfeiture of all government benefits.

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ISSUE: Whether the earlier dismissal of similar cases before the Ombudsman rendered the administrative case before the PCAGC moot and academic. RULING: No. The earlier dismissal of similar cases before the Ombudsman does not render the administrative case before the PCAGC moot and academic. The decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGC’s investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar. 6. DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS Q – What is the common requirement of procedural due process, whether in judicial or administrative proceedings? A – There is a common requirement of procedural due process, whether in judicial or administrative proceedings, and this is the element of NOTICE AND OPPORTUNITY TO BE HEARD. For as long therefore as the defendant, or anyone similarly situated, is given a notice and an opportunity to be heard, he cannot later on complain that he was declared in default or that the decision has been rendered against him in his absence, for he has already been notified and given the opportunity to be heard. Q – What is procedural due process as understood in administrative proceedings? A – For the Supreme Court to sustain the findings of an administrative body exercising quasi-judicial functions, such body must abide by the elementary rules of due process. However, procedural due process as understood in administrative proceedings accepts of a more flexible standard as long as the proceeding were undertaken in an atmosphere of fairness and justice. (Valderama and Sons, Inc. vs. Drilon, G.R. No. 78212, January 22, 1999, First Division, Gancayco J.) Q – How can an “atmosphere of fairness and justice,” as referred to in Valderama and Sons, Inc. vs. Drilon be attained? A – The answer would still be to comply with the cardinal rights to be observed in administrative proceedings, as pronounced in Ang Tibay vs. CIR (69 Phil. 635) as follows:

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The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof; The tribunal must consider the evidence presented; The decision must have something to support itself; The evidence must be substantial; The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

EXPLANATION OF EACH REQUISITE FIRST REQUISITE: The right to a hearing – The element of notice and opportunity to be heard is part and parcel of due process, whether in judicial or administrative proceedings. In the absence of this element, there can be no fair play. Q – Is notice and hearing always necessary in administrative determinations? A – It is necessary only when some constitutional right is claimed to be invaded. Q – When is notice and hearing not necessary? A – 1. It is not necessary if the purpose of an administrative determination is to decid whether a right or privilege which an applicant does not possess shall be granted to him or withheld in the exercise of a discretion vested by statute. 2. It is not also necessary if the power exercised is essentially administrative or executive and not judicial or quasi-judicial, unless otherwise required by law. 3. Even if the power exercised is quasi-judicial, notice or hearing may not be necessary to due process of law if no personal or property rights are involved. 4. When powers of determination and action of a quasi-judicial character are given to officers entrusted with duties of local or

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municipal administration by which not of the property, but the lives of individuals, may be affected, and which, from their nature, must be exercised without a prior hearing or notice to the parties who may be affected. (42 Am. Jur., pp. 474-475) Q – What are the instances of valid administrative determinations without prior notice and hearing? A – Nuisance per se may be the subject of summary abatement. (Article 704, New Civil Code) Permits to operate and maintain night clubs, cabaret, massage parlors, discohouses, may be revoked when found out to be used for immoral activities or fronts of prostitution. (Darling Apt. Co. vs. Springer, 137 ALR 803) Preventive suspension of government employees on account of graft charges. (Anti-Graft and Corrupt Practices Act) SECOND REQUISITE: A tribunal must consider the evidence presented – The right of a party to present his own case and submit his evidence to support thereof will be a useless right if there is no corresponding duty on the part of administrative tribunal to consider the same. THIRD REQUISITE: The decision must have something to support itself – A decision which does not state clearly and distinctly the facts and the law on which it is based, deprives not only the parties but also the practitioners, professors and students as to the factual and legal considerations that guided the court, or even a quasi-judicial tribunal, in reaching a decision. Decisions of courts and administrative tribunals, particularly the decisions of the Supreme Court, are discussed, scrutinized and cited by lawyers and non-lawyers alike from time to time and in the years to come. This goes on and on even at a time when those who wrote them have banished from the broad face of the earth. Even dissenting opinions in yesteryears are made as references for, in several instances, they appear more convincing to the next generation of lawyers, judges, professors, scholars and law students. FOURTH REQUISITE: The evidence must be substantial – It is not enough that there is an evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence “is more than a mere scintilla.” It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This is precisely the difference between an administrative proceeding and a criminal case where the evidence required is proof beyond reasonable doubt. Q – What must be the reason for this rule? A – The obvious purpose of this rule is to free administrative bodies from the compulsion of technical rules of evidence and procedure.

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FIFTH REQUISITE: The decision must be rendered on the basis of the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected – Any other evidence not presented or disclosed during the proceedings cannot be made the basis of the decision. They are not known to the parties and neither are they brought to the attention of the administrative tribunal making the decision. It is sufficient, however, that administrative findings of facts are supported by evidence. Such finding will not be disturbed so long as they are supported by substantial evidence, even if not overwhelming or preponderant (Earth Minerals Exploration, Inc. vs. Deputy Executive Secretary, Catalino Macaraig, G.R. No. 78569, February 11, 1991, 2nd Div., Paras, J.), and except when the former have acted without or in excess with their jurisdiction, or with grave abuse of discretion. (Biak na Bato Mining Company vs. Tanco, Jr., G.R. No. 342670-68, January 25, 1991, 2nd Div., Paras, J.) SIXTH REQUISITE: The board or its judges must act on its or their own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision – This means that the administrative officer who is entrusted with the duty to decide a case, must be the one to make a decision based on the factual findings laid on his table and based on his own interpretation of the law entrusted to him for implementation. Necessarily, he cannot entrust the same to anyone in his office for his determination and appreciation of the facts of the case and of the law, involved is certainly different from anyone in his staff. SEVENTH REQUISITE: In all controversial questions, the decision must be rendered in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it – It is a part and parcel of fair play that the reasons involved, particularly the reasons for the decision, should be stated clearly in the decision so that the parties will know not only the factual findings but also how the one making the decision appreciates the totality of the circumstances involved in the case and his own appreciation of what law applies to the facts and the evidence presented before him. 7. REQUISITES OF JUDICIAL REVIEW Q – What are the requisites before an administrative decision may be subject of judicial review? A – Before an administrative decision may be subject of judicial review, the following requisites should be complied with: 1) The administrative action has already been fully completed and has therefore become final; (This is known as Doctrine of Finality of Administrative Action)

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2)

The administrative remedies have been exhausted. (This is known as the Doctrine of Exhaustion of Administrative Remedies) Q – How can a party appeal from a final award, order or decision of an administrative agency, board or tribunal? A – 1. With respect to the decision, order/rulings of the three independent commissions created under and by virtue of 1987 Constitution, namely: (1) Civil Service Commission; (2) Comelec; and (3) Commission on Audit: The aggrieved party has to file a petition for certiorari within thirty (30) days from receipt of said decision, order or ruling. This petition is actually a special civil action for certiorari under Rule 65 and, therefore, the ground or the issue to be brought to the Supreme Court for decision is limited to grave abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction. (Art. IX, Section 7, 1987 Constitution) 2. With respect to Appeals from the Court of Tax Appeals and QuasiJudicial Agencies to the Court of Appeals: Secs. 1, 2, 3, 4, and 5 of the Revised Rules of Court in the Philippines, provides as follows: “Sec. 1. Scope – This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.” “Sec. 2. Cases not covered – This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.” “Sec. 3. Where to appeal – An Appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law.”

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“Sec. 4. Period of appeal – The appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.” “Sec. 5. How appeal taken – Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial.” 3. Regarding appeal by certiorari to the Supreme Court: Section 1, Rule 45 of the 1997 Rules of Civil Procedure, as amended, provides as follows: Section 1. Filing of petition with Supreme Court. – A Party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. Q – What question can be raised in an appeal by certiorari to the Supreme Court? A – Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been filed in the Court of Appeals, the Clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of Appeals the elevation of the whole record of the case.

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Q – Is this mode of appeal different from certiorari as a special civil action under Rule 65? A – An appeal by certiorari to the Supreme Court under Rule 45 is different from the special action of certiorari under Rule 65. Q – What is the difference? A – APPEAL BY CERTIORARI UNDER RULE 45

SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65

1. The petition is based on questions of law which the appellant desires the appellate court to resolve. 2. Involves the review of the judgment, award, or final order on the merits. 3. Must be made within the reglementary period for appeal. 4. Stays with the judgment, award, or order appealed from. 5. Petitioner and respondent are the original parties to the action, and the lower court or quasi-judicial agency is not to be impleaded. 6. Prior filing of a motion for reconsideration is not required (Sec. 1, Rule 45) 7. The appellate court is in the exercise of its appellate jurisdiction and power of review.

1. The Petition raises the issues as to whether the lower court acted without o in excess of jurisdiction or wth grave abuse of discretion. 2. May be directed against an interlocutory order of the court prior to appeal from the judgment or where is there not appeal or other plain, speedy or adequate remedy. 3. May be filed not less than sixty (60) from notice of the judgment order or resolution sought to be assailed. 4. Does not stay the challenged proceeding unless a writ of preliminary injunction or a temporary restraining order shall have been issued. 5. The parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents. 6. A motion for reconsideration is a condition precedent (Villa-Rey Transit vs. Belo, L-18957, April 23, 1963) 7. The Higher courrt exercises original jurisdiction under it power of control and suspervision over the proceedings of lower courts. (In Re: Petition for Assistance in the Liquidation of the Rural Bank of Bokod vs. BIR, G.R. No. 158261, December 18, 2006, citing the case of Paa vs. CA)

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Q – Can a petition be categorized as a petition under Rules 65 and 45 of the Rules of Court? A – No and neither may a petitioner or petitioners delegate upon the court the task of determining which rule the petition should fall. The Supreme Court ruled that under Circular No. 2-90, wrong or inappropriate mode of appeal merits an outright dismissal. (See Ibañez vs. Court of Appeals, 253 SCRA 540) Q – In an appeal by certiorari under Rule 45, only questions of law may be raised. What is the reason for this? A – The Supreme Court is not a trier of facts. The resolution of factual issues is the function of lower courts, whose findings on these matters are received with respect and are in fact binding on the Supreme Court subject to certain exceptions. (FNCB vs. Estavillo, G.R. No. 93394, December 20, 1990, 192 SCRA 514; Universal Motors vs. Court of Appeals, G.R. No. L-47432, January 27, 1992) Q – Distinguish questions of law from questions of facts. A – QUESTIONS OF LAW

QUESTIONS OF FACTS

If the facts are established or admitted, their legal effect is a question of law for the court to determine.

A question of fact arises when there is a conflict in testimony. The question must be resolved by the court. No question of fact exists if only one conclusion is possible from the facts established. There is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts. (Ramos vs. Pepsi-Cola Bottling Co. of the P.I., 19 SCRA 289)

There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts. (Ramos vs. Pepsi-Cola Bottling Co. of the P.I., 19 SCRA 289

Q – What is the test of whether a question is one of law or of fact? A – Whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it is a question of fact. (Crisostomo vs. Garcia, G.R. No. 164787, January 31, 2006; Velayo-Fong vs. Spouses Velayo, G.R. 155488, December 6, 2006; L&L Lawrence Footwear, Inc. vs. PCI Leasing and Finance Corp., G.R. No. 160531, August 30, 2005) Q – Is the finding of negligence a question of law or of fact? A – The finding of negligence is a question of fact. In the same vein, whether one acted in good faith or in bad faith is a question of fact. Hence, they are not proper subjects of the Supreme Court’s discretionary power of

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judicial review under Rule 45 of the Rules of Court which is concerned solely with questions of law. (PNB vs. Campos, G.R. No. 167270, June 30, 2006) – What are the exceptions to conclusiveness of facts? – 1. When the conclusion is a finding grounded entirely on speculations, surmises or conjecture; 2. When the interference made is manifestly absurd, mistaken or impossible; 3. When there is grave abuse of discretion; 4. When the judgment is premised on a misapprehension of facts; 5. When the findings of facts are conflicting; 6. When the Court of Appeals in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellants and appellees; 7. When the findings of fact are contrary to those of the trial court; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by respondents; and 10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. (Ontimare vs. Elep, G.R. No. 159224, January 20, 2006; Citibank vs. Sabeniano, G.R. No. 156132, October 16, 2006) – Within what period can a party appeal by a certiorari from a judgment of the Court of Appeals? – The petition shall be filed within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may, for justifiable reasons, grant an extension of 30 days only within to file the petition. (Section 2, Rule 45, Appeal by certiorari to the Supreme Court, Comments on the 1997 Rules of Civil Procedure, as amended) – Besides the foregoing reliefs and remedies, what is the general relief that may also be availed of under the 1987 Constitution? – General relief, when proper, may also be availed of under the provisions of Section 1, Article VIII of the 1987 Constitution, which provides as

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follows: “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government .” (Underlining Supplied) (NOTE: New definition of judicial power as well as the case of Manila Prince Hotel vs. GSIS, Manila Hotel Corporation, et al., G.R. No. 122156 has already been discussed in Chapter VI). Q – What are the most common remedies available to an aggrieved party with respect to a decision or order of administrative agencies and offices? A – The common remedies are the following: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 2. A petition for prohibition may also be filed under Section 2, Rule 65 of the New Rules of Court. 3. A petition for mandamus may also be filed under Rule 65, Section 3 of the New Rules of Court. 4. A quo-warranto proceeding may also be filed under Section 1, Rule 66 of the New Rules of Court. 5. Petition for habeas corpus may also be filed under Section 1, Rule 102 of the New Rules of Court. V. OTHER ANCILLIARY PRINCIPLES OF ADMINISTRATIVE LAW Q – What are the other principles of administrative law? A – They are the following: 1. Administrative agencies are not bound by the technical rules of evidence and procedure. 2. The findings of facts of administrative bodies are binding to the courts if they are supported by substantial evidence. 3. Administrative bodies can resolve questions of law in the exercise of their quasi-judicial function but (a) the same is only an incident to their primary power of regulation and to perform executive duties; and (b) their resolution is subject to judicial review. 4. Requisites for validity of administrative rules and regulations. 5. Requisites for validity of administrative regulations with penal sanctions.

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6. 7. 8.

Legal force and effects of administrative rules and regulations. Legal effects of duly executed acts of an administrative body. “Republic of the Philippines” and “National Government” are not interchangeable.

BRIEF EXPLANATION OF EACH PRINCIPLE 1.

ADMINISTRATIVE AGENCIES ARE NOT BOUND BY THE TECHNICAL RULES OF EVIDENCE AND PROCEDURE Administrative agencies charged with the task of adjudicating contested cases are necessarily involved in exercising functions which are judicial in nature. This does not mean, however, that they are bound to observe the technical rules of evidence and procedure observed by the regular courts of justice. The reason for this is because administrative tribunals are expected to adjudicate cases expeditiously and without unnecessary delay. The main function of administrative agencies is primarily to enforce the law entrusted to them for implementation. The exercise of quasi-judicial power is only incidental to their main function of enforcing the law. AL-AMANAH ISLAMIC INVESTMENT BANK OF THE PHILIPPINES VS. CIVIL SERVICE COMMISSION, ET AL. G.R. NO. 100599, APRIL 8, 1992 The Civil Service Commission is free from the rigidity of certain procedural requirements. FACTS: The investigating committee found Malbun guilty of neglect of duty and imposed the penalty of forced registration without prejudice to reinstatement. The Merit Sytems Protection Board agreed with the investigating committee’s findings that there is no proof that Malbun tolerated the anomalies nor is there any showing that he has benefited directly or indirectly from the transactions to the detriment of the Bank, and is therefore presumed to have acted in good faith. The Civil Service Commission found Malbun guilty not only of “gross neglect of duty” which is a less grave offense under Civil Service Commission Memorandum Circular No. 8, 1970, but also of “Grave Misconduct and Conduct Prejudicial to the best interest of the Service,” which are grave offenses under the said Memorandum Circular.

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Philippines Al-Almanah Bank moved to reconsider the said finding of the Civil Service Commission and urged that the previous conviction of Malbun in 1979, for “Neglect of Duty” and subsequent suspension from the service, should be considered in determining the proper penalty against Malbun. The Bank contends that the proper penalty should be dismissal. The Civil Service Commission refused, however, to consider the prior conviction of Malbun on the ground that this is not a newly discovered evidence and that the Bank in the exercise of its reasonable diligence could have discovered and produced the document during the hearing conducted or could have presented they same in its appeal to the Merit Systems Protection Board as well as in the Commission. ISSUE: Is the said contention of Civil Service Commission correct? HELD: No. The prior conviction should have been considered by the Commission in imposing the proper penalty on Malbun, although it was presented only in the bank’s motion for reconsideration or for new trial. Malbun’s prior conviction in 1979 is not a newly discovered evidence but “forgotten evidence.” It already existed or was already available before or during the trial which was known and obtainable by the bank and could have been presented were it not for the oversight or forgetfulness of Malbun. Therefore, applying rigid technical rules, such document is not admissible as evidence against Malbun. However, administrative agencies like the Civil Service Commission exercising quasi-judicial functions are free from the rigidity of certain procedural requirements. Therefore, the Commission should have admitted the document showing the prior conviction of Malbun, considering that it is a public document and within the judicial notice of the Commission. 2.

THE FINDINGS OF FACTS OF ADMINISTRATIVE BODIES ARE BINDING TO THE COURTS IF THEY ARE SUPPORTED BY SUBSTANTIAL EVIDENCE In Villanueva vs. Court of Appeals (G.R. No. 99357, January 27, 1992), the Supreme Court ruled as follows: 1. Factual findings of administrative agencies are accorded not only respect but finality, because of the special knowledge and expertise gained by these quasi-judicial tribunals from handling specific matters falling under their jurisdiction. 2. Courts cannot take cognizance of such factual issues. 3. In reviewing administrative decisions, the reviewing court cannot re-examine the sufficiency of the evidence.

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4.

3.

The findings of fact must be respected, as long as they are supported by substantial evidence. “Factual findings of administrative bodies should be accorded not only respect but even finality if they are supported by substantial evidence even if not overwhelming or preponderant.” (Casa Realty Filipino vs. Office of the President) “The factual findings of the Ombudsman are conclusive on the parties absent any showing of grave abuse of discretion. The findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality.” (Sesbreno vs. Ala, et al., G.R. No. 95393, and Sesbreno vs. Cahig, et al., G.R. No. 103471, May 5, 1992, En Banc, Paras, J.) “Administrative decisions on matters within the jurisdiction of the executive department can only be set aside on proof of gross abuse of jurisdiction, fraud or error of law. There being no motion for its reconsideration, the decision of the Secretary of Agriculture and Natural Resources became final on July 3, 1959, 30 days from receipt by the parties of the copies of the decision.” (Heirs of Proceso Bautista vs. Barza, G.R. No. 79167, May 7, 1992, Third Division, Romero, J.) “Factual findings of administrative agencies are accorded not only respect but also even finality if they are supported by substantial evidence. However, deviation from this rule must be made when the administrative agency clearly misappreciated the facts. In the present case, the factual findings of the Court of Appeals are at variance with those of the Secretary of Agriculture and Natural Resources (DANR). Petitioners have not sufficiently proved that the findings of fact of the “Court of Appeals are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute serious abuse of discretion. Wherefore, the findings of fact made by the Court of Appeals are conclusive and binding on this Court even if contrary to those of the DANR, so long as such findings are supported by the records or based on substantial evidence.” (Mendizabel vs. Apao, G.R. No. 143185, February 20, 2006) NOTE: The Court of Appeals held that the evidence presented by respondents ‘tend to disprove the factual findings of administrative bodies.’

ADMINISTRATIVE BODIES CAN RESOLVE QUESTIONS OF LAW IN THE EXERCISE OF THEIR QUASI-JUDICIAL

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FUNCTION BUT (A) THE SAME IS ONLY AN INCIDENT TO THEIR PRIMARY POWER OF REGULATION AND TO PERFORM EXECUTIVE DUTIES; AND (B) THEIR RESOLUTION IS SUBJECT TO JUDICIAL REVIEW In the exercise of quasi-judicial functions, administrative agencies are necessarily involved in the resolution of contested cases brought to their determination. On matters involving questions of law, the authority vested in administrative agencies is merely to interpret the law entrusted to them for implementation. But such interpretation, however, is only incidental to their primary power of regulation and to perform executive duties. More than this, the resolution is subject to judicial review. This means that an administrative action or decision may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment. (Peralta vs. Civil Service Commission, G.R. No. 95832, May 10, 1992, En Banc, Padilla, J.) Before an administrative determination may be subject of judicial review, it is required, however: 1. That the administrative action has already been fully completed and has become final; and 2. That all the administrative remedies have been exhausted. The first requirement is what is known and referred to as the Principle of Finality of Administrative Requirement and the second requirement is what is known and referred to as the Doctrine of Exhaustion of Administrative Remedies. REVIEW OF DECISIONS OF ADMINISTRATIVE AGENCIES Decisions of administrative agencies may be subject to review by any court specified by the statute, or in the absence thereof, it is subject to review by any court of competent jurisdiction in accordance with the provision on venue of the Rules of Court. (Board of Commissioners vs. Judge Capulong, G.R. No. 95612, May 31, 1991) Batas Pambansa Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the Regional Trial Court except those specifically provided for under the law. As the Bureau of Immigration is not of equal rank as the Regional Trial Court, its decisions may be appealable to, and may be reviewed through a special civil action for certiorari by the Regional Trial Court. (Sec. 2[1], Batas Pambansa Blg. 129)

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REQUISITES FOR VALIDITY RULES AND REGULATIONS

OF

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Already discussed. Just remember the important points, as discussed earlier, thus: 1. Requisites of a valid administrative regulation 2. Requirement as to publication of all laws as a condition for their effectivity 3. Requisites for validity of administrative regulations with penal sanctions 4. Cases: Old Cases: a) People vs. Maceren (79 SCRA 450) b) Metropolitan Traffic Command vs. Gonong (187 SCRA 432) c) Bautista vs. Junio (127 SCRA 239) d) Agustin vs. Edu (88 SCRA 195) e) Tablarin vs. Gutierrez (152 SCRA 730) New Cases: a) MMDA vs. Dante Garin, G.R. No. 130230, April 15, 2005 VI. IS THERE A RELIEF FROM WITHIN THE ADMINISTRATIVE AGENCY ITSELF? A – Unless otherwise provided by law or executive order, an action or decision of lower administrative authorities may be appealed to, or reviewed by, higher administrative authorities or superiors like the Department Head (EO 292, Book VII, Chapter 4, Section 19), or to the Commission or Board en banc (e.g. National Labor Relations Commission, Securities and Exchange Commission, National Telecommunications Commission). In fact, an appeal need not be filed at once. A motion for reconsideration may suffice to obtain desired changes in the decision so long as no rights have vested in the meantime and so long as they have not passed beyond the control of the administrative authorities. A resolution therefore of a labor arbiter, is reviewable by any of the divisions of the National Labor Relations Commission, and thereafter, whoever is the aggrieved party may appeal the decision to the Commission En Banc. The hierarchy of authorities within the framework of the National Labor Relations Commission ends here. The decision of the Commission En Banc is now appealable to the Court of Appeals, not to the Supreme Court, unlike before.

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EXAMPLE: NOTICE OF JUDGMENT/DECISION GREETINGS: You are hereby notified that on ____________, JUDGMENT/ DECISION, copy attached, was rendered in the above-entitled case. Under Article 232 of the Labor Code (as amended by R.A. No. 6715) and pertinent provisions of the Revised Rules of the NLRC, no motion for reconsideration from said judgment shall be entertained, but only an appeal, a notice of memorandum thereof, in 5 typewritten copies must be filed before the Labor Arbiter or the Executive Labor Arbiter of this Office within 10 calendar days upon receipt thereof. An appeal shall be deemed perfected only upon the payment of an appeal fee. PROVIDED, that in case of judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of cash or surety bond issued by a reputable and duly accredited bonding company, an amount equivalent to the monetary award in the judgment appealed from. The decision of the Labor Arbiters reinstating a dismissed employee, in so far as the reinstatement is concerned shall immediately be executory, even pending appeal. The same terms and conditions prevailing prior to his dismissal or separation, at the option of the employer, merely reinstated in the payroll. Quezon City, Philippines, _____________________. _________________________________ Labor Arbitration Officer VII. RELIEF AFTER RESOLUTION OF THE HIGHEST LEVEL OF AUTHORITY IN THE ADMINISTRATIVE AGENCY CONCERNED Q – What relief is available as against an action or decision of an administrative bureau, agency, or office? A – It depends. If the law that created the said administrative bureau, agency or office provides for an appeal as well as the procedure and the requisites for taking that appeal, the specific relief or reliefs provided for in the law itself can be obtained. If the law does not provide for an appeal, or for judicial relief or review, the questioned decision can nevertheless be the subject of judicial review under Rule 65 of the New Rules of Court on

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the ground of lack or jurisdiction, grave abuse of discretion amounting to lack or excess of jurisdiction. What is required prior to judicial review of an administrative decision? 1. That the administrative action has already been completed; and 2. That all the administrative remedies have been exhausted. Is compliance with the said requirements absolute? No. The said requirements need not be complied with in the following instances: 1. When the question involved is purely legal, or where the questioned act is patently illegal, arbitrary or oppresive (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, et al. vs. Dominguez, G.R. No. 85439; Bunye, et al. vs. Sandiganbayan, G.R. No. 91927, January 13, 1992); 2. When there is an urgent need for judicial intervention (Aquino vs. Luntok, 184 SCRA 177); 3. When the administrative body is in estoppel (Tan vs. Veterans Backpay Commission, 105 Phil. 377); 4. When the claim involved is small (Cipriano vs. Marcelino, 43 SCRA 291); 5. When irreparable damage will be suffered (De Lara vs. Plaribel, 14 SCRA 269); 6. When there is no other plain, speedy and adequate remedy (National Development Co. vs. Collector of Customs, 9 SCRA 429); 7. When strong public interest is involved (Arrow Transportation Corp. vs. Board of Transportation, 63 SCRA 193); and 8. When the subject of controversy is private land (Morcoso vs. Court of Appeals, G.R. No. 96605, May 8, 1992). Can the reviewing court re-examine the sufficiency of the evidence and receive additional evidence that was not submitted to the administrative agency concerned? As a rule, factual findings of administrative agencies will not be disturbed by the courts except in the following cases: (Ang Tibay vs. CIR, supra; Alejandro vs. Court of Appeals, 191 SCRA 700; Nestle Philippines, Inc. vs. Court of Appeals, 203 SCRA 504 [1991] ) 1. When it is not supported by substantial evidence; 2. When it is vitiated by fraud, imposition or collusion; 3. When the procedure which led to the factual findings is irregular; 4. When palpable errors are committed;

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When abuse of discretion, arbitrariness or capriciousness is manifest. What are the other matters that may not be interfered with by the courts? 1. Purely administrative and discretionary functions may not be interfered by the courts except if an agency or official concerned has acted arbitrarily and with grave abuse of discretion. (Beautifont vs. Court of Appeals, 157 SCRA 481 [1988]). Example: Power granted to LTFRB to grant provisional increase in transportation fares. 2. Appeal to the courts will not lie from an interlocutory order. Example: Order of NLRC to set a motion for execution for hearing by the Labor Arbiter a quo. Assuming that an order is interlocutory, is there a relief that is available to a party aggrieved by the said kind of order? Yes, a special civil action for certiorari is available if the administrative agency, board or tribunal concerned acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion, or if petitioner’s right to due process is disregarded. (Philippine Airlines vs. Civil Aeronautic Board, 20 SCRA 727 [1967]) PHILIPPINE AIRLINES, INC. VS. CIVIL AERONAUTICS BOARD 20 SCRA 727

FACTS: Philippine Airlines questioned the provisional permit to operate four aircrafts on the following grounds: (1) alleged violation of due process for failure to hear its evidence; (2) alleged absence of factual basis for granting said provisional permit; (3) there is no public need; (4) documents to support legality of the grant were not disclosed to it. CAB countered that petitioner was notified about the hearing and it was represented during the hearing when the proposed service and feasibility of operations were subject of discussion and debate. CAB and private respondent claimed that the promised grant is interlocutory. ISSUE: Is PAL’s petition for certiorari tenable? Is there abuse of discretion in granting the said provisional permit to operate four aircrafts? HELD: PAL’s petition for certiorari was sustained as a special civil action which allows an aggrieved party to complain against any tribunal, board or officer

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exercising functions judicial in character without or in excess of jurisdiction or with grave abuse of discretion. The claim, however, that there was violation of due process was not sustained for there was notice and hearing. Besides, CAB has the power to issue, deny, amend, revise, alter, modify, cancel, suspend or revoke, in whole or in part the temporary permit it has issued. VIII. APPEAL FROM, OR REVIEW OF ORDERS, ACTIONS AND DECISIONS OF THE DIFFERENT EXECUTIVE DEPARTMENTS, BUREAUS AND OFFICES OLD CASES PHILIPPINE MERCHANT MARINE SCHOOL, INC. VS. COURT OF APPEALS G.R. NO. 112844, JUNE 2, 1995 61 SCAD 720 (As long as the parties were given opportunity to be heard before the judgment was rendered, the demands of due process were sufficiently met) FACTS: Despite prior disapproval of petitioner’s request for renewal of permit to operate, the DECS Inter-Agency Technical Committee (IATCOM) recommended the grant of permit to the school in 1987, provided that it improves its buildings, laboratory and library facilities before the start of school year 1987-1988. Petitioner continued to fail to improve itself in 1988. In 1989, the TPME (DECS Technical Panel for Maritime Education) recommended the gradual phase-out of the courses in Bachelor of Science in Marine Education and eventual closure should the school fail to meet minimum standards. On August 8, 1989, despite another inspection, the inspection team reiterated the recommendation for the gradual phase-out of the school and for the non-acceptance of freshman beginning SY 1990-1991. DECS approved and implemented the recommendation and accordingly issued the phase-out order. Petitioner moved for reconsideration. When motion was denied, it appealed to the Office of the President. While the appeal was pending, DECS issued a closure order dated August 27, 1991, effective the second semester of SY 19911992. Petitioner moved for reconsideration of said order of closure. While the said motion for reconsideration was pending in the DECS, the Office of the President dismissed the appeal filed earlier. Again, petitioner moved for the reconsideration but the same was denied.

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Due to the denial, petitioner filed a petition for certiorari in the Court of Appeals on the following grounds: (1) There was violation of due process because the basis for affirmance of the DECS phase-out and closure orders was not sufficiently disclosed; (2) that it had presented incontrovertible proof that it had introduced substantial improvements on its facilities for the past two and a half years. The Court of Appeals denied the petition as well as the subsequent motion for reconsideration. Hence, a petition for certiorari was filed by the petitioner to the Supreme Court faulting the Court of Appeals in not setting aside the questioned resolution which was allegedly rendered without due process since it is not fully afforded opportunity to present evidence, and was not sufficiently informed of the basis for the closure orders which were not yet final and executory. ISSUE: Was there a violation of due process? Is the closure order valid? Is the basis of the affirmance of the DECS’ phase-out and closure orders disclosed to the petitioner? HELD: Before the DECS issued the phase-out and closure orders, petitioner was duly notified, warned and given several opportunities to correct its deficiencies and to comply with pertinent orders and regulations. Petitioner has gone all the way up to the Office of the President to seek a reversal of the phase-out and closure orders. There is thus no reason to complain of lack of opportunity to explain its side as well as to comply with the alleged deficiencies (Board of Medical Education vs. Alfonso, 176 SCRA 304 [1989]). As long as the parties were given opportunity to be heard before the judgment was rendered, the demands of due process were sufficiently met (Lindo vs. COMELEC, 194 SCRA 25). It should also be noted that petitioner herein repeatedly sought reconsideration of the various orders of respondent DECS and its motion were duly considered by respondent DECS to the extent of allowing and granting its request for re-inspection of its premises. The phase-out and closure orders were based not only on petitioner’s deficiencies as a maritime institution but also on its continued operation without the requisite authorization for the DECS and acceptance of freshman students in blatant violation of the latter’s order and/or persistent warnings not to do so. Verily, there are sufficient grounds to uphold the phase-out and closure orders of the DECS which were issued conformably with Sec. 28 of the Education Act of 1982. In the case at bench, it is not the function of this Court nor any other court for that matter – x x x to review the decisions and order of the Secretary

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on the issue of whether or not an educational institution meets the standards required for permission to operate and to continue operating as such. On this question, no Court has the power or prerogative to substitute its opinion for that of the Secretary. Indeed, it is obviously not expected that any court would have the competence to do so. ILOCOS SUR ELECTRIC CORPORATION, INC. VS. NATIONAL LABOR RELATIONS COMMISSION G.R. NO. 106161, FEBRUARY 1, 1995 58 SCAD 679 (Under Section 10 of P.D. No. 269, as amended by P.D. No. 1645, the National Electrification Administration has no power to hear and decide termination cases of employees in electric corporations. That authority is vested in the Labor Arbiter.) FACTS: Engr. Egdon Sabio, Manager of the Engineering Department of the Ilocos Sur Electric Cooperative (ISECO) was dismissed on July 1, 1989, by virtue of ISECO’s Bond Resolution No. 63, S. 1989, dated July 19, 1989. He was placed under preventive suspension without pay effective July 1, 1989. Engr. Sabio filed a complaint for illegal dismissal with damages against petitioner in the Department of Labor. The Labor Arbiter ruled in favor of Engr. Sabio and ordered ISECO to reinstate the latter with full backwages. ISECO appealed the decision. ISSUE: Whether NLRC has jurisdiction over the case of Engr. Sabio. Whether the Board of Directors of ISECO dismissed Engr. Sabio in accordance with law. HELD: Under Section 10 of P.D. No. 269, as amended by P.D. No. 1645 only the power of supervisions and control over electric cooperatives and other borrowers, supervised or controlled, is given to the NEA. There is nothing in said law which provides that the NEA administration has the power to hear and decide termination of employees in electric cooperatives. That authority is vested in the Labor Arbiter. The dismissal arose from a purely labor dispute which falls within the original and exclusive jurisdiction of the Labor Arbiters and the NLRC.

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CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS SYSTEM (MWSS) VS. VASQUEZ, ET AL. G.R. NO. 109113, JANUARY 25, 1995, 58 SCAD 409 (The decision to accept or reject a bid and award contracts is vested in the government agencies entrusted with that function. Neither the Court, nor Congress, nor the Ombudsman should interfere in the exercise of said discretion which is a policy decision, unless it is apparent that it is used as a shield to a fraudulent award.) FACTS: MWSS published its invitation for pre-qualification and bids. Fourteen (14) contractors submitted applications to the Awards Committee for Construction Services and Technical Equipment (PBAC-CSTE). After evaluation, only 11 were pre-qualified to bid. Meanwhile, between February 10 and March 24, 1992, former MWSS Administrator Luis Sison, issued 6 addenda to the biding documents that embodied some suggestions of respondent Philippine Large Diameter Pressure Pipes Manufacturer’s Association (PLDPPMA). After the 3 lowest bidders for Project APM-01 and APM-02 were known, PBAC-CSTE recommended the rejection of all bids and to conduct a re-bidding because of ambiguity of Addendum No. 6 of the bidding documents, lack of provision of maintenance/repair materials for bidders who opted to use fiberglass reinforced pipes, and the use for a further review of the pipe design by the consultant, NJS. Finally, on June, 1992, PBAC-CSTE submitted to bid evaluation report. It recommended the second lowest but complying bidder, FF Cruz and Co., Inc. for APM-01. Meanwhile, on April 7, 1992, PLDPPMA, private respondent, through its President, filed a letter-complaint with the Office of the Ombudsman protesting the public bidding on APM-01 and APM-02, charging that there was an “apparent plan” on the part of MWSS to favor suppliers of fiberglass pipes, and urging the Ombudsman to investigate the complaint and hold in abeyance the award of the contracts. The Ombudsman, in its order dated October 19, 1992, directed the Board of Trustees of MWSS to set aside the recommendation of PBAC-CSTE. MWSS moved for reconsideration but it was denied. ISSUE: Can the Ombudsman interfere in the adjudicative responsibility of the MWSS Board of Trustees?

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HELD: The MWSS, a government-owned and controlled corporation created by law through R.A. No. 6234, is charged with the construction, maintenance and operation of waterworks system to insure an uninterrupted and adequate supply and distribution of potable water. It is the agency that should be in the best position to evaluate the feasibility of the projection of the bidders and to decide which bid is compatible with its development plans. The exercise of this discretion is a policy decision that necessitates, among other things, prior inquiry, investigation, comparison, evaluation, and deliberation – matters that can best be discharged by it. MWSS has passed Resolution No. 32-93 to likewise show its approval of the technical specification for fiberglass. All these should deserve weight. NOTE: This affirms the decision of the Supreme Court in Razon, Inc. vs. PPA (151 SCRA 233), thus: “ x x x we have said that neither this Court nor congress and now perhaps the Ombudsman, could be expected to have the time and technical expertise to look into matters of this nature. While we cannot go so far as to say, MWSS would have the monopoly of technical know-how in the waterworks system, by the very nature of its functions, however, it obviously must enjoy the advantage over other agencies on the subject at hand.” Likewise, this affirms the decision in Felipe Ysmael, Jr. and Co., Inc. vs. Deputy Executive Secretary (190 SCRA 673) The decision in Bureau Veritas vs. Office of the President is emphatic. The Supreme Court said: “The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that function. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is used as a shield to a fraudulent award.” SECRETARY OF HEALTH, ET AL. VS. COURT OF APPEALS, ET AL. G.R. NO. 112243, FEBRUARY 23, 1995, 59 SCAD 270 (Jurisdiction once acquired by a court over a case remains with it until the full termination of the case, unless the law provides the contrary.) FACTS: For gross misconduct and dishonesty, Fe Siballuca, Administrative Officer III of the Provincial Health of Cagayan, was placed under a 90 day preventive suspension. She instituted an action to nullify the said order of suspension

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claiming that when the New Local Government Code took effect on January 1, 1992, the Secretary of Health had lost his disciplinary power and authority over her, considering that such power of the provincial Health Office is now vested in the Provincial Governor. The Secretary of Health moved to dismiss the action and to quash the temporary restraining order obtained and opposed the issuance of a preliminary injunction, contending that the private respondent had failed to exhaust administrative remedies and that the New Local Government Code did not divest him of his disciplinary jurisdiction over the private respondent. The trial court ruled in favor of Siballuca and issued an order for execution of judgment. Petitioners moved for reconsideration but was denied. They filed a Notice of Appeal with the court a quo and moved to stay execution of the asserted decision. Both were denied. Petitioners filed a Petition for Certiorari and Prohibition under Rule 65 in the Court of Appeals but the same was dismissed on the ground that the petition could not be a substitute for a lost appeal. ISSUE: Is the decision of the Court of Appeals correct? HELD: No. At the time of the commencement of the administrative action, the operative laws are the Administrative Code of 1987 and Executive Order No. 119. Under the said laws, the Secretary of Health exercises control, direction and supervision over his subordinates, which include private respondent. Consequently, since jurisdiction has been acquired by the Secretary of Health over the person of private respondent before the effectivity of the Local Government Code on January 1, 1992, it continues until the final DISPOSITION of the administrative case. Jurisdiction once acquired by a court over a case remains with it until the full termination of the case, unless a law provides the contrary. Respondent, a civil servant, cannot use the courts of justice as a shield to prevent the implementation of administrative sanctions of executive agencies against erring public servants. NEW CASES AMADORE VS. ROMULO G.R. NO. 161608, AUGUST 9, 2005 (Only one motion for reconsideration is allowed to be filed from a decision,resolution or order of the Office of the President. A

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second motion for reconsideration is allowed only in exceptionally meritorious cases.) FACTS: Petitioner Amadore, the Director of PAGASA entered into a contract with Inter-Technical Pacific Philippines, Inc. (INTER PAC) for the supply, delivery, installation, testing and commissioning of S-Band Weather Surveillance Radar System and Other Related Equipment for Baguio and Tanay Radar Stations. The contract was approved by then Secretary Padolina of the Department of Science and Technology (DOST). The concerned employees of the DOST reported the rampant graft and corruption in the DOST. The charge of entering into a contract manifestly and grossly disadvantageous to the government was filed against petitioner, Director Ferraris and Deputy Director Angeles. The PCAGC found them guilty and recommended their dismissal from the service. Then Executive Secretary Romulo approved the recommendation of the PCAGC and dismissed petitioner, Deputy Director Ferraris and Deputy Director Angeles from government service. They filed a motion for reconsideration. The complaint against Deputy Director Ferraris was dismissed, while Deputy Director Angeles was suspended for six (6) months and petitioner’s dismissal from the service was affirmed. An urgent motion to admit second motion for reconsideration was filed by petitioner and Deputy Director Angeles on the ground that they were unable to present documents which, if admitted, would probably alter the decision of the Office of the President. The second motion for reconsideration was denied with finality. ISSUE: Whether a second motion for reconsideration of the decision of the Office of the President is allowed. RULING: A second motion for reconsideration of the decision of the Office of the President may only be allowed in exceptionally meritorious cases. Administrative Order No. 18, Series of 1987, prescribes the rules and regulations governing appeals to the Office of the President of the Philippines. Section 7 and 9 read as follows: Sec. 7. Decision/resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is filed within such period.

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Only one motion for reconsideration by any one party shall be allowed and entertained, save in exceptionally meritorious cases. Sec. 9. The Rules of Court shall apply in a suppletory character whenever practicable. It is clear from Sec. 7 of Administrative Order No. 18 that only one motion for reconsideration is allowed to be filed from a decision, resolution or order of the Office of the President. A second motion for reconsideration is allowed only in exceptionally meritorious cases. In the case of petitioner, he, together with a co-respondent, filed a second motion for reconsideration claiming he will be presenting evidence that he was not able to present during the hearings, which, if admitted, will probably change the judgment. SGMC REALTY CORPORATION VS. OFFICE OF THE PRESIDENT G.R. NO. 126999, AUGUST 30, 2000 (Unless otherwise governed by special laws, an appeal to the Office of the President shall be taken within thirty (30) days from receipt by the aggrieved party of the decision/resolution/order complained of or appealed from.) FACTS: Petitioners filed before the Housing and Land Use Regulatory Board (HLURB) a complaint for breach of contract, violation of property rights and damages against private respondents. Their complaint was dismissed. Petitioners then filed a petition for review with the Board of Commissioners of the HLURB. The petition was dismissed so they filed an appeal with public respondent. Public respondent, without delving into the merits of the case, dismissed the appeal for being filed out of time and denied their motion for reconsideration. Alleging that public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that the period to appeal from the HLURB to the Office of the President is fifteen (15) days and not thirty (30) days as mandated in the 1994 Rules of Procedure adopted by the HLURB, petitioners filed the instant petition. ISSUE: Whether public respondent committed grave abuse of discretion in ruling that the reglementary period within which to appeal the decision of HLURB to public respondent is fifteen days.

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RULING: No. Public respondent did not commit grave abuse of discretion. Administrative Order No. 18, Series of 1987, issued by public respondent reads: “Section 1. Unless otherwise governed by special laws, an appeal to the Office of the President shall be taken within thirty (30) days from receipt by the aggrieved party of the decision/resolution/ order complained of or appealed from.” (Underlining supplied) The said thirty (30) day period mentioned under Administrative Order No. 18 is subject to the qualification that there are no other statutory periods of appeal applicable. If there are special laws governing particular cases which provide for a shorter or longer reglementary period, the same shall prevail over the thirty-period provided for in the administrative order. Indeed, there are special laws that mandate a shorter period of fifteen (15) days within which to appeal a case to public respondent. First, Section 15 of PD No. 957 provides that the decisions of the National Housing Authority (NHA) shall become final and executor after the lapse of fifteen (15) days from the date of receipt of the decision. Second, Section 2 of PD No. 1344 states that decisions of the NHA shall become final and executor after the lapse of fifteen (15) days from the date of its receipt. The latter decree provides that the decisions of NHA are appealable only to the Office of the President. Further, we note that the regulatory functions of the NHA relating to housing and land development has been transferred to Human Settlements Regulatory Commission, now known as the HLURB. Thus, said presidential issuances providing for a reglementary period of appeal of fifteen days apply in this case. Accordingly, the period of appeal of thirty (30) days set forth in Section 27 of HLURB 1994 Rules of Procedure no longer holds true for being in conflict with the provisions of aforesaid presidential decrees. For it is axiomatic that administrative rules derive their validity from the statute that they are intended to implement. CABRERA VS. LAPID G.R. NO. 129098, DECEMBER 6, 2006 (Direct resort to the SC from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure.) FACTS: Petitioner Amelia Cabrera accused named respondents Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and Superintendent Diony Ventura, respectively, in their capacities of Governor of Pampanga, Mayor of Sasmuan, Pampanga, Vice-Mayor of Sasmuan, Pampanga, and Superintendent of the PNP-

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Region 3, Pampanga of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code. In her Complaint-Affidavit filed with the Office of the Ombudsman, petitioner stated that she entered into a lease agreement with the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations. According to petitioner, she had spent approximately P5,000,000.00 for its construction before the fishpond operations commenced in August 1995. A month later, petitioner learned from newspaper reports of the impending demolition of her fishpond as it was purportedly illegal and blocked the flow of the Pasak River. Thus, petitioner sent the fishpond administrator to dissuade respondents from destroying her property. Despite pleas from petitioner, respondents ordered the destruction of petitioner’s fishpond. The property was demolished on 10 October 1995 by dynamite blasting. Petitioner alleged that the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage. Petitioner imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their prior knowledge of the existence of the lease agreement. She also charged respondents Governor Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the destruction of the fishpond without first verifying its legality. On 13 May 1996, the Ombudsman issued assailed Resolution, dismissing petitioner’s complaint. The dismissal was based on the declaration that the fishpond was a nuisance per se and, thus, may be abated by respondents in the exercise of the police power of the State. Petitioner sought reconsideration of the Resolution. In its May 21, 1997 Order, the Ombudsman affirmed its earlier Resolution. Petitioner elevated the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court to assail the Resolution and Order of the Ombudsman. ISSUE: Whether petitioner can resort directly to the Supreme Court from a resolution or order of the Ombudsman. RULING: Direct resort to the SC from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure. Clearly, this is an appeal from the questioned issuances of the Ombudsman. However, such direct resort to this Court from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure.

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Neither can petitioner avail of Sec. 27 of RA No. 6770, otherwise known as The Ombudsman Act of 1989. The provision allowed direct appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. The right to appeal is granted only in respect to orders or decisions of the Ombudsman in administrative cases. The provision does not cover resolutions of the Ombudsman in criminal cases. More importantly, Sec. 27 of RA No. 6770 insofar as it allowed a direct appeal to this Court was declared unconstitutional in Fabian vs. Hon. Desierto (356 SCRA 787). However, an aggrieved party in criminal actions is not without any recourse. Where grave abuse of discretion amounting to lack or excess of jurisdiction taints the findings of the Ombudsman on the existence of probable cause, the aggrieved party may file a petition for certiorari under Rule 65. The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a petition for certiorari under Rule 65, not a petition for review on certiorari under Rule 45. But in this case, petitioner has taken the position that the Ombudsman has decided questions of substance contrary to law and the applicable decisions of the Supreme Court. That is a ground under a Rule 45 petition. Indeed, from a reading of the assignment of errors, it is clear that petitioner does not impute grave abuse of discretion to the Ombudsman in issuing the assailed Resolution and Order. Rather, she merely questions his findings and conclusions. As stated earlier, direct appeal to the Supreme Court via a petition for review on certiorari is not sanctioned by any rule of procedure. By availing of a wrong remedy, the petition should be dismissed outright. Q – Should an order of preventive suspension be nullified because the Secretary of Health lost his disciplinary power and authority when the new Local Government Code took effect on January 1, 1992? A – No. The jurisdiction acquired by the Secretary of Health before the effectivity of the Local Government Code on January 1, 1992, continues until the final disposition of the administrative case. THE MECHANICS OR THE MANNER OF APPEALING THE DECISION OF THE COMMISSION ON AUDIT IS DIFFERENT BECAUSE IT IS A CONSTITUTIONAL BODY Both under the 1973 and 1987 Constitutions, any decision, order or ruling of the Commission on Audit may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. The same is true with respect to any decision, order or ruling of the Commission on Elections and the Civil Service Commission. (Orocio vs.

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Commission on Audit, et al., G.R. No. 75959, August 31, 1992; Manalansang vs. Civil Service Commission, G.R. No. 93500, February 5, 1991; Villanueva vs. Commission on Audit, G.R. No. 97071, February 27, 1992) Q – What is the relief available against awards of sale of lots issued by NHA? A – An action to annul awards of sale of its lots should first be filed in the National Housing Authority. Thereafter, an appeal may be filed in the Office of the President within thirty three days from receipt of the NHA decision awarding the lot to another party. After which step, the aggrieved party can go to the Courts under Rule 65. (Swan, et al. vs. Court of Appeals, G.R. No. 97319; Swan, et al. vs. Abesamis, G.R. No. 101054, August 4, 1992) The old case of Raymundo vs. PHHC (114 SCRA 717) had this ruling: “The power to dispose of the lands placed under the administration of Philippine Homesite and Housing Corporation is lodged in said body. There is no provision of law authorizing courts to review decisions of respondent PHHC and to take cognizance of actions to annul awards of sale or any other actions made by it pursuant to the authority granted it by law. If the courts are to take cognizance of cases involving errors or abuse of power exercised by the respondent PHHC, the remedy would be by means of an action for certiorari or prohibition to set aside the orders of decisions of the respondent PHHC, and not a direct action for specific performance as the one instituted in this case. But this special civil action would not lie unless there is an allegation of abuse of discretion of lack of jurisdiction.” Q – Can the courts interfere with the Ombudsman’s exercise of his discretion to determine whether or not to file an information against an accused? A – GENERAL RULE The Ombudsman having authorized the Special Prosecutor to investigate the charges, and we cannot assume that the former acted without any justifiable cause, the latter is and should, at this stage, be the proper adjudicator of the question as to the existence of a case warranting the filing of an information in court. To deny said functionary of the opportunity to discharge such duty through this prohibitory recourse, under the obtaining circumstances herein before explained, would be violative of settled rules of criminal procedure and would, in effect grant an immunity against even an investigative proceeding.(Sesbreno vs.

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Deputy Ombudsman, G.R. No. 97289, March 21, 1991; Tabaa-Candang vs. Vasquez, G.R. No. 97127, March 21, 1991) EXCEPTION Except if there is a misapprehension of justice and the courts have to step in to prevent the respondents from using the iron arm of the law to harass, oppress, and persecute a member of the democratic opposition in the Philippines against whom an information for subversion had been filed. The petitioners, Fernando and Mison, are by no means, opposition men who need to be rescued from “the iron arm” of the law. IX. METHODS OF REVIEW OF ADMINISTRATIVE DECISION Q – What are the methods of review of administrative action? A – The methods of review of administrative action may be (1) Statutory or Non-Statutory; (2) Direct or Collateral. (a) Statutory Methods – They are those that are provided by a specific statutory provision. The manner and extent of its exercise is therefore governed by statutes. (b) Non-Statutory Methods – Are those methods which are not expressly provided for by law. they are resorted by courts on account of their inherent power to review such proceedings and to decide questions of jurisdiction and questions of law. (c) Direct Proceeding – This is a proceeding which includes a petition for review or relief from a judgment. The purpose of which is to seek relief other than to set aside judgment, although it may involve an attack on the judgment itself. (d) Collateral Attack – Through collateral attack, there is an attempt to question in a subsequent proceeding, the conclusiveness or validity of a prior administrative decision on the ground that the decision of invalid for lack of jurisdiction over the person, or over the subject matter, or because the decision attacked was not the act of the administrative body concerned which is vested with the power to make the said determination. STATUTORY METHODS (They are available on account of a specific law that allows it. If statutory methods for review are available, they are ordinarily exclusive, and the use of non-statutory methods will not likely be permitted.)

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Example: 1.

Judicial review of the decisions of the Constitutional Commissions, those created under Article IX(A), Section 1 of the 1987 Constitution (Commission on Elections, Commission on Audit, and Civil Service Commission) “Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof.” 2. Judicial Review of decisions and final orders under the Labor Code of the Philippines Judgments and final orders issued under the Labor Code of the Philippines may only be brought to the Supreme Court under Rule 65. The reliefs in Rule 65 are the following: (a) Petition for Certiorari, Section 1, Rule 65 (b) Petition for Prohibition, Section 2, Rule 65 Q – Within what period shall the petition for certiorari be filed? A – There is no rule which specifies the period within which a petition for certiorari should be filed. The yardstick to measure the timeliness of a petition for certiorari is the reasonableness of the duration of time that has expired from the commission of the act complained of, up to the institution of the proceedings to annul the same. NOTE: 1. In San Juan vs. Cuento (G.R. No. 45063, April 15, 1988, 160 SCRA 277), it was held that an interval of 2 years is too long. 2. In Allied Leasing Corporation vs. Court of Appeals (197 SCRA 71 [1991]). 3. In Claridad vs. Santos (120 SCRA 148), 99 days in filing certiorari after receipt of denial of the motion for reconsideration was considered as barred laches. 4. In People vs. Magallanes (G.R. No. 118013, 64 SCAD 968, October 11, 1995, citing Philec Workers Union vs. Young, January 22, 1992), 3 months in filing certiorari after receipt of the denial for the Motion for Reconsideration was accepted. 5. The period has now been settled to 60 days. NON-STATUTORY METHODS (If there is no specific law granting review, relief is obtained by means of the common law remedies, or by the prerogative writs of certiorari, mandamus, habeas corpus, quo-warranto or prohibition)

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Example: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 2. A petition for prohibition may also be filed under Section 2, Rule 65 of the New Rules of Court. 3. A petition for mandamus may also be filed under Rule 65, Section 3 of the New Rules of Court. 4. A quo-warranto proceeding may also be filed under Section 1, Rule 66 of the New Rules of Court. 5. Petition for habeas corpus may also be filed under Section 1, Rule 102 of the New Rules of Court. DIRECT PROCEEDING (Administrative action is being questioned in a subsequent proceeding on account of lack of jurisdiction, grave abuse of discretion amounting to lack or excess of jurisdiction. This also includes a petition for review or a relief from judgment.) Example: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 2. Appeal under Rule 43, Section 1 of the New Rules of Court. COLLATERAL ATTACK (The conclusiveness or validity of a prior administrative decision is being questioned on the ground that the decision is invalid for lack of jurisdiction over the person, or over the subject matter, or because the decision attacked was not the act of the administrative body concerned which is vested with the power to make the said determination). Q – Can the citizenship of an individual be attacked in a collateral proceeding? A – No. (Co vs. House of Representatives Electoral Tribunal, 199 SCRA 692) Q – Is a certificate of title issued under an administrative proceeding indefeasible as a certificate of title issued under a judicial registration proceeding? A – Yes, provided that the land covered by said certificate is a disposable public land within the contemplation of the public land law. (Ybañez vs. Intermediate Appellate Court, G.R. No. 68291, March 6, 1991) Q – Can a decree of registration and the certificate of title issued pursuant thereto be attacked on the ground of actual fraud in a collateral proceeding? A – No, such attack must be direct and not through a collateral proceeding. The validity of the certificate of title in this regard can be threshed out only in an action expressly filed for the purpose. (Ibid.)

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X. ADMINISTRATIVE AGENCIES CREATED BY THE CONSTITUTION Q – What specifically are the guarantees provided by the Constitution to said commissions? A – The Constitution provides for the following guarantees: 1. The Members of the Constitutional Commissions cannot be removed from office except by impeachment. (Article XI, Section 2) 2. The powers conferred to each of the said Commissions cannot be withdrawn or reduced by statute. (Article IX[B], [C], and [D]) 3. The term of office of the Chairman and the Commissioners is seven (7) years without re-appointment. (Ibid.) 4. Their term of office are staggered in order that the majority of them may not be appointed by the same President. (Ibid.) 5. They may not be re-appointed or appointed in an acting capacity. (Ibid.) 6. Their salaries are fixed by law and shall not be decreased during their tenure. (Section 3, Article IX[A]) 7. All the said commissions may promulgate its own procedural rules. (Section 5, Ibid.) 8. All the said commissions may promulgate its own procedural rules. (Section 6, Ibid.) 9. All the said commissions can appoint their own officials and employees in accordance with law. (Section 4, Ibid.) 10. The Chairman and members of all the said commissions are subject to certain disqualifications and inhibitions so they will not be distracted from performing their duties and functions. (Section 2, Ibid.) 11. All the said commissions are independent. (Section 1, Ibid.) 12. All the said commissions are created by the Constitution and they may not be abolished by statute. (Section 1, Ibid.) Q – What is the mechanics of staggering the terms? A – Every two (2) years, the term of one Commissioner expires leaving behind two experienced Commissioners. If a vacancy occurs, the commissioner so appointed to fill up the vacancy shall serve only for the unexpired term of the predecessor. Q – No member shall be appointed or designated in a temporary or acting capacity? A – The last sentence of Section 1(2), Article IX[B] states: “In no case shall any member be appointed or designated in a temporary or acting capacity.”

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Under this rule, the President may not fill up a vacancy by designating one of the Commissioners a temporary Chairman. BRILLANTES VS. YORAC 192 SCRA 358 FACTS: Commissioner Haydee Yorac, then an Associate Commissioner of the Commission on Elections, was designated by President Corazon C. Aquino as Acting Chairperson of the Commission because the regular chairman was appointed to another position in the government. The petitioner challenged the designation invoking the prohibition that “no member may be appointed or designated in a temporary capacity.” ISSUE: Is the said designation valid? HELD: The Chairman and the Commissioners of the Commission on Elections must be extended permanent appointments by the President but such appointments shall have the consent of the Commission on Appointments. The President has no power to designate a temporary Chairman. This prerogative may be exercised by the members of the Commission on Elections for they may, by a majority vote, designate one of them as temporary chairman pending the appointment of a permanent chairman by the President. Q – Within what period must a case or matter be decided by each commission? A – Section 7, Article IX[A] answers this question, thus: “Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.” Q – Who made the said decisions? A – Decisions are made by the said commissions, not by the individual members of said commissions. REASON: The said constitutional commissions are collegial bodies. The cases pending in said commissions

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should, therefore, be decided “by a majority vote of all its members and Section 7 fixes a period of sixty (60) days from the date of its submission within which to make that decision.” Again, the sixty (60)-day period is counted from the filing of the last pleading, brief or memorandum required by the Rules of the Commission or by the Commission itself. Q – How many days within which to file a petition for certiorari? A – The aggrieved party has to file a petition for certiorari within thirty (30) days from receipt of said decision, order or ruling. This petition is actually a special civil action for certiorari under Rule 65 and, therefore, the ground or the issue to be brought to the Supreme Court for decision is limited to grave abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction. There is lack of jurisdiction if the grave abuse of discretion was done in a capricious or whimsical manner. Excess of jurisdiction presupposes that the court has jurisdiction but it has overstepped the permissible bounds in the exercise thereof. (Galido vs. Comelec, 93 SCRA 78 [1991]); Rivera vs. Comelec, 199 SCRA 178 [1991]) It is now settled that in providing that the decisions, orders or rulings of Comelec “may be brought the Supreme Court on certiorari,” the Constitution in its Article IX[A], Section 7, means the special civil action for certiorari under Rule 65, Section 1. For this reason, the aggrieved party must first file a motion for reconsideration before the petition for certiorari is brought to the Supreme Court. (Reyes vs. Regional Trial Court, et al., G.R. No. 108886, 61 SCAD 44, May 5, 1995) REYES VS. REGIONAL TRIAL COURT, ET AL. G.R. NO. 108886, MAY 5, 1995 61 SCAD 44 FACTS: After the May 11, 1992 synchronized elections, the Municipal Board of Canvassers proclaimed Aquiles U. Reyes as the 8th winning candidate for the position of member of the Sangguniang Bayan of Nauja, Oriental Mindoro. Thereafter, Adolfo G. Comia, a candidate for the same position, filed before the trial court an election protest alleging that the Board of Canvassers had committed a mistake in the mathematical computation of the total number of votes garnered by petitioner. After the mistake was admitted and rectified, the trial court annulled the proclamation of Reyes and declared Comia as the duly elected winner.

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Reyes filed a notice of appeal with the COMELEC and also a petition for mandamus and prohibition in the Court of Appeals. The COMELEC’s First Division dismissed Reyes’ appeal on the ground that he failed to pay the appeal fee within the prescribed period and the Court of Appeals dismissed his petition in view of his pending appeal in the COMELEC citing Supreme Court Circular No. 28-91 which prohibits the filing of multiple petitions involving the same issues. Reyes then brought the present action. Reyes contends that both the trial court and the COMELEC’s First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by Comia despite the fact that the case was filed more than ten days after Reyes’ proclamation, and the second, i.e., the COMELEC’s First Division, by dismissing Reyes’ appeal from the decision of the trial court for late payment of the appeal fee. The Supreme Court dismissed the petition. Reyes failed to first file a motion for reconsideration before the COMELEC en banc before filing his petition for certiorari before the Supreme Court contrary to Article IX(A), Section 7 of the Constitution. It likewise held that the COMELEC’s First Division properly dismissed Reyes’ appeal from the decision of the trial court for his failure to pay the appeal fee within the time for perfecting an appeal. The Solicitor General, in behalf of the COMELEC, raises a fundamental question. He contends that the filing of the present petition, without Reyes first filing a motion for reconsideration before the COMELEC en banc, violates Article IX, Section 7 of the Constitution because under this provision only decisions of the COMELEC en banc may be brought to the Supreme Court on certiorari. HELD: This is correct. It is now settled that providing that the decisions, orders and rulings of COMELEC “may be brought to the Supreme Court on certiorari,” the Constitution in its Article IX(A), Section 7 means the special civil action of certiorari under Rule 65, Section 1 (Galido vs. COMELEC, 193 SCRA 78 [1991]; Rivera vs. COMELEC, 199 SCRA 178 [1991]). Since a basic condition for bringing such action is that Reyes first file a motion for reconsideration (Regalado, Remedial Law, pp. 459-460 [1998]), it follows that Reyes’ failure to file a motion for reconsideration of the decision of the First Division of the COMELEC is fatal to present action. Reyes argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This is not correct. The questions raised by Reyes involve the interpretation of constitutional and statutory provisions in the light of the facts of this case. The questions tendered are, therefore, not pure questions of law.

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Moreover, that a motion for reconsideration before the COMELEC En Banc is required for the filing of a petition for certiorari is clear from the provisions of Article IX(C), Sections 2 and 3 of the Constitution. Conformably to these provisions of the Constitution, all election cases, including pre-proclamation controversies, must be decided by the COMELEC in Division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELEC En Banc. It is, therefore, the decision, order or ruling of the COMELEC En Banc that is, in accordance with Article IX(A), Section 7, “may be brought to the Supreme Court on certiorari.” Reyes also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election protest of Comia was filed more than 10 days after his (Reyes) proclamation. Reyes, however, is estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMELEC raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of action, he should not be allowed to file the present petition just because he lost in those cases. MULTIPLE CHOICE QUESTIONS 1.

The law, as passed and approved, said that its takes effect on November 15, 2010. A. The said law takes effect fifteen (15) days following the completion of its publication either in the official Gazette or in a newspaper of general circulation in the Philippines. B. The said law takes effect after fifteen (15) days following the completion of their publication either in the official Gazette or in a newspaper of general circulation in the Philippines. C. The said law takes effect upon its approval. D. The said law shall take effect on November 15, 2010.

2.

A cabinet secretary resigned at the time when congress is in session. Can the president appoint an acting secretary of his choice while congress is in session? A. The law does not give the President such power. B. The President should not have made such an appointment because in case of a vacancy in the office of the Secretary, it is only the Undersecretary, who can be designated as Acting Secretary. C. Congress can impose on the President the obligation to appoint automatically the undersecretary as her alter ego.

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D.

Congress cannot impose on the President the obligation to appoint automatically the undersecretary as his alter ego. Since the department Secretary is the alter ego of the President, the acting appointee to the office must necessarily have the confidence of the President. LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS

Guide: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13. 14. 15.

Definition and general principles Characteristics of a public office Requirements for public office: (a) Appointment; (b) Designation; (c) Commission Classification of appointment; (a) Regular appointment; (b) Ad Interim appointment; (c) Permanent appointment; (d) Temporary appointment Different steps in the process of appointment What is the best evidence of an appointment? Kinds of acceptance: (a) Express; (b) Implied Distinction, appointment and election What is required for an office to be filled up either by an appointment or by election? Eligibility and qualification (a) Meaning of the term “qualification” (b) Qualifications are continuing requirements Disqualifications: Different disqualifications Failure to qualify De Facto officers; distinctions, de jure officer and de facto officer Commencement of official relations Eight (8) Important principles (1) Appointment (2) Torio vs. CSC (3) The next-in-rank rule (4) De facto / De jure (5) Matters that fall within the exclusive jurisdiction of the CSC (6) Kinds of Personnel Actions (7) Modes of termination of official relationship (8) Liability of Public Officers

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16. 17. 18.

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Explanation of each of the said principles Eight (8) other ancilliary principles Explanation of each ancilliary principle (1) Preference for appointment to new position (2) Can a person be compelled to accept an office? (3) Presidential power of appointment (4) Authority to determine the kind or nature of appointment (5) Revocation of appointment by CSC (6) Meaning of the term qualification (7) Determination through competitive examination (8) Hold over rule DISCUSSION LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS

1. DEFINITION AND GENERAL PRINCIPLES Q – Define public office. A – It is the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by the individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192) Q – What are the elements of public office? A – 1. It must be created by law or by ordinance authorized by law; 2. It must possess some sovereign functions of government to be exercised for public interest; 3. The functions must be defined, expressly or impliedly, by law; 4. The functions must be exercised by an officer directly under the control of the law, not under that of a superior officer, unless they are functions conferred by the law upon inferior officers, who, by law, are under the control of a superior. 5. It must have some permanency or continuity, not temporary or occasional. (State vs. Hawkins, 257 Pac. 411, 53 A.L. R. 583) Q – How is a public office created? A – It is created either by the Constitution, by statute or by law. Example: Offices created by the Constitution – The three independent commissions (Commission on Elections, Civil Service Commission,

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Q – A –

Q – A –

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Commission on Audit); the Office of the Ombudsman; the Office of the President; the Legislature and the Supreme Court. Statutory offices – Metro Manila Development Authority, National Food Authority, National Labor Relations Commission, Central Bank of the Philippines. Offices created by virtue of validly delegated power – The Philippine Overseas Employment Administration was created by virtue of Executive Order No. 797 dated May 1, 1992. Philippine Overseas Employment Administration (POEA) took over the functions of the Overseas Employment Division Board. In turn, Executive Order No. 247 dated July 24, 1987, granted additional powers and functions to the POEA. The Public Service Commission was created under Commonwealth Act No. 146. Said commission is now known as the Board of Energy which was created by Presidential Decree No. 1208 dated October 6, 1977. What is a public officer? Generally, it refers to an individual invested with a public office (Mechem, Public Office, Section 1). When it is used with reference to a person having to do a particular act or perform a particular function in the exercise of governmental power, it includes any government employee, agent or body having to do the act or exercise that function. (Section 2, Administrative Code of 1987) When used under the Revised Penal Code, it refers to any person, who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippines or performs in said Government or in any of its branches, public duties as an employee, agent or subordinate official, or of any rank or class. The term public officer, as it is understood under Section 2, Republic Act No. 3019, includes “elective and appointive officials and employees, permanent or temporary, whether in the classified, or exempt service, receiving compensation, even nominal from the government.” Define public official. A public official is an officer of the Government itself, as distinguished from the officers and employees of instrumentality of government. Hence, the duly authorized acts of the former are those of the government, unlike those of a government instrumentality which may have a personality of its own, separate and distinct from that of the government, as such. (Gonzales vs. Hechanova, 9 SCRA 230 [1964])

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Q – Distinguish public office from employment. A – An office is a public position created by the Constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished. (Groves vs. Borden, 169 N.C. 8, 84 S.E. 1942; Lasher vs. People, 183 III. 226, 55 N.E. 663) Q – Distinguish an officer from an employee. A – An officer is distinguished from a mere employee in the sense that: (1) His position has greater importance, dignity and independence; (2) That he is required to take an official oath, and to give an official bond; (3) He has greater liability to account for misfeasance or nonfeasance in office; (4) That his tenure of office is usually different from that of an ordinary employee. (Martin, citing Goodnow, Comparative Administrative Law, Vol. II, 3) Q – Distinguish public office from contract. A – OFFICE

CONTRACT

1. It is a creation of sovereignty.

1. Contract arises from the agreement or will of the parties. 2. The effectivity of the contract may be for a long or short period of time, as may be agreed upon by the parties. 3. The obligations arising from a contract is, as a rule, enforceable only as between the parties to the contract. (Article 1311, New Civil Code)

2. It is more lasting in nature.

3. Its object is to carry out sovereign as well as governmental functions which involves even persons who are not parties to the agreement.

Q – What are the different classifications of a public officer? A – I. Executive, Legislative, Judicial Executive Officers – Those whose duties are mainly to cause the laws to be executed. (Mechem, Pub. Off., Section 18) Legislative Officers – Those whose duties relate mainly to the enactment of laws. (Ibid., Section 9) Judicial Officers – Those whose duties are to decide controversies between individuals and accusations made in the name of the public against persons charged with a violation of the law. (Ibid., Section 20)

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De Jure or De Facto Officer De Jure – An officer de jure is one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. (Mechem, Pub. Off., Section 326) Officer De Facto – An officer de facto is one who has the reputation of being the officer he assumes to be, and yet, is not the officer in point of law. (Ibid., Section 326) Other classifications: 1. 2.

3.

Ministerial officers – Those whose duty is to execute the mandates, lawfully issued, of their superiors. (Ibid., Section 21) Special agent – It is, in the sense in which these words are employed in Article 1903 of the Civil Code, one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations. (Merritt vs. Gov’t. of the P.I., March 24, 1924) Notary public – Is a public officer whose function is to attest and certify, by his hand and official seal, certain classes of document, in order to give them credit and authenticity in foreign jurisdictions; to take acknowledgments of deeds and other conveyances, and certify the same; and to perform certain official acts, chiefly in commercial matters, such as the protesting of notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage. (46 C.J.S. 501) What is the nature of the office of Notary Public? Notaries public are public officers, but not in the sense that such term is used in the Administrative Code, because, while it is true that they perform necessary public duties, however, such duties are not in the discharge of governmental functions. They are not necessary to the administration of the government. Their office exists for the benefit and convenience of the public. They receive their fees from the party, whether it is the government itself or private individual, for whom the service is rendered. A lawyer, is first and foremost an officer of the court, although not necessarily a public officer. His duties to the court are more significant than those which he owes his client. (Salcedo vs. Hernandez, 61 Phil. 724; Coff-Perez vs. Lantin, 24 SCRA 391 [1968])

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2.

3.

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CHARACTERISTICS OF A PUBLIC OFFICE a. Public office is a public trust – Under this principle, public officials in all the ladders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. Their offices are not their own, nor can they be treated as private properties which they can manage or dispose of at their whim and caprice. b. Public office is not private property – It cannot be treated as a personal possession, legacy or gift. It is not transferrable to another and it must be relinquished at the end of the term. c. A public office, like public trust, is built and founded by the people themselves – Trust, as it connotes, is reposed only to those who deserve the trust. Just as the people is the creator of that trust, so must the people have the right to withdraw it when there is no more reason for its continuity. When this happens, the public office remains but the public official who is no longer trusted by the sovereign electorate goes out of office. d. There can be no vested right in public office or its salary – At the will of the legislature, a public office may be changed or even abolished. Besides such abolition, its term, compensation and powers may be validly reduced even over the objection of the incumbent. REQUIREMENTS FOR PUBLIC OFFICE: (a) appointment; (b) Designation; (c) Commission

APPOINTMENT Q – Distinguish appointment from designation. A – Appointment is the selection, by the authority vested with power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. (Sevilla vs. Court of Appeals, G.R. No. 88498, June 9, 1992, First Division, Griño-Aquino, J.) Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security

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of tenure on the person named. (Ibid.) Furthermore, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee’s right to claim the salary attached thereto is a duly issued and approved appointment to the position, and not a mere designation. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004) Who exercises appointing power? The determination of who among the several candidates for a vacant position has the best qualifications, is vested in the sound discretion of the department head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, and so forth, may be valuable but intangibles like resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service are also valuable. Given the demands of a certain job, who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the head of office in this regard. (Español vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.) When does an appointment take effect? CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect earlier than the date of its issuance. Distinguish the following terms: (1) Appointment; (2) Commission; (3) Designation

A – Appointment

Designation

Commission

It is the selection, by the authority vested with the power of an individual who is to exercise the power of a given office. (Binamira vs. Garucho, 188 SCRA 154)

Connotes merely the imposition by law of additional duties on an incumbent official. (Ibid.)

Is the written evidence of the appointment.

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4.

CLASSIFICATION OF APPOINTMENT: (A) REGULAR APPOINTMENT; (B) AD INTERIM APPOINTMENT; C) PERMANENT APPOINTMENT; D) TEMPORARY APPOINTMENT Q – Distinguish regular from ad interim appointment. A – Regular appointment

Ad Interim

It is an appointment made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments. It continues until the end of the term.

It is an appointment made while Congress is not in session, before confirmation by the Commission on Appointments. It is immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments upon the next adjournment of Congress.

Q – What is the nature of an ad interim appointment? A – An ad-interim appointment is permanent in nature, and the circumstance that it is subject to a confirmation by the Commission on Appointments does not alter its permanent character. (Summers vs. Ozaeta, G.R. No. L-1534, October 25, 1948; Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 140 SCRA 22) Q – Distinguish permanent appointment from temporary appointment. A – Permanent Appointment – one issued to a person who has met the requirements of the position to which appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards promulgated in pursuance thereof. Temporary Appointment – one who holds temporary appointment has no fixed term of office and employment can be terminated at the pleasure of the appointing authority, there being no need to show that the separation is for cause (San Pedro vs. Civil Service Commission, G.R. No. 100321 February 12, 1992, En Banc). Hence, in the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. (Chua vs. Civil Service Commission, G.R. No. 88979, February 7, 1992, En Banc, Padilla, J.)

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Q – Should an appointee with a temporary status possess the civil service eligibility required? A – Under Section 25, Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines, an appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (a) it is necessary in the public interest to fill a vacancy; (b) there are no appropriate eligibles; (c) the temporary appointment shall not exceed twelve months; and (d) he may be replaced sooner if a qualified civil service eligible becomes available. (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) Q – Is a person temporarily appointed to a Civil Service position entitled to security of tenure even if he lacks the needed qualifications for the said position? A – No. The holder of the position can only enjoy security of tenure if he or she possesses the qualifications and eligibility prescribed for it. (House of Representatives vs. Loanzon, G.R. No. 168267, February 16, 2006) Q – Who should be given preference for appointment to new positions? A – Section 4 of Republic Act No. 6656 provides: “Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank.” (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) REASON: The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. (Ibid.) Q – If after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office, or to upgrade second rate performance, can he reach out to other departments or to the private sector in choosing a person he needs? A – The law does not preclude the infusion of new blood, younger dynamism or necessary talents into the government service. If, after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona fide and for the best interest of the public service and the person chosen has the needed qualifications. (Ibid.)

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DIFFERENT STEPS IN THE PROCESS OF APPOINTMENT For regular appointments which need confirmation of CA

For appointments which do not need confirmation of CA

For appointments to the career service of the civil service

1. Nomination by the President 2. Confirmation by the CA 3. Issuance of the commission 4. Acceptance by the appointee In case of ad interim appointments, the nomination, issuance of the appointment and acceptance by the appointee precede the confirmation by the CA

1. Appointment by appointing authority 2. Issuance of the commission 3. Acceptance by the appointee Acceptance of the appointment by the appointee is the last act that completes the appointing process. (Lacson vs. Romero, 84 Phil. 740)

1. An appointment to the career service of the Civil Service is not deemed complete until attestation approval by the Civil Service Commission. Without the favorable certification or approval of the CSC, no title to the office can be deemed to be permanently vested in favor of the appointee, and the appointment can still be revoked or withdrawn by the appointing authority.

Q – Can a person be compelled to accept an office? A – No. REASON: There is no law which can compel a person to accept an office except as may be required under Section 4, Article II of the 1987 Constitution which provides as follows: “Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.” Q – Appointment has been made and the appointee has assumed the duties and functions of the position in the Civil Service Commission. Can the said appointment be revoked by the appointing authority on the ground that the protestant is more qualified than the first appointee? A – No. The person so appointed acquired a legal right to his position which is protected by law and the Constitution. 6. WHAT IS THE BEST EVIDENCE OF AN APPOINTMENT? The best evidence of an appointment is his written commission. (The delivery of the commission is the last act required by the appointing power and the same completes the appointment.)

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7.

KINDS OF ACCEPTANCE 1. Express – It may be made verbally or in writing; and 2. Implied – If the officer is in the actual occupation and exercise of the office, his acceptance of it would be presumed. (Mechem, Pub. Off., Section 252) Q – How is a public officer chosen? A – A public officer is chosen either by appointment or election. 8. DISTINCTION, APPOINTMENT AND ELECTION In appointment, the person who is to exercise the function of a given office is made by the executive officer, board, or body, to whom the power to designate is given (Appari vs. Court of Appeals, 127 SCRA 231). In election, the choice is made by an enfranchised citizenry by virtue of the right of suffrage. Example of elective officials: President, Vice-President, Members of Congress, Governor, ViceGovernor, Board Members, Mayor, Vice-Mayor, Councilors, Barangay Chairman and Councilmen

Q A Q A

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Example of Appointed Officers by the President Cabinet members, Commissioners of different commissions, ambassadors, consuls, officers of the AFP, from rank of colonel or naval captain, all other officers of the government whose appointments are not provided by law, and those whom he may be authorized by law to appoint. Can the power of appointment be delegated? Why? No, because appointment involves the exercise of discretion. Is the presidential power of appointment absolute? No, it is subject to the following limitations: 1. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts; or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory,

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but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 2. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman or heads of bureaus or offices including governmentowned or controlled corporations and their subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution) 3. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. 4. Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII) 5. The appointees of the President must possess the required qualifications. The appointee concerned may be questioned in appropriate court proceedings. When is confirmation of the Commission on Appointments required? It is required only for the offices mentioned in Section 16, first sentence, Article VII of the 1987 Constitution, to wit: Code: H-A-O-A H – eads of the executive department A – mbassadors, or other public ministers and consuls O – fficers of the armed forces from the rank of colonel or naval captain A – nyone whom he can appoint by authority to law. When is confirmation of the Commission on Appointments not required? 1. Other officers whose appointments are vested in him in this Constitution. 2. All other officers of the government whose appointments are not provided for by law. Does the appointment of the Chairman and the Commissioners of the Commission on Human Rights need the confirmation of the Commission on Appointments?

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A – No. REASON: The position of the Commission on Human Rights is not among the positions mentioned in Section 6, first sentence, of Article VII of the 1987 Constitution. (Bautista vs. Salonga, 72 SCRA 169) Q – Does the appointment of sectoral representatives need the confirmation of the Commission on Appointments? A – Yes, because this position is covered by Section 16, first sentence, of Article VII of the 1987 Constitution. (Quintos-Deles vs. Commission on Appointments, 177 SCRA 259) Q – Does the appointment of Chairman and commissioners of the NLRC need the confirmation of the Commission on Appointments? A – No. They are not among the officers mentioned in Section 16, first sentence. Q – The appointment was described as permanent in the space provided for in Civil Service Form No. 33, but the words “Approved as Temporary” was stamped in the appointment. The appointee is qualified and other legal requirements are satisfied. Is the Civil Service Commission authorized to determine the kind or nature of the appointment extended by the appointing officer, or will it just attest to the appointment in accordance with Civil Service Laws? A – The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing power. What it can do is only either to approve or review the appointment to see to it that the requirements of the Civil Service Commission are complied with. When all legal requirements are complied with and the appointee is qualified what the Civil Service Commission has to do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327) Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme Court ruled that what the Civil Service Commission may do is just to determine whether or not the appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment is approved, and if not, his appointment is disapproved. A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further the ruling in Lopez and said: “As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases, the Commission would be well within its right – and responsibility – in refusing to approve the

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appointment.” (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991, En Banc, Cruz, J.) Can the Civil Service Commission revoke an appointment in the belief that another is better qualified than the appointee? The Supreme Court ruled: “The Civil Service Commission has no authority to revoke an appointment simply because it is believed that another is better qualified than the appointee for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr., J.) WHAT IS REQUIRED FOR AN OFFICE TO BE FILLED UP EITHER BY AN APPOINTMENT OR BY ELECTION? The office to be filled up should be vacant following the principle that no person may be an appointed to an office which is not vacant no matter how qualified he is for a certain position. (Jocom vs. Regalado, 24 SCRA 73) Do the courts have jurisdiction over void appointments? Yes. While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee should possess none of the disqualifications but all the qualifications required by law. Where the law prescribes certain qualifications for a given office or position, courts may determine whether the appointee has the requisite qualifications, absent which, his right thereto may be declared void. (Engaño vs. Court of Appeals, G.R. No. 156959, June 27, 2006) When does vacancy exist? It exists when there is no person lawfully authorized to assume and exercise at present the duties of the office. What are the different kinds of vacancies? CODE: O-C-A-A O-riginal (There is an office which is created but no one has as yet been chosen to fill it.) C-onstructive (In this kind of vacancy, the incumbent has no legal right to the office and he may be replaced.) A-ccidental (When on account of death, resignation, removal or abandonment, the incumbent is separated from the service.) A-bsolute (There is no successor yet to the incumbent whose term expired.) ELIGIBILITY AND QUALIFICATION A. MEANING OF THE TERM “QUALIFICATION”

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It is understood in different senses: (1) It may refer to the qualities or endowments required of the public officer in order that he may be considered eligible for public office (i.e. age, citizenship, and academic qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his office (i.e. taking the oath of office). In the first one, the person appointed or elected must possess the prescribed qualifications at the time of his appointment or election and during the period of the official relationship. In the second, the failure to perform an act required by law could affect the officer’s title to the given office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that “the office of any official elected who fails or refuses to take his oath office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.” [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are required to be properly bonded] Can property qualifications be imposed for the exercise of the right to run for public office? A law which required all candidates to post a P20,000.00 bond upon the filing of their certificates of candidacy, and which provided its confiscation if they did not obtain at least 10% of the total votes cast in the constituency where they were running, was declared unconstitutional and null and void by the Supreme Court (Maquira vs. Borra, 15 SCRA 7). REASON: The said law is inconsistent with the nature and essence of the Republican System and the principle of social justice. Who prescribes the qualifications? Qualifications may be prescribed by the Constitution or by statute. If the same are prescribed by the Constitution, the qualifications are specifically enumerated and the legislature cannot impose additional qualifications. If the qualifications are prescribed by law, it must do so in such a detailed manner so as not to leave any discretion to the appointing power in making a choice of the person to be appointed. Moreover, the qualification prescribed must be relevant to the position.

Example: On The Matter Of Imposing Additional Qualifications Q – Can Congress pass a law requiring a college degree as an added qualification to be senator or congressman?

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A – No, because the said law is unconstitutional. Q – Can Congress pass a law requiring a college degree as an added qualification of the President and Vice-President of the Philippines? A – No, because the said law is unconstitutional. Q – Can the Constitutional Convention approve a constitutional provision requiring additional qualifications of a President, VicePresident, Senator and Congressman? A – Yes, because the power to amend the Constitution has been entrusted by the people to the delegates of the Constitutional Convention whom they have chosen to represent them in the said convention. Moreover, when the Constitution, drafted and approved by the said Constitutional Convention, was duly approved in a plebiscite, the people have necessarily approved the said constitutional provision. Q – Can the legislature prescribe qualifications in a general manner? A – Yes. This happens if the intention of the legislature is to allow a widest possible field of choice. Q – When can the legislature prescribe additional qualifications? A – This becomes possible (1) when the Constitution does not prescribe a qualification or qualifications; or (2) When the Constitution prescribes only for minimum qualifications. Q – What is the restraint or limitation to Congress when it exercises its right to prescribe qualifications or disqualifications? A – The qualifications or disqualifications it prescribes should not violate the Constitution. Otherwise, it can be assailed as unconstitutional. Hence, if a law provides that the mere filing of a criminal information for disloyalty is prima facie evidence of guilt which is sufficient to disqualify a person from running for public office, the said law is, as it was considered, unconstitutional (Dumdao vs. Comelec, 95 SCRA 400). REASON: It violates the principle that a person is presumed innocent until his guilt is proved beyond reasonable doubt. B. QUALIFICATIONS ARE CONTINUING REQUIREMENTS Q – When should the prescribed qualifications be possessed by a person, who is either appointed or elected? A – They should be possessed on the date indicated by the Constitution or by law, and they are continuing requirements which means that they must be possessed not only on the date of selection or assumption but for the full duration of the officer’s incumbency. (Aguila vs. Genato, 103 SCRA 380) Example: Under the 1987 Constitution, the age qualification must be possessed on the day of the election, not on the day of the proclamation

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of the winners of the board of canvassers, which was the reckoning period used in the case of Espinoza vs. Aquino. (Electoral Case No. 9, Senate Electoral Tribunal) Q – What happens if any of the qualifications is lost during the tenure? A – The right to the office is automatically forfeited. 11. DISQUALIFICATIONS Q – Who prescribes the disqualifications? A – Disqualifications may also be prescribed by the Constitution or by statute. SPECIFIC DISQUALIFICATIONS UNDER THE CONSTITUTION Judicial Department 1.

The members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (Section 12, Article VIII)

Executive Department 1. The President, Vice-President, the Members of the Cabinet, and their deputies and assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (Section 13, Article VII) 2. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 3. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Legislative Department 1. No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his

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seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (Section 13, Article VI) Constitutional Commissions 1. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries. (Section 2, Article IX) 2. The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment. (Article IX-B, Section 1[1]) 3. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Article IX-B, Section 1[2]) Ombudsman and his deputies 1. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Section 11, Article XI) NOTE: The National Amnesty Commission ex officio members’ representatives are covered by the constitutional prohibitions against holding multiple positions in the government and receiving double compensation because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004)

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12. FAILURE TO QUALIFY Q – Does the delay in qualifying means that the office is automatically forfeited? A – No. It will only give a justification to appropriate superior authorities to prevent entry into the office until such time that the delay is explained by the appointee. Hence, mere delay in the taking of an oath does not mean that the office is rejected and when the oath is so taken, the default is waived. However, if the law requires qualification within a specified time and provides further that failure to do so will result in automatic loss of the right to the office, this has to be complied with. Otherwise, the right to the office is automatically lost. DE FACTO OFFICERS; DISTINCTIONS, DE JURE OFFICER AND DE FACTO OFFICER Q – What is a de facto officer? A – A person is considered a de facto officer: 1. When, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; 2. When, there is a color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; 3. When he exercised his duties under a color of a known appointment or election; or that there was a want of power, in the electing or appointing body; or there is some defect or irregularity in its exercise, and such ineligibility, want of power, or defect is unknown to the public. For said reasons, the acts of the de facto officer are void. 4. When there was color of an election or an appointment but such is based on an unconstitutional law. Here, the person exercising the duties is considered de facto officer before the said law is adjudged to be unconstitutional. (Martin, citing Conn, 449, 9 Am. Rep. 409; Luna vs. Rodriguez, 37 Phil. 186) In recent jurisprudence, the following are considered a de facto officer: 1. A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office. (Corpuz vs. Court of Appeals, 285 SCRA 23)

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A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. (Dimaandal vs. Commission on Audit, 291 SCRA 322) 3. A de facto officer is one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. (Ibid.) 4. A de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular (Ibid.) What is the basis of the rationale of the de facto officer? It is unreasonable to require the public to inquire into the title of an officer, or compel him to show title because the public do not have time and opportunity to investigate the title of the incumbent. As a matter of policy and necessity, the doctrine serves to protect the public and the individuals whenever their interests are involved in the official acts of persons exercising the duties of an office. (Tayko vs. Capistrano citing State vs. Caroll, 38 Conn. 449, 9 Am. Rep. 409) Are the acts of a de facto officer, insofar as they affect the public, valid? They are valid and legal insofar as they affect the public. What are the liabilities of a de facto officer? (1) He is liable upon his bond (2) He is liable for his negligence (3) He is liable for his embezzlement (4) He is liable for malfeasance in his assumed office (Mechan on Public Officers, 336-338, 341) What are the elements of a de facto office? Code: VAC V -alid and legitimate office A -ctual possession of said office in good faith C -olor of title to the office or general acquiescence by the public When is there a color of title to the office? Same answer as in the first question and answer, No. 13, as abovementioned. Distinguish de jure officer from that of a de facto officer.

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A – De Facto Officer

De Jure Officer

1. A de facto officer may be 1. A de jure officer cannot be ousted in a direct proceeding removed. against him. 2. A de facto officer has the 2. A de jure officer has the possession and performs the lawful right or title without duties under color of right, the possession of the office. without being legally qualified to act. (Martin citing Tayko vs. Capistrano, 53 Phil. 866) EXAMPLES OF THE ELEMENTS OF A DE FACTO OFFICE 1.

2.

3.

Valid and Legitimate Q – If Mr. A was not validly elected or appointed, or he is not eligible, and he occupies a legitimate office, is he a de jure or de facto officer? A – He is a de facto officer. Q – Same example but the office itself is void, but Mr. A was validly elected or a appointed, is he a de jure or a de facto officer? A – He is neither a de facto officer nor a de jure officer for no office at all exists. Q – Suppose Mr. A, a candidate for public office was proclaimed in an election which was irregularly held, is he a de facto officer? A – He is a de facto officer before the said election is nullified. Color of Title – When a judge in good faith remains in office after his previous valid appointment has lapsed and the public continues to acquiesce his acts, and during the time he was regarded as a judge, his successor has not been appointed, he is considered as a de facto judge. Another example is a case where one is qualified and eligible but he was appointed by one who was not empowered or authorized to make an appointment. A mayor who insisted to remain in his office despite the forfeiture of his office is a de facto officer. Actual Possession of the Office – A decision promulgated by a judge who already ceased to be a judge of the Court presided by him, is void. REASON: He has no more authority to promulgate the said decision.

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The decision is likewise void if after he ceased as a judge, it was promulgated under another judge. (Solis vs. Court of Appeals, 38 SCRA 53) RIGHT TO COMPENSATION Q – Can a de facto officer claim salary or compensation for salaries rendered by him as such? A – The rule in Monroy vs. Court of Appeals is to the effect that a de facto officer, not having good tittle take the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of public office. (20 SCRA 620) The said rule, however, does not apply if there is no de jure public officer, in which case, the de facto officer shall be entitled to the salaries prescribed by law for the given office during the period when he actually discharged the functions of said office.

Q – A – Q – A –

NOTE: In the following cases, an officer, although de facto, was declared to be entitled to compensation: (1) RODRIGUEZ vs. TAN (91 Phil. 724) – The successful Protestant was claiming to recover the salaries collected by the protestee before he was ousted from the Senate. This was denied. REASON: The protestee was duly proclaimed as Senator and he assumed office as required by law, hence, he is entitled to compensation, emoluments and allowances which our Constitution provides for one position. (2) MENZON vs. PETILLA (197 SCRA 251) – Petitioner assumed the office of the Vice-Governor under color of a known appointment. He was appointed by the DILG Secretary, and thereafter, he took his oath of office. Later, the validity of his appointment became an issue and the recognition withdrawn. The Supreme Court ruled that it is iniquitous to deny the salary due to the petitioner for services be actually rendered as the Acting Vice-Governor of Leyte. Can a de facto officer be made to reimburse funds disbursed by a de facto officer during his term of office? Yes. REASON: Because his acts are as valid as a de jure officer. Is a de facto officer subject to the same liabilities that are imposed to a de jure officer? Yes. REASON: He assumed the office at his own risk and he must be prepared to be held responsible for the performance of his duties.

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ACTION TO TAKE AGAINST A DE FACTO OFFICER Q – Can a de facto officer be ousted in a collateral action? A – A de facto officer may be ousted in a direct proceeding, not in a collateral action. A direct and authorized proceeding is Quo Warranto under Section 1, Rules 66 of the New Rules of Court which provides as follows: “SECTION 1. Action by Government against individuals – An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or franchise; (b) A public officer who acts as a corporation which, by the provision of law, constitutes a ground for the forfeiture of his office; (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (1a) 14. COMMENCEMENT OF OFFICIAL RELATIONS Q – Earlier, it was mentioned that a public officer is chosen either by appointment or election. Is it also through appointment or election that official relations are commenced? A – Yes. NOTE: Before proceeding to the eight important principles (which is the next topic), remember thoroughly the discussion of the requirements for public office (the preceding topic), particularly the different kinds of appointments, distinction between appointment, designation and commission, distinction between appointment and election, different kinds of vacancies and eligibility and qualification 15.

EIGHT (8) IMPORTANT PRINCIPLES CODE: AT-NEXT-DM-PML 1). Appointment 2). Torio vs. CSC 3). The next-in-rank rule 4). De facto / De Jure 5). Matters that fall within the exclusive jurisdiction of the CSC 6). Kinds of Personnel Actions 7). Modes of termination of official relationship 8). Liability of Public Officers

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EXPLANATION OF EACH OF THE SAID PRINCIPLES 1. Appointment 7 PRINCIPLES REGARDING POWER AND AUTHORITY TO MAKE AN APPOINTMENT a) b)

c) d)

e)

f)

g)

Essentially a discretionary power The appointing authority, not the CSC, determines who, among the several candidates for a vacant position, has the best qualification CSC has no authority to direct the appointing authority to appoint a certain person Once appointment is issued and the moment the appointee assumes a position in the civil service under a complete appointment, he acquires a legal, not merely equitable right which is protected by the Law and the Constitution. Once the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority, on the mere ground that the protestant is more qualified than the first appointee. An appointee with a temporary status need not possess the Civil Service eligibility required by the position. This is subject to the qualifications in Torio vs. CSC. The “next in rank” rule is not absolute.

Distinguish appointment from designation Already answered. 2.

Torio vs. CSC An appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (1) It is necessary in the public interest to fill up the vacancy (2.) There are no appropriate eligibles (3.) The temporary appointment shall not exceed 12 months (4.) He may be replaced sooner if a qualified Civil Service eligible becomes available. (Sec. 25, Presidential Decree No. 807; Torio vs. CSC, G.R. No. 99336; Esparol vs. CSC, G.R. No. 100198, June 9, 1992)

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3.

The “Next-In-Rank” Rule This may be disregarded even in case of promotions, and even in promotions, it can be disregarded for sound reasons make known to the next-in-rank. The appointing authority under the CSC, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, re-employment and appointment of outsiders who have appropriate Civil Service eligibility, not necessarily in that order. THERE IS NO LEGAL FIAT THAT A VACANCY MUST BE FILLED ONLY BY PROMOTION. THE APPOINTING AUTHORITY IS GIVEN A WIDE DISCRETION TO FILL A VACANCY FROM AMONG THE SEVERAL ALTERNATIVES PROVIDED BY LAW. (Espanol vs. CSC, G.R. No. 85479, March 3, 1992)

4.

De Facto/De Jure Already discussed. Just remember the following important points, thus: 1. Distinctions, de jure and de facto officer 2. Elements of a de facto office: (a) Valid and legitimate office; (b) Actual possession of his office; (c) Color of title to the office 3. Liabilities of a de facto officer 4. A de facto officer may be ousted in a direct proceeding, not in a collateral action. Example of direct proceeding: Quo Warranto 5. Rationale for allowing a de facto officer to recover compensation 6. Basis of the rationale of the de facto officer

5.

Matters that fall within the exclusive jurisdiction of the CSC Disciplinary cases, and cases involving “personnel actions” affecting employees in the civil service including “appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation,” and, of course, employment status and qualification standards, are within the exclusive jurisdiction of the Civil Service Commission.

6.

Kinds of personnel actions CODE: PAT-RE-RE-RE-DE P-romotion A-ppointment through certification T-ransfer RE-employment

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RE-assignment RE-instatement DE-tail EXPLAIN EACH BRIEFLY Promotion

It is a movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.

Appointment Through Certification It is issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles, and who meets all the qualifications prescribed for the position.

Transfer

Reemployment

It is a movement from one position to another which is of equivalent rank, level or salary without break in service. Transfer may be imposed as an administrative penalty under current Civil Service Rules.

Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/ or reorganization, shall be entered in a list from which selection for reemployment shall be made.

Reassignment

Reinstatement

Detail

An employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary.

Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.

It is the movement of an employee from one agency to another in the same agency, provided that such reassignment shall not involve reduction in rank, status or salary. This is a prerogative of the CSC.

THE “NEXT-IN-RANK” RULE IS NOT ABSOLUTE This may be disregarded even in case of promotions. The next in rank rule is not absolute. It only applies in case of promotions. It only applies in

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cases of promotions. And even in promotions it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer, or present employees, reinstatement, re-employment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. (Espanol vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.) Must all appointments involved in a chain of promotions be submitted for approval of the Civil Service Commission? “All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher positions invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in the promotional appointments.” This is known as the Automatic Reversion Rule. (Section 13, Omnibus Rules Implementing Book V, E.O. 292) What are the requisites in order that said rules will apply? 1. There must be a series of promotions. 2. All promotional appointments are simultaneously submitted to the Commission for approval. 3. The Commission disapproves the appointment of a person to a higher position. (Divinagracia vs. Sto. Tomas, G.R. No. 110954, May 31, 1995) APPOINTMENT THROUGH CERTIFICATION What is required for this kind of appointment? 1. 2.

The person to be selected or selected is in a list of qualified persons certified by the CSC from an appropriate register of eligibles. The person to be selected or selected meets all the qualifications prescribed for the position.

TRANSFER Is the transfer of an employee from one position to another a violation of his security of tenure even if results to his promotion? Yes, if the said employee is removed without his consent. REASON: That amounts to removal from office. Is it possible that an employee is permanently transferred to another position without violating his security of tenure?

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This is possible if an employee is lawfully removed first from his position, and thereafter, he is appointed to another position which is of equivalent rank, level or salary. RE-EMPLOYMENT When is this possible? This happens when persons who were previously appointed permanently to positions in the career service have been separated from the service on account of re-organization or reduction in a list from which selection for reemployment shall be made. RE-ASSIGNMENT Can an employee be reassigned from one organizational unit to another in the same agency? Yes, provided that such reassignment shall not involve reduction in rank, status or salary. As a result of the redefinition and re-numbering of the regional districts of the BIR, a BIR employee was re-assigned from Pampanga to Cagayan. The said employee questioned the legality of the re-assignment alleging that it was a demotion. Is the said contention correct? No. Said contention will, in effect, subordinate government projects to his personal preference. Besides, he failed to exhaust administrative remedies because he should have questioned first the validity of his transfer by appeal to the Civil Service Commission. (Chato vs. Natividad, G.R. No. 113843, June 2, 1995) REINSTATEMENT Due to alleged dishonesty, A was separated from government service. Much later, he was granted executive clemency on the basis of findings that the charges are not true. Is A restored to his office upon the issuance of the clemency and is he entitled to back wages? Yes. REASON: The executive clemency completely obliterated the administrative effects of the administrative division. He is restored to his office ipso facto upon the issuance of the clemency. (Garcia vs. Chairman, COA, G.R. No. L-75025, September 14, 1993) Can reappointment be the subject of an application for mandamus? No. It is discretionary on the part of the appointing power. (Gloria vs. Judge De Guzman, G.R. No. 116183, October 6, 1995)

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Can the courts interfere in the exercise of the said discretion? No. (Ibid.) DETAIL What is the nature of “detail”? It is temporary in nature, hence, it is allowed only for a limited period in the case of employees occupying professional, technical and scientific positions. (Republic vs. Court of Appeals, 182 SCRA 721) 7.

Modes of Termination of Official Relationship CODE: ERRRRAP-DIFAACO-FILING 7.1 E-xpiration of term or tenure 7.2 R-esignation 7. 3 R-ecall 7. 4 R-emoval 7. 5 R-eaching age limit 7. 6 A-bandonment 7. 7 P-rescription of right to office 7.8 D-eath 7.9 I-mpeachment 7. 10 F-ailure to assume election office 7. 11 A-cceptance of incompatible office 7. 12 A-bolition of office 7. 13 CO-nviction of a crime 7. 14 FILING of certificate of candidacy

EXPLANATION OF EACH 7.1

EXPIRATION OF TERM OR TENURE

Distinction of term and tenure Term means the time during which the public officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. (Olivares vs. Villaluz, 57 SCRA 163) Tenure represents the actual period during which the incumbent holds office. The tenure may be shorter than the term for reasons beyond the power of the incumbent. (Nueno vs. Angeles, 76 Phil. 12) Q – After the EDSA People Revolution in 1986, the new President accepted the courtesy resignations of constitutional officers with

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Q – A – Q – A –

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fixed terms of office. What is the legal effect of said acceptance of courtesy resignations? 1. It resulted in the expiration of the term. 2. The public officers concerned are entitled to retirement benefits. (Ortiz vs. Comelec, 162 SCRA 812; In Re Retirement of Justice Britanico, 173 SCRA 421) What is the effect of replacement of a public officer who holds office at the pleasure of the appointing power? The replacement is regarded as termination through expiration of the term, not removal. (Astraquillo vs. Manglapus, 190 SCRA 280) When does the term of office begin? SIMPLIFICATION OF THE RULES 1. It begins upon qualification. 2. I t b e g i n s f r o m d a t e o f appointment (in case of appointment), or from the date of election (in case of elective office).

When the law fixes the period within a chosen officer may qualify for the office. When no time is fixed by law.

OTHER RULES 1. 2.

3.

4.

7.2

When a law fixing the term of public is ambiguous The law that fixes the term at the shortest period should be followed. When the Constitution or the law fixed both the term of office and the time of its commencement or termination A person elected or appointed to fill a vacancy in such office shall hold the same only for the unexpired portion of the term. When only the duration of the term is fixed but no time is established for the beginning or end of the term. The person selected to fill the vacancy may serve the full term and not merely the unexpired balance of the prior incumbent’s term. When an office is created, or an officer is appointed, just to accomplish a specific purpose or purposes The office terminates and the authority of the public officer ceases when said purpose or purposes is/are accomplished.

RESIGNATION Resignation is the “act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and its acceptance by competent

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and lawful authority.” (Nacaytuna vs. People of the Philippines, G.R. No. 171144, November 24, 2006). It need not be in any particular form unless some form is prescribed by law. It may therefore be in writing or by parol. However, in order that there could be a complete and expressive resignation of public office, there must be: (1) AN INTENTION TO RELINQUISH A PART OF THE TERM; (2) AN ACCOMPANYING ACT OF RELINQUISHMENT. (Martin, citing State vs. Augustine, 113 MO. 21, 20 S.W. 651, 35, A.S.R. 696; State vs. Allen, 21 Ind. 516, 83); (3) RESIGNATION MUST BE ACCEPTED BY PROPER AUTHORITY. (Sangguniang Bayan of San Andres, Catanduanes vs. Court of Appeals, G.R. No. 118883, January 16, 1998) Q – Why is acceptance of resignation necessary? A – A public officer who abandons his office to the detriment of the public before his resignation in accepted is liable under Article 238 of the Revised Penal Code. Q – When is resignation deemed complete? A – It is complete when it is accepted by the proper authority. However, if there is a provision authorizing the public officer to hold over until his successor is chosen and qualified, then resignation has no effect until after the successor has entered upon the duties of the office. Q – Can resignation be withdrawn? A – 1. It cannot be withdrawn in the following instances: (a) An unconditional resignation which takes immediate effect and has been transmitted to the power authorized to accept it cannot be withdrawn even with the consent of the officer with whom it is filed; (b) An unconditional resignation which will take effect in the future cannot be withdrawn if it has been duly accepted by the proper authority, although the time at which it is to take effect has not arrived; 2. Before a prospective resignation is accepted, it may be withdrawn even if it is unconditional, if the accepting authority consents and if no new rights have intervened. (State vs. Augustine, supra) Q – Can resignation be repudiated? A – Resignation can be repudiated in the following instances: 1. When it has been transmitted without the consent of the public officer; 2. When it was procured by fraud or by duress. Q – When shall resignation be effective? A – It is effective when the public officer receives notice of the acceptance of his resignation, not on the date of the letter or notice of acceptance.

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OFFICER AUTHORIZED TO ACCEPT RESIGNATION Q – Who are the officers authorized to accept resignation? A – Whoever is the competent authority as may be provided by law. EXAMPLE: 1. Resignation of President and Vice-President 2. Members of Congress

3. Appointive public officers 4. Local elective public officials (a) Governors, Vice-governors, Mayors, Vice-Mayors of highly urbanized cities and independent component cities (b) Municipal Mayors, ViceMayors, City Mayors, and Vice-Mayors of component cities (c) Sangguniang Members

(d) Barangay Officials

7.3

1. Their resignation must be tendered to Congress. 2. Their resignation must be tendered to either the Senate or House of Representatives. 3. Their resignation must be tendered to the appointing authority. 4. Their resignation must be tendered to the following officers, to wit: (a) Their resignation must be tendered to and accepted by the President.

(b) Their resignation must be tendered to and accepted by the Governor. (c) Their resignation must be tendered to and accepted by the Sangguniang concerned. (d) Their resignation must be tendered to and accepted by the City or Municipal Mayors.

RECALL It is a mode of terminating official relationship prior to the expiration of the term of a public officer on account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2) by the registered voters of the local government unit. Q – What is recall? A – It is a mode of terminating official relationship prior to the expiration of the term of a public officer on account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2) by the registered voters of the local government unit.

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Q – What is the composition of the Preparatory Recall Assembly? A – It is composed of the following: 1. Provincial level – All Mayors, Vice-Mayors and Sanggunian Members of the municipalities and component cities. 2. City level – All Punong Barangay and Sangguniang Barangay Members in the city. 3. Legislative District level – Where Sangguniang Panlalawigan Members are elected by district, all elective municipal officials in the district; and in cases where Sangguniang Panglungsod Members are elected by district, all elective barangay officials in the district. 4. Municipal level – All Punong Barangay and Sangguniang Barangay Members in the municipality. Q – What is the procedure for initiating recall by a preparatory recall assembly? A – 1. A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. 2. Recall of provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. Q – What is the procedure for initiating recall by registered voters? A – Recall of a provincial, city, municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. a) A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and representative of the official sought to be recalled, and in public place in the province, city, municipality or barangay, as the case may be, shall be filed with the Comelec through its office in the local government unit concerned. The Comelec or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters. b) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

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PROCEDURE AFTER SAID RESOLUTION OR PETITION FOR RECALL IS FILED WITH THE COMELEC Q – What is the procedure after the resolution (of the PRA) or the petition (of the registered voters) is filed with the Comelec? A – 1. The Comelec shall set the date for the election on recall which shall not be later than thirty (30) days after the filing of the same (in the case of the barangay, city or municipal officials), and forty-five (45) days (in case of provincial officials) 2. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. (Sec. 71, Republic Act No. 7160) Q – When is the recall of an elective local official effective? A – It is effective upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. (Section 72, Republic Act No. 7160) Q – What happens if the person sought to be recalled receive the highest number of votes? A – He shall continue in office. (Ibid.) LIMITATIONS ON RECALL Q – Can an elective local official be the subject of a recall election at anytime during his term of office? A – No. REASON: (1) He can be the subject of recall election only once during his term of office for loss of confidence. (2) No recall shall take place within one (1) year from the date of the official’s assumption to office or one (1) year immediately preceding a regular local election. Q – Are the said limitations applicable to the SK election? A – No. (Paras vs. Comelec, G.R. No. 123166, November 4, 1996) 7.4

REMOVAL

Q – Can an officer or employee be temporarily transferred or assigned without his consent as a preliminary step toward his removal? A – As held in Bentain vs. CA, while a temporary transfer or assignment of personnel is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of

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office of those who are in the Civil Service. (Batangas State University vs. Bonifacio, G.R. No. 167762, December 15, 2005) Q – Can an officer or employee of the civil service be removed or suspended? A – They can only be removed or suspended for cause provided by law. (Sec. 2[3] Article IX-B,1987 Constitution) and in accordance with the procedure required by law. Q – In addition to the aforementioned rule, what else is the assurance that security of tenure is protected? The Administrative Code of 1987 lays down the following rules: 1. The grounds for discipline of civil servants are enumerated in Section 46, Book V(A). 2. The procedure of investigation is likewise provided in Section 46. 3. During the pendency of his administrative investigation the employee charged shall be subject to preventive suspension. 4. The preventive suspension shall, however, be lifted after ninety (90) days if he is not a presidential appointee unless the delay in the investigation is imputable to him. (Section 47, Book V[A] ) DOMINGO VS. DEVELOPMENT BANK OF THE PHILIPPINES G.R. NO. 93355, APRIL 7, 1992, EN BANC, REGALADO, J. (NOTE: Already discussed in connection with Section 2[3], Article IX-B, 1987 Constitution). EFFECT OF REMOVAL WITHOUT JUST CAUSE Q – What is the effect of removal without just cause and failure to comply with prescribed procedure? A – It is a reversible error and the officer or employee unlawfully removed shall be entitled to reinstatement with back salaries and without loss of seniority rights. He is considered as not having left his office and he is therefore entitled to all the rights and privileges that accrue to him. (Cristobal vs. Melchor, 101 SCRA 857) CONSIDERED AS REMOVAL EVEN IF AN EMPLOYEE IS NOT REMOVED Q – When is an officer or employee considered removed even if he was not actually removed from his office or position? A – Even if an officer or employee is not actually removed from his office or position, he is considered removed without just cause in the following instances:

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1. 2. 3.

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When he is demoted and no cause is shown to justify the same. (Floreza vs. Ongpin, 182 SCRA 692); When there is unconsented transfer; When the employee is being transferred to lure him away from his permanent position, and it is done without his consent.

RULE IN CASE OF OFFICIALS AND EMPLOYEES HOLDING CONFIDENTIAL POSITIONS Q – Until when can they remain in their positions? A – They serve at the pleasure of the appointing power. Their cessation from office involves no removal but expiration of term of office. RULE IN CASE OF TEMPORARY OR ACTING APPOINTEES Q – Until when can they remain in their positions? A – They may be removed at anytime, without the need of just cause or a valid investigation. PREVENTIVE SUSPENSION Q – What is a preventive suspension? A – It is a disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or office to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him. Q – What is the duration of the preventive suspension? A – If the investigation is not finished and the decision is not rendered within a period of ninety (90) days, the suspension will be lifted and the respondent will be automatically reinstated with full pay for the period of suspension. Q – What is the effect if his conviction is affirmed? A – The period of suspension becomes part of the first penalty of suspension or dismissal. Q – Is preventive suspension a penalty? A – Preventive suspension is not a penalty but merely a preventive measure, a preliminary step in an administrative investigation. The period served should not be considered part of the actual penalty of suspension. (Quimbo vs. Gervacio, G.R. No. 155620, August 9, 2005)

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REQUIREMENT BEFORE THE EXONERATED EMPLOYEE IS ENTITLED TO BACK WAGES Q – A, a civil service employee, was charged with dishonesty, oppression, grave misconduct, neglect of duty. Later, he was exonerated after investigation. Is he already entitled to payment of back wages after his exoneration? A – It is not enough that an employee is exonerated. It must also be shown that the suspension of the employee is unjustified. CABALITAN VS. DAR G.R. NO. 162805, JANUARY 23, 2006 FACTS: Petitioner is an employee of DAR. His officemates filed a complaint against him alleging that he sold to complainants cards ostensibly exempting the holder thereof from the Unified Vehicular Volume Reduction Program (UVVRP) of the MMDA, but that said cards were all a sham. The complainants demanded reimbursement of their money but petitioner made all kinds of excuses. The DAR Secretary formally charged petitioner with grave misconduct and found him guilty. Upon appeal, the CSC likewise found him guilty and ordered his dismissal. Petitioner filed a motion for reconsideration and the penalty was modified to nine months suspension. This was affirmed by the CA. Petitioner filed the present petition for review assailing the finding of guilt and the propriety of the penalty imposed. In addition, he asserts that he is entitled to back salaries not only due to the wrongful finding of guilt but also because he was allowed by his superiors to perform service and his employment contract had been duly renewed. ISSUE: Whether petitioner is entitled to back salaries. RULING: No. Petitioner is not entitled to back salaries because his appointment has not become effective. First, CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect earlier than the date of its issuance. Second, the appointment was not approved by the CSC. No proof was presented to show that the appointment paper was even transmitted to the CSC. The appointment thus fell short of a legal requirement under Section 12 of the Administrative Code of 1987 and its Implementing Rules and Regulations. The law requires that the appointment be submitted to the

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CSC, which will ascertain, in the main, whether the proposed appointee is qualified to hold the position, and whether the rules pertinent to the process of appointment were observed. Thus, it is essential that the appointing officer and the CSC acting together, though not concurrently but consecutively, make an appointment complete. In acting on the appointment, the CSC determines whether the appointee possesses the appropriate civil service eligibility or the required qualifications. If the appointee is qualified, the appointment should be approved. If not, it should be disapproved. In the present case, the petitioner had been issued a retroactive appointment, but said appointment never became effective. The result is that petitioner could not be entitled to back salaries for the period January 1 to July 31, 2001. CSC Resolution No. 91-1631 provides that the appointing authority shall be liable for the salaries of the appointee whose appointment became ineffective. Hence, the person from whom he can demand accountability for the payment of his back salaries, if any, is the appointing authority who allowed him to report for work, for the cited period, if indeed he was so allowed. REMEDY OF THE PARTY ADVERSELY AFFECTED BY THE DECISION Q – What are the remedies of the party adversely affected by the decision? A – Appeal, if allowable, which shall be made within 15 days from the receipt of the decision, unless a petition for reconsideration is seasonably fled, which petition shall be decided within 15 days. Q – What are the grounds of the petition for reconsideration? A – It should be based in the following grounds: 1. New evidence which has been discovered which materially affects the decision rendered; 2. The decision is not supported by the evidence on record; or 3. Errors of law or irregularities have been committed which are prejudicial to the interest of the respondent. Q – What action can be taken if the complaining party is aggrieved by the Civil Service Commission resolution? A – The petitioner can file a petition for certiorari under Rule 65, not Rule 45, of the Rules of Court, within the 30 days from receipt of the copy of the resolution. Q – Can the Civil Service Commission appeal from the resolution of the Court of Appeals exonerating the respondent and which reversed the decision of the Civil Service Commission? A – Yes, it was allowed by the Supreme Court in Civil Service Commission vs. Dacuycuy, G.R. No. 135805, April 29, 1999.

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Q – Is it always necessary that motion for reconsideration must first be filed before resorting to Certiorari under Rule 65? A – The Rule that motion for reconsideration must first be filed before resorting to Certiorari is merely a general rule. (D.C Crystal vs. Laya, 170 SCRA 734 [1989]; Purefoods Corp. vs .NLRC, 171 SCRA 415 [1989]; Philippine National Construction Corporation vs. National Labor Commission, July 7, 1995, 245 SCRA 66) The filing of such a motion is intended to afford public respondent an opportunity to correct any actual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case. Thus, petitioner’s inaction or negligence under the circumstances is respondent’s commission to cleanse itself of an error unwittingly committed or to vindicate itself of an act unfairly imputed. An improvident resort to certiorari cannot be used as a tool to circumvent the right of public respondent to review and purge its decision of an oversight, if any. Neither should this special action be resorted to as a shield from the adverse consequences of petitioner’s own negligence or error in the choice of remedies. Having allowed the decision to become final and executory, petitioner cannot by an overdue strategy, question the correctness of the decision of the respondent commission when a timely motion for reconsideration was the legal remedy indicated. (Purefoods Corporation vs. NLRC, supra) The said rule admits several exceptions. In the following cases, a Motion for Reconsideration may be dispensed with: 1. Where public welfare and the advancement of public policy so dictates, and the broader interest of justice so requires; 2. Or where the orders complained of were issued in excess of or without jurisdiction (Philippine Consumer Foundation, Inc. vs. NTC, 125 SCRA 845); 3. Or where appeal was not considered the appropriate remedy, such as appeal from orders of preliminary attachment or appointment of a receiver (Enriquez vs. Rivera, 90 SCRA 641); 4. When it would raise the same points; 5. Where the error is patent or the order is void (Aquino vs. NLRC, 226 SCRA 76 [1993]); 6. Where relief is extremely urgent as when the court has already ordered execution of partial summary judgment (Guevara vs. CA, 124 SCRA 297). Where petitioner’s property is scheduled to be sold on execution there is no need to wait for the resolution on a motion for reconsideration (Vda. de Sayman vs. CA, 121 SCRA 650 [1983]).

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COMMUTATION OR REMOVAL OF ADMINISTRATIVE PENALTIES Q – Can the President commute administrative or disabilities imposed upon officers in disciplinary cases? A – Yes, subject to such terms and conditions as he may deem proper to impose in the interest of the service. 7.5 REACHING AGE LIMIT Q – What is the compulsory retirement age for appointive government officers and employees? A – Members of the judiciary — 70 years Other government officers and employees — 65 years Q – Can government officers and employees retire before reaching compulsory retirement age? A – This is allowed under Republic Act No. 1616 provided an officer has rendered a minimum number of years of government service. Q – Can the service of officers and employees who have reached the age of 65 years but who have not yet completed 15 years of government service be extended? A – Said extension may be allowed or disallowed at the discretion of the head of the agency concerned. However, this discretion has to be exercised in conformity with Civil Service Commission Memorandum Circular No. 27. (Rabor vs. Civil Service Commission, G.R. No. 111812, May 31, 1995) Q – Can extension of service of members of the judiciary be allowed? A – Yes, especially in the case of one who has served with competence, integrity and dedication to public service. (In- Re: Gregorio Pineda, 187 SCRA 469) 7.6

ABANDONMENT It is a cause for terminating public office indicated by the action of the incumbent in voluntarily surrendering it to another under a mistaken belief that the latter has been elected as his rightful successor, or even by the acquiescing on his own removal. In order to constitute an abandonment of office, it must be total, and under such circumstances as to clearly indicate an absolute relinquishment. When once abandoned the former incumbent cannot legally repossesses the office even if by forcible re-occupancy (Martin citing State vs. Jones, 19 Ind. 356, 81 A.m. Dec. 403). There must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. (Batangas State University vs. Bonifacio, G.R. No. 167762, December 15, 2005) Distinguish abandonment from resignation Abandonment – There is a clear proof of deliberate and unjustified intent to sever the employer-employee relationship.

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Resignation – Resignation in general is a formal relinquishment. Q – A, a civil service officer, was granted of one (1) year leave of absence without pay. He failed to return to the service after the expiration of one (1) year leave without pay. What action can be done for the said employee? A – He can be automatically separated from the service. Q – A, an employee, has been absent for more than three (3) months without pay, and without a proper leave of absence. What action can be taken against him? A – He can be considered absent without leave (AWOL), and he can be dropped from the service. 7.7

PRESCRIPTION OF THE RIGHT TO OFFICE It is a mode of terminating official relationship caused by a public officer who has not been the subject of illegal ouster or dismissal. A petitioner for reinstatement or for recovery of a public office must be instituted within one (1) year from the date the petitioner is unlawfully ousted from his office. Q – What is the rationale behind the one (1) year requirement within which to file a petition for reinstatement? A – The interest of public welfare requires that the right or title to public office should not be left hanging and uncertain. Q – Is the said one (1) year requirement absolute? A – In one case, a petition was allowed by the Supreme Court, nine (9) years after the petitioner was dismissed from office on the ground of equity. 7.8 DEATH Why is death a mode of terminating official relationship? When the public official dies, he necessarily ceases to have a right to the office he holds, because he cannot, from that time, be able to perform his duties and responsibilities. 7.9

IMPEACHMENT See detailed discussion in Accountability of Public Officers, including the discussion of G.R Nos. 146710-15, March 2, 2001, entitled Joseph Estrada vs. Aniano Desierto in his capacity as Ombudsman, et al. 7. 10 FAILURE TO ASSUME ELECTIVE OFFICE Q – Besides the public official’s eligibility for public office, he should, before entering into the performance of the functions of a public office, take the oath of office. Within what time shall said public official take his oath of office?

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A – Within six (6) months from his proclamation. (Section 11, Batas Pambansa Blg. 881) Q – What is the consequence if he fails or refuses to take his oath of office within the said period? A – The office of any official elected shall be considered vacant, unless said failure is for a cause or causes beyond his control. (Ibid.) Q – During the time or in the meantime that the said official has not yet taken his oath of office, who is the rightful occupant of the office? A – The holdover officer. (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999) 7.11 ACCEPTANCE OF INCOMPATIBLE OFFICE Q – What constitutes incompatibility? A – Offices are said to be incompatible when from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. (Mechem, Pub. Off., Sec. 422.) Test of incompatibility One of the most important tests as to whether offices are incompatible, is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both. Under this principle two offices are incompatible where the incumbent of one has the power to remove the incumbent of the other though the contingency on which the power may be exercised is remote, and it also exists where the incumbent of one office has the power of appointments as to the other office. (Martin citing Atty. Gen. vs. Detroit, 112 Mich. 145, 70 N. W. 450; Haymaker vs. State [N.M.] 163 Pac. 248). But in order that one office may be adjudged incompatible with another it must clearly appear that the two offices actually exist as distinct positions and that the second is not merely and ex officio extension of the duties of the incumbent of the first. (Martin citing Moore vs. Nation, 80 Kan 672, 103 Pac. 197, 18 Am. Cas. 397) Effect of holding incompatible offices Acceptance of the second office incompatible with the first ipso facto vacates the latter. No proceeding by quo warranto or otherwise, is necessary in order to declare or complete the vacation of the first office.

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It may be at once filled again either by appointment or election as the law provides. Even though the title to the second office fails, as where the election is void, the rule is still the same. (Martin citing Zandueta vs. De la Costa, 66 Phil. 615; Mechem Pub. Off., Sec. 425) CASE: ADAZA VS. PACANA, 135 SCRA 431 In Adaza vs. Pacana, the petitioner who was then the Governor of Misamis Oriental ran for the Batasang Pambansa but lost. He subsequently assumed the governorship when Adaza became qualified as Assemblyman. Adaza questioned Pacana’s assumption of the governorship on the ground that under the parliamentary system a legislator could concurrently serve as governor, and for this reason, there was no vacancy in the governorship. The Supreme Court ruled that when Adaza took his oath as Assemblyman, he automatically forfeited the governorship. Q – In the case of Senators or Members of the House of Representatives, what is the rule on incompatible office? A – GENERAL RULE: A Senator or Member of the House of Representatives may not hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. EXCEPTION: Except if it is shown that said other office or employment is an extension of the legislative position or is in aid of legislative duties. Example: 1. Members of Congress who are appointed by the President to serve in the Peace Panel between the GRP and NDF. 2. Members of Congress who are appointed by the President to assist him during his re-negotiation for renewal of the Amari Contract. 7.12 ABOLITION OF OFFICE Q – Who has the power to abolish an office? A – An office created by Congress may be abolished by it at anytime and even while the office is occupied by a duly elected or appointed incumbent. REASON: There is no obligation on Congress or the people to continue a useless office only for the benefit of the person who holds the office. Q – Is that not a deprivation of the contractual right or property interest on the office? A – No. The employee accepts the office with the understanding that it may be abolished at anytime, and the tenure of the office is not affected by the

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constitutional provision regarding impairment of obligation of contract. (63 Am Jur. 2d 688) Can the President or local governments abolish an office? Yes, if the said power has been delegated to them, or by the people themselves when they amend the constitution. Can constitutional offices be abolished by Congress? No.

REQUIREMENT TO ABOLISH OFFICE Q – Is the right to abolish absolute? A – The abolition must be made in good faith, and not for personal or political reasons. (De la Llana vs. Alba, 112 SCRA 294) Q – What is considered as justification in good faith? A – This is to be decided based on the facts of each case (Dario vs. Mison 176 SCRA 84). Fiscal restraint and economy, for instance, was considered as a justification. (Ginson vs. Municipality of Murcia, 185 SCRA 1) Q – Is reorganization of government offices a justification to abolish an office? A – Reorganization was authorized then by President Corazon C. Aquino under and by virtue of the Freedom Constitution, but the reorganization program, according to the Supreme Court, was never intended to be an “automatic authority” to dismiss millions of government workers at the same stroke of the pen. Example: The reorganization of the Department of Agriculture under Executive Order No. 116 was set aside for failure to observe the guidelines in Executive Order No. 33 regarding removal of employees, thus: 1. Existence of a case for summary removal as provided in Sec. 40, Civil Service Law 2. Probable cause in violation of Republic Act No. 3019 3. Gross incompetence or inefficiency in the discharge of functions 4. Misuse of public office for partisan political activities 5. Analogous grounds showing that the incumbent is unfit to remain in the service. (Abaya vs CSC, G.R. No. 98027, October 4, 1994) Q – Can preventive suspension be ordered even without a hearing? A – Yes. REASON: Because suspension is not a penalty but only a preliminary step to administrative investigation.

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Q – What are the two (2) kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension? A – (1) Preventive suspension pending investigation. (Section 51, Book V, Title I, Subtitle A of the Administrative Code of 1987) (2) Preventive suspension pending appeal if the penalty imposed is suspension or dismissal and after review, the respondent is exonerated under Section 47 of the said Code. Q – The above-mentioned suspension refers to the suspension of civil service employees. Can members of Congress be suspended? A – Yes, by express provision of Section 16(3), Article VI of the 1987 Constitution, on the ground of disorderly behavior. Under this provision, it is Congress that can impose suspension. Q – Can our courts suspend members of Congress? A – In old cases (Alejandrino vs. Quezon and Osmeña vs. Pendatum, this matter was considered a political question, hence, the court refused to interfere. However, in Ceferino S. Paredes, Jr. vs. Sandiganbayan, et al., G.R. No. 118364, the Supreme Court affirmed the suspension of Congressman Ceferino S. Paredes, Jr. on the ground that the said suspension is based on alleged violation of R.A. 3019. The Supreme Court said: “x x x Petitioner’s invocation of Section 16(3), Article VI of the Constitution x x x is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of Republic Act No. 3019, which is not a penalty but a preliminary preventive measure, prescinding from the fact that the latter is not being imposed on petitioners for misbehavior as a member of the House of Representatives.”x x x (Ceferino S. Paredes, Jr. vs. Sandiganbayan, et al., G.R. No. 118364) (Underlining Supplied) 7.13 CONVICTION OF A CRIME What automatically terminates official relationship? Conviction by final judgment automatically terminates official relationship. This arises when the penalty imposed to a public officer carries with it the accessory penalty of disqualification. Q – A, a public officer, was administratively charged for dishonesty. Later, he was found guilty and he was subsequently separated from the service. He was however, given a pardon. What is the effect of the said pardon? A – The pardon completely obliterated the adverse effects of the administrative decision. He is restored to his office ipso facto upon the issuance of clemency and he is entitled to back wages. (Vicente Garcia vs. Chairman, Commission on Audit, 226 SCRA 356)

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Q – Is the benefit arising from the said clemency applicable simply because a person is granted a pardon? A – When a person is given a pardon because he did not truly commit the offense, the pardon relieves him from all punitive consequences of his criminal act, and this restores his clean name, good reputation and unstained character prior to the finding of guilt. If a public officer was just granted a pardon but there is no finding that he did not truly commit the offense, the implication is that the pardon does not completely restore the clean name, good reputation and unstained character of the said public officer. Q – Suppose former Joseph Ejercito Estrada was convicted in the impeachment proceeding, what is the penalty that would have been imposed against him? A – (1) Section 7(3), Article XI, specifies the following effects: a. Removal from office; b. Disqualification to hold any office under the Republic of the Philippines; c. In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. Q – If President Estrada was acquitted in the impeachment proceeding, can he be subsequently subject to prosecution, trial, conviction and punishment in the regular courts of justice? A – No. Because the last sentence of Section 3(7), Article XI, states that it is only in case of his conviction by the impeachment court that he shall be liable to prosecution, trial, and punishment according to law. This means that if he is acquitted, he cannot be liable and subject to prosecution, trial, and punishment. Q – If President Estrada was convicted in the impeachment proceeding and thereafter criminally prosecuted for the offense which warranted his conviction on impeachment, can he plead the defense of double jeopardy? A – No. As I already stated, the penalty which the Senate may impose shall be limited to removal from office and disqualification to hold any office under the Republic of the Philippines. This penalty is beyond the reach of the President’s power of executive clemency, but does not place the officer beyond liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy.

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Q – If President Estrada resigned before the rendition of judgment by the impeachment court, does his resignation place him beyond the reach of impeachment for offenses committed during his tenure? A – No. REASON: While it is true that he is already resigned and can no longer be removed from his office, there is still a penalty which can be imposed even after his resignation and that is the penalty of “disqualification to hold any office under the Republic of the Philippines.” 7.14 FILING OF CERTIFICATE OF CANDIDACY Why is the filing of certificate of candidacy a mode of terminating official relationship? It is a mode of terminating official relationship by express provision of Sections 66 and 67, Batas Pambansa Blg. 881, which provides as follows: “Sec. 66, B.P. 881 provides: “Any person holding a public office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.” a) In PNOC Energy Development Corporation vs. NLRC, G.R. No. 100947, May 31, 1993, it was held that this section applies even to employees of government-owned or -controlled corporations without an original charter.” “Sec. 67, B.P. 881, provides: “Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.” 8.

Liability of Public Officers

What is the liability of a public officer for injuries sustained by another as a result of his official acts? If a public officer performs his official acts within the scope of his official authority, he is not liable for said injuries, unless otherwise provided by law. Same question, as aforementioned. Is he civilly liable? No, unless there is a clear showing of bad faith, malice or negligence. (Section 38[1], Chapter 9, Book I, Administrative Code of 1987) What is the liability of the subordinate officer or employee for acts done by him in good faith in the performance of his duties? He is not civilly liable but he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good

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customs even if he merely followed the orders or instructions of his superiors. (Ibid.) When may a public official be held liable, on his personal capacity, for exemplary damages? In the case of Sison vs. Court of Appeals, G.R. No. 124086, June 26, 2006, the Court held that by reason of petitioner’s inordinate delay, damage was caused in resolving respondent’s claims. As a public official, petitioner ought to have acted with the highest degree of excellence, professionalism, intelligence and skill. Thus, petitioner was held liable in his personal capacity, for exemplary damages. OTHER LIABILITIES OF A PUBLIC OFFICERS What is the liability of public officers in connection with the following: (1) TORT; (2) CONTRACTS; (3) ACTS OF THEIR SUBORDINATE (1)

FOR TORTS – Unauthorized acts of government officials are not acts of the State, hence, a public officer may be personally liable for damages for such unauthorized acts. A public officer claims that he merely performed acts in connection with his official duties. Can he be held personally accountable for his said acts? No, unless it is proven that he acted in ultra vires, or in bad faith.

(2)

(3)

Example: Dismissing employees on account of partisan political reasons (Rama vs. Court of Appeals, 148 SCRA 496) FOR CONTRACTS – A public officer who acted without authority or in excess of his authority shall be personally liable on contracts he enters into. If he acted within the scope of his authority and in his official capacity, he is not personally liable on contracts he executed in behalf of the government unless he expressly and unequivocally agrees to be bound. FOR ACTS OF SUBORDINATES – (1) Where there being charged with the duty of employing or retaining his subordinates, he negligently or willfully employs or retains unfit or improper persons; (2) Where, being charged with the duty to see that they are appointed or qualified in a proper manner, he negligently or willfully fails to require of them the due conformity to the prescribed regulations; (3) Where he so carelessly or negligently oversees, conducts or carries the business of his office as to furnish the opportunity for the default; or (4) And fortiori when he has directed, authorized, or cooperated in the wrong. (Mechem, Pub. Off., Section 790)

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EIGHT (8) OTHER ANCILLIARY PRINCIPLES 1. 2. 3. 4. 5. 6. 7. 8.

Preference for appointment to new position Can a person be compelled to accept an office? Presidential power of appointment Authority to determine the kind or nature of appointment Revocation of appointment of CSC Meaning of the term qualification Determination through competitive examination Hold over rule

EXPLANATION OF EACH ANCILLIARY PRINCIPLE 1. Preference for appointment to new position Section 4 of Republic Act No. 6656 provides: “Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank. (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission, G.R. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) REASON: The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. (Ibid.) 2. Can a person be compelled to accept an office? No. REASON: There is no law which can compel a person to accept an office except as may be required under Section 4, Article II of the 1987 Constitution which provides as follows: “Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.” 3. Presidential power of appointment 1. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers

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lower in rank in the President alone, in the courts; or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 2. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman or heads of bureaus or offices including governmentowned or controlled corporations and their subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution) 3. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. 4. Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII) 5. The appointees of the President must possess the required qualifications. The appointee concerned may be questioned in appropriate court proceedings. Authority to determine the kind or nature of appointment The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing power. What it can do is only either to approve or review the appointment to see to it that the requirements of the Civil Service Commission are complied with. When all legal requirements are complied with and the appointee is qualified what the Civil Service Commission has to do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327) Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme Court ruled that what the Civil Service Commission may do is just to determine whether or not the appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment is approved, and if not, his appointment is disapproved. A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further the ruling in Lopez and said: “As long as

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the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases, the Commission would be well within its right – and responsibility – in refusing to approve the appointment.” (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991, En Banc, Cruz, J.) Revocation of appointment by CSC The Supreme Court ruled: “The Civil Service Commission has no authority to revoke an appointment simply because it is believed that another is better qualified than the appointee for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority.” (Lopez vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr., J.) Meaning of term qualification It is understood in different senses: (1) It may refer to the qualities or endowments required of the public officer in order that he may be considered eligible for public office (i.e., age, citizenship, and academic qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his office (i.e., taking the oath of office) In the first one, the person appointed or elected must possess the prescribed qualifications at the time of his appointment or election and during the period of the official relationship. In the second, the failure to perform an act required by law could affect the officer’s title to the given office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that “the office of any official elected who fails or refuses to take his oath office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are required to be properly bonded] Determination through competitive examination The following are exempted from the requirement of competitive examinations:

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1.

8.

Policy-determining position – A position held by one whose duty is to formulate policies and guidelines of the government. 2. Primarily confidential position – A position held by one in whom personal trust and confidence is reposed by the appointing power. 3. Highly technical position – A position held by one possessing superior technical training Hold-over rule It is a rule which declares that in the absence of an express or implied constitutional or statutory provisions prohibiting hold-over, an officer is entitled to hold his office until his successor is appointed and qualified. This rule prevents disruption of public service in the meantime that a successor is not yet appointed and qualified to assume the functions of the office. CASES: PLAZA VS. CASSION, ET AL. G.R. NO. 136809, JULY 27, 2004 Being dropped from the roll of employees without prior notice is not a disciplinary measure. Change of respondents’ place of work from the original CSSDO office to the DSWD building is not a transfer. It is merely a physical transfer.

FACTS: Prior to the enactment of the Local Government Code (R.A. No. 7160), delivery of social services was dispensed by the national government through the DSWD. Upon the promulgation of the said law, some of DSWD’s functions were transferred to the local government units. The City of Butuan passed resolutions and orders reconstituting the City Social Services Department Office devolving and transferring thereto 19 DSWD employees. Their office was transferred from the original CSSDO Building to the DSWD Building. The respondents who composed the original CSSDO refused to report to work despite the orders of the Mayor. After an administrative investigation, they were charged administratively for grave misconduct and were preventively suspended for 60 days. Upon the recommendation of the CSC, the Mayor of Butuan City dropped the respondents from the roll of employees without prior notice. ISSUE: 1.

Were the respondents denied due process on the ground that they were dropped from the roll of employees without prior notice?

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Is the order of preventive suspension a violation of respondent’s security of tenure as they were transferred from one office to another?

HELD: 1.

2.

The dropping from the rolls of private respondents is not disciplinary in nature in accordance with the Memorandum Circular No. 38 of the Civil Service Commission, Series of 1993 and the ruling of the CSC. Since the dropping from the rolls is not an administrative sanction, their was no violation of due process and it is not necessary that they should be notified or heard. The change of respondents’ place of work from the original CSSDO office to the DSWD building is not a transfer. It was only a physical transfer of their office to a new one done in the interest of public service. There were no new movements or appointments from one position to another. Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service and may be imposed as an administrative penalty. CSC VS. SATURNINO DE LA CRUZ G.R. NO. 158737, AUGUST 31, 2004 The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority. The power to appoint is in essence discretionary on the part of the proper authority.

FACTS: The respondent was promotionally appointed as Chief of the Aviation Safety Regulation Office, Air Transportation Office (ATO). Prior to this appointment, he was a Check Pilot II in the ATO. He passed the rigid screening of the ATO personnel Selection/Promotion Board as well as the corresponding oral and written examination. However, it was claimed that respondent did not meet the 4-year supervisory requirement for the said position. The Civil Service Commission disapproved his appointment. The Court of Appeals reversed the decision of the Civil Service Commission. ISSUE: Is the appellate court correct in setting aside and in reversing the decision of the Civil Service Commission?

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HELD: 1.

2.

3. 4.

The appellate court is correct REASON: The rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail the agency’s discretionary power to appoint, as long as the appointee possesses the other qualifications required by law, considering that the respondent’s total work experience is sufficient to meet the supervisory standards thereby finding respondent qualified for appointment to the contested position. Respondent’s promotional appointment was issued in accordance with the petitioner’s selection process. Respondent passed the rigid screening of the ATO personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board. Respondent’s multifarious experience and trainings in the air transportation were taken into account when he was chosen for the subject position. It is elementary in the law of the public officers that the power to appoint is in essence discretionary on the part of the proper authority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority. JOSE M. CARINGAL VS. PCSO G.R. NO. 161942, OCTOBER 13, 2005 An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security of tenure. It could be withdrawn at will by the appointing authority and “at a moment’s notice,” conformably to established jurisprudence.

FACTS: Atty. Jose Caringal was appointed Assistant Department Manager II in PCSO’s legal Department. When a new PCSO chairman was appointed, Atty Caringal was appointed to the Assets and Investments Department. Atty Caringal contested his reassignment as a constructive dismissal. Thereafter, he filed an administrative complaint for constructive dismissal and culpable violation of the Constitution on civil service appointments. Subsequently, the PCSO Board of Directors issued a resolution terminating Atty Caringal’s

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employment on the ground that he does not possess Career Executive Service Eligibility. Thereafter, he was informed that his temporary appointment as Assistant Manager II is terminated. The CSC, in the meantime dismissed petitioner’s complaint for constructive dismissed on the ground that he does not enjoy security of tenure and his appointment is temporary in nature and he may be replaced with one who has Career Executive Service Eligibility. He appealed to the Court of Appeals which affirmed the decision of the CSC. Atty Caringal appealed to the Supreme Court. RULING: An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security of tenure. There is no question that petitioner does not possess the required CES eligibility. Hence, he has no security of tenure as his appointment is merely temporary. To be sure, his appointment did not attain permanency. Such being the case, it can be withdrawn from him anytime without violating the constitutionally guaranteed right to security of tenure. In Achacoso vs. Macaraig (195 SCRA 235 [1991]) we held: It is settled that a permanent appointment can be issued only “to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed.” Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and “at a moment’s notice,” conformably to established jurisprudence DOH VS. COMPASANO G.R. NO. 157684, APRIL 27, 2005 The actual exercise of the disciplining authority’s prerogative requires a prior independent consideration of the law and facts. Failure to comply with this requirement results in an invalid decision. FACTS: The resident Ombudsman in the Department of Health conducted an investigation regarding alleged anomalous purchases made by the respondents. The Secretary of Health filed a formal charge against the respondents. Thereafter, the Executive Secretary issued an administrative order creating an Ad Hoc Committee to investigate the administrative case filed against said respondents. The same was indorsed by the Presidential Commission Against Graft and Corruption, which took over the investigation from the Department of Health and resolved the case by recommending the dismissal of the respondents. Pursuant to the said resolution of PCGG, the Secretary of Health dismissed the respondents.

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ISSUE: 1.

Is the dismissal valid and justified?

HELD: 1.

2.

Non-compliance with the sixth requisite is evident from the Health Secretary’s order dismissing the respondents. The Health Secretary has the competence and the authority to decide what action should be taken against officials and employees who have been administratively charged and investigated. However, the actual exercise of the disciplining authority’s prerogative requires a prior independent consideration of the law and facts. Failure to comply with this requirement results in an invalid decision. The disciplining authority should not merely and solely rely on an investigator’s recommendation, but must personally weigh and assess the evidence gathered. Due process in administrative proceedings requires compliance with the following cardinal principles: (1.) the respondents’ right to hearing, which includes the right to present one’s case and submit supporting evidence, must be observed; (2.) the tribunal must consider the evidence presented: (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5.) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.

NOTE: It is the sixth requisite, as aforementioned, which was not complied with. ATTY LELU P. CONTRERAS VS. TERESITA O. MONGE A.M. NO. P-05 2040, JANUARY 24, 2006 Monge’s failure to notify her office of her absences is sufficient cause to discipline respondent. The Civil Service Rules require that in case of absence because of sickness, the employee is required to give notice of absence to the immediate supervisor and/or the agency head. FACTS: Complainant alleged that respondent, Clerk IV in the Regional Trial Court of Iriga City, verbally assaulted her on July 20, 2000, a few days after respondent returned from a long absence from office. On that day, Executive Judge

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Ernesto B. Amisola came to complainant’s office. It was on this occasion when respondent complained to said Judge about a memorandum the complainant issued to respondent. Complainant heard respondent and tried to butt in but respondent prevented her and told her to shut up. Respondent continued her verbal tirage even after Judge Amisola left complainant’s office. Thereafter, respondent left the office loudly uttering “Di ako makipag-level kanino ta pagtaod mo pirmi ikang tama!” (I will never level with you because you think you are always right!) The above-mentioned memorandum was issued by complainant to respondent on July 11, 2000 because of the latter’s failure to give official notice of her sick leave of absence for a period of four weeks. Instead of acknowledging her fault, respondent mockingly stated that she received a memorandum instead of a get well card. When she finally came back to work she did not report to complainant personally. The investigating Judge submitted a report finding no evidence of gross insubordination or disrespect, but only a failure on the part of respondent to give notice of her absence to complainant or the office. He also found that the alleged alteration of respondent’s performance rating was valid and not without authority and that complainant did not commit any misconduct towards Judge Agawa. Complainant, however, admitted that she cross-stitched during break time and lull hours and that she directed employee Eleno Gonzales to do unofficial work. The Office of the Court Administrator, concurring with the findings of the Investigating Judge, recommended that respondent be reprimanded and sternly warned of more severe penalty in case of repetition of her violation of the Civil Service Rules for failing to give notice of her absence, and that complainant, for directing her subordinate to do extra work during office hours, be advised to be more circumspect in the performance of her duties. RULING: We agree with the Court Administrator and the Investigating Judge that Monge’s failure to notify her office of her absences is sufficient cause to discipline respondent. The Civil Service Rules require that in case of absence because of sickness, the employee is required to give notice of absence to the immediate supervisor and/or the agency head. Since application for sick leave is filed after the absent employee returns to work, the office concerned should at least be properly notified of the absence due to an illness. Respondent Monge neither made a call to notify the office nor she did she have someone inform the office about her absence. She only made the call after the memorandum was sent to her. It was only when her co-workers brought some documents to her house for her to sign that they learned she was sick. Clearly, respondent failed to comply with the notice of absence required by the Rules. Considering that her failure is only a light offense, the imposable

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penalty is a reprimand, with warning that a more severe penalty will be imposed should she repeat the offense or commit a similar offense. MULTIPLE CHOICE QUESTIONS 1.

2.

3.

Nature of an ad-interim appointment A. It is a temporary appointment B. It is an appointment made while Congress is not in session, hence, it is still subject to the confirmation of the Commission on Appointments, and therefore it is not yet a permanent appointment. C. An ad-interim appointment has no fixed term of office and employment and can be terminated at the pleasure of the appointing authority, it is still therefore of a temporary nature. D. An ad-interim appointment is permanent in nature, and the circumstance that it is subject to the confirmation by the Commission on Appointments does not alter its permanent character. Is the Civil Service Commission authorized to determine the kind or nature of the appointment extended by the appointing officer, or will it just attest to the appointment in accordance with the Civil Service Law. A. When all the legal requirements are complied with and the appointee is qualified, what the Civil Service has to do is only to attest to the appointment. B. The function of the Civil Service Commission is precisely to see to it that the appointee is qualified and eligible, hence, it has the authority to do both. C. As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. D. In cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question, the Commission would be well within its right and responsibility in refusing to approve the appointment. Mr. A was not validly appointed, he is not eligible, and he occupies a legitimate office. Is he a de jure or de facto officer. A. He is a de jure officer as long as nobody is questioning his appointment.

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He is a de jure officer because he occupies a legitimate office. He is neither a de jure nor a de facto officer because he was not validly appointed. D. He is a de facto officer because he is in possession of the office under color of right, without being legally qualified to act! Can a de facto officer claim salary or compensation? A. Not having a good title, he cannot claim salary or compensation. B. He can claim salary or compensation if there is no de jure public officer. C. He can claim salary or compensation and even allowances because that is what our Constitution provides for one position. D. He can claim salary or compensation because it is iniquitous to deny the salary due to a de facto officer for services he actually rendered. Mr. A was validly appointed but the office itself to which he was appointed is void. Is he a de jure or de facto officer? A. He is a de jure officer because he was validly appointed. B. He is a de facto officer because the office itself to which he was appointed is void. C. He is a de jure officer until his appointment is declared void by the court. D. He is neither a de facto officer nor a de jure officer for no office at all exist. Suppose there is an EDSA PEOPLE POWER III, and the newly elected President calls for a revamp of his cabinet. Constitutional officers A & B submitted courtesy resignations. Constitutional officers E & F, refused to vacate their positions. What is the legal effect of all these developments? A. Upon the successful conclusion of EDSA PEOPLE POWER III, all the terms of these Constitutional Officers are deemed expired. B. Upon the successful conclusion of EDSA PEOPLE POWER III, the new President can appoint new Constitutional Officers to replace the former Constitutional Officers. C. Upon the successful conclusion of EDSA PEOPLE POWER III, the courtesy resignations of A & B resulted in the expiration of their terms. The new President may request C B. C.

4.

5.

6.

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& D to submit their courtesy resignations, but if they refuse to do so, the new President may appoint new ones to replace them on the theory that the successful conclusion of EDSA PEOPLE POWER III gives him a mandate to effect the changes in government as he may deem necessary and proper and which he thinks will be advantageous to the government and to the country as a whole. ELECTION LAW I. GENERAL PRINCIPLES Q – Define election. A – It is the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being, as their representatives, the exercise of the powers of government. Q – What are the two (2) kinds of election? A – General election – is one provided for by law for the election of officers throughout the State, or certain subdivisions thereof, after the expiration of the full term of the former officers. Special election – is one provided for by law under special circumstances such as when an election is held to fill a vacancy in office, or when an election is being held because a certain proposal is submitted to the vote of the qualified electors. Q – Define suffrage. A – Suffrage is the right to vote in the election of all officers chosen by the people, and in the determination of all questions submitted to the people. Q – What are the different theories of suffrage? A – (1) It is a natural and inherent right of every citizen by virtue of his membership in the State, provided he is not disqualified on account of his own reprehensible conduct or unfitness. (Natural right theory) (2) It is a public office or function conferred upon those who are fit and capable of discharging it. (Social expediency theory) (3) It is regarded as a necessary attribute of membership in the State. (Primitive tribal theory) (4) It is regarded as an adjunct of a particular status, generally tenurial in character. It is a vested privilege usually accompanying the ownership of land. (Feudal theory) (5) It regarded as a necessary and essential means for the development of industrial character. (Ethical theory) (Garner, Political Science and Government, 543)

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Q – Distinguish suffrage from election. A – Suffrage is a broader term than election because it includes not only the means by which public officers are chosen for public positions, but also the expression of the choice of the people on a proposed law or enactment submitted to them for decision. Election is limited to the expression of a choice of the voters in the selection of their officers. Q – What is the system of election adopted in the Philippines? A – The Australian Ballot System which was first conceived in 1901 by Francis S. Dutton, a member of the Legislature of South Australia. This system is adopted by many countries in Europe and its distinguishing feature is strict secrecy in balloting. Q – Why is suffrage both a right and a privilege under the Constitution? A – It is a right because it is the expression of the sovereign will of the people (Lacson vs. Posadas, 72 SCRA 468 [1976]). It is a privilege because its exercise is granted not to everybody but only to “such persons or class of persons are as most likely to exercise it for the purpose of public good.” (People vs. Corral, 62 Phil. 945, 948 [1936]) Q – What is the theory upon which suffrage is based? A – The right of suffrage is predicated on the theory that the people who bear the burden of government should share the privilege of choosing the officials of that government. Q – Explain the principle that “the enfranchised citizen or voter is the trustee of the people.” A – In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people in clothing a citizen with the relative franchise for the purpose of securing a consistent administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (Abanil vs. Justice of the Peace of Bacolod, 70 Phil. 28, 31 [1940]; Lacson vs. Posadas, 72 SCRA 168 [1976]) Q – What is the importance of safeguarding the integrity of the ballot? A – A republic then to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted. Only thus can they be really looked upon as the ultimate source of established authority. It is their

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undeniable right to have officials of their unfettered choice. The election law has no justification except as a means for assuring a free, honest and orderly expression of their views. It is of the essence that corruption and irregularities should not be permitted to taint the electoral process. (Bailles vs. Cabili, 27 SCRA 113, 121-122 [1969]) Q – Why do we condemn the derogation of the right of suffrage? A – To impede, without authority, valid in law, the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the democratic process. The sovereign right of suffrage must not be thwarted nor defiled without imposing upon those who attempt to do so the severest penalties of the law. (Hontiveros vs. Mobo, 39 Phil. 230 [1918]; Ozamis vs. Zosa, 34 SCRA 424 [1970]) CASES Q – Does the power to enforce and administer election laws and to insure free, orderly and honest elections include the power to annul an election which may not have been free, orderly and honest? A – The power to decide election contests necessarily includes the power to determine the validity or nullity of the votes questioned by either of the contestants (Nacionalista Party vs. Commission on Elections, 85 Phil. 149). Further, in connection with the power to determine the validity or nullity of the questioned votes, the Supreme Court upheld the authority of the Commission on Elections to exclude election returns on the ground of statistical improbability (Lagumbay vs. Commission on Elections, 16 SCRA 175[1966]). Election returns which were the products of coercion were also excluded and the power of the Commission on Elections to exclude the same was also upheld (Antonio, Jr. vs. Commission on Elections, 32 SCRA 319 [1970]). Likewise, the Commission on Elections has also the power to obtain the testimony of handwriting experts to be able to determine if the election returns are falsified or not. (Usman vs. Commission on Elections, 42 SCRA 667 [1971]) Q – Is it the Comelec or the court which has the power to declare failure of election? A – In Antonio, Jr. vs. Comelec (32 SCRA 319 [1970]), the Supreme Court ruled that the power to declare a failure of election involved the power to decide election contests which belonged not to the Commission on Elections but to the courts and the proper Electoral Tribunals. This was also the same ruling in Abes vs. Comelec. (21 SCRA 1252 [1967]) The Supreme Court, however, upheld the power of the Commission on Elections to annul an entire municipal election on the ground of postelection terrorism, not on the basis of its expanded jurisdiction over

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election contests. This ruling in Biliwang vs. Comelec (114 SCRA 454 [1982] which modified the ruling in Antonio vs. Comelec (32 SCRA 454 [1982]), is anchored on the broader power of the Commission on Elections to protect the integrity of the election so that the will of the electorate is not defeated. Can the COMELEC refuse to hold elections due to operational, logistical and financial problems? In the case of Sambarani v. COMELEC, G.R. No. 160427, September 15, 2004, the Court held that the operational, logistical and financial problems which COMELEC claims it will encounter with the holding of a second special election can be solved with proper planning, coordination and cooperation among its personnel and other deputized agencies of the government. A special election will require extraordinary efforts, but it is not impossible. Does the Comelec have the authority to call a special election? The authority to call a special election was upheld in Sanchez vs. Commission on Elections (32 SCRA 319 [1970]) on the ground that failure of election justifies the calling of a special election in order to make the Comelec truly effective in the discharge of its functions. Just like the Biliwang case, the justification in Sanchez is anchored again on the broader power to insure free, orderly and honest elections so that the will of the electorate is not defeated. Is the prohibition on conducting special elections after thirty days from cessation of the cause of the failure of elections absolute? The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 of the Omnibus Election Code cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law. (Sambarani vs. COMELEC, G.R. No. 160427, September 15, 2004)

INTERPRETATION OF ELECTION LAWS Election laws are liberally and equitably construed to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:

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“x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.” Hence, the Supreme Court ruled in Frivaldo vs. Comelec, thus: “The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate’s qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote.” (Frivaldo vs. Commission on Elections, et al., G.R. No. 120295; Lee vs. Commission on Elections, G.R. No. 123755, June 28, 1996, En Banc, Panganiban, J.) (Underlining Supplied) II. COMMISSION ON ELECTIONS (FULL DISCUSSION, INCLUDING THE CONSTITUTIONAL PROVISIONS AND THE CASES INVOLVED, ARE FOUND IN CHAPTER VI, ARTICLE IX, CONSTITUTIONAL COMMISSIONS) III. STAGES, POINTERS AND PROCEDURES BEFORE, DURING AND AFTER ELECTION SIMPLIFICATION: PART I BEFORE ELECTION

PART II DURING ELECTION

PART III AFTER ELECTION

1. Counting of votes 1. Casting of votes Registration 2. Challenge of illegal 2. Board of Election Challenge Inspectors voters Inclusion 3. Records of challenges 3. Appreciation of Exclusion Ballots and oaths Voters/Qualifications a. Minutes of voting 4. Election returns and Disqualifications and counting of 5. Announcement of the 6. Certificate of votes results of the Election Candidacy and issuance of the

1. 2. 3. 4. 5.

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7. Precincts and Polling b. List of unused ballots Places 8. Ballot boxes 9. Watchers 10. Petition to Deny Course to or to Cancel a Certificate of Candidacy 11. Political parties 12. Election Campaign/ Expenditures and Propaganda

6. 7. 8.

9. 10. 11. 12. 13. 14.

certificate of votes received Canvass and Proclamation Pre-proclamation controversy Election protest against a proclaimed candidate Original and exclusive jurisdiction Appellate jurisdiction Requisites of election protest Quo warranto, its requisites Election offenses Appeal

PART I. BEFORE THE ELECTIONS POINTERS 1. A voter must possess the qualifications for suffrage. If he possesses all the qualifications and none of the disqualifications, a qualified voter may vote in any election, plebiscite or referendum only if he is registered in the list of voters for the city or municipality in which he resides. (Section 115, B.P. 881) 2. Election Registration Board. There shall be as many Election Registration Boards as there are election officers in each city or municipality. 3. General Registration of voters. The Comelec shall undertake a general registration of voters. (Voters Registration Act of 1996) 4. System of continuing registration: The personal filing of application of registration of voters shall be conducted daily in the Office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before the special election. (Section 8, Republic Act No. 8189) PROCEDURE: 1. Application for Registration may be challenged Requirements: (a) Challenge must be in writing, under oath and attached to the

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application, together with the proof of notice of hearing to the challenger and applicant. 2. Said challenge may be opposed (a) It must be filed not later than the second Monday of the month in which the same is scheduled to be heard or processed by the Election Registration Board. 3. Said challenge shall be heard (a) It shall be heard on the third Monday of the month and the decision shall be rendered before the end of the month. 4. Registration records may be deactivated by the Election Registration Board (a) What are the records that may be deactivated? The registration records of the following persons may be deactivated: 1. Those who have been sentenced by final judgment to suffer imprisonment for not less than one year, and such disability have not been removed by plenary pardon or amnesty. Can said persons automatically reacquire right to vote? Yes, upon expiration of 5 years after service of sentence as certified by the clerk of court. 2. Those who have been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime involving national security, unless restored to his full civil and political rights in accordance with law. Can they regain their right to vote? Yes, upon expiration of five years from service of sentence. 3. Those declared by competent authority to be insane or incompetent. Can they regain their right to vote? Yes, upon declaration of a proper authority that said persons are no longer insane or incompetent. 4. Those who did not vote in two successive regular elections (SK Elections are not included). 5. Those whose registration have been ordered excluded by the court. 6. Those who have lost their Filipino citizenship. (Section 27, Republic Act No. 8189) Q – How can a voter reactivate his registration? A – He may file with the Election Officer a sworn application for registration

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in the form of an affidavit stating that the grounds for deactivation no longer exist. When should the said application be filed? Not later than 120 days before a regular election and 90 days before a special election. Who shall decide this? The Election Officer shall submit such application to the Election Registration Board for appropriate action. (Section 28, Republic Act No. 8189)

PROCEDURE FEW MONTHS BEFORE ELECTIONS 1.

2. 3. Q – A –

Q – A –

90 DAYS BEFORE REGULAR ELECTION AND 60 DAYS BEFORE SPECIAL ELECTION The Election Registration Board shall prepare and post a certified list of voters, furnish copies thereof to the provincial, regional and national central files. What else shall be posted? Copies of the certified list, along with a list of deactivated voters categorized by precinct per barangay. Where shall it be posted? In the Office of the Election Officer and in the bulletin board of each city/ municipal hall. PETITION FOR INCLUSION PETITION FOR EXCLUSION Who may file a petition for inclusion? Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except 105 days prior to a regular election or 75 days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within 15 days after its filing. (Section 34, Republic Act No. 8189) Who may file a petition for exclusion? Any registered voter, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except 100 days prior to a special election. The petition shall be accompanied by proof of notice

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to the Board and to the challenged voter, and shall be decided within 10 days from its filing. (Section 35, R.A. 8189) Can any book of voters be annulled? Yes, for the following grounds: 1. When the book of voters is not prepared in accordance with the provisions of Republic Act No. 8189. 2. When the book of voters was prepared through fraud, bribery, forgery, impersonation, force or any similar irregularity. 3. When the book of voters contains data that are statistically improbable. What is the limitation regarding annulment of book of voters? An order, ruling or decision annulling a book of voters shall not be executed 90 days before an election. Assuming that a book of voters is annulled, is it a ground for a preproclamation controversy? No. (Ututalum vs. Comelec, 181 SCRA 335)

RULES REGARDING INCLUSION, EXCLUSION AND CORRECTION OF NAMES OF VOTERS PETITION 1. 2.

3. 4. 5. 6. 7.

It shall be filed during office hours. Upon filing of the petition, the members of the board and the challenged voter shall be notified of the place, date and time of the hearing of the petition. The Election Registration Board shall be impleaded as respondents. A petition shall refer only to one precinct. Any voter, candidate or political party affected by the proceedings may intervene and present his evidence. No costs shall be assessed against any party. If the court finds that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses. (Section 32, Republic Act No. 8189)

HEARING AND DECISION 1. 2. 3.

The petition shall be heard and decided within ten (10) days from date of its filing. The decision shall be based on the evidence presented. The decision shall not be rendered upon a stipulation of facts.

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If the question is whether or not a voter is real or fictitious, his nonappearance on the day of the hearing shall be prima facie evidence that the challenged voter is fictitious. (Section 32. Republic Act No. 8189)

APPEAL 1. 2.

If the decision of the MTC or MTC is appealed, the same shall be filed in the RTC which shall decide it within 10 days from receipt of appeal. The petition shall be decided by the court not later than 15 days before the election and the decision shall become final and executory. (Section 32[g], Republic Act No. 8189)

JURISDICTION IN INCLUSION AND EXCLUSION PROCEEDINGS Q – What court has jurisdiction over inclusion and exclusion proceedings? A – The Municipal Trial Court and the Metropolitan Trial Courts shall have original and exclusive jurisdiction in their respective cities and municipalities. Q – Can the decision of said courts be appealed? A – Yes, as aforementioned. VOTES IN FAVOR OF A POLITICAL PARTY Q – Can qualified voters cast their votes in favor of a political party? A – Yes, if said political party in registered under the party list system. (Section 7, Article IX-C) Q – What is a party? A – A party means either a political party or a sectoral party or a coalition of parties. Q – Define the following: (a) political party; (b) sectoral party; and (c) coalition of parties? A – Political Party A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates some of its leaders and members as candidates for public office. When is a political party a national party? It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions.

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When is a political party a regional party? It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. Sectoral Party – A sectoral party refers to an organized group of citizens belonging to any of the following sectors; labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals, whose principal advocacy pertains to the special interest and concerns of their sector. Sectoral Organization – A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interest or concerns. Coalition – A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. REGISTRATION IS NEEDED TO BE ABLE TO PARTICIPATE IN THE PARTY-LIST SYSTEM Q – What is the procedure? A A group that likes to participate in the party-list system must file a verified petition in the Comelec stating its desire to participate in the party-list system, either as a national, regional, sectoral party or organization or a coalition of such parties or organizations. Q – What cannot be registered as political parties? A – 1. Religious denominations or sects; 2. Those who seek to achieve their goals through violence or unlawful means; 3. Those who refuse to uphold and adhere to the Constitution; and 4. Those supported by foreign governments. (Section 2[5], Article IX-C) Q – Can registration of any national, regional, sectoral party, organization or coalition be cancelled? A – Yes, on the following grounds: 1. It is a religious sect or denomination, organization or association organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or

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through any of its officers or members, or indirectly through third parties, for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one year; and 8. It fails to participate in the last two preceding elections, or fails to obtain at least 2% of the votes cast under the party-list system in the two preceding elections for the constituency in which it was registered. Q – Are political parties registered under the party-list system entitled to poll watchers? A – Yes, by express constitutional provision. (Section 8, Article IX-C) JUST AS THERE ARE QUALIFICATIONS AND DISQUALIFICATIONS TO QUALIFY A CITIZEN TO VOTE, THE CANDIDATES HAVE ALSO THEIR OWN QUALIFICATIONS AND DISQUALIFICATIONS Q – What is a candidate? A – Under the Omnibus Election Code, the term candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate or candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. (B.P. Blg. 881, Section 79[a]) Q – What are the qualifications of a candidate? A – It depends on the position he is aspiring for. For President and Vice-President. Section 2, Article VII provides for the following qualifications: 1. He must be a natural-born citizen of the Philippines; 2. He must be a registered voter; 3. He must be able to read and write; 4. He must at least be forty years of age on the day of the election; 5. He must be a resident of the Philippines for at least ten (10) years immediately preceding such election. (Section 2, Article VII) Senators 1. A natural-born citizen of the Philippines; 2. Thirty-five years of age on the day of the election; 3. Able to read and write; 4. A resident of the Philippines for not less than two years immediately preceding the day of the election. (Section 3, Article VI)

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Members of the House of Representatives 1. A natural-born citizen of the Philippines; 2. Thirty-five years of age on the day of the election; 3. Able to read and write; 4. A resident in the district for a period of not less than one (1) year immediately preceding the day of the election. (Section 6, Article VI) Elective Local Officials 1. Must be a citizen of the Philippines; 2. A registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, in the district where he intends to be elected; 3. A resident therein for at least one (1) year immediately preceding the day of the election; 4. Able to read and write Filipino or any other local language; 5. A resident of the Philippines for not less than two years immediately preceding the day of the election. (Section 39[a] of Republic Act No. 7160, Local Government Code) Section 39(b), (c), (d), (e) and (f) provides as follows: “(b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. “(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least be twenty-one (21) years of age on election day. “(d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. “(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. “(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day. DISQUALIFICATIONS OF CANDIDATES Q – What are the disqualifications of a candidate?

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A – “Section 68. Disqualifications – Any candidate who, in an action or protest in which he is party is declared by final decision of a competent court guilty of, or found by the Commission of having – (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.” NOTE: 1. Section 80 – Election campaign or partisan political activity outside campaign period 2. Section 83 – Removal, destruction or defacement of lawful election propaganda 3. Section 85 – Prohibited forms or election propaganda 4. Section 86 – Regulation of election propaganda through mass media 5. Section 261 – Prohibited acts which are considered as election offenses. (Batas Pambansa Blg. 881) Q – Who are disqualified as candidates for local elective office? A – a) Those sentenced by final judgment for an offense punishable by one year or more of imprisonment and within two years after serving sentence. In Dela Torre vs. Comelec, G.R. No. 121592, July 5, 1996, it was held that probation simply suspends the execution of the sentence; it does not erase the disqualification brought about by the conviction of a crime involving moral turpitude. b) Those removed from office as a result of an administrative case. In Grego vs. Comelec, G.R. No. 125955, June 19, 1997, it was held that an elective local official who was removed from office as a result of an administrative case prior to January 1, 1992 (the date

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c) d) e)

f)

g)

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of effectivity of the Local Government Code), is not disqualified from running for an elective local public office, because Section 40 of the Local Government Code cannot be given retroactive effect. Those convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines. Those with dual citizenship. Fugitives from injustice in criminal and non-political case here and abroad. A “fugitive from justice,” as defined by the Supreme Court in Marquez vs. Comelec, 243 SCRA 538, “includes not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution.” Rodriguez cannot be considered a “fugitive from justice,” because his arrival in the Philippines from the U.S. preceded the filing of the felony complaint in the Los Angeles Court and the issuance of the arrest warrant by the same foreign court, by almost five months. (Rodriguez vs. Comelec, G.R. No. 120099, July 24, 1996) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the [Local Government] Code; and Those who are insane and feeble-minded.

CASES: 1.

Probation does not erase disqualification resulting from conviction of a crime involving moral turpitude – Probation only suspends the execution of the sentence. (Dela Torre vs. Comelec, G.R. No. 121592, July 5, 1996) 2. Effect if an elective local official was removed from office on account of an administrative case prior to the date when the Local Government Code became effective – he is not disqualified from running for an elective local public office because Section 40 of the Local Government Code cannot be given retroactive effect. (Grego vs. Comelec, G.R. No. 125955, June 19, 1997). 3. The electoral aspect of a disqualification case is not rendered inutile by the death of the petitioner provided there is proper substitution or intervention of parties while there is a pending case. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006) Q – What is the requirement in order that a candidate shall be eligible for any public office? A – No person shall be eligible for an elective public office unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code.

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Q – Can a certificate of candidacy be withdrawn? A – Yes, by submitting a written declaration under oath that a candidate is withdrawing the same. NUISANCE CANDIDATES Q – What is the rationale behind the prohibition against nuisance candidates? A – The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. The COMELEC further pointed out in its Comment (in the promulgation of Resolution No. 6558) that there is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery if even those who cannot clearly wage a national campaign are allowed to run. EFFECT OF FILING CERTIFICATE OF CANDIDACY Q – What is the effect of the filing of a certificate of candidacy by a person taking a public appointive office or position? A – He shall be considered ipso facto resigned upon the filing of his certificate of candidacy. Q – What is the effect of the filing of a certificate of candidacy by any elective official? A – The same. Q – What is the effect of two (2) certificates of candidacy filed by Mr. A for two different offices? A – Mr. A becomes ineligible for either position. (Section 73, Batas Pambansa Blg. 881) Q – Can Mr. A become eligible again? A – Yes, if Mr. A withdraws one of his certificates before the deadline for the filing of certificates of candidacy. He can do this by filing a sworn declaration with the Comelec before the said deadline. (Ibid.) Q – Mr. A, an official candidate of X Party, dies after the last day for the

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A – Q –

A – Q –

A – Q – A –

Q – A – Q –

A –

Q – A –

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filing of certificates of candidacy. Can another person file a certificate of candidacy as a replacement of Mr. A? Yes, but said person must belong to X Party and certified by said party as its candidate. (Section 77, Batas Pambansa Blg. 881) A, a Vice-Mayor, became an acting Mayor after Mayor B was suspended. A subsequently filed his certificate of candidacy for the position of Mayor. Is A considered resigned as Vice-Mayor? Yes, because he is not holding the office of Mayor in a permanent capacity. A filed a certificate of candidacy which contains a false representation that he possesses the required residency in the municipality where he is serving as Mayor when in truth and in fact, he is not a resident thereof. Can B, his political opponent, file a petition to deny course to said petition or to cancel A’s certificate of candidacy? Yes, by express provision of Section 78, Batas Pambansa Blg. 881. What is the procedure? B should file a verified petition not later than 25 days from the time of the filing of the certificate of candidacy. After due notice and hearing, it shall be decided not later than 15 days before the election. (Ibid.) Where should said petition be filed? It should be filed with the Comelec in division, not with the Commission En Banc. A filed his certificate of candidacy beyond the statutory period. His political opponent did not question it. He won. Later A’s opponents questioned it. DECIDE. The technicality should have been raised before the election. It can be disregarded after the people have expressed their choice. (Collado vs. Alonzo, 15 SCRA 502 [1965]) Can a candidate whose certificate of candidacy was cancelled and denied due course be substituted by another of the same party? No. The Court held in Miranda vs. Abaya (311 SCRA 617 [1999]) that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party. The Court applied the principle of expressio unius est exclusio alterius because when the law enumerated the occasions where a candidate may be validly substituted, no mention was made of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. (Ong vs. Alegre, G.R. Nos. 163295, 163354, January 23, 2006)

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PRECINCTS AND POLLING PLACES Q – How many election precincts should there be in every barangay? A – Every barangay shall have at least one (1) election precinct. (Section 41, Batas Pambansa Blg. 881) Q – May the commission introduced adjustments, changes, or new divisions, or abolish election precincts? A – The commission may do so if necessary, provided however, that the territory comprising an election precinct shall not be altered or a new precinct established within 45 days before a regular election and 30 days before a special election or a referendum or plebiscite. (Section 149, Batas Pambansa Blg. 881) Q – How many voters shall there be in an election precinct? A – Each election precincts contains more than three hundred voters and shall comprise, as far as practicable, contiguous and compact territory. (Section 150, Batas Pambansa Blg. 881) Q – Can the Commission divide a precinct when there are more than 300 voters in an election precinct? A – Yes, in the interest of an orderly election and in order to facilitate the casting of votes, but the polling place of all the precincts shall be located in the same building or compound where the polling place of the original precinct is located, and if this is not feasible, in a place as close as possible to the polling place of the original precinct. (Section 150[b], B.P. 881) BALLOT BOXES Q – How many ballot boxes shall there be in each polling place? A – There shall be in each polling place on the day of the voting a ballot box one side of which shall be transparent which shall be set in a manner visible to the voting public containing two compartments, namely, the compartment for valid ballots which is indicated by an interior cover painted white and the compartment for spoiled ballots which is indicated by an interior cover painted red. (Section 160[a], Batas Pambansa Blg. 881) Q – Are all ballot boxes uniform throughout the Philippines? A – Yes, and they shall be solidly constructed and shall be closed with three different locks as well as three numbered security locks and such other safety devices as the Commission may prescribe in such a way that they can not be opened except by means of three distinct keys and by destroying such safety devices. (Section 160, Batas Pambansa Blg. 881) WATCHERS Q – Who appoints the watchers?

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A – Each candidate and political party or coalition of political parties duly registered with the Commission and fielding candidates in the May 11, 1998 elections including those participating under the party-list system or representation, may appoint the watchers, to serve alternately, in every polling place. Q – How many watchers can be appointed? A – Two watchers, to serve alternately, in every polling place. However, candidates for Sangguniang Panlalawigan, Sangguniang Panglugsod and Sangguniang Bayan, belonging to the same ticket or slate shall collectively be entitled to one watcher. Duly accredited citizens’ arms of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority from the Commission, shall be entitled collectively to appoint one watcher in every polling place. Q – What are the qualifications of the watchers? A – Qualified voter of the city or municipality, of good reputation, never been convicted of any election offense or any crime, knows how to read and write English, Filipino, or any of the prevailing local dialects, and not related within the 4th civil degree by consanguinity or affinity to any member of the BEI in the polling place where he seeks appointment as watcher. Q – What are the rights and duties of the watchers? A – (1) Stay in the space reserved for them inside the polling place; (2) Witness and inform themselves of the proceedings of the BEI; (3) Take notes; photographs of proceedings; (4) File protest against any irregularity or violation of law; (5) Be furnished with a certificate of the number of votes cast for each candidate, duly signed and thumbmarked by the members of the BEI. Q – Who are entitled to watchers? A – Every registered political party, coalition of political parties and every independent candidate shall each be entitled to one watcher in every polling place. (Section 178, first sentence, Batas Pambansa Blg. 881) Q – Who may be appointed as watcher? A – No person shall be appointed watcher unless he is a qualified voter of the city or municipality, of good reputation and shall not have been convicted by final judgment of any election offense or of any other crime, must know how to read and write Filipino, English, Spanish or any of the prevailing local dialects, and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of

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election inspectors in the polling place where he seeks appointment as a watcher. (Section 178, second sentence, Batas Pambansa Blg. 881) Q – Who are the other watchers who may be appointed? A – The duly accredited citizens arm of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority of the Commission, shall be entitled collectively to appoint one watcher in every polling place. (Section 180, Batas Pambansa Blg. 881) PETITION TO DENY DUE COURSE TO OR TO CANCEL A CERTIFICATE OF CANDIDACY Q – Who may file this petition and on what ground may it be filed? A – It may be filed by any person exclusively on the ground that any material representation contained in the certificate of candidacy is false. Q – When may it be filed? A – It may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later that 15 days before the election. CAMPAIGN: ELECTION PROPAGANDA Q – What is election campaign or partisan political activity? A – The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office. It includes forming organizations or groups of persons, holding political caucuses, meetings, rallies or other similar assemblies, making speeches or commentaries, and publishing or distributing campaign literature or materials for the purpose of soliciting votes and/or undertaking any campaign or propaganda to support or oppose the election of any candidate. It does not include public expressions of opinions or discussion of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention. (Batas Pambansa Blg. 881, Section 79) Q – What are the prohibited acts? A – (1) It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. (Batas Pambansa Blg. 881, Section 80) (2) It shall be unlawful for any foreigner, whether juridical or natural person, to aid any candidate or political party, directly or indirectly,

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Q – A –

Q – A –

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or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity. (Batas Pambansa Blg. 881, Section 81) (3) It shall be unlawful for any person during the campaign period to remove, destroy, obliterate, or in any manner deface or tamper with, or prevent the distribution of lawful election propaganda. (Batas Pambansa Blg. 881, Section 83) (4) It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value during the five (5) hours before and after a public meeting, on the day preceding the election, and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose. (Batas Pambansa Blg. 881, Section 84) What is lawful election propaganda? Lawful election propaganda shall include: (1) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; (2) Handwritten or printed letters urging voters to vote for or against any particular candidate; (3) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight in size, shall be allowed. However, said streamers may not be displayed except one week before the date of meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or (4) All other forms of election propaganda not prohibited by the Omnibus Election Code as the Commission on Elections may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard. The Commission’s authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Batas Pambansa Blg. 881, Section 82) What are the prohibited forms of election propaganda? It shall be unlawful:

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(1)

(2)

(3)

(4)

(5)

To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84; To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party; To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate; To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audiovisual units or other screen projections except telecasts which may be allowed under certain conditions; and For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in the Code under the rules and regulations promulgated by the Commission pursuant thereto. Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission. (Batas Pambansa Blg. 881, Section 85)

CONTRIBUTIONS Q – What is included in the term “contribution”? A – As used in the Omnibus Election Code, the term contribution includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. (Batas Pambansa Blg. 881, Section 94[a]) Q – What are the prohibited contributions? A – No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following:

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(1)

(2) (3)

(4)

(5)

(6) (7) (8)

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Public or private financial institutions. However, they are not prohibited from making any loan to a candidate or political party if they are legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business; Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; Natural and juridical persons who have been granted franchises, incentives, exceptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations; Natural and juridical persons who, within one (1) year prior to the date of the election, have been granted loans in excess of P25,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations; Educational institutions which have received grants of public funds amounting to no less than P100,000.00; Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and Foreigners and foreign corporations. (Batas Pambansa Blg. 881, Section 94[b])

EXPENDITURES Q – How much is the allowable expenditure of a candidate or registered political party? A – Section 13, Republic Act No. 7166 provides that for the 1992 synchronized elections, the aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates: P10 for President and Vice-President; and for other candidates P3.00 for every vote currently registered in the constituency where he filed his certificate of candidacy; Provided, that a candidate without any political party and without support from any political party may be allowed to spend P5.00 for every such voter; and

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(b)

For political parties: P5.00 for every voter currently registered in the constituency or constituencies where it has official candidates.

STATEMENT OF CONTRIBUTIONS AND EXPENSES Q – Who shall file this and when shall this be filed? A – Every candidate and treasurer of the political party shall, within 30 days after the day of the election, file in duplicate with the offices of the Commission, the full, true and itemized statement of all contributions and expenditures in connection with the election. (1) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party that nominated the winning candidate fails to file the statement required herein. (2) Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures as required shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from P1,000 to P30,000, in the discretion of the Commission. The fine shall be paid within 30 days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. For the commission of a second or subsequent offense the administrative fine shall range from P2,000 to P60,000, in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office. Q – Are candidates who withdraw after the filing of certificates of candidacies required to comply with the filing of the said statement of all contributions and expenditures? A – Yes, as decided in Pilar vs Comelec 245 SCRA 759. REASON: Section 14 of Republic Act No. 66 does not make any distinction. PART II. DURING THE ELECTIONS CASTING OF VOTES Voting Hours 7 a.m. to 3 p.m., except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption. Q – When this happens, what shall the poll clerk do?

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A – The poll clerk shall, without delay, prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote. Q – What shall the BEI do before the voting? A – (1) It shall meet at the polling place at 6:30 a. m of election day and shall have the book of voters containing all the approved applications of registration of voters pertaining to the polling place, the certified list of voters, the certified list of candidates, the ballot box, the official ballots, sufficient indelible pencils or ballpens for the use of the voters, the forms to be used, and all other materials which may be necessary. (2) Immediately thereafter, the chairman of the BEI shall open the ballot box, empty both of its compartments, exhibit them to all those present and being empty, lock its interior covers with three padlocks. (3) The chairman shall forthwith show to the public and the watchers present the package of official ballots received from the city, or municipal treasurer duly wrapped and sealed and the number of pads, the serial numbers and the type of forms of the ballots in each pad appearing on the cover, and the book of voters duly sealed. The BEI shall then break the seals of the package of official ballots and the book of voters. The BEI shall then enter in the minutes the fact that the package of ballots, and the book of voters were shown to the public with their wrapping and corresponding seals intact and/ or if they find that the wrapping and seals are broken, such fact must be stated in the minutes as well as the number of pads and the serial numbers of ballots that they find in the package. Ballots with separately printed serial numbers shall be deemed spurious and shall not be utilized by the board of election inspectors unless the Commission representative shall order their use in writing, stating the reasons therefor. (4) The chairman and the two party members of the BEI shall retain in their possession their respective keys to the padlocks during the voting. (5) The box shall remain locked until the voting is finished and the counting begins. However, if it should become necessary to make room for more ballots the BEI may open the box in the presence of the whole board of election inspectors and watchers, and the chairman shall press down with his hands the ballots contained therein without removing any of them, after which the board

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of election inspectors shall close the box and lock it with three padlocks as herein before provided. Section 191 Preliminaries to the voting (See Section 15 of Republic Act No. 6646 and Section 24 of Republic Act No. 7168 for additional requirements) Q – Who are allowed in and around the polling place during the voting? A – No person shall be allowed in and around the polling place during the voting

Q – A –

Q –

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Q – A –

EXCEPT: The members of the BEI, the watchers, the representatives of the Commission, the voters casting their votes, the voters waiting for their turn to get inside the booths whose number shall not exceed twice the number of booths and the voters waiting for their turn to cast their votes whose number shall not exceed twenty at any one time. How about the watchers? They shall stay only in the space reserved for them, it being illegal for them to enter places reserved for the voters or for the BEI or to mingle and talk with the voters within the polling place. How about the officers or members of the AFP, PC, INP, or peace officer or any armed person belonging to any extra-legal police agency, special forces, etc.? It shall be unlawful for them to enter any polling place, UNLESS it is his polling place where he will vote but in such case he should immediately leave the polling place. Can any policeman or peace officer be allowed to enter or stay inside the polling place? No, except when there is an actual disturbance of the peace and order therein. However, the BEI, upon majority vote, if it deems necessary, may make a call in writing, duly entered in the minutes, for the detail of a policeman or any peace officer for their protection or for the protection of the election documents and paraphernalia, in which case, the said policeman or peace officer shall stay outside the polling place within a radius of thirty meters near enough to be easily called by the BEI at any time, but never at the door, and in no case shall the said policeman or peace officer hold any conversation with any voter or disturb or prevent or in any manner obstruct the free access of the voters of the polling place. It shall likewise be unlawful for any barangay official to enter and stay inside any polling place except to vote or except when serving as a watcher or member of the board of election inspectors, in which case, he shall leave the polling place immediately after voting. (Batas Pambansa Blg. 881, Section 192)

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Q – Can an illiterate or physically unable person be assisted in the preparation of his ballot? A – Yes, by express provision of Section 196. He can be assisted by his relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party members: Provided, that no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: Provided, further, that in no case shall an assistor assist more than three times except the non-party members of the BEI. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense. (Batas Pambansa Blg. 881, Section 196) Q – What shall be done if a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used? A – He shall surrender it folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record. If the second ballot is again spoiled or defaced in such a way that it cannot lawfully be used, the same shall be surrendered to the chairman and recorded in the same manner as the first spoiled or defaced ballot. However, no voter shall change his ballot more than twice. The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word “spoiled” and signed by the BEI on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots. (Section 197, Batas Pambansa Blg. 881) Q – Can illegal voters be challenged by any voter or watcher? A – Yes. Any voter or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter. Q – What are the other grounds upon which the challenged may be based? A – (a) That the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or

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promised to contribute money or anything of value as consideration for his vote or for the vote of another; and (b) That he has made or received a promise to influence the giving or withholding of any such vote or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. (Section 200, Batas Pambansa Blg. 881) Q – Who shall take the prescribed oath before the BEI? A – The challenged person shall take a prescribed oath before the BEI that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenged shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenged shall be sustained and he shall not be allowed to vote. RECORDS OF CHALLENGES AND OATHS Q – What shall the poll clerk do in connection with the challenges and oaths? A – The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made. The original of this record shall be attached to the original copy of the minutes of the voting as provided in the succeeding section. (Section 202, Batas Pambansa Blg. 881) MINUTES OF VOTING AND COUNTING OF VOTES Q – What are contained in the minutes of voting in the counting of votes? A – The board of election inspectors shall prepare and sign a statement in four copies setting forth the following: 1. The time the voting commenced and ended; 2. The serial numbers of the official ballots and election returns, special envelopes and seals received; 3. The number of official ballots used and the number unused; 4. The number of voters who cast their votes; 5. The number of voters challenged during the voting; 6. The names of the watchers present; 7. The time the counting of votes commenced and ended; 8. The number of official ballots found inside the compartment for valid ballots; 9. The number of official ballots, if any, retrieved from the compartment for spoiled ballots;

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10. 11. 12. 13. 14. 15. 16. 17.

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The number of ballots, if any, found folded together; The number of spoiled ballots withdrawn from the compartment for valid ballots; The number of excess ballots; The number of marked ballots; The number of ballots read and counted; The time the election returns were signed and sealed in their respective special envelopes; The number and nature of protests made by watchers; and Such other matters that the Commission may require.

PART III. AFTER THE ELECTIONS COUNTING OF VOTES Q – What shall the BEI do after the voting is finished? A – As soon as the voting is finished, the BEI shall publicly count in the polling place the votes cast and ascertain the results. The BEI shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission. The Commission, in the interest of free, orderly, and honest elections, may order the BEI to count the votes and to accomplish the election returns and other forms prescribed under this Code in any other place within a public building in the same municipality or city: Provided, that the said public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. (Section 206, Batas Pambansa Blg. 881) Q – Can the counting of votes be transferred to a safer place? A – Yes. If on account of imminent danger of violence, terrorism, disorder or similar causes it becomes necessary to transfer the counting of votes to a safer place, the board of inspectors may effect such transfer by unanimous approval by the board and concurrence by the majority of the watchers present. This fact shall be recorded in the minutes of voting and the members of the boards and the watchers shall manifest their approval or concurrence by affixing their signatures therein. The Commission shall issue rules and guidelines on the matter to secure the safety of the members of the board, the watchers, and all election documents and paraphernalia. (Section 18, Republic Act No. 6646) Q – What shall the BEI do before proceeding to count the votes? A – Before proceeding to count the votes, the BEI shall count the ballots in the compartment for valid ballots without unfolding them or exposing their contents, except so far as to ascertain that each ballot is single, and

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compare the number of ballots in the box with the number of voters who have voted. If there are excess ballots, they shall returned in the box and thoroughly mixed therein, and the poll clerk, without seeing the ballots and with his back to the box, shall publicly draw out as many ballots as may be equal to the excess and without unfolding them, place them in an envelope which shall be marked “excess ballots” and which shall be sealed and signed by the members of the BEI. The envelope shall be placed in the compartment for valid ballots, but its contents shall not be read in the counting of votes. If in the course of the examination of ballots are found folded together before they were deposited in the box, they shall be placed in the envelope for excess ballots. In case ballots with their detachable coupons be found in the box, such coupons shall be removed and deposited in the compartment for spoiled ballots, and the ballots shall be included in the file of valid ballots. If ballots with the words “spoiled” be found in the box, such ballots shall likewise be placed in the compartment for spoiled ballots. (Section 207, Batas Pambansa Blg. 881) What else shall the BEI do? It shall determine whether there are any marked ballots. If there are marked ballots, what shall the BEI do? The BEI shall place the “marked ballots” in an envelope labeled “marked ballots” which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be counted. A majority vote of the BEI shall be sufficient to determine whether the ballot is marked or not. Non-official ballots which the board of election inspectors may find, except those which have been used as emergency ballots, shall be considered as marked ballots. (Section 208, Batas Pambansa Blg. 881) What is the manner of counting votes? The counting of votes shall be made in the following manner: 1. The BEI shall unfold the ballots and form separate piles of one hundred ballots each, which shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders. 2. The chairman of the BEI shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names. 3. The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted.

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4.

5.

6.

7.

8. 9. 10.

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The poll clerk, and the third member, respectively, shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. Each vote shall be recorded by a vertical line, except every fifth vote which shall be recorded by a diagonal line crossing the previous four vertical lines. One party member shall see to it that the chairman reads the vote as written on the ballot, and the other shall check the recording of the votes on the tally board or sheet and the election returns seeing to it that the same are correctly accomplished. After finishing the first pile of ballots, the BEI shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. The ballots shall then be grouped together again as before the reading. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively. After all the ballots have been read, the BEI shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns. It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots. The tally board or sheet as accomplished and certified by the board of election inspectors shall not be changed or destroyed but shall be kept in the compartment for valid ballots. (Section 210, Batas Pambansa Blg. 881)

BOARD OF ELECTION INSPECTORS (BEI) Q – What are the powers of the BEI? A – (1) To conduct the voting and counting of votes in the polling place; (2) To act as deputies of the Comelec in supervision and control of the polling place; (3) To maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders; and (4) To perform such other functions as prescribed by the Code or by the rules of the Comelec. Q – What is the composition of the BEI?

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A – A chairman, a member and poll clerk, who must be public school teachers. Q – What are the qualifications of the BEI? A – A member must be of good moral character and irreproachable reputation, a registered voter of the City or municipality, never been convicted of any election offense or any other crime punishable by more than 6 months imprisonment, able to speak and write English or the local dialect. Q – What are the disqualifications of the BEI? A – (a) Must not be related within the 4th civil degree by consanguinity or affinity to any member of the BEI or to any candidate to be voted for in the polling place. (b) Must not engage in any partisan political activity. Q – Describe the proceedings of the BEI. A – It shall be public and held only in the polling place (although the counting of votes and preparation of the return may be done in the nearest safe barangay or school building within the municipality by unanimous vote of the board and concurred in by a majority of the watchers present, if there is imminent danger of violence, terrorism, disorder or similar causes). The BEI shall act through its Chairman, and shall decide without delay by majority vote all questions which may arise in the performance of its duties. BALLOTS Q – What are the different kinds of ballots? A – 1. Official ballots for national and local elections, regular or special, plebiscites and referendum. The same shall be of uniform size and shall be prescribed by the Commission. (Section 23, Republic Act No. 7166) 2. A different form of official ballot on the same watermarked security paper to facilitate voting by illiterate voter. (Section 23[e], Republic Act No. 7166) 3. Official ballot for cities and municipalities where arabic is of general use. (Section 23[d], Repubic Act No. 7166) 4. Official sample ballots (Section 185, Batas Pambansa Blg. 881) Q – Can the Commission prescribe a different form of official ballot? A – The Commission is hereby empowered to prescribe a different form of ballot to facilitate voting by illiterate voters and to use or adopt the latest technological and electronic devices as authorized under paragraph (i) of Section 52 hereof. Q – Can other ballots be used other than the official ballots?

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A – No ballots other than the official ballots shall be used or counted. EXCEPTIONS: (1) Except if there is failure to receive the official ballots on time; (2) Where there are no sufficient ballots for all registered voters; or (3) Where they are destroyed at such time as shall render it impossible to provide other official ballots.

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IN SAID CASES, WHAT SHALL THE CITY OR MUNICIPAL TREASURER DO? The city or municipal treasurer shall provide other ballots which shall be similar to the official ones as circumstances will permit and which shall be uniform within each polling place. The treasurer shall immediately report such action to the Commission. The municipal treasurer shall not undertake the preparation of the emergency ballots unless the political parties, candidates and the organizations collectively authorized by the Commission to designate watchers have been sufficiently notified to send their representatives and have agreed in writing to the preparation and use of emergency ballots. What shall the Commission provide the BEI? The Commission shall provide the board of election inspectors with official sample ballots at the rate of thirty (30) ballots per polling place. What are the limitations imposed by Section 185 of Batas Pambansa Blg. 881? (1) The official sample ballots shall be printed on colored paper, in all respects like the official ballots but bearing instead the words “Official Sample Ballot” to be shown to the public and used in demonstrating how to fill out and fold the official ballots properly. (2) No name of any actual candidate shall be written on the spaces for voting on the official sample ballots provided by the Commission, nor shall they be used for voting. Section 185. (As amended by Republic Act No. 7904 “An Act Amending Section 185 of the Omnibus Election Code, as amended, by requiring the Commission on Elections to furnish every Registered Voter at least thirty (30) days before an Election with an Official Sample Ballot, Voters Information Sheet and List of Candidates.” Approved February 23, 1995)

APPRECIATION OF BALLOTS Q – What is the guiding rule in the reading and appreciation of ballots? A – Every ballot shall be presumed to be valid unless there is clear and good reasons to justify its rejection.

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Q – What are the other basic rules to remember? A – 1. In the appreciation of the ballots, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237 [1973]) 2. Outmost liberality must be observed in reading the ballot in order not to defeat the intention of the voters. 3. Technical rule should not be permitted to defeat the intention of the voter, if that intention is discernible from the ballot itself and not from evidence aliunde. 4. Extreme caution should be observed before a ballot is invalidated and doubts are to be resolved in favor of their validity. (Inting vs. Clarin, 21 SCRA [1967]; Silverio vs. Castro, 19 SCRA 520 [1967]) Q – Section 211 of Batas Pambansa Blg. 881 enumerates the different rules for the appreciation of ballots. Simplify the rules and give examples. RULES FOR APPRECIATION OF BALLOTS: 1.

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If only the first name or surname is written The vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office. If there are two or more candidates having the same first name or surname, and only the first name or surname is written in the ballot. Is that a valid vote? It is not a valid vote for any of the candidates. In order that the vote may be counted, the voter should add the correct name, surname or middle initial that will identify the candidate for whom he is voting. (Gonzaga vs. Seno, 7 SCRA 741 [1963]) If the first name of the candidate is the surname or sound similar to the surname of the other candidate, the voter writes only said first name. In whose favor should that vote be counted? It should be counted in favor of the candidate whose surname corresponds to the word. (Section 211[2], first sentence) If there are two or more candidates, one of whom is an incumbent whose full name, first name, or surname is the same as the full name, first name or surname of the other candidate or candidates. Example: The name of the incumbent is Marcelo Suarez. The names of other candidates are Marcelo Suarez, Marcelo Arevalo, and Suarez, Marcelo. The voter voted for Marcelo Suarez. Another voter voted

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A – 3.

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for Marcelo. Another voter voted for Suarez. In whose favor should the said votes be counted? The vote for Marcelo Suarez will be counted for the incumbent candidate. The vote for Marcelo will be counted in favor of the incumbent candidate. If candidate is a woman using maiden or married surname or both which is the same surname of incumbent, and what was written in the ballot is only such surname. In whose favor shall the said vote be counted? It shall be counted in favor of the candidate who is the incumbent. (Rule 3, Section 211, Batas Pambansa Blg. 881) If the ballot contains only the maiden surname of a candidate and if there is another candidate bearing the same surname, in whose favor shall the said vote counted? It shall be counted in her favor. If two or more words are surnames of two or more candidates. Example: Delos Reyes are written in the line for Governor and there are two candidates whose names are Mario Delos Reyes and Pedro Delos Reyes. In whose favor shall the said vote be counted? The ballot cannot be counted for either except when Pedro Delos Reyes is an incumbent, in which case it will be counted in his favor. If there are two or more words written on different line on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are candidates with that surname, in whose favor shall the said vote be counted? The vote shall be counted in favor of all the candidates bearing the surname. (Section 211[4], second paragraph, Batas Pambansa Blg. 881) If what is written in the ballot is the first name of a candidate which is at the same time is the surname of his opponent. The word Albert is written on line for mayor, and the other candidates for mayor are Joey Albert and Albert Francisco. In whose favor is the ballot be counted? The ballot is counted in favor of Joey Albert. When two words are written on the ballot, one of which is the first name and the other is the surname of his opponent. The words written are “Ninoy Aquino” and the candidates for vicemayor are Ninoy Segovia and Juan Aquino, in whose favor shall the ballot be counted? The ballot shall not be counted for either.

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IDEM SONAM RULE. Example: A name or surname is incorrectly written but when it was read it has a sound similar to the name or surname of a candidate when correctly written. This means that if the name as spelled in the ballot, although different from its orthographically correct spelling, sounds practically the same when pronounced, according to our methods of pronunciation, it is sufficient designation of the individual to whom if refers, and the error of the writer must not be taken into account. If the name of a candidate is written twice. If the name of the candidate is repeated twice, one in the space of the ballot for an office for which he is a candidate, and in another space for which he is not a candidate, will this invalidate the ballot? This will not invalidate the ballot. The vote in the correct space will be counted in his favor and the other shall be considered as stray EXCEPT if it is established that it is used as a means to identify the voter. In this case, the whole ballot shall be void. Example: The name of the candidate for governor was written twice, one on the line for governor and the other line for vice-governor. In this case, the vote for the office of governor shall be counted and the vote for vice-governor shall be considered be strayed vote. If name is erased and another is clearly written. In a space in the ballot, there appears a name of candidate that is erased and another was clearly written. Is the vote valid? The vote is valid with respect to the same that was clearly written. Erroneous initial An initial of the first name accompanies the correct surname of a candidate, or that the erroneous middle initial of the candidate. Will this annul the vote in favor of the latter? This shall not annul the vote in favor of the latter. “Benito G. Mauleon” is a candidate for mayor. The voter wrote “A. Mauleon” on the ballot or “Benito U.” or “Benito U. Mauleon.” Is the vote valid? Any of the said votes is valid and will be counted in favor of Benito G. Mauleon. If name of a non-candidate is the same as the first name or surname of the candidate. Shall the said vote be counted? Section 211[11] provides that “it shall not prevent the adjudication of the vote of the latter.” Ballots containing prefixes or suffixes.

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Q – Ballots contain prefixes like “Lakay,” “Manong,” “Dodo,” “Don,” “Doña,” “Señorita” will invalidate the ballot? A – The use of any of the said prefixes does not invalidate the ballot except they are used as an identifying marks. Example: If the prefix “Atty.” is used and written before the name of a candidate who is not an attorney, twice in one polling place and once in another, it shows a pattern or system to mark and identify the ballot. Hence, invalid. (Silverio vs. Castro, 19 SCRA 520 [1967]) 13. If nicknames and appellations of affection and friendship are used. Q – In Parañaque City, Councilor Fedelino Benzon, Jr. is publicly known as “Daddy Jun Benzon.” If the voter writes the same in the ballot, does it annul the vote in favor of Fedelino Benzon? A – No, except if it was used as a means to identify the voter. In the same manner, the writing of a word which is merely descripto personae does not invalidate the ballot. Hence, “Barakong Indo,” “Kabayan Noli de Casto,” “Bomba Arienda” are more of a descripto personae than that of an identification mark. 14. If a vote contains initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended. Q – Shall the vote be counted? A – The said vote shall be considered as stray vote but shall not invalidate the whole ballot. 15. If the first name of the candidate is correctly written in the ballot using a different surname and that the surname of the candidate is correctly written but wrote a different first name. Q – Will the said vote be counted? A – Section 211[15] provides that the said vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates. 16. Ballot written with crayon, lead pencil, or in ink. Q – Is the ballot counted? A – It is valid. 17. If there are two or more candidates voted for in an office for which the law authorizes the election of only one. Q – Shall the said vote be counted? A – It shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein. 18. If the candidates voted for exceed number of those to be elected.

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Q – Is the ballot valid? A – Yes. But the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered. 19. If there is a vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself. Q – Shall that invalidate the whole ballot? A – The said vote shall be considered as a stray vote but it shall not invalidate the whole ballot. 20. If a ballot contains the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process. Q – Is the said ballot valid? A – It is totally “null and void.” 21. If circles, crosses or lines put on the spaces on which the voter has not voted. Q – Will the said vote be counted? A – They shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot. 22. If there are commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, or if there are accidental flourishes. Q – Shall this invalidate the ballot? A – It shall not invalidate the ballot. 23. If a ballot clearly appears to have been filled. Q – Will the said ballot be counted? A – It is totally null and void. 24. If a candidate who has been disqualified by final judgment was voted for. Q – Shall the said vote be counted and shall it invalidate the ballot? A – It is considered as stray and shall not be counted but it shall not invalidate the ballot. 25. Ballots wholly written in localities where it is of general use in provinces. Q – Is the said ballot valid? A – Yes. To read them, the BEI may employ an interpreter who shall take an oath that he shall read the votes correctly. 26. Accidental tearing or perforation of a ballot.

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Does this annul the ballot? It does not annul the ballot. If there is a failure to remove the detachable coupon from a ballot. Does this annul the ballot? It does not annul the ballot. A vote for the President shall also be a vote of the Vice-President running under the same ticket of a political party. EXCEPTION: Unless the voter votes for a Vice-President who does not belong to such party. If a disqualified candidate is voted for. If a candidate is declared disqualified by final judgment before the election, will votes cast in his favor be counted? No. Any vote cast in favor of a candidate already disqualified by final judgment shall not be counted and shall be considered stray. If for some reason, a candidate was not declared by final judgment to be disqualified before the election, will the votes in his favor be counted? Yes, and if said candidate receives the winning number of votes in such election, his violation of the provisions under Article IX of the Omnibus Election Code shall not prevent his proclamation and assumption to office. If after assuming office, the winning mayoralty candidate is declared disqualified to hold public office, who shall succeed to the position of the disqualified candidate? In said situation, a permanent vacancy occurs and the law on succession under the Local Government Code shall apply. Pursuant to Section 44 thereof, if the governor or mayor is disqualified, the vice-governor or the vice-mayor shall become the governor or mayor. The COMELEC cannot proclaim a winner the candidate who obtained the second highest number of votes, should the winning candidate be declared ineligible or disqualified. A permanent vacancy shall occur and the vice mayor shall succeed as provided by law. (Kare vs. COMELEC, G.R. No. 15752; Moll vs. COMELEC, G.R. No. 157527, April 28, 2004) The rule is that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. Is this absolute? No. This rule admits an exception. This exception is predicated on the concurrence of two requisites: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such

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awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Sinsuat vs. COMELEC, G.R. No. 169106, June 23, 2006) ELECTION RETURNS Q – When shall the BEI prepare the election returns? A – The BEI shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210. IMPORTANT POINTS REGARDING ELECTION RETURNS 1. 2.

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The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in Section 210. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote. The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the BEI shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the BEI. The Commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the second, third, fourth, fifth, and sixth copies thereof, and for this purpose the Commission shall use a special kind of paper. Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided. Any election return with a separately printed serial number or which bears a different serial number from that signed to the particular polling place concerned shall not be canvassed.

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This is to be determined by the board of canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to the said voting precint, unless the Commission shall order in writing for its canvassing, stating the reason for the variance on serial numbers. If the signatures and/or thumbmarks of the members of the BEI or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the BEI concerned to complete the returns. (Section 212, Batas Pambansa Blg. 881)

ANNOUNCEMENT OF THE RESULTS OF THE ELECTION Q – After the completion of the election returns, what shall the Chairman of the BEI do? A – The Chairman of the BEI shall orally and publicly announce the total number of votes received in the election in the polling place by each and every one of the candidates, stating their corresponding office. (Section 213, Batas Pambansa Blg. 881) Q – How are the election returns distributed? A – 1. In the election for President, Vice-President, Senators, and Members of the House of Representatives, and parties, organizations or coalitions participating under the party-list system, the returns shall be prepared in 7 copies, and distributed as follows: 1st – to city or municipal board of canvassers; 2nd – to Congress, directed to the President of the Senate; 3rd – to the Commission on Elections; 4th – to the dominant majority party as determined by the Commission; 5th – to the dominant minority party as determined by the Commission; 6th – to the citizen’s are authorized by the Commission to conduct an unofficial count; 7th – deposited inside the compartment of the ballot box for valid ballots. 2. In the election of local officials: 1st – to city or municipal board of canvassers; 2nd – to the Cåommission on Elections; 3rd – to the provincial board of canvassers; 4th – to the dominant majority party as determined by the Commission;

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5th – to the dominant minority party as determined by the Commission; 6th – to the citizen’s are authorized by the Commission to conduct an unofficial count; 7th – to be deposited inside the compartment of the ballot box for valid ballots. ISSUANCE OF CERTIFICATE OF VOTES POINTERS: 1.

The BEI shall issue a certificate of votes to watchers. This is issued upon request. 2. The certificate of votes must be signed and thumbmarked by each member of the BEI which issues the same. Q – Is the certificate of votes a valid basis for canvass? A – It is a not a valid basis for canvass. It can only be evidence to prove tampering, alteration, falsification or any other anomaly committed in the election returns concerned, when duly authenticated. A certificate of votes does not constitute sufficient evidence of the true and genuine results of the elections; only election returns are. In like manner, neither is the tally board sufficient evidence of the real results of the election. (Garay vs. Comelec, 261 SCRA 222) CANVASS AND PROCLAMATION BOARD OF CANVASSERS FOR EACH PROVINCE, CITY, MUNICIPALITY AND DISTRICT OF METROPOLITAN MANILA COMPOSITION AT A GLANCE (Section 221, Batas Pambansa Blg. 881) PROVINCIAL BOARD OF CANVASSERS

1. Chairman: Provincial Election Supervisor or a senior lawyer in the regional office of the commission.

CITY BOARD OF CANVASSERS

DISTRICT BOARD OF CANVASSERS OF METROPOLITAN MANILA

MUNICIPAL BOARD OF CANVASSERS

1. Chairman: City Election Registrar of a lawyer of the commission

1. Chairman: Lawyer of the Commission

1. Chairman: Election registrar or a representative of the commission

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2. Vice-Chairman: Provincial Fiscal 3. Members: (a) Provincial Superintendent of Schools (b) One representative from each of the ruling party and the dominant political party in the constituency concerned to be represented.

2. Members: (a) City Fiscal (b) Acting Superintendent of Schools (c) One representative from each of the ruling party and the dominant political party entitled to be represented.

2. Members: (a) Ranking Fiscal in the district (b) Most senior district school supervisor to be appointed upon consultation of the Ministry of Justice and DECS (c) One representative from each of the ruling party and the dominant opposition political party in the constituency concerned.

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2. Vice-Chairman: Municipal Treasurer 3. Members: (a) Most senior district school supervisor, or in his absence, a principal of school or the elementary school. 4. Substitute members: (a) Municipal administrator, Municipal Assessor, Clerk of Court nominated by the Executive Judge, or any other available appointive municipal officials.

Q – Is there a board of canvassers for newly created political subdivisions? A – Yes. The Commission shall constitute a board of canvassers and appoint the members thereof for the first election in a newly created province, city, or municipality in case the officials who shall act as members thereof have not yet assumed their duties and functions. (Section 221[e], Batas Pambansa Blg. 881) Q – Does the law impose a prohibition to the Chairman and the members of the Board of canvassers? A – Yes. They shall not be related within the fourth civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any members of the same board. (Section 222, Batas Pambansa Blg. 881) Q – Can any member or substitute member of the different board of canvassers be transferred, assigned or detailed outside of the official station? A – No, and neither can they leave said station without prior authority of the Commission. (Section 223, Batas Pambansa Blg. 881)

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CANVASS OF ELECTION RETURNS OF PRESIDENT AND VICE-PRESIDENT Q – What is the role of the board of canvassers of each province or city, and what is the role of Congress with respect to the election returns of the President and Vice-President? A – The returns of every election for President and Vice-President shall be duly certified by the board of canvassers of each province or city, and the returns as certified shall be transmitted to Congress. Upon determination of the authority and due execution of the certificates of canvass, Congress shall canvass the votes. Q – What exactly is the procedure in the canvass of election returns and the proclamation of the President and Vice-President? A – The canvass of election returns and the proclamation of the President and Vice-President shall be conducted in accordance with the following procedures: 1. Transmission of returns – (a) The returns of every election for President and Vice-President shall be duly certified by the board of canvassers of each province or city. 2. Transmission of certified returns to the Congress – (a) The certified returns shall be transmitted to the Congress, directed to the President of the Senate. 3. Opening of certificates of canvass – (a) Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session. 4. Canvass of the votes by Congress – (a) Upon determination of the authenticity and the execution of the certificates of canvass, Congress shall canvass the votes. 5. Proclamation – (a) The person having the highest number of votes shall be proclaimed elected. 6. In case of tie – (a) In case of two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by a vote of a majority of all the members of Congress. 7. Promulgation of rules for canvassing of certificates – (a) the Congress shall promulgate its rules for the canvassing of the certificates. 8. Sole judge of all contests -- (a) The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to: (a.1) The election; (a.2) Returns; and (a.3) Qualifications of the President or

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Vice-President. (b) The Supreme Court may promulgate its rules for the purpose. (See Section 4, Article VII) NATURE OF CANVASS PROCEEDINGS Q – What is the nature of canvass proceedings? A – It is administrative and primary in nature. Q – Are election returns conclusive proof that the results of the voting are true? A – They are not conclusive but they are accorded prima facie status as bonafide reports of the results of the voting, and cannot just be disregarded or excluded. Q – Can they be objected to? A – Yes, but written objections to the returns must be filed only during this stage. REASON: It is only at this stage that the exclusion of any return is in issue. (Grand Colliance for Democarcy vs. Comelec, 150 SCRA 665) Q – Can election returns be invalidated on the mere allegation that there was duress, fraud or coercion? A – Election returns which are clean on their face cannot be invalidated on mere allegations of duress, fraud and coercion. (Ibid.) Q – Can the Comelec annul the certificate of canvass which it found to be tampered? A – Yes, if it finds the same to be tampered after examining the copies of the election returns of the Municipal Judge of the Comelec. (Mastura vs. Comelec, 285 SCRA 493) Q – Who has supervision and control over the board of canvassers? A – The Comelec. (Section 227, Batas Pambansa Blg. 881). In this connection, any member of the board of canvassers may, at any time, be relieved for cause and substituted motu propio by the Commission. Q – What is the right of any political party, or coalition of parties regarding election returns being canvassed? A – They have the right to examine the returns being canvassed without touching them, to make their observations thereon, and file their challenges in accordance with the rules of the Comelec. (Section 25, Republic Act No. 6646) Q – Who are not allowed to enter the canvassing room? A – Any officer or member of the AFP, including the PC or the INP, or any peace officer or any armed or unarmed persons belonging to an extra legal police agency, special forces, reaction forces, strike forces, home defense forces, barangay self-defense units, barangay tanod or any member of the security or police organizations, etc., are not allowed to enter the room

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where the canvassing of the elections returns are held by the board of canvassers and within a radius of 50 meters from such room. (Section 232, Batas Pambansa Blg. 881) IN CASE ELECTION RETURNS ARE DELAYED, LOST OR DESTROYED Q – In said cases, what can the Board of Canvassers do? A – It may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. (Section 233, Batas Pambansa Blg. 881) Q – May it terminate the canvass and proclamation of the candidates elected on the basis of the available election returns? A – It may do so if the missing election returns will not affect the results of the election. (Ibid.) IN CASE OF DISCREPANCIES IN ELECTION RETURNS Q – In case there are discrepancies in the election returns and the difference affects the results of the election, what can the Commission do? A – Upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, the Commission shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned. (Section 236, Batas Pambansa Blg. 881) WHEN INTEGRITY OF BALLOT IS VIOLATED Q – If upon the opening of ballot box as ordered by the Commission, it should appear that there are evidences or signs of replacement, tampering or violation of the integrity of the ballots, what shall the commission do? A – It shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping. (Section 237, Batas Pambansa Blg. 881) CANVASS OF REMAINING OR UNQUESTIONED ELECTION RETURNS Q – In cases under Sections 233, 234, 235 and 236 of Batas Pambansa Blg. 881, can the board of canvassers continue the canvass of the remaining or unquestioned election returns?

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A – Yes, and if after the canvass of all said returns, it should be determined that the returns which have been set aside will affect the results of the election, no proclamation shall be made except upon orders of the Commission after due notice and hearing. Any proclamation made in violation hereof shall be null and void. (Section 238, Batas Pambansa Blg. 881) PRE-PROCLAMATION CONTROVERSY Q – What is a pre-proclamation controversy? A – A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Section 241, Batas Pambansa Blg. 881) Q – What are the issues that may be raised in a pre-proclamation controversy? A – (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in another authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controversy polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. Q – Is pre-proclamation controversy allowed in the election of National Officials? A – For purposes of the elections for President, Vice-President, Senator and member of the House of Representatives, no proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. (Section 15, Republic Act No. 7166) Q – If the same is not allowed, can the canvassing body correct manifest errors in the certificate of canvass for election returns before it? A – Yes, the canvassing body may do so motu propio or upon written complaint of an interested person. (Ibid.)

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Q – Can the parties adversely affected by a ruling of the board of canvassers affecting the composition or proceedings of the board, appeal the matter to the Commission? A – Yes, by express provision of Section 19, Republic Act No. 7166 but this has to be done within 3 days from a ruling thereon. When this happens, the Commission shall summarily decide the case within 5 days from the filing thereof. Q – If there are questions affecting the composition or proceedings of the board of canvassers, where shall they be brought? A – They may be initiated in the board of canvassers or directly with the Commission. (Section 15, Republic Act No. 7166) Q – May a petition for correction of errors in the certificate of canvass be filed at anytime before proclamation? A – Yes. This can even be done even after proclamation if the validity of the proclamation itself is in question. (Torres vs. Comelec, 270 SCRA 583) REASON: In such a case, the proclamation is void and the Comelec therefore has the power to annul the same. JURISDICTION OVER PRE-PROCLAMATION CASES Q – Who has exclusive jurisdiction over pre-proclamation cases? A – The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu propio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. (Section 242, Batas Pambansa Blg. 881) Q – What are the issues that may be raised in a pre-proclamation controversy? A – The following shall be proper issues that may be raised in a preproclamation controversy: (a) Illegal composition or proceeding of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of Batas Pambansa Blg. 881; (c) The election returns were prepared under duress, threats, coercion, intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling

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places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (Section 243, Batas Pambansa Blg. 881) POWER OF THE BOARD OF CANVASSERS TO ORDER THE OPENING OF THE BALLOT BOX AND RE-COUNT THE VOTES OF THE CANDIDATES AFFECTED Q – Can the board of canvassers order the opening of the ballot box and re-count the votes of the candidates affected? A – As a rule, the board of canvassers may not inquire into issues beyond election return. However, there are certain instances when the board of canvassers can do so. Example: 1. When the election returns submitted to the board appear to be tampered with, altered or falsified after they have left the hand of the BEI. (Already discussed.) (Section 235, Batas Pambansa Blg. 881) 2. When there exists discrepancies in other authentic copies of the returns or discrepancies in the vote of any candidate in words and figures in the same return, and the difference affects the result of the election. In this case, the board of canvassers may order the opening of the ballot box to re-count the votes cast to determine the true result of the count of votes of the candidates concerned. (Section 236, Batas Pambansa Blg. 881) 3. When there is any other anomaly in the preparation of the election return. PROCEDURE IN CASE OF PRE-PROCLAMATION CONTROVERSY Q – If there are questions affecting the composition of proceedings of the board of canvassers, before whom shall those questions be raised? A – They may be initiated directly with the Commission. However, questions raised such as those mentioned above (Sections 233, 234, 235 and 236) shall be brought in the first instance before the board of canvassers only. PERIOD WITHIN WHICH TO DECIDE PRE-PROCLAMATION CONTROVERSIES Q – What is the time table for deciding said controversies? A – They shall be disposed of summarily by the Commission within 7 days from receipt thereof. This decision shall be executory from receipt by the losing party.

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INCOMPLETE RETURNS Q – Can there be a proclamation based on incomplete returns? A – No. It is void. (Castromayor vs. Comelec, 250 SCRA 298) PARTIAL PROCLAMATION Q – During the pendency of a pre-proclamation controversy, may the Commission order the proclamation of other winning candidates? A – Yes, if their election will not be affected by the outcome of the controversies. OTHER IMPORTANT POINTS 1.

2.

3.

4.

The enumeration of issues which may be raised in a pre-proclamation controversy such as those enumerated in Section 243 in Batas Pambansa Blg. 881 is restrictive and exclusive. Hence, a petition for re-count or reappreciation of ballots is not a ground for a pre-proclamation controversy. (Sanchez vs. Comelec, 153 SCRA 67) It was alleged that the registry list of voters was padded. Is this a ground for pre-proclamation controversy? No. (Ututalum vs. Comelec, 181 SCRA 335) Is the action taken by the Comelec in the following cases valid? (a) Inquiry as to the qualifications of the members of the board of canvassers. – valid (b) Annulling a proclamation for the reason that there was a mathematical error committed by the board of canvassers in the computation of votes received by both petitioner and private respondent. – valid (c) A correction of clerical error in the statement of votes. The Comelec may order the correction of the same in a pre-proclamation contest. (Villaroya vs. Comelec, 155 SCRA 633) What are the matters that cannot be raised in a pre-proclamation contest, and which should instead be raised in an election protest? (a) When a winning candidate for Congressman has been duly proclaimed upon orders of the Comelec and has taken the oath of office. (Lazatin vs. Comelec, 157 SCRA 337) (b) Technical examination of signatures and thumbmarks of voters are issues which should be raised in election protest. (Matalam vs. Comelec, 272 SCRA 733) (c) Errors in appreciation of ballots by the BEI should be raised in an election protest. (d) After a candidate for Mayor has already been proclaimed winner and had assumed office, the proper remedy is an election protest, not a pre-proclamation controversy.

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ELECTION CONTESTS PROCEDURE IN ELECTION CONTESTS Q – What is the procedure in election contests? A – Section 254. Procedure in election contests. – “x x x (a) Notice of the protest contesting the election of a candidate for a municipal or barangay office shall be served upon the candidate by means of a summons at the postal address stated in his certificate of candidacy except when the protestee, without waiting for the summons, has made the court understand that he has been notified of the protest or has filed his answer hereto; (b) The protestee shall answer the protest within five days after receipt of the summons, or, in case there has been no summons from the date of his appearance and in all cases before the commencement of the hearing of the protest or contest. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest; (c) Should the protestee desire to impugn the votes received by the protestant in other polling places, he shall file a counter-protest within the same period fixed for the answer serving a copy thereof upon the protestant by registered mail or by personal delivery or through the sheriff; (d) The protestant shall answer the counter-protest within five days after notice; (e) Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contest, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election. Simplification: (a) Service of the notice of protest; (b) Answer to the protest within five days after receipt of the summons. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest;

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(c)

Filing of the protestee’s counter-protest within the same period fixed for the answer serving a copy thereof if the protestee desires to impugn the votes received by the protestant. The same shall be served by registered mail or by personal delivery or through the sheriff; (d) The protestant shall answer the counter-protest within five days after notice; (e) Any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election. Q – How are election contests construed? A – Election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated. (Idulza vs. COMELEC, G.R. No. 160130, April 14, 2004) RULES PECULIAR TO CONTEST INVOLVING LOCAL OFFICIALS POINTERS: 1.

2.

3.

The rules governing election contests relating to municipal and barangay officials are silent with respect to the filing of a motion to dismiss a petition of protest. It has been held that such silence implies that a motion to dismiss may be filed with reference to an election contests involving municipal and barangay officials. (Torres vs. Ribo, 83 Phil. 642 [1949]; Gallares vs. Casenas, 48 Phil, 362) After the time for filing protest has expired, it is too late to amend the protest by dropping certain polling places and adding others or by protesting the results in new polling places (Almeda vs. Silvosa, 54 O.G. 3521, Robles vs. Del Rosario, 53 O.G. 3071). The reason for this stringent rule is to avoid delay or to underscore the necessity of speedy determination of who actually is the real choice of the electorate (Fernando vs. Endencia, 66 Phil. 14 [1938]). Moreover, a dissatisfied candidate must be vigilant. (Tengco vs. Jocson, 43 Phil. 715) Amendments which do not change the cause of action or the grounds of protest may be made within a reasonable time before the commencement of the trial, and even afterwards if there are special reasons therefor. (Rosales vs. Tupaz, G.R. No. 10654, September 23, 1958)

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4.

5. 6.

7.

8.

9.

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The law permits other candidates, who may have an interest, to intervene in the election protest within five (5) days from the filing of the protest. Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contests, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice (Section 254[e], Election Code). However, to be entertained, the petition to intervene must be filed within the prescribed period, otherwise it is barred, even if the original protestant does not subject to its delayed presentation. (Deliso vs. De los Santos, 81 Phil. 361 [1948]) A protestee who fails to file his answer within the prescribed period may be deemed to have entered a general denial. A protestee may raise any and all defenses which will defeat the protest (Valenzuela vs. CFI of Bulacan; 40 Phil. 163 [1919]). However, the ineligibility of protestant in an election protest is not a defense in such protest not only because it is incongruous with the only issue therein, which is who obtained the higher number of votes, but is also premature, inasmuch as such issue may be raised only after the candidate has been proclaimed and the protestant is not proclaimed until after he has been declared winner. Moreover, if a protest is dismissed only because the protestant is ineligible, the result would be that protestee would be in office though in fact he received fewer votes than the former. (Moraleja vs. Relova, G.R. No. 30828, October 22, 1971, 42 SCRA 10; Caesa vs. Garrido, 53 Phil. 97) A protestee may file a counter-protest as part of his answer. In such a counter-protest, he may allege and thereafter prove that by reason of fraud and irregularities the protestant cannot be declared elected, but that notwithstanding such fraud and irregularities as alleged by protestant the protestee is still entitled to be proclaimed elected. (Morente vs. Filamor, 52 Phil. 280 [1928]; Valenzuela vs. CFI of Bulacan, 40 Phil. 163 [1919]) A counter-protest is tantamount to a counter-claim in a civil action and may therefore be presented as part of the answer within the time the protestee is required to answer. Where there is a motion to dismiss, it may be filed within the period left after the motion to dismiss is denied. Where a motion for extension of time to answer is filed, it may be presented within the extended period. (Maliwanag vs. Hererra, G.R. No. 29193, September 26, 1968, 25 SCRA 175)

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RULES OR PRINCIPLES APPLICABLE TO CONTESTS RELATING TO REGIONAL, PROVINCIAL, CITY, MUNICIPAL AND BARANGAY OFFICIALS POINTERS: 1. There are differences, procedure-wise, between contests relating to regional, provincial and city officials on the one hand, and local and barangay officials on the other hand. However, the principles, rulings and provisions previously discussed as well as those which are herein below discussed, unless otherwise indicated, apply equally to all election contests without distinction. 2. The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. (De Castro vs. Ginete, G.R. No. 30058, March 20, 1969, 27 SCRA 623) 3. Public policy demands that an election protest, duly commenced, be not abated by the death of either the protestant or the protestee (Lomugdang vs. Javier, G.R. No. 27535, September 30, 1967, 21 SCRA 402). In case of death of either party in an election protest, Section 17, Rule 3 of the Rules of Court providing for the substitution of a party litigant who dies in the course of the litigation, is applicable to election protests. 4. However, the deceased’s legal representative who may be substituted in place of the deceased must be one who is entitled to the office in the event the deceased’s cause prevails, and not his widow or legal heirs or his political party as none of them is entitled to the office. (De Mesa vs. Mencias, G.R. No. 24583, October 29, 1966, 18 SCRA 533) 5. The pendency of an election protest is not sufficient basis to enjoin protestee from assuming office as required of him by law. The efficiency of public administration should not be impaired. Until and unless the election protest is decided against the protestee, he has a lawful right to assume and perform the duties of the office to which he has been elected. (Cereno vs. Dictado, 160 SCRA 759) JURISDICTION OVER ELECTION OFFENSES 1.

Investigation and prosecution. The Commission on Elections has exclusive jurisdiction to investigate and prosecute cases involving violations of election laws (Section 2[6], Article IX-C, Constitution; De Jesus vs. People, 120 SCRA 760; Corpus vs. Tanodbayan, 149 SCRA 281); but it may validly delegate the power to the Provincial Prosecutor, as it did when it promulgated Resolution No. 1862, dated March 2, 1987. (People vs. Judge Basilia, 179 SCRA 87)

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a)

2.

But it is not the duty of the Comelec, as investigator and prosecutor, to gather proof in support of a complaint filed before it. (Kilosbayan vs. Comelec, G.R. No. 128054, October 16, 1997) Section 268. Jurisdiction of courts – The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.

PREFERENTIAL DISPOSITION OF ELECTION OFFENSES Q – What preference and priority should be given by the Comelec and prosecuting officials regarding election offenses? A – Section 269. Preferential disposition of election offenses. – The investigation and prosecution of cases involving violations of the election laws shall be given preference and priority by the Commission on Elections and prosecuting officials. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within five days from its submission for resolution. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within thirty days from its submission for decision. PRESCRIPTION PERIOD FOR ELECTION OFFENSES Q – What is the prescription period for election offenses? A – Five (5) years from date of commission. PROMULGATION OF DECISION Q – When shall the decision of the Regional Trial Court be promulgated? A – The Comelec Rules of Procedure require that a decision of the trial court or of the Commission shall be promulgated on a date set by it of which due notice must be given the parties. It has been held that promulgation is the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. Q – Is notice in advance of promulgation part of the process of promulgation? A – The additional requirement of the Comelec Rules of Procedure of notice in advance of promulgation is not part of the process of promulgation,

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and failure to serve the notice in advance of the promulgation is a procedural lapse or error which will not vitiate the decision except when the error is shown to have caused harm or prejudice; and that fact that the adverse party’s counsel received copy of the decision shows that no such harm is caused thereby and precludes the decision from being infirmed. (Lindo vs. Comelec, 194 SCRA 25) POST-ELECTION DISPUTES Q – What is referred to as post-election disputes? A – Generally, they are those which arise or are instituted after proclamation of the winning candidate. More specifically, post-election disputes may refer to any of the following: (a) It may pertain to the casting and counting of votes and raise the question of who actually received the majority of the legal ballots, known as election contests. (b) It may pertain to the eligibility or disloyalty of the winning candidates, called proceedings for quo warranto. (Topacio vs. Paredes, 23 Phil. 238 [1912]) (c) There is another post-election dispute, insofar as it disqualifies a winning candidate from holding office, namely, a criminal prosecution for violation of an election offense against the candidate elect. (Gorospe vs. Peñaflorida, 101 Phil. 886 [1957]) Q – What is the difference between election protest and quo warranto? A – ELECTION PROTEST

QUO-WARRANTO

1. It is strictly a contest between the defeated and winning candidates, based on grounds of election frauds or irregularities, as to who actually obtained the majority of the legal votes and therefore is entitled to hold the office. 2. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for. 3. A protestee may be ousted and the protestant seated in the office vacated.

1. It refers to questions of disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the ineligible person from office, but not to install the protestant in his place. 2. It can only be filed by any voter. It is for this reason that it is not considered a contest where the parties strive for supremacy. 3. While the respondent may be unseated the petitioner will not be seated. (Luison vs. Garcia, 103 Phil. 453 [1958])

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Q – What is the principal consideration to be considered in determining whether the action taken is for quo-warranto or an election protest? A – It is not the title or caption of the petition but the allegations contained therein which determines if the action taken is for quo-warranto or an election protest. Hence, a petition may allege that the candidate elect is not qualified and it may be labeled as election protest, but actually it is a quo-warranto proceeding. (Luison vs. Comelec, Ibid.) Q – Can an election protest and petition for quo-warranto be availed of jointly and in the same proceeding? A – No, considering the differences already mentioned. However, they can be separately filed, with the second case suspended until the earlier one is resolved. (Ibid.) Q – Can an action for quo-warranto be converted into an election protest? A – No. (Asuncion vs. Legarda, 124 SCRA 729) EFFECT OF FILING AN ELECTION PROTEST OR A PETITION FOR QUO WARRANTO Q – What is the effect of filing an election protest or a petition for quo warranto? A – As a rule, it bars the subsequent filing of a pre-proclamation controversy or a petition to annul proclamation. It also amounts to the abandonment of one filed earlier. It deprives the Commission, in said pre-proclamation case, of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. (Pacis vs. Comelec, 22 SCRA 539). REASON: Once an appropriate tribunal has acquired jurisdiction on account of the filing of an election protest or a petition for quo-warranto, all questions relative thereto will be decided in the case itself and not in another proceeding. Q – Is the said rule absolute? A – No. In the following instances, the pre-proclamation case may still proceed to conclusion. 1. If what is filed is not really a quo warranto contest or election protest but a petition to avail a proclamation. 2. If quo warranto is not the proper remedy. 3. If the Board of Canvassers is improperly constituted. (Pacis vs. Comelec, supra) 4. If the filing of a quo warranto or an election protest is expressly made without prejudice to pre-proclamation contest , or is made ad cautela. (Tuburan vs. Ballener, 24 SCRA 941 [1968])

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5.

If the proclamation is null and void. (Mutuc vs. Comelec, 22 SCRA 662)

IMPORTANT POINTS: 1.

2.

3.

After a proclamation which is validly made, the remedy of the defeated candidate is to file an election protest or a petition for quo warranto within the prescribed period. If the proclamation is null and void, or is claimed to be null and void, the Commission has the authority to inquire whether such proclamation is null and void. If the proclamation is null and void, it is a settled jurisprudence that it is no proclamation at all and the Commission has the power to declare such nullity and annul the proclamation even if the proclaimed candidate already assumed office. (Mutuc vs. Comelec, supra).

ELECTION PROTEST Q – What is an election protest? A – It is a special summary proceeding. The purpose of which is to settle the controversy between the defeated and winning candidate as to who between them actually receives the majority of the legal ballots. Q – What is the purpose of an election protest? A – The purpose is to ascertain whatever the candidate proclaimed by the board of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis of proclamation of the winning candidate. Q – How should a statute concerning election protest be construed? A – It should be literally construed so that the will of the people in the choice of public officers may not be defeated by mere technical objections. Hence, immaterial defects and pleadings should be disregarded and necessary and proper amendments should be allowed as much as possible. On the procedural aspect, it is established that amendments to pleadings may be permitted by the Supreme Court even for the first time on appeal in order to substitute the name of the real party in interest, provided that such an amendment would not involve a change in the cause of action or result in undue prejudice to the adverse party. In one case, the death of a protestee was stricken off and substituted by the person who would succeed him under the law as the real party in interest in the continuation of the case. (Unda vs. Comelec, 190 SCRA 827)

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JURISDICTION OVER ELECTION CONTESTS Q – Who has original and exclusive jurisdiction over election contests? A – 1. The Supreme court in the case of the President and Vice-President. 2. The Senate Electoral tribunal in the case of Senator. 3. The HR Electoral Tribunal in the case of Representative. 4. The Comelec in the case of Regional/Provincial/City. 5. The RTC in the case of Municipal. 6. The Municipal/Metropolitan Trial Court in the case of Barangay. Q – Are decisions of the RTC and Municipal Courts appealable? A – Yes. The appeal shall be made exclusive to the Comelec whose decision shall be final, executory and unappealable. Q – If the decisions, orders, rulings of the Comelec in appealed cases involving elective municipal barangay officials are final executory and unappealable, that this preclude the filing of a petition for certiorari under Rule 65? A – No. (Galido vs. Comelec, 193 SCRA 78) Q – May the decision of the HRET be reviewed by the Supreme Court? A – This is possible only if there is a capricious, arbitrary and despotic exercise of power. APPELLATE JURISDICTION APPEAL FROM DECISIONS OF RTC AND MUNICIPAL COURTS/CITY COURTS Q – Are the decisions of the RTC, Municipal Courts, City Courts appealable? A – Yes, said appeal shall be made exclusively to the Comelec whose decision shall be final, executory and unappealable. ELECTION CONTESTS INVOLVING MUNICIPAL OFFICES Q – Is the decision of the RTC appealable? A – Yes, the decision may be appealable to the Commission within 5 days from promulgation or receipt of a copy thereof by the aggrieved party. (Section 22, Republic Act No. 7166) Q – Within what period shall the said appeal be decided? A – Within 60 days after it is submitted for decision but not later than 6 months after the filing of the appeal, which decision shall be final, appealable and executory. (Ibid.)

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Q – Instead of filing an appeal, can the aggrieved party just file a motion to reconsider the decision of the RTC? A – No. It is a prohibited pleading and it does not interrupt the running of the 5-day period of appeal. (Veloria vs. Comelec, 211 SCRA 907) Q – Can the RTC order the execution of its decision pending appeal? A – Yes. REASON: It is a judicial prerogative of the RTC. Q – What are the powers of the Comelec in the exercise of its exclusive appellate jurisdiction? A – It has the power to issue writs of prohibition, mandamus or certiorari. RELAMPAGOS VS. CUMBA, ET AL. G.R. NO. 118861, APRIL 27, 1995 FACTS: Emmanuel Relampagos and Rosita Cumba were Mayoralty candidates in Magallanes, Agusan Del Norte, in the synchronized elections of May 11, 1992. Rosita Cumba was proclaimed the winning candidate, with a margin of only 22 votes over the former. Unwilling to accept defeat. Relampagos filed an election protest with the RTC of Agusan Del Norte. On June 29, 1994, the said RTC found Relampagos to have won with a margin of 6 votes over Cumba. Relampagos was declared the Mayor elect. Copies of the decision were sent to and received by Relampagos and Cumba on 1 July 1994. On July 4, 1994, Cumba appealed the decision to the Comelec by filing her notice of appeal and paying the appellate docket fees. On 8 July 1994, the trial court gave due course to the appeal. On 12 July 1994, Relampagos filed with the trial court a motion for execution pending appeal. On 3 August 1994, the trial court granted Relampagos’ motion for execution pending appeal. The corresponding writ of execution was forthwith issued. Cumba then filed with the Comelec a petition for certiorari to annul the aforesaid order of the trial court granting the motion for execution pending appeal and the writ of execution. In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the Comelec maintains that there is a special law granting it such jurisdiction. Section 50 of BP Blg. 697, which remains in full force as it was not expressly repealed by the Omnibus Election Code (BP Blg. 881), and that it is not exactly correct that this law self-destructed after the May, 1984 election. It further reasoned out that in the performance of its judicial functions, the Comelec is the most logical body to issue the extraordinary writs of certiorari, prohibition, and mandamus in election cases where it has appellate jurisdiction. Relampagos assailed the said resolution and filed a special civil action of certiorari. ISSUE: Whether or not the Comelec has jurisdiction over petitions for certiorari, prohibition and mandamus in election cases where it has exclusive appellate jurisdiction.

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HELD: The Court abandoned the ruling in the Garcia and Uy and Veloria cases and ruled: “We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing that the Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition, and mandamus involving election cases, remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the Comelec has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction. (Underlining Supplied) DECISIONS OF THE COMELEC Q – Are findings of fact by the COMELEC final and non-reviewable? A – Findings of fact by the COMELEC, if supported by substantial evidence, are final and non-reviewable. The appreciation of contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. (Idulza vs. COMELEC, G.R. No. 160130, April 14, 2004) Q – Are orders or rulings of the COMELEC in appealed cases involving elective Municipal and Barangay officials final, executory and unappealable? Is there an available relief form said orders or rulings of the Comelec? A – A petition for review by certiorari may be filed with the Supreme Court within 30 days from receipt of a copy of questioned decision, and on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process. (Aratuc vs. Comelec, 88 SCRA 251) Q – Can the Supreme Court review via certiorari an interlocutory order or a final resolution of a Division of the COMELEC? A – No. The decision must be a final decision or resolution of the COMELEC en banc before the Supreme Court may review the same via certiorari. Q – When is a resolution or decision of the COMELEC considered complete? A – A resolution or decision of the COMELEC is considered complete and validly rendered or issued when there is concurrence by the required majority of the Commissioners. ELECTORAL TRIBUNALS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES Q – What is the function of the Electoral Tribunals of the Senate and the House of Representatives?

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A – They were created by the Constitution “as sole judge of all contests relating to the election, returns and qualifications of their respective Members.” (Section 17, Article VI, 1987 Constitution) The tribunal was created to function as a non-partisan court although two-thirds of its members are politicians. It is a non-politic body in a sea of politicians. Q – What is the constitutional basis of the said tribunals? A – Section 17, Article VI of the 1987 Constitution provides as follows: “Section 17. The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.” Q – Section 17, Article VI states that the said tribunal “shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members,” does this mean that the said tribunal can act independently without interference from the leaders and members of the legislature? A – Said tribunals are independent bodies which can select their own employees, and to supervise and control them without legislative interference (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818). To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contest is not to be shared by it with the Legislature nor with the Courts. The Supreme Court ruled that: “The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority is an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature.” Q – Congressman Camasura, then a member of the House Electoral Tribunal, was a member of the LDP. However, he cast his vote in favor of Bondoc, a candidate of the Nationalista Party. Subsequently, the House of Representatives adopted a resolution removing Congressman Camasura from the House of Electoral Tribunal for disloyalty to the LDP. Can Congressman Camasura’s membership in the HRET be

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terminated? May he be removed by the House of Representatives for party disloyalty? A – No. REASONS: (1) It is an impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc; (2) To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three Justices of the Supreme Court and the lone NP member would be powerless to stop; (3) In expelling Congressman Camasura from HRET for having cast a “conscience vote” in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is therefore null and void; (4) It violates Congressman Camasura’s right to security of tenure. Members of the HRET, as “sole judge” of congressional election contests are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution. (Section 2, Article VIII, 1987 Constitution) Q – How may the members in the HRET be terminated? A – They may be terminated only for a just cause such as the expiration of the member’s congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party or removal for other valid cause. JURISDICTION AFTER PROCLAMATION Q – After proclamation, does the COMELEC retain jurisdiction over disqualification cases? A – Yes. The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006) Q – Is the above-said rule absolute? A – No. The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate, where the appropriate electoral tribunal would have jurisdiction. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006)

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Q – A congressional candidate has been proclaimed, taken his oath and assumed office. Does the Comelec still have the jurisdiction to annul the proclamation? A – The Comelec lost jurisdiction after a proclamation of a congressional candidate. The alleged invalidity of the proclamation is a matter for the House Electoral Tribunal to decide. (Ututalum vs. Comelec, 181 SCRA 335) Q – The winning candidate has taken his oath and assumed office already, however, there was an alleged error in the statement of votes. Does the COMELEC have the power to annul a proclamation? A – The COMELEC has the power to annul a proclamation of a winning candidate who has taken his oath and assumed office already, due to an alleged error in the tabulation of the statement of votes. The Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately affects the validity of the proclamation. If a candidate’s proclamation is based on a Statement of Votes which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to annul the proclamation. (Alejandro vs. COMELEC, G.R. No. 167101, January 31, 2006) REVIEW OF THE TRIBUNAL’S DECISION Q – May the Supreme Court review and set aside the decision of the said Electoral Tribunal? A – Yes, if the decision of the said tribunal was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, or upon a clear showing of such arbitrary and improvident use by the tribunal of its power which constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such a grave abuse of discretion that there has to be a remedy for such abuse of discretion. (Lerias vs. House of Representatives Electoral Tribunal, G.R. No. 97105, October 15, 1991) Q – What course of action could be taken if there is a showing of arbitrary and improvident use of the power which constitutes a denial of due process of law? A – Judicial review of decision or final resolutions of the Senate or House Electoral Tribunal is possible only in the exercise of this Court’s socalled supervisory or extraordinary, not its appellate jurisdiction, and that extraordinary jurisdiction may be invoked and called into play through the special civil action or certiorari or prohibition. This form of review does not authorize reversal or modification of the tribunal’s adjudgment

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on the theory that it is tainted by error in its findings of fact or of law, as in appellate proceedings generally. Such a reversal or modification is permissible only upon a determination that the tribunal’s decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, or if there is a denial of due process of law, or upon a demonstration of “clear and unmitigated ERROR constituting GRAVE ABUSE OF DISCRETION.” JURISDICTIONAL FACTS NECESSARY TO CONFER JURISDICTION TO TRY AN ELECTION PROTEST Q – What are the jurisdictional facts necessary to confer jurisdiction to try an election protest? A – They are the following: (1) That the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office; (2) That the protestee has been proclaimed; (3) That the petition was filed within 10 days after proclamation; (Miro vs. Comelec, G.R. No. 97574, April 20, 1938, 121 SCRA 466; Maquinay vs. Bleza, G.R. No. 54230, October 30, 1980, 100 SCRA 702); and (4) That the fraud and election irregularities vitiated the conduct of elections and affected the legality thereof. (Badelles vs, Cabili, G.R. No. 29333, February 27, 1967, 27 SCRA 113; De Castro vs. Ginere, G.R. No. 300058, March 28, 1969, 27 SCRA 623) NOTE: 1.

2.

That the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office – The law provides that the person entitled to file an election protest is a “candidate who has duly filed a certificate of candidacy and has been voted to the same office” (Sections 250, 251, 252, Election Code). However, precision in the use of terms in an election protest is not indispensable. Substantial compliance is sufficient. In other words, the jurisdictional allegation need not be in exact language of the law nor the verbatim use thereof a condition sine qua non to the conferring of jurisdiction upon the Commission or the court, as the case may be, to take cognizance of the election protest. As long as the jurisdictional requirements are alleged in some words that convey substantially the idea, there is substantial compliance. (Maquinay vs. Bleza, 100 SCRA 702; Miro vs. Comelec, 121 SCRA 466; Macias vs. Comelec, 182 SCRA 137) That the protestee has been proclaimed – As already explained earlier, when a congressional candidate has been proclaimed, taking his oath, assumed office, the Comelec has no jurisdiction to annul the proclamation.

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4.

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The alleged invalidity of the proclamation is a matter for the HET to decide. (Ututalum vs. Comelec, supra) That the petition was filed within 10 days after proclamation – The law requires that an election protest shall be filed within 10 days after proclamation of the winning candidates. The filing of a petition to annul or suspend the proclamation suspends the running of this 10-day period (Section 248, Batas Pambansa Blg. 881), and it begins to run again from notice of the dismissal of the pre-proclamation case (Esquivel vs. Comelec, G.R. No. 53475, April 28, 1983, 121 SCRA 786). The 10-day period to file election protest is mandatory, and the filing of an election protest beyond the period deprives the court or the Commission of the jurisdiction over the protest (Robes vs. Comelec, 123 SCRA 193). However, a protestee may be estopped from claiming that the protest was not timely and validly filed. That the fraud and election irregularities vitiated the conduct of elections and affected the legality thereof – Where an election protest alleges fraud and irregularities in the conduct of election, a sufficient cause of action exists, even if no averment is made that the true result of the election would be in protestant’s favor, for it gives rise to doubt as to who were the duly elected officials. (Badelles vs. Cabili, 27 SCRA 113)

QUO WARRANTO Q – What are the requisites to be able to file a petition for quo warranto? A – 1. The petition is filed by any registered voter in the constituency; 2. The said petition is filed on the ground of ineligibility or disloyalty to the Republic of the Philippines; and 3. The said petition is filed within ten (10) days from the proclamation of the results of the election. Q – What is the difference between quo warranto in elective appointive office? A – In an elective office, the issue is eligibility of the officer-elect. The court or tribunal cannot declare the protestant (or the candidate who obtained the second highest number of votes) as having been elected. (Sunga vs. Comelec, 288 SCRA 76) 1. In an appointive office, the issue is the legality of the appointment. The court determines who of the parties has legal title to the office. ELECTION OFFENSES Q – What are considered as election offenses? A – They are actually the prohibited acts mentioned in Section 261 of Batas Pambansa Blg. 881 which, if committed, are considered as election offenses. They are as follows:

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(1) (2) (3) (4) (5)

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Vote-buying and vote-selling Conspiracy to bribe voters Wagering upon result of election Coercion of subordinates Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion (6) Coercion of election officials and employees (7) Appointment of new employees, creation of new position, promotion, or giving salary increases (8) Transfer of officers and employees in the civil service (9) Intervention of public officers and employees (10) Undue influence (11) Unlawful electioneering (12) Prohibition against dismissal of employees, laborers, or tenants (13) Appointment or use of special policemen, special agents, confidential agents or the like (14) Illegal release of prisoners before and after election (15) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign (16) Deadly weapons (17) Carrying firearms outside residence or place of business (18) Use of armored land, water or air craft (19) Wearing of uniforms and bearing arms (20) Policemen and provincial guards acting as bodyguards or security guards (21) Organization or maintenance of reaction forces, strike forces, or other similar forces (22) Prohibition against release, disbursement or expenditure of public funds (23) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices (24) Suspension of elective provincial, city, municipal or barangay officer (25) On registration of voters: 1. Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote.

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2.

3.

4.

5.

6. 7. 8. 9.

10.

11.

Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration. Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter’s affidavit; or any person in charge of the registration of voters who deliberately or through negligence, cause or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records. Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications. Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration. Any person who registers in substitution for another whether with or without the latter’s knowledge or consent. Any person who tampers with or changes without authority any data or entry in any voter’s application for registration. Any person who delays, hinders or obstruct another from registering. Any person who falsely certifies or identifies another as bona fide resident of a particular place or locality for the purpose of securing the latter’s registration as a voter. Any person who uses the voter’s affidavit of another for the purpose of voting, whether or not he actually succeeds in voting. Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter’s application, except upon lawful order of the Commission or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125.

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12.

(26) (27) (28) (29) (30)

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Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place. 13. Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter’s affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter’s affidavit of another and the latter are both members of the same family. 14. Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter’s affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter’s affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof. 15. Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters. 16. Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission. 17. Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place. On voting: There are 24 prohibited acts enumerated under Section 261(z). See enumeration. On canvassing: There are 4 prohibited acts enumerated under Section 261(aa). See enumeration. Common to all BEI and Board of Canvassers: There are 5 prohibited acts enumerated under Section 261(bb). See enumeration. On candidacy and campaign: There are 6 prohibited acts enumerated under Section 261(cc). See enumeration. Other prohibitions: There are 5 prohibited acts enumerated under Section 261(dd). See enumeration.

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(31) Other election offenses (See Section 27 of Republic Act No. 6646 providing additional election offenses): Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102,103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240. PERSONS CRIMINALLY LIABLE Q – Who are the persons criminally liable for election offenses? A – The principals, accomplices, and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses. (Section 263, 1st sentence, Batas Pambansa Blg. 881) Q – If the one responsible is a political party or an entity, who, in particular are liable? A – If the one responsible is a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its members who may be principals, accomplices, or accessories shall be liable, in addition to the liability of such party or entity. (Section 263, 2nd sentence, Batas Pambansa Blg. 881) PENALTIES Q – What are the penalties imposed under Batas Pambansa Blg. 881? A – 1. Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than 1 year but not more than 6 years and shall not be subject to probation. 2. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. 3. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. 4. If a political party is found guilty, it shall be sentenced to pay a fine of not less than P 10,000.00, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty. 5. In case of prisoner or prisoners illegally released from any

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penitentiary or jail during the prohibited period as provided in Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit act of intimidation, terrorism or interference in the election. Any person found guilty of the offense of failure to register or failure to vote shall, upon conviction, be fined P100.00. In addition, he shall suffer disqualification to run for public office in the next succeeding election following his conviction or be appointed to a public office for a period of 1 year following his conviction. (Section 264, Batas Pambansa Blg. 881)

PROSECUTION Q – Who has exclusive power to conduct preliminary investigation of all election offenses? A – The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. If the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Section 265, Batas Pambansa Blg. 881) ARREST IN CONNECTION WITH THE ELECTION CAMPAIGN Q – If an alleged election offense is committed during and in connection with any election, what are the requirements before a warrant of arrest could be issued? A – 1. No person shall be arrested and/or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order or whatever name or nature and by whomsoever issued except only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with. 2. If the offense charged is punishable under a presidential decree whether originally or by amendment of a previous law, the death

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3.

4. 5.

penalty shall not be imposed upon the offender except where murder, rape or arson is involved. In all cases, the penalty shall not be higher than reclusion perpetua and the offender shall be entitled to reasonable bail upon sufficient sureties to be granted speedily by the competent court. Loss of the right of citizenship and confiscation of property shall not be imposed. Any officer or a person who shall violate any provision of this section shall be punishable by imprisonment of not less than 6 years and 1 day nor more than 12 years, with the accessory penalties for election offenses. The provision of Section 267 of Batas Pambansa Blg. 881 shall not apply to prosecution under this section. (Section 266, Batas Pambansa Blg. 881)

PRESCRIPTION Q – What is the prescriptive period for election offenses? A – Election offenses shall prescribe after 5 years from the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. (Section 267, Batas Pambansa Blg. 881) JURISDICTION OF COURTS Q – Who have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of Batas Pambansa Blg. 881? A – The RTC except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. (Section 268, Batas Pambansa Blg. 881) PREFERENTIAL DISPOSITION OF ELECTION OFFENSES Q – What is the preference and priority given by the Comelec regarding investigation and prosecution of election offenses? A – 1. They shall be given preference and priority. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within 5 days from its submission for resolution. 2. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within 30 days from its submission for decision. (Section 269, Batas Pambansa Blg. 881)

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CASES: MAKALINTAL VS. COMELEC G.R. NO. 157013, JULY 10, 2003 Section 5(d) of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) allows the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines. Does this violate the six-month/one-year residency requirement in Section 1, Article V of the Constitution? RULING: No. The interpretation here of “residence” is synonymous with “domicile.” Under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. Domicile means an individual’s “permanent home” or “a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent.” Section 2, Article V of the Constitution which states “the Congress shall provide a system for…absentee voting by qualified Filipinos abroad” was added to avoid any problems that could impede the implementation of its objective to enfranchise the largest number of qualified Filipinos who are not in the Philippines. The reason Section 2, Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the sixmonth/one-year residency requirement. LEGARDA VS. DE CASTRO P.E.T. CASE NO. 003, MARCH 31, 2005 Presidency; Article VII, Section 4; The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the Presidential Electoral Tribunal (PET), in Section 4, Article VII of the Constitution. FACTS: The Presidential Electoral Tribunal (PET) in its Resolution dated January 18, 2005 confirmed the jurisdiction over the protest of Loren B. Legarda and denied the motion of protestee Noli L. de Castro for its outright dismissal.

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The Tribunal further ordered to undertake measures for the protection and preservation of the ballot boxes and election documents subject of the protest. On February 4, 2005, protestee filed a motion for reconsideration assailing the said resolution. Protestee contends therein that: 1. The PET cannot correct the manifest errors on the statements of votes (SOV) and certificates of canvass (COC) because 2. The PET erred in ruling that the petition filed by Legarda is sufficient in form and in substance. ISSUE: Whether or not questions on the validity, authenticity and correctness of the SOVs and COCs are outside of the PET’s jurisdiction? Corollarily, is it within the grant of authority of the tribunal to re-canvass the ballots in cases of protests? Is the petition filed sufficient in form and substance? HELD: The Court held that the tribunal has the authority to correct manifest errors on the statements of votes (SOV) and certificates of canvass (COC). The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the duty to correct manifest errors in the SOVs and COCs. As held in Peña vs. House of Representatives Electoral Tribunal, the requisite for the sufficiency of election protest is to specify the results in the contested precincts. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she questions all the results in all the precincts therein. The protest here is sufficient in form and substantively, serious enough on its face to pose a challenge to protestee’s title to his office. Although the Court find that the protest is sufficient in form and substance, it further stressed that nothing as yet has been proved as to the veracity of the allegations. The protest is only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots, nothing herein prevents the Tribunal from allowing or including the correction of manifest errors, pursuant to the Tribunal’s rule-making power under Section 4, Article VII of the Constitution. ALAN PETER CAYETANO VS. COMMISSION ON ELECTIONS, ET AL. G.R. NOS. 166388 and 166652, JANUARY 23, 2006 Regarding petitioner’s allegations that the matters being raised - The alleged incomplete canvass of plebiscite votes during the

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revision proceeding and irregularities, frauds and anomalies purportedly committed. Can these questions be raised in a special civil action for certiorari under Rule 65, and do they fall under the Supreme Court’s power of review? RULING: 1.

2.

They are factual in nature. They involve an examination of the admissibility and sufficiency of the evidence presented during the revision proceedings before the Comelec. The factual findings of the Comelec supported by evidence, are accorded not only respect but finality. This is so because “the conduct of plebiscite and determination of its result have always been the business of the Comelec and not the regular courts. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, the Comelec has the indisputable expertise in the field of election and related laws. Its acts therefore, enjoy the presumption of regularity in the performance of official duties. PARTIDO NG MANGGAGAWA, ET AL. VS. COMELEC G.R. NO. 164712, MARCH 12, 2006

The four (4) inviolable parameters of the party-list system under the Constitution and R.A. No. 7941: 1. The 20% ALLOCATION – The combined number of all party-list Congressmen shall not exceed 20% of the total membership of the House of Representatives including those elected under the party-list. 2. The 2% THRESHOLD – Only those parties garnering a maximum of 2% of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives. 3. The Three-seat Limit – Each qualified party regardless of the number of votes it actually obtained is entitled to a maximum of three seats, that is one “qualifying” and two-additional seats. 4. Proportional Representation – The additional seats which a qualified party is entitled to shall be computed “in proportion to their number of votes.” The formula for computing the additional seats in the party list system under the Constitution and R.A. No. 7941:

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First step – a) Is to rank all participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. b) Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. c) All parties with at least 2% of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. d) The party receiving the highest number of votes shall henceforth be referred to as the “first party.” Second step – is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the number of votes. Qualification: 1. If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party should be entitled to two (2) additional seats or a total of three (3) seats overall. 2. If the proportion is less than 4%, then the first party shall not be entitled to any additional seat. Third step – is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula in simplified form is written as follows: Additional Seats for Concerned = Party

No. of votes of concerned party No. of votes of First party

No. of votes of = allocated to the first Party

ANTONIO F. TRILLANES IV VS. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT-BRANCH 148, MAKATI CITY, ET AL. G.R. NO. 179817, JUNE 27, 2008 Legislative; doctrine of condonation; the performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted

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a prisoner into a different classification from those others who are validly restrained by law. FACTS: In the aftermath of the “Oakwood Incident,” petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d’etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. Petitioner, who has remained in detention, won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. Before the commencement of his term, the petitioner filed an “Omnibus Motion for Leave of Court to be allowed to Attend Senate Sessions and Related Requests.” The trial court denied all the requests in the Omnibus Motion. Hence, this present petition ISSUE: 1. 2.

Is the doctrine of condonation available in criminal cases? Is the denial of the Omnibus Motion tantamount to removing the respondent from his office and depriving the people of proper representation? Corollary, is it tantamount to disenfranchising the electorate?

HELD: 1.

2.

ON WHETHER THE DOCTRINE OF CONDONATION APPLIES IN CRIMINAL CASES –Petitioner’s contention hinges on the doctrine in administrative law that “a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no “prior term” to speak of. [T]he Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner’s electoral victory only signifies pertinently that when the voters elected him to the Senate, “they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison.” ON THE DISENFRANCHISEMENT ARGUMENT – In debunking the disenfranchisement argument, it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution

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and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the “mandate of the people” are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. (Underscoring supplied) x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system. LAMBINO VS. COMMISSION ON ELECTIONS G.R. NO. 1741563, OCTOBER 25, 2006 Q – Can the 1987 Constitution of the Republic of the Philippines be revised through People’s Initiative? A – No. REASONS: 1. The proposed changes of the petitioner will overhaul two (2) articles, thus: (a) Article VI on the Legislature; (b) Article VII on the Executive. 2. The proposed changes alter substantially the basic plan of government from presidential to parliamentary, and from a bicameral to unicameral legislature. 3. Section 2, Article XVII of the Constitution does not allow revision through initiative. People’s initiative to change the Constitution applies only to an amendment of the Constitution, not to its revision.

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PUBLIC INTERNATIONAL LAW FOR SIMPLIFICATION, THE SUBJECTS COVERED ARE DIVIDED INTO THREE: I. II.

MAIN TOPICS: AT A GLANCE: TERMS/PHRASES/MAXIMS/PRINCIPLES/DOCTRINES IN PUBLIC INTERNATIONAL LAW III. OTHER RELEVANT INFORMATION I. MAIN TOPICS: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

13.

14 15 16. 17. 18. 19. 20.

Distinction, Private International Law and Public International Law PIL–ML – Distinction, Public International Law and Municipal Law Recognition – Recognition of States. Kinds of recognition DE-DE De Facto and De Jure Government SS–SG – Succession of States, Succession of Government SO – Subjects and objects of Public International Law VC – HS – Vatican City and the Holy See DSC – Doctrine of State Continuity ASD – Act of State Doctrine BIC – Belligerent and insurgent communities UN – United Nations, principles of UN, organs of UN RS – Rights of States (Code: ESEP – LEG) E- xistence S- overeignty E- quality P- roperty and jurisdiction LEG- ation J– Jurisdiction of States (Basis is territorial principle, Nationality principle, Protective principle, Universality principle, Passive Personality principle) EJ – Exemptions from jurisdiction (Doctrine of Sovereign Immunity, Act of State Doctrine, Diplomatic Immunity) Treaties Principles concerning treaties War Law of War, rules of warfare, sanctions, prisoners of war P– Peaceful and forcible Sanctions Beli – Mili – Belligerent occupation, military occupation EFFECT – Of belligerent occupation on the sovereignty of the legitimate government SP Rights of stateless persons PIL–PIL –

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LOS ASL

Law of the Sea Air and Space Law II. AT A GLANCE

(Terms/Phrases/Maxims/Principles/Doctrines in Public International Law) I.

In connection with treaties 1. Pacta Sunt Servanda 2. Rebus Sic Stantibus 3. Lex Posterior derogat priori 4. Pact 5. Convention 6. Concordats 7. Declaration 8. Jus Cogens 9. Most Favored Nation Clause 10. Treaty as distinguished from Executive Agreement 11. Reversales 12. Lettres reversals 13. Alternat 14. Plein pouvoir 15. Reservation II. In connection with the right of property and jurisdiction 1. Continental Shelf 2. Easement of Innocent Passage 3. Territorial Sea 4. Freedom of the Seas 5. Freedom of Navigation 6. Contiguous Zone 7. Exclusive Economic Zone 8. Archipelago Doctrine III. In connection with the right of legation or diplomatic intercourse 1. Right of Legation 2. Ambassadors 3. Ministers Plenipotentiary 4. Minister Resident

PUBLIC INTERNATIONAL LAW

5. Charges d’ affaires 6. Diplomatic Corps 7. Agreation 8. Letre de creance 9. Diplomatic passport 10. Diplomatic mission IV. In connection with diplomatic immunities and privileges 1. Asylum 2. Territorial Asylum 3. Exterritorial Asylum V. In connection with consular officials 1. Consul 2. Consules Missi (consuls de carriere) 3. Consules electi 4. Letre de provision 5. Exequator VI. In connection with exemptions from jurisdiction 1. Doctrine of sovereign immunity 2. Acta jure imperii 3. Acta jure gestiones VII. In connection with participants in the war 1. Non-privileged combatants 2. Privileged combatants VIII. In connection with termination of war 1. Status quo anti vellum 2. Doctrine of postliminium IX. In connection with forbidden methods of warfare 1. No quarter method 2. Starvation method 3. Reprisals 4. Perfidy or Treachery X. In connection with peaceful and forcible sanctions 1. Diplomatic negotiations 2. Tender and exercise of good offices 3. Mediation 4. Enquiry and conciliation 5. Arbitration

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6. Reference to the Security Council of the UN 7. Reference to the International Court of Justice XI. In connection with international custom/customary international law 1. Cabotage 2. Angary 3. Opinio juris 4. Equity infra legem 5. Equity praeter legem 6. Equity contra legem XII. In connection with modes of acquiring territories 1. Discovery 2. Prescription 3. Cession 4. Conquest 5. Accretion XIII. In connection with subjects of international law 1. State 2. Colony 3. Dependencies 4. Belligerent 5. Mandates 6. Trust territories XIV. Other terms/phrases/doctrines: 1. Par in parem non habet imperium 12. Double Veto 2. Ex aequio et bono 13. Genocide 3. Res inter alias actu 14. Torture 4. Terra nullius 15. Slavery 5. Doctrine of auto limitation 16. Reprisal 6. Doctrine of contingent sovereignty 17. Embargo 7. Drago Doctrine 18. Blockade 8. Hinterland Doctrine 19. Boycott 9. Thalweg Doctrine 20. Aggression 10. Extradition 21. Persona non grata 11. Deportation 22. Aide Memoaire

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EXPLANATION OF THE MAIN TOPICS 1. Private International Law

Public International Law

1. Deals with private individuals. 2. It is really municipal or national in character because each State has its own conflict rules. 3. Relief or reliefs prayed for may be obtained from municipal tribunals.

1. It governs the relation of sovereign States and other entities with an international personality. 2. They are generally accepted principles of public international law, giving to the subject an international nature. 3. Sanctions may be in the form of peaceful remedies. Example: diplomatic negotiation, mediation, conciliation, arbitration, diplomatic efforts, settlement by the international court of justice. In extreme cases, forcible measures may be employed like war and reprisal.

BASIS OR FOUNDATION OF PUBLIC INTERNATIONAL LAW In actual practice, common consent and natural moral law are determinative factors in interstate relationship. This is founded on the reason that common consent necessarily commands the faithful compliance of commitments made, or arrived at, in the course of a common agreement. There are three schools of thought on this matter: (1) Natural Law School of Thought – which claims that the basis is the natural common law, which, in turn, is based on the rule of human conduct implanted by the Creator in the very nature of man in his conscience to do what is right and to avoid what is evil. (2) Positivist School of Thought – According to this school of thought, the basis is the common consent of States. (3) Eclectic School of Thought – This school of thought holds the view that Public International Law is premised both on the natural moral law and on common consent. Q – Why is public international law observed? A – States observe public international law because: (a) they believe in the reasonableness of the law of nations; (b) they fear reprisal from the other States; and (c) they fear being unconventional.

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Q – Why is public international law observed by private individuals? A – Private individuals observe public international law because as rational beings, they realize that the laws of nations are founded on natural moral law and on common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective heads of states and ambassadors, As the saying goes, “No man is an island” and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in the pursuit of their respective business or trade but also in terms of technology and funding. Q – What is the relation between public international law and municipal law in general? A – Although international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation in political law. Under this doctrine, a State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, the same being considered as part of its own laws. In consonance with this doctrine, the Philippines is bound by any resolution which is duly approved by the United Nations General Assembly, or by any treaty, commitment, or agreement, reached in an international convention, especially when the Philippines is a party or a signatory to the said agreement or treaty. But even if it is not a signatory, the Philippines is bound by the Hague Convention because it embodied the generally accepted principles of international law binding upon all States. 2. Public International Law

Municipal Law

1. It is more difficult to enforce because it is enforced by the collective wills of equals (sovereign states). 2. The principal sanctions are reprisals and war. 3. The international order is relatively decentralized. 4. Collective responsibility is the rule for failures or omissions.

1. Obedience to municipal law is easier to enforce because the citizens recognize the superiority of their government and its duly constituted authorities. 2. Law is enforced through criminal punishment or execution of judgment. 3. It is relatively a centralized coercive order because there is one central authority (the municipal government) generally legislates for everybody within the State. 4. Individual responsibility generally prevails.

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RELATIONSHIP BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW Although international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation in political law. Q – Is public international law independent from municipal law? A – According to the Monistic View: Both law depend on each other and both are ultimately directed to the same individual because a State is composed of individuals. While ostensibly, public international law deals with foreign affairs and national law concerns itself with domestic affairs, every so-called domestic affair of a State can be made the subject matter of an international agreement. Hence, it is transformed into a foreign affair. According to the Dualistic or Pluralistic View: Public international law is completely distinct from municipal law; and international law and national law are mutually independent of each other and because the subject matter of public international law is foreign affairs and the subject matter of municipal law is domestic affairs. Besides, public international law is created by the cooperation of two or more States while national law is created by acts of one State, and even by actuations which are not officially “acts of State.” What is the conflict between public international law and municipal law? It depends. If the conflict is to be decided by a local court and the case is with respect to the conflict of public international law and our Constitution, then our Constitution should be upheld being the highest law of the land. REASON: Section 5[2][a], Article VIII of the 1987 Constitution which provides that the Supreme Court shall have the power to “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: x x x (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.” x x x If the conflict is with respect to international law and a statute, the rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogat priori, that which comes last in time, will usually be upheld by the municipal tribunal.

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If the conflict is to be decided by an internationally created tribunal, the recognized principle is that national laws must yield to the laws of nations. REASON: International law provides the standards by which legality of State’s conduct is to be determined. Q – What prevails in case of conflict between a treaty and a municipal constitution? A – From the point of view of the State itself, our Constitution provides that a treaty may be declared unconstitutional by the courts. From this point of view, the municipal law prevails. The example is the case of Ichong vs. Hernandez where it was then held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China. NOTE: The decision in Ichong vs. Hernandez no longer holds true because under the new law, otherwise known as the Retail Trade Liberalization Act of 2000, Republic Act No. 8762, foreign individuals or corporations can now engage in retail trade subject to the conditions and limitations prescribed by the said law. BAR QUESTION, 1980 Q – The 1968 Vienna Convention on Road Signs and Signal, which was ratified by the Philippine Government under Presidential Decree No. 207 recommended the enactment of the local legislation of the safety signs devices. Acting on that recommendation, Letter of Instruction No. 229 was issued requiring the procurement by all motor vehicle owners of reflectorized triangular early warning devices as a means of preventing nighttime vehicular accidents. Discuss briefly the validity or invalidity of said LOI from the standpoints of (1) international law; (2) police power; and (3) due process. A – The Government of the Republic of the Philippines ratified the 1968 Vienna Convention on Road Signs and Signals, hence the said LOI was issued precisely to be able to fulfill its obligation to install safety signs and devices and to carry out the recommendation of the said convention. The said LOI is therefore valid. The said letter of instruction is a valid exercise of police power. It is a measure designed to insure traffic safety and to avoid traffic accident. The said LOI did not violate due process. As mentioned, the said LOI is a valid police power measure which is precisely for the protection of motorists. Conjectural claims of petitioner as to number of nighttime vehicular collisions cannot be a basis for setting aside a requirement of law that was promulgated after a careful study by the Executive Department.

PUBLIC INTERNATIONAL LAW

Q –

A –

Q – A –

Q –

A –

Q – A –

Q – A –

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The Letter of Instruction is issued in the exercise of police power for traffic safety. Furthermore, there is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. (Agustin vs. Edu, SCRA 195) The Department of Health (DOH) issued an administrative order implementing a resolution adopted by the World Health Organization (WHO) to the effect that public officers are not allowed to smoke inside the premises of government buildings. It is on account of this resolution that the petitioner asked that President Noynoy Aquino be sanctioned for violating the said order of DOH. President Aquino claims that the said order is not applicable because there is no enabling law since the same is not incorporated in the municipal law. Which contention is correct? The said resolution of WHO is not binding unless and until it becomes a law or it is established as a customary rule. In otherwords, legislation is necessary to transform the said resolution into a domestic law. (Pharmaceutical and Health Care Association of the Philippines vs. Duque, G.R. No. 173034, October 9, 2007) In the meantime that the said resolution is not yet transformed into a domestic law, how shall it be treated? It only partakes of the nature of a soft law and not a treaty, which means that it is only an expression of non-binding norms, principles and practices that merely influence state behavior. (Ibid.) If the said resolution is embodied in a treaty which became the basis of the order of the DOH, and it is a treaty where the Philippines is a signatory, how shall it be treated? The said order, which is based on the resolution of WHO, becomes obligatory, because the Philippines is a signatory to the treaty, and it is bound by its commitment to comply with the same. What is a soft law? As above-mentioned, a soft law is merely an expression of non-binding norms, principles and practices that merely influence state behavior. Hence, it is not binding because it is not yet transformed into a domestic law. For it to be binding, the same must be established as a customary rule. What is the purpose of international law? Public international law strives to regulate the actuation of States insofar as they affect the international scene and in some instances, international law allows a State to legally perform acts within the territory of another State.

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3. RECOGNITION OF STATES Recognition of a State – Recognition is the act of acknowledging the existence of a State, a government or belligerency. It is a political act which is exercised by the political department of the State. It is therefore discretionary on the part of a State whether it desires to recognize another State. There are two theories on recognition: (1) the majority view, also known as the declarative view, which holds that recognition merely affirms an existing fact. (i.e., if a State possesses all the essential elements it depends on the recognizing State if it will affirm or not that such State being recognized has indeed all the essential elements of the State; (2) the minority view, also known as the constitutive view, which holds that recognition is compulsory and legal. This means that the recognizing State may be compelled to extend recognition if the elements of a State are established. What is required in order that a government may be recognized? The government must enjoy the support and popular consent or approval of the people and it must show willingness and ability to discharge its international obligations. Different doctrines regarding recognition of any government (1) (2)

(3)

Under the Stimson Doctrine, no recognition shall be extended to a government established by and through external aggression. Under the Tobar/Wilson Doctrine, recognition of government which is established by revolutionary means shall not be extended until the said government shall have established a constitutional reorganization and shall have freely elected its representatives. Under the Estrada Doctrine, a recognizing State will not issue a declaration giving recognition to another government which is established through a political upheaval. Instead, it will merely accept whatever government has effective control without making a judgment on whether the government that is recognized is legitimate or not.

When will recognition be accorded by the recognizing State? This is within the discretion of the recognizing State. The bulk of the practice of States probably supports the view that governments do not deem themselves free to grant or refuse recognition to a new State in an arbitrary manner, by exclusive reference to their own political interests and regardless of legal principles. Different kinds of recognition (1) Express recognition; (3) De Facto recognition; and

(2) (4)

Implied recognition; De Jure recognition

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Distinguish de facto recognition from de jure recognition De Facto

De Jure

De facto recognition does not bring about full diplomatic intercourse. It is generally provisional and it is extended on the belief of the recognizing State that some of the requirements for recognition are absent. It does not give title to assets of the State held or situated abroad.

De jure recognition brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad.

4. DE FACTO AND DE JURE GOVERNMENT Q – Distinguish de jure government from de facto government. A – A de jure government is an organized government of a State which has the general support of its people. A de facto government is characterized by the fact that it is not founded upon the existing constitutional law of the State. (28 C.J. 75) Q – What are the different kinds of de facto government? A – (a) That government which gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by parliament and later by Cromwell as protector. (b) That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force, as in the cases of Castine, in Maine, which was reduced to British possession in the War of 1812, and of Tampico, Mexico, occupied during the war with Mexico by the troops of the United States. (c) That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state, such as the government of the Southern Confederacy, in revolt against the Union during the war of secession. (Co Kim Cham [alias] Co Cham vs. Dizon and Tan Keh, 75 Phil. 113) Q – What are the characteristics of “de facto” government of paramount force? A – Its distinguishing characteristics are: 1. That its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and

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2.

That while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered by military authority, but they may be administered also by civil authority, supported more or less directly by military force. (Ibid.)

Remember my discussion through question and answer in the textbook, Constitutional Law, Volume 1 Q – Corazon C. Aquino took her oath of office on February 25, 1986, the last day of a four-day “people power” revolt. This culminated in the ouster of President Ferdinand E. Marcos. Before she took her oath of office, she read Proclamation No. 1 wherein she declared that she and her Vice-President were “taking power in the name and by the will of the Filipino people.” Was the government under Corazon C. Aquino a revolutionary government? A – It is submitted that the provisional government that was established thereunder was revolutionary in character because it was installed by the direct action of the people or by “people power.” Hence, it derived its existence and authority directly from the people themselves, not from the 1973 Constitution which was then in existence. Q – Was it a de jure government or a de facto government? A – Initially, the government was a de facto government because there was no constitutional basis of its creation, the same not having been sanctioned either under the 1935 or the 1973 Constitution. However, the de facto government at the start acquired a de jure status when it obtained the continuous public acceptance and support of the people and the recognition of practically all foreign governments. Q – If the said government is a revolutionary government, what was its effect on the Bill of Rights under the 1973 Constitution? A – The Bill of Rights under the 1973 Constitution was not operative during the interval between February 28, 1986 and March 24, 1986 when the Freedom Constitution took effect by presidential proclamation. Q – How about the government under Gloria Macapagal-Arroyo that was established after the ouster of President Joseph Estrada, is it de jure or de facto? A – The Supreme Court considered it a de jure government because President Joseph Estrada already gave up the presidency.

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The Supreme Court said: “xxx Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court.” (Underlining Supplied) 5. SUCCESSION OF STATE AND SUCCESSION OF GOVERNMENT Distinguish succession of State and succession of government SUCCESSION OF STATE 1. Political laws are abrogated while municipal laws remain in force. 2. Treaties are discontinued except those dealing with local rights and duties. 3. All rights of the predecessor State are inherited, but the successor State has the discretion to assume or reject liabilities.

SUCCESSION OF GOVERNMENT The State continues as the same international person except that its lawful representative is changed. When this happens, what are the consequences? All rights of the predecessor government are inherited by the successor. If the new government was organized due to a constitutional reform, which is duly ratified in a plebiscite, all obligations of the predecessor are also assumed. However, if the new government is established through violence, the new government may lawfully dishonor the personal or political obligations of the predecessor, but not those obligations or contracts entered into in the ordinary course of official business.

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6. SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW Q – Distinguish each from the other. A – Subject of International Law – is an entity directly endowed with rights as well as obligations in the international legal order. Example: In the exercise of its rights, the Philippines, as a sovereign State, can enforce said right and may even sue in the International Court of Justice. On the other hand, the Philippine Republic may be sued in the international tribunal for its official actuations. Object of International Law – An object is a person or thing indirectly vested with rights and obligations in the international order. Example: A Filipino private citizen has rights which owe to be respected by other States but if he has some grievances, he has to course the same through the Republic and its diplomatic offices. Q – What are the subjects of international law? A – 1. States 2. Colonies 3. Dependencies 4. Belligerent Q – Are private individuals regarded as subjects of international law? A – The rights of individuals as against States are now protected. In fact, in case of crimes against humanity like genocide, victims are afforded the opportunity to participate in the proceedings. NOTE: In cases where international law does not give an individual direct rights and obligations on account of a treaty or a general principle, the individual, in such a case, may only be treated as an object of international law, and for which reason, such individual does not have a standing to espouse a direct claim in the international legal order. BAR QUESTION, 1982 Q – What is the status of an individual under International Law? A – Individuals may be regarded as true subjects of International Law. Individuals are also directly and individually subjects of obligations, responsibilities and rights established by International Law. The statement that States as juristic persons are subjects of International Law only means that individual human beings are indirectly and

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collectively, in their capacity as organs or members of the State, subjects of the obligations, responsibilities, and rights presented as obligations, responsibilities and rights of the State. (Kelsen, 114) 7. VATICAN CITY AND THE HOLY SEE Is the Vatican or the Holy See a State? Yes, it possesses the essential elements of a State. REASONS: 1. There are around 1,000 people almost all of whom are individuals residing therein by virtue of their office; 2. There is a definite territory (approximately 100 acres); 3. There is a government (under the Pope himself); 4. There is independence (the State of the Vatican City was created by the Lateran Treaty of February 11, 1929 between Italy and the Holy See. Under the terms of the Treaty, Italy “recognizes the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican”); 5. The Vatican City has a “sufficient degree of civilization” ; 6. The Vatican City has been recognized by almost all the countries of the world including Communist Russia. Difference between the Vatican City and the Roman Catholic Church The Vatican City is concerned with material things and occupies a definite territory, while the Roman Catholic Church is preoccupied with things of the soul and the spirit, hence, it is “tied to no limited territory.” Both, however, are subjects of international law; both have some international rights, the violations of which can amount to international delicts. Can the Holy Father, as head of the Catholic Church, enter into treaties? Yes. As head of the Catholic Church, the Holy Father can enter into ordinary treaties for and in behalf of the Vatican City. He may also enter into special treaties which regulates ecclesiastical matters. 8. DOCTRINE OF STATE CONTINUITY Doctrine of State continuity – Under this doctrine, a State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its Government, in its headship, in its rank and title, in its dynasty. Example: France which retained her personal identity from the time the law of Nations came into existence until the present day, although she acquired,

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lost, and regained parts of her territory, changed her dynasty, was a kingdom, a republican empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems a republic. 9. ACT OF STATE DOCTRINE Act of State doctrine – Under this doctrine, the foreign court chooses to uphold and respect the foreign State’s act done within its territory on the reasoning that if it will not do so, it would “imperil the amicable relations between governments and vex the peace of nations.” The doctrine was applied in the case of Banco Nacional de Cuba vs. Sabatino (376 U.S. 398 [1964]), which upheld the nationalization of sugar produced in Cuba. This was criticized and for which reason, the U.S. Supreme Court adopted the position formulated in “Sabatino Amendment” (22 U.S. C.A. 2370 [e] [1]), to the effect that no court in the U.S. should decline because the Act of State doctrine seems to make a determination on the validity of a confiscation of property by a foreign State in violation of the principles of international law. Since then, the Act of State doctrine was abandoned by the courts. In First National City Bank vs. Banco Nacional de Cuba (406, U.S. 759 [1965]), the U.S Supreme Court held that the doctrine should not be applied where the Executive Branch expressly represents to the court that the application of the doctrine would not advance the interests of American foreign policy. ACT OF STATE DOCTRINE AS APPLIED IN CREDIT SUISSE VS. U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 130 7.3d 342, 1347-48 In relation to PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. NO. MDL- 00840-MLR) FEBRUARY 4, 2005 In this case, the Swiss assets of the Marcos estate had been frozen by the Swiss government at the request of the Republic of the Philippines, which seeks to recover them. The class plaintiffs obtained an injunction from the U.S. District Court of Hawaii requiring the Swiss Banks to hold the assets for the benefit of the class plaintiffs. The U.S. 9th Circuit Court of Appeals issued a writ of mandamus and held that the injunction violated the Act of State doctrine, which precludes

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American Courts from declaring “invalid” a foreign sovereign’s official act, that is, the freeze order of the Swiss government. The Swiss government released the funds frozen in Switzerland for transfer to the Philippine National Bank in escrow pending a determination of proper disposal by a competent court in the Philippines. The said funds were deposited by the PNB in Singapore. Thereafter, the assets were forfeited to the Republic of the Philippines following the decision of the Philippine Supreme Court. The U.S. District Court of Hawaii ruled and ordered as follows: 1. The Philippine Supreme Court had violated “due process by any standard” and that its judgment was entitled to no deference. 2. “Any such transfer, without first appearing and showing cause in this court as to how such transfer might occur without violating the Court’s injunction shall be considered contempt of the Court’s earlier order. Any and all persons and banking institutions participating in such transfers are hereby notified that such transfer would be considered in contempt of the Court’s injunction.” 3. PNB, which was not a party to the litigation in the district court, was required to show why it should not be held in contempt for violating the court’s injunction against transfer of assets by the estate. Hence, PNB filed a petition for mandamus in the U.S. 9th Circuit Court of Appeals to restrain the District Court from enforcing its “Order to Show Cause” and from pursuing discovery against the Bank officer. This case is: PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. No. MDL-00840-MLR) [FEBRUARY 4, 2005] PNB contended that the entire proceeding against it for its transfer of funds to the Republic of the Philippines violated the “Act of State Doctrine,” and that the transfer of funds was made in accordance with the judgment of the Philippine Supreme Court. ISSUE: Are the orders of the U.S. District Court of Hawaii a violation of the “Act of State Doctrine.” HELD: 1.

The U.S. 9th Circuit Court of Appeals held that the orders of the U.S. District Court of Hawaii had violated the “Act of State Doctrine and reasoned out as follows:

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A)

B)

C)

D)

To obtain assets from PNB, or to hold PNB in contempt for the transfer of those assets to the Republic of the Philippines, the District Court necessarily held invalid the forfeiture judgment of the Philippine Supreme Court. Regarding the argument of class plaintiffs that the Act of State Doctrine is directed at the executive and legislative branches of foreign governments and did not apply to judicial decisions; the U.S. 9th Circuit Court of Appeals said: (b.1) A judgment of a court may be an Act of State. (b.2) There was no question that the judgment of the Philippine Supreme Court gave effect to the public interest of the Philippine Government. The forfeiture action was not a mere dispute between private parties. It was an action initiated by the Philippine Government pursuant to its “statutory mandate to recover property allegedly stolen from the treasury.” (In re Estate of Ferdinand E. Marcos – Human Rights Litigation, 94 F. 3d at 546) (b.3) The U.S. 9th Circuit Court of Appeals had earlier characterized the collection efforts of the Republic of the Philippines to be governmental. (b.4) The subject matter of the forfeiture action thus qualified for treatment as an Act of State. Regarding the other argument of class plaintiffs that the Act of State Doctrine was “inapplicable” because the judgment of the Philippine Supreme Court did not concern matters within its own territory, the U.S. 9th Circuit Court of Appeals ruled, thus: “The act of the Philippine Supreme Court was not wholly external. Its judgment which the district court declared invalid, was issued in the Philippines and much of its force upon the Philippine National Bank arose from the fact that the Bank is a Philippine Corporation. (Callejo vs. Bancomer, S.A. 764 F. 2d 1101, 1121-25 (5th Cir. 1985) “Even if we assume for purposes of decision that the assets were located in Singapore, we conclude that this fact does not preclude treatment of the Philippine judgment as an act of State in the extraordinary circumstances of this case.” Further agreements of the U.S. 9th Circuit Court of Appeals: (a) The interest of the Republic of the Philippines in the enforcement of its laws does not end at its boarders. The fact that the escrow funds were deposited in Singapore does not preclude the application of the Act of State Doctrine.

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xxx” (b) The Republic of the Philippines did not simply intrude into Singapore in exercising its forfeiture jurisdiction. The presence of the assets in Singapore was a direct result of events that were the subject of the decision in Credit Suisse, supra, where the U.S. 9th Circuit Court of Appeals upheld as an Act of State a freeze order by the Swiss government, enacted in anticipation of the request of the Philippine government to preserve the Philippine government’s claims against the very assets in issue today.” (Credit Suisse, 130 F. 3d at 1346-47) 10. BELLIGERENT AND INSURGENT COMMUNITIES Who are referred to as insurgents or rebels? Insurgents or rebels are regarded as organized groups who are in a state of armed hostility towards an established government on account of political reasons or purposes. What, if any, are the rights of insurgents or rebels under international law? None, but if the civil strife has reached a stage where the sovereignty of the State over the insurgent community is already threatened and jeopardized, certain insurgent rights may be tacitly admitted. When this happens, the following principles shall govern the so-called insurgent right: 1. A foreign State shall refrain from interfering in the hostilities involving the parent State and insurgent community. Example: (1) The foreign State shall not extend hospitality to the rebels; (2) The foreign State should not extradite the insurgent to the parent State. 2. If the insurgents committed hostile acts against the foreign state, it may punish them, or turn them over to the parent State. 3. If the acts committed are in the nature of “piracy,” they are considered private in character, hence, no insurgent rights arise. 4. If the existence of insurgent rights is admitted by a foreign State, the parent State is still liable for the acts committed by the insurgent community within the jurisdiction of the said parent State. 5. If an insurgent community has been given insurgent rights, it does not mean that the community has acquired the status of a belligerent and neither is there an official recognition of the insurgents as a belligerent community. When are the “insurgents” considered as “belligerents” and when is their community considered as a “belligerent community”?

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When the insurgency has reached a serious proportion, the rebels, instead of being merely considered insurgents, may be properly called “belligerents” and their community a “belligerent community.” This is, however, subject to the following conditions: 1. The hostilities must be of the character of war and carried on in accordance with the laws of war. 2. The end must be political in character. 3. The proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible. 4. The conduct of hostilities and general government of the revolting community must be in the hands of the responsible organization. (Wilson and Tucker, International Law, p. 69) 11. THE UNITED NATIONS Historical background of the United Nations The League of Nations was organized in 1919, five years after World War I broke out in 1914. Its purpose is to achieve international peace and encourage international cooperation. The United States was not a member of the League of Nations. The League of Nations was officially dissolved on April 19, 1946. What caused the creation of the United Nations after the collapse of the League of Nations? We have already suffered two world wars since the beginning of the 19th century. All nations, whether or not they were involved, shared equally in the ills of war. When battles are fought, the lives of men and women, including innocent children, disabled and even those who are too old to fight, are either endangered, severely damaged or lost. Costs of living are inflated, and after the war, depression and starvation occur, economic ills and immense losses to business are extensive. Wars, after all, are not instruments of achievements. They cannot decide international disputes to the satisfaction of warring nations. Wars cannot make peace. They destroy. Dr. Oswaldo Araha, Ex-President of the General Assembly of the United Nations, said: “The First World War cost 8,000,000 dead, 15,000,000 mutilated, 3,000,000 wounded… more than the entire population of Brazil…and 400 billion dollars went up in smoke of battle, a sum of which according to Murray Butler, would have given every family in the countries engaged in the struggle, a furnished house with lands to cultivate, with a surplus sufficient to purchase all the private properties in France and Belgium

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and construct a university and library in the most important cities of the nations which were devastated in this terrible catastrophe.” “If we consider the global cost of the last war (World War II) and add the amount required for the re-establishment of the world situation as it was prior to the war, we should arrive at the conclusion never imagined by man as possible, that there has been a waste per capita of the world population of $10,000 or 200 Brazilian contos… This cost can never be paid by us who made the war possible, but will have to be paid by many innocent generations, and its liquidation would require more than a century of work on the part of the victors and vanquished alike. History does not record a peace completed by the generation which raged the war… War sacrifices the present, but much more it compromises the future.” x x x Indeed, after every war and after all the bitterness that results from war, mankind is taught that it is peace, after all, that is needed by all the countries of the world to enable them and their people to live in happiness. Peace is what we need to build the world, and peace comes from the heart, and not from the minds of men. This desire for peace overwhelmed the hearts of the great men and women who survived the war. They have agreed to establish and pursue the idea of organizing the United Nations. PURPOSES OF THE UNITED NATIONS

(1) (2) (3) (4)

Four (4) salient purposes of the United Nations The four (4) salient purposes of the United Nations are the following: The attainment of international peace and security; The development of friendly relations; The achieving of international cooperation; The use of the United Nations as the center for the harmonizing of actions to attain these three aims.

PRINCIPLES OF THE UNITED NATIONS Principles of the United Nations The Organization is supposed to act in accordance with the following principles: (1) Sovereign equality; (2) Good faith; (3) Peaceful settlement of disputes; (4) Avoidance of threat or use of force; (5) Members to assist United Nations;

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United Nations to ensure that non-members will act properly; Non-intervention.

ORGANS OF THE UN Principal organs of the United Nations The principal organs of the United Nations are the following: (1) General Assembly; (2) Security Council; (3) Economic and Social Council; (4) The Trusteeship Council; (5) International Court of Justice; (6) Secretariat (Article 7, No. 1, UN Charter) Explain each. (1) General Assembly – Composition: Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alternates. Voting power: Each member has only one vote. Classification of functions: (1) Deliberative, like initiating studies and making recommendations for the development of international law, etc.; (2) Supervisory, such as receiving and considering annual and special reports from other organs of the UN; (3) Financial, like consideration and approval of the budget of the organization, the apportionment of expenses, etc.; (4) Elective, such as the election of the non-permanent members of the Security Council; and (5) Constituent, such as the admission of members and the amendment of the Charter. Session of the General Assembly: Its regular session is held once a year. It may hold special sessions called by the Secretary General at the request of the Security Council or a majority of the members. Required vote on several questions: (a) On important questions (i.e., peace, security, membership, elections, trusteeship system, budget) 2/3 vote of the members present and voting is required; (b) On other questions, a simple majority is sufficient. To classify a question as important, the vote required is a simple majority.

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Security Council – It is the key organ in the maintenance of international peace and security. Composition: It is composed of five (5) permanent members, namely: China, France, Russia, the United Kingdom and the United States; and ten (10) elective members, elected for two-year terms by the General Assembly, five from African and Asian States, two from Latin American States, two from Western European and other States, and one from Eastern European States. Voting power: For the elective members, no immediate reelection is allowed. Classification of functions: The Security Council is expected to function continuously, and sessions may be called at any time; thus, the representative of the member States should always be available. Required vote on several questions: Each member of the Security Council shall have one vote, but distinction is made between the permanent members and the non-permanent members in the resolution of substantive questions.

BAR QUESTION, 1984 Q – Is the United Nations authorized to resort to enforcement action, including the use of force, in regard to the Iran-Iraq war? If so, through what agency? State the legal basis of the power and conditions for its exercise A – The Security Council may exert effort to settle the dispute but if this fails, it may resort to enforcement action like the use of air, naval and land forces to restore international peace or it may require the member states to put into effect interruption of economic, transportation or communications relation with Iran or Iraq using as basis the provision of Article 33 in relation to Articles 41 & 42 of the U.N. Charter. The U.N. Charter requires the affirmative both of seven of the eleven members constituting the Council, and said seven votes must include the concurrent vote of all five permanent members of the Council like U.S., Russia, China, Great Britain and France. This is needed for the Security Council to assume jurisdiction and make the resolution as aforementioned. BAR QUESTION, 1984 Q – At the Unites Nations, the Arab League, through Syria, sponsors a move to include in the agenda of the General Assembly the discussion of this matter:

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“The Muslim population of Mindanao, Philippines has expressed the desire to secede from the Republic of the Philippines in order to constitute a separate and independent state and has drawn attention to the probability that the continuation of the armed conflict in Mindanao constitutes a threat to peace.” You are asked by the Philippine Government to draft a position paper opposing the move. Briefly outline your arguments supporting the Philippine position, specifically discussing the tenability of the Arab League’s action from the standpoint of International Law. A – The motion being sponsored by the Arab League is a matter within the domestic jurisdiction of the Philippines. Besides, the movement to secede from the Republic of the Philippines is not an international dispute which a U.N. member may bring to the attention of the Security Council or of the General Assembly. (3) Economic and Social Council Composition: Composed of fifty-four (54) members elected by the General Assembly for a three-year term. Functions: (1)

It shall exert efforts towards higher standards of living, conditions of economic and social progress and development; (2) It shall exert efforts to solutions of international economic, social, health and related problems; (3) It shall exert efforts for universal respect for and observance of human rights and fundamental freedoms. Voting Power: Decisions are reached by a simple majority vote. (4)

The Trusteeship Council Composition: (a) (b) (c)

It is composed of members of the UN administering trust territories; It is composed of permanent members of the Security Council not administering trust territories; and It is composed by as many other members elected by the General Assembly as may be necessary to ensure that the total number of members is equally divided between those members of the UN which administer trust territories and those which do not.

Voting Power: (a) (b)

Each member of the Trusteeship Council shall have one vote. Decisions of the Trusteeship Council shall be made by a majority of the members present and voting. (Article 89, UN Chapter)

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International Court of Justice Function: It is the principal judicial organ of the UN (Article 1, Statute of the International Court of Justice) Composition and Qualification: The court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries, or are jurisconsults of recognized competence in international law. The Court shall consist of 15 members, no two of whom may be nationals of the same State. (Article 2 and 3, ibid.) How are they elected? They shall be elected by the General Assembly and the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. (Article 4, ibid.) Term of office: They are elected for 9 years and may be re-elected; provided, however, that of the judges elected at the first election, the term of 5 judges shall expire at the end of 3 years and the terms of five more judges shall expire at the end of 6 years. Court is permanently in session: The court shall remain permanently in session except during the judicial vacations, the dates and duration of which shall be fixed by the Court. (Article 23, ibid.) Jurisdiction of the case: The jurisdiction of the court comprises all cases which the parties refer to it and all matters specifically provided for in the Charter of the UN or in treaties and conventions in force. (Article 36, ibid.) Basis of Court’s jurisdiction: It is based on the consent of the parties. Art. 36 of the Statute of the International Court of Justice provides: “The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court, disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, could constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation.” Can it give advisory opinion? The Court may give an advisory opinion on any legal question at the request of whatever body that may be authorized by or in accordance with the UN Charter to make such a request (Article 65, ibid.) (i.e., General Assembly or the Security Council) or other organs of the UN when authorized by the General Assembly.

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Official languages of the Court: French and English. If the parties agreed that the case shall be conducted in French, the judgment shall be delivered in French. If the parties agree that the case shall be conducted in English, the judgment shall be delivered in English. (Article 39[1], ibid.) Can other languages be used? Yes, if requested by the parties or by any of the parties (Article 39[3], ibid.) BAR QUESTION, 1979 Q – May the United States be sued in our courts for the value of private properties requisitioned by its Army during the last World War, as well as Japan for the “Mickey Mouse” money in payment for private properties, which have not been redeemed until now? May the suit be brought to the International Court of Justice? A – The said suit may not be brought to the international law of justice without the consent of the USA. REASON: In contentious cases such as this one, consent of the parties is needed. BAR QUESTION, 2006 Q – (a.) Where is the seat of the International Court of Justice? (b.) How many are its members? (c.) What is the term of term of the office? (d.) Who is its incumbent President? What is his/her nationality? A – (a.) The seat of the ICJ “is at the Peace Palace, Hague (Netherlands).” (b.) Members of ICJ: fifteen members, no two of whom may be nationals of the same State. (c.) Term of their Office: members of ICJ are elected for nine years and may be re- elected. (d.) Incumbent President of ICJ: Rosalyn Higgins, a British. (6) Secretariat – The chief administrative organ of the UN. Composition – Headed by a Secretary-General who is chosen by the General Assembly upon recommendation of the Security Council. He shall be the chief administrative officer of the Organization. (Article 97, UN Charter) Functions (1) The Secretary-General is the highest representative of the UN, and is authorized to act in its behalf. (2) Acts as Secretary in all meetings of the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council.

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(3)

(4)

The Secretary-General and his staff are international civil servants, and they cannot receive instructions from any government or source outside the UN. The Secretary-General enjoys the right of political initiative, and may bring to the attention of the UN Security Council any matter which, in his opinion, may threaten international peace and security.

MEMBERS OF THE UNITED NATIONS Category of members of the United Nations (a) The original members; and (b) Those who were subsequently admitted as members. Who are the original members? The original members are the States who signed the UN Charter and ratified it. Who are the additional members? The additional members are those who were subsequently admitted. Qualifications for membership Membership in the UN is open to all peace-loving states which accept the obligations under the charter and are able and willing to carry out their obligations. Vote needed to admit, suspend or expel a member of the UN TO ADMIT

TO SUSPEND

TO EXPEL

The decision of 2/3 of those present and voting in the General Assembly upon the recommendation of at least nine (9) members of the Security Council, including all the permanent members of the Security Council.

The same vote is required to suspend.

2/3 vote of those present and voting in the General Assembly upon recommendation of a qualified majority of the Security Council on grounds of persistently violating the principles in the Charter.

THE UN CHARTER (It serves as the Constitution that governs the relations of international persons)

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Can it be amended? Yes, it may be amended in the following manner: By 2/3 vote of the General Assembly and ratified with their respective constitutional processes by 2/3 of the members of the UN, including all the permanent members of the Security Council; A general conference, called by a majority vote of the General Assembly and any nine (9) members of the Security Council, may propose amendments by a 2/3 vote of the conference. When shall the amendment take effect? It shall take effect when ratified by 2/3 of the members of the UN, including the permanent members of the Security Council. 12. FUNDAMENTAL RIGHTS OF STATES 1. 2. 3. 4. 5.

Rights of existence, integrity and self-preservation Right of sovereignty and independence Right of equality Right of property and jurisdiction Right of legation or diplomatic intercourse

CODE: ESEP-LEG E-xistence S-overeignty E-quality P-roperty and jurisdiction LEG-ation RIGHT OF EXISTENCE – A State exists because it possesses the essential elements, thus: (1) People; (2) Territory; (3) Government; and (4) Sovereignty. It is on this basis that it acquires a personality in the international order, and arising from this personality are corresponding rights and responsibilities. Its success and ability to exercise its expected role in the world order depends on its continued existence. In fact, to be able to insure its survival, Article 5 of the UN Charter grants it the RIGHT OF INDIVIDUAL OR COLLECTIVE SELF-DEFENSE. SELF-DEFENSE Self-defense – It is right of a State to defend itself from an external aggression. The necessity for self-defense is determined by the party attacked and in the exercise of this right, it has the right to repel force with force.

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Requisites of self-defense under Article 51 1. There is an armed attack 2. The attack must be against a UN Member 3. The Security Council must not have acted yet Define “armed attack” The UN Charter has no definition of “armed attack.” Whether or not an attack exists and who is responsible for the same will be determined by the Security Council. COLLECTIVE SELF-DEFENSE Collective self-defense – It is the collective right of the members of a particular organization to defend themselves from an aggression or attack which endangers their peace and safety. Example: a. NATO (North Atlantic Treaty Organization) – This is a treaty signed in Washington on April 4, 1949, composed of Nations in the North Atlantic area. Their agreement: The parties agreed, among others, that an armed attack against one or more of them in Europe or in North America is considered as an attack against all of them. b. SEATO (Southeast Asia Treaty Organization) – This is also known as the Manila Pact or the South East Asia Collective Defense Treaty of September, 1954. Their agreement: An aggression against any of the signatories will be considered as endangering their peace and safety, in which case, they obligate themselves to meet the common danger in accordance with their constitutional processes. Rationale behind collective self-defense or alliances 1. There is strength in union and there is security in collective strength. 2. To give the members the feeling of safety through mutual protection and outright combination of strength. CASES: 1.

Nuclear power facility in Iraq was destroyed by war planes of Israel sometime in 1981. Israel claims that it was justified in doing so and interposed the ground of preemptive self-defense. The matter reached the UN Security Council for resolution. RULING: It was condemned as a clear violation of the UN Charter and the norms of international conduct, hence, Israel was directed to refrain from such act.

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In connection with U.S. missile attack which resulted to the destruction of two Iranian offshore oil production installations, alleging that Iranian oil platforms were used as a staging facility for attacks by Iranian forces against shipping in the Gulf, the U.S. justified its attack as a legitimate use of force and self-defense. RULING: The ICJ was not convinced that the U.S. attack was necessary as a response to the shipping incidents in the Gulf. In other words, the force was not considered a proportionate use of force in self defense. The U.S. could claim the right of selfdefense only if it is the victim of an armed attack by Iran. (Iran vs. U.S., November 6, 2003) A State may not exercise the collective right of self-defense without the explicit request for assistance from the State or States on whose behalf the right is to be exercised. This is the ruling of the International Court of Justice when the U.S. came to the defense of El Salvador, Honduras and Costa Rica. In this case, the court noted that there was no explicit request for assistance by the said countries, hence, the ICJ ruled that the condition sine qua non required for the exercise of the right of collective self-defense was not fulfilled. (Nicaragua vs. U.S. 1986). ( I.C.J Rep.14, June 27, 1986) RIGHT OF SOVEREIGNTY AND JURISDICTION

Sovereignty – Sovereignty is defined as the supreme power in a State by which that State is governed (Moore, Digest of International Law), or the supreme, absolute, uncontrollable power by which any State is governed. (Cooley’s Constitutional Limit) It is also defined as the union and exercise of all human powers possessed in a State; it is a combination of all powers; it is the power to do everything in a State without accountability – to make laws, to execute and apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or commerce with foreign nations, and the like. (Story, Constitution, Section 207) BAR QUESTION, 2000 Q – The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it “shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” This is assailed for being unconstitutional because this undertaking unduly limits, restricts and impairs Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform to the WTO Agreements. Refute this argument.

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A – Law of nations are founded in natural moral law and common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective Heads of States and Ambassadors. As the saying goes, “no man is an island” and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in the pursuit of their respective business or trade but also in terms of technology and funding. The Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, freedom, cooperation and amity with all nations.” A contract entered into and executed by the State is binding to it, and it may, if necessary, pass or approve a law to be able to fulfill the obligations it has undertaken. (Tañada vs. Angara, G.R. No. 118295, May 2, 1997) Distinguish sovereignty from independence Sovereignty is the supreme power of the State by which that State is governed. It has two aspects: internal and external. In its internal aspect, sovereignty is the power inherent in the people or vested in its ruler by the Constitution to govern the State. Such sovereignty does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. In its external aspect, sovereignty consists in the independence of one political society in respect to all other political societies. The external sovereignty of any State requires the recognition by other States in order to render it perfect and complete. This external manifestation is what is called independence. (Malcolm, Constitutional Law) Simply stated, independence is freedom from external control in the conduct of external and internal affairs. If the sovereignty of a country within its territory is more or less recognized by other States, said country is referred to as independent. Is the sovereignty and independence of a State absolute? No. It is subject to the limitations imposed by treaty stipulations, or those arising from membership in the UN. Rights and benefits arising from State’s sovereignty and independence 1. It determines its own form of government 2. It manages its own government 3. It can enter into treaties and conduct foreign relations 4. It can determine its national policies regarding national defense, natural resources, immigration, currency, etc.

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5.

It manages its own affairs free from control, dictation or intervention of other States. Obligations erga omnes – Obligation of a State towards the international community as a whole. (i.e., prohibition against piracy, genocide, racial discrimination, obligations related to or for the protection of human rights, environment and self-determination) Q – In case of breach of obligation erga omnes, are the States affected by such breach or the States to which the obligation is owed, entitled to any remedy? A – Yes. They, and even if they are not affected, may claim from the responsible Sate the following: 1. Cessation of the internationally wrongful act; 2. Performance of the obligations of reparation in the interest of the State, entity or individual which is especially affected by the breach; 3. Restitution should be effected unless materially impossible. BAR QUESTION, 2006 Q – What is the principle of auto limitation? A – Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. (Reagan vs. Commission of Inernal Revenue, G.R. No. L-26379, December 27, 1969) Different kinds of intervention 1. Internal and External Intervention a. Internal intervention – is the interference by one State in the purely domestic affairs of another state. b. External intervention – is the interference by one State in the foreign relations of another State. 2. Individual and Collective Intervention a. Individual intervention – exists when only one State interferes. b. Collective intervention – exists when two or more States interfere as a group. 3. Diplomatic and Armed Intervention a. Diplomatic intervention (also called “intercession”) – is interference through diplomatic channels. b. Armed (sometimes called “punitive”) intervention – intervention through the use of armed force. It would seem

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that today armed intervention is unlawful under at least two provisions of the UN Charter: 1. Article 2, par. 3 – “All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.” 2. Article 2, par. 4 – “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” 3. RIGHT OF EQUALITY Meaning of equality in public international law It does not mean absolute equality. It means legal equality or equality before the law, which means that the rights of a State, regardless of its size, population, power, degree of civilization, wealth, etc. must be respected, and if a State has obligations, it has to respect them and comply with them. Example of legal equality: 1. 2. 3. 4. 5.

Each State has one vote. The vote of the smallest State has the same right as the vote of the most powerful State. No State can claim jurisdiction over another State (Par in parem non habet imperium). Equality can only be retained if there is dignity. The courts of one State do not, as a rule, question the validity or legality of the official acts of another sovereign State.

ARTICLE 2 OF THE UN CHARTER REGARDING THE PRINCIPLE OF SOVEREIGN EQUALITY OF ITS MEMBERS Weakness or limitation of the principle of sovereign equality It is difficult, if not absolutely impossible, to enforce the said principle because (1) a permanent member has a veto power; and (2) there are permanent and temporary members in the Security Council. 4.

RIGHT OF PROPERTY AND JURISDICTION

Three domains of a State 1. 2. 3.

Terrestrial domain Fluvial or maritime domain Aerial domain

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EXPLANATION OF THE THREE DOMAINS OF THE STATE 1.

TERRESTRIAL DOMAIN – (refers to the area of land which the State occupies)

POINTS TO REMEMBER: 1. 2. 3. 4.

Definition of our National territory (Section 1, Article 1, 1987 Constitution) Archipelagic doctrine – (Already discussed) Effect of the words “and all other territories over which the Philippines has sovereignty or jurisdiction.” (Already discussed) What definitely fixes the extent of Philippine territory? (Already discussed)

MODES OF ACQUIRING TERRITORIES Different modes of acquiring territories 1. Discovery and occupation 2. Prescription 3. Cession 4. Conquest and subjugation 5. Accretion EXPLANATION OF EACH DISCOVERY AND OCCUPATION – this is an old mode of acquiring ownership when territories which were not yet discovered and occupied can be acquired by the discovering State under the principle of “Terra Nulius” which means that since it is a territory which is not yet owned by or belonging to any State (stateless territory), it can be acquired under the principle of discovery and occupation. Q – X State discovered a Stateless territory and immediately, it took the following steps: (a) it proclaimed sovereignty over the area; (2) planted several flags in different parts of the territory. Will that be sufficient to ripen into “actual or real title”? A – No. Mere discovery is not enough. Aside from discovery, there had to be an effective occupation and administration. X State merely had an “inchoate title” which means that its alleged discovery did not ripen into an actual or real title by effective possession and administration. Q – What right arises from discovery and effective occupation and administration?

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A – 1.

Actual or real title of the territory acquired by effective possession and administration (Island of Palmas Arbitration Case); 2. The “continental shelf” of the territory discovered and effectively occupied should also belong to the acquiring State. “Continental shelf” of a country – It is that part of the seabed and subsoil of the submarine areas contiguous to the coast but outside the area of the maritime zone. Why is the “continental shelf” important? It is important because of the rich natural resources found therein. This is, in fact, incorporated in the Petroleum Act. Q – Are the Kalayaan Islands (those discovered then by Tomas Cloma) subject to the sovereignty of the Philippines? A – There are justifiable reasons supporting the view that the Kalayaan Islands are subject to Philippine sovereignty. First, there was discovery by Tomas Cloma, a Filipino, who subsequently ceded these rights to the Philippine Government. Second, the Philippines exercised its jurisdiction over the islands; Third, the Philippines laid formal claim to the islands by virtue of occupation; Fourth, the islands are part of Palawan Province; Fifth, the Philippines registered its claim with the UN Secretariat. PRESCRIPTION Elements of prescription as a mode of acquiring territory 1. Possession which must be continuous, public and adverse. 2. Lapse of a reasonable period of time (which is a question of fact and dependent on the circumstances of each case.) CESSION Cession – It is a mode of acquiring territory made either voluntarily (sale or donation) or involuntarily (on account of or as a result of war). Example: 1. 2.

Cession of Alaska by Russia to the US in 1867. Cession of the Philippines by Spain to the US. (Treaty of Paris, December 10, 1896)

CONQUEST AND SUBJUGATION Conquest – It is the acquisition of sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire.

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Is physical conquest enough for the title to ripen to real ownership? It is not enough. Annexation or subjugation must follow. When is there an annexation or subjugation? It takes place if a formal cession is made in the treaty of peace. Q – Is conquest a legitimate mode of acquiring territory under the UN Charter? A – No. REASON: “All members shall refrain in their international relations from the threat to use of force against the territorial integrity or political independence of any State, or in other manner inconsistent with purpose of the UN.” (Article 2[4], UN Charter) ACCRETION Accretion – It is a mode of acquiring property produced by or which is attached or united to a thing already owned by a person. In Roman Law, this is known as accessio which may either be: Accessio Continua – Accession occurring as a consequence of forces external of the thing itself. Accessio Discreta – Accession occurring as a consequence of forces inherent in the thing itself. Accessio Continua may be natural or artificial. NATURAL ACCESSIO CONTINUA Alluvion – Gradual and imperceptible addition to the bank of rivers. Avulsion – Accretion which takes place when the current of a river, creek or torrent segregates a known portion of land from an estate on its banks and transfers it to another estate. 3. Insula Nata – An island formed in the sea. It is the property of the first occupant but it belongs to no one before it was occupied. If it is formed in a river, and it occupies the middle of the river, it belongs to the owner of the nearer margin. If it is nearer to one side than the other, it belongs to the person who possess lands contiguous to the bank on that side. 4. Alveus Derelictus – Whenever there is a change in the course of the river, the old riverbed belongs to those who possess the lands adjoining its banks in proportion to the extent along the banks of their respective estates. The new river bed becomes a public property. NOTE: The same are old Roman Law Principles which are still found and discussed in our Civil Code, particularly in connection with the law on property. 1. 2.

THE SAID PRINCIPLES BECAME THE BASIS OF THE PRINCIPLE THAT WHEN ISLANDS ARE FORMED OFF THE COAST OF A STATE BY

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ALLUVION, VOLCANIC ACTION, OR OTHER CAUSES, THEY BECOME PART OF THE STATE TO WHICH THE COAST BELONGS. 2. FLUVIAL DOMAIN – (it refers to the internal and external waters) Q – What is included in the fluvial or maritime domain? A – 1. Internal waters – (These are completely within the territory) (a) Rivers (b) Bays and gulfs (c) Straits (d) Canals 3. Archipelagic waters (2nd sentence of Section 1, Article 1, 1987 Constitution) – “The waters around, between, and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines.” Q – What is the archipelagic doctrine? A – Under this doctrine, the Philippine Archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. This assertion, together with the application of the “straight base line method,” is what is referred to as the Archipelagic Doctrine. By using this method, the outermost points of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. Q – Can vessels be allowed innocent passage within the archipelagic waters? A – Yes, but this right may be suspended, after publication in the interest of international security. Q – Can the archipelagic sea lanes be designated for continuous, unobstructed transit of vessels? A – Yes. Q – What is the easement of innocent passage? A – It is the right of foreign vessels to pass through territorial waters, especially those connecting two open seas, provided: 1. That the passage is “innocent” which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; and 2. That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. Q – (A.) What is the “archipelagic theory” as proposed by the Philippines in the U.N. Conference on “The Law of the Sea,” and give

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its justification, legal or practical, from the standpoint of the Philippine position? A – (a) Under the archipelago theory, “the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines and this is provided in Article 1, Section 1 of the 1973 Constitution, now Article 1 of the 1987 Constitution. In this connection, our position is that the 7,100 islands comprising our terrestrial domain should be considered as one integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country Q – (B.) How can the observance of our law on national theory be enforced upon individuals, and upon States? A – Our State has power and jurisdiction over persons and things within its territory. Those who are exempt from this power and jurisdiction are the following: a) Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; b) Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities; c) Acts of state; d) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as arrival under stress; e) Foreign armies passing through or stationed in its territory with its permission; and f) Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waive jurisdiction. BAR QUESTIONS, 1979 Q – (C.) May the USA lay exclusive claim over the moon, having explored it and having planted her flag thereon to the exclusion of the other States? A – The USA cannot do so because the moon, the outer space and all celestial bodies therein are res communes. Q – A crime was committed in a private vessel registered in Japan by a Filipino against an Englishman while the vessel is anchored in a part of State “A.” Where can he be tried? If both are members of the crew, where will the trial be?

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A – The crime will be triable by the local State, if the crime committed is a serious one, otherwise, it will be triable by the flag state, Japan, if the members of the crew are the ones involved and the crime alleged to have been committed is such which is petty which does not disturb the peace of the local state. Q – The United States Ambassador to the Philippines and the American Consul General also in the Philippines quarreled in the Manila Hotel and shot at each other. May the Philippine Courts take jurisdiction over them for trial and punishment for the crime they may have committed? A – The US Ambassador enjoys immunity from prosecution for the crime he committed, whether officially or in private capacity. The American Consul General enjoys immunity from criminal prosecution only for the acts committed by him in connection with his official functions. Q – May the United Nations be sued for unpaid rentals of buildings used by it for its sessions in the Philippines? A – If the lease of the building is covered by a contract of lease which was entered into by the UN and signed by the latter and the owner of the building, then the UN is deemed to have waived its immunities and may be sued for unpaid rentals under and by virtue of the said contract of lease. TERRITORIAL SEA – (This is also known as the maritime belt. It is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control) Q – What is the breadth or width of the territorial sea? A – During the 18th century – 3 nautical miles. REASON: Because at that time, the range of artillery was about 3 miles. Now, this is extended to 12 nautical miles from the low water mark, or in the case of archipelagic States, from the baselines. NOTE: Please refer to a more extensive discussion of this subject in connection with the Convention on the Law of the Sea. (Last topic) OPEN SEAS — (That part of the sea which is not included in the territorial sea or in the internal waters of any State) Q A Q A

– – – –

Are the open seas included in the maritime zone of any State? No. By its very nature, the sea cannot be the property of any State. What is the principle of “The Freedom of the Seas”? It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation.

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Q – What then is the meaning of the statement that the open seas is not property of any State? A – This means that “it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NON ALIENUM LAEDAS.” (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Art. 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. Q – Is this rule absolute? A – No. This may be regulated by a treaty. Q – What is the freedom of navigation? A – It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. Q – What is referred to as the contiguous zone? A – It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that customs laws, immigration and sanitary laws are properly and effectively enforced. Q – What is referred to as the exclusive economic zone? A – It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. Q – It was mentioned earlier that the area beyond the territorial sea is not part of the territory of a State. Does this mean that the coastal State has absolutely no rights over the said area? A – While it is true that the said area is not owned by any State, it does not mean that other States have absolutely no rights whatsoever to the use of the same. They may enjoy the following rights: 1. As already mentioned earlier, other States may enjoy the right of innocent passage through the said area on two conditions, as aforementioned. 2. The coastal State may exercise sovereign rights over economic resources of the sea, seabed, subsoil.

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Q – A –

Q – A – 3. Q – A –

Q – A –

Q –

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Other States shall have freedom of navigation and over-flight, to lay submarine cables and proper lines and other lawful uses. An example of the Philippine exclusive economic zone is the SCARBOROUGH SHOAL, which is situated about 135 kilometers from Iba, Zambales. What is referred to as the continental shelf? It is the sea-bed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea as measured where the outer edge of the continental margin does not extend up to that distance. Can the coastal State enjoy the right of exploitation of oil deposits and other resources in the continental shelf? Yes. AERIAL DOMAIN – (it refers to the air space above the land and waters) What are the important principles regarding aerial jurisdiction? 1. AIR SPACE ABOVE THE TERRITORY OF THE STATE – They are completely subject to the sovereignty of the State just like the fluvial domain. 2. FREE AERIAL NAVIGATION – Air, like the high and open seas, is open to free navigation by all aircraft, domestic and foreign, subject to the right of the State to provide for the security of the territory. 3. TWO-ZONE THEORY – There is a lower zone of territorial air space and a higher unlimited zone of free air space. 4 SOVEREIGNTY IS SUBJECT TO EASEMENT – While the sovereignty over the air space remains with the subjacent State, it is subject to the easement of innocent passage for foreign aircraft. What are the present rules on international aviation? 1. Regular Airline Services – Scheduled landings and departures 2. All other forms of international aviation (a) Flights in transit is recognized without prior permission. (b) Refueling stops is recognized without prior permission. (c) Right of cabotage – Right to transport goods and persons between points in the same State. (d) Aircraft carry the nationality of the State of registration. What are the other rules to remember?

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A – 1. 2. 3.

5.

Every State has complete and exclusive sovereignty over the airspace above its territory. This shall not include outer space. No other States have right of innocent passage over the air territory of another State. Outer space is res communes, like the high seas. It is free for exploration and use by all States but it cannot be annexed by any State (Outer Space Treaty of 1967). And they may be used only for peaceful purposes, (i.e., nuclear weapons of mass destruction may not be placed in orbit around the earth.

RIGHT OF LEGATION OR DIPLOMATIC INTERCOURSE

Q – What is the right of legation? A – This is the right of a State to send envoys or establish diplomatic missions, or the right to receive such envoys or missions. The first is known as the active right of legation. The second is known as the passive right of legation. Q – Who are the agents of diplomatic intercourse? A – 1. Head of State – He represents the sovereignty of the State. Pointers: 1. The conduct of foreign relations is essentially an executive function. 2. The President alone cannot, however, execute and implement our foreign policies. The DFA, represented by the Secretary of Foreign Affairs, executes our foreign policies through the various diplomatic and consular officials. 3. The Head of State may conduct diplomatic intercourse personally in the following instances: a. When he attends a summit conference; b. When he visits foreign states officially. b.1. In case of official visit, the head of State is entitled to full diplomatic honors and privileges. b.2. If the head of State travels incognito, he cannot claim diplomatic immunity unless he decides to reveal and prove his identity. b.3. If the incognito visit is with the knowledge of the State concerned, he receives diplomatic privileges. However, to preserve the “unofficial” character of the mission, he does not get ceremonial honors. FOUR CLASSES OF DIPLOMATIC OFFICERS 1.

Ambassadors – they are the political, cultural, economic, and social

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2. 3.

4.

Q – A –

Q – A –

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representatives of their countries to a foreign State. Their offices are called as embassies. Ministers plenipotentiary or envoys extraordinary – they are ministers assigned to attend to a special function (i.e., signing a treaty). Ministers resident – they are the political, cultural, economic, and social representatives of their countries to a foreign principal city. Their offices are known as legations. The Charges d’affaires (in charge of affairs) – They are those officially below the rank of the ministers resident. They take over when the latter is absent. In other words, they are temporarily in charge no matter what their official rank or designation may be. Who assist the Heads of Mission? 1. Diplomatic Staff (Engage in diplomatic activities and accorded diplomatic rank) 2. Administrative and Technical Staff (those employed in the administrative and technical service of the mission). 3. Service Staff (those engaged in the domestic service of the mission) What is the meaning of “Diplomatic Corps”? All diplomatic envoys accredited to the same State form a body known as a “Diplomatic Corps.” The head of this body is usually the Papal Nuncio, if there is one, or the oldest ambassador. If there are no ambassadors, it is the oldest minister plenipotentiary who is the head of the “diplomatic corps.”

APPOINTMENT OF DIPLOMATIC OFFICIALS Q – Who appoints ambassadors, other public ministers and consuls? A – The President shall nominate and, with the consent of the Commission on Appointments, appoint ambassadors, other public ministers and consuls. (Section 16, Article VII, 1987 Constitution) Q – Is the sending State absolutely free in the choice of diplomatic representatives or officials? A – No. The receiving State has the right to refuse to receive as envoy of another State one whom it considers as persona non grata. Q – What is agreation? A – It is an informal inquiry (enquiry) to find out the acceptability of a proposed envoy and an informal conformity (agremen) of the receiving State to the appointment of the said envoy. Q – What happens if an appointment is made without agreation? A – This amounts to diplomatic faux pas because without agreation, there may possibly be an embarrassment.

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Q – What are the papers that the envoy presents to the receiving State? A – 1. A letter of credence (letre de creance) – This states the name of the representative, his rank, the character and general object of this mission. It also contains a request for favorable reception and full credence. It is sealed but the ambassador has copies of the same. 2. A diplomatic passport – This authorizes his travel and describes both his person and his office. 3. His instructions – Special diplomatic agents receive a document of general full powers (pleins pouvoirs) with authority to negotiate on extraordinary or special business. 4. The cipher or code or secret key – For communication with his country. Q – What are the functions and duties of a diplomatic mission? A – The main functions of a diplomatic mission are: a) To promote friendly relations between the sending State and the receiving State, and the development of their economic, cultural and scientific relations; b) To observe and report to his country the developments in the receiving State; c) To protect the interests of the nationals of his country within the limits allowed by international law; d) To represent his country in the receiving State; e) To negotiate with the government of the receiving State. WAIVER OF IMMUNITIES Q – Can diplomatic immunities and privileges be waived? A – (1) If purely personal, the individual concerned may make the waiver. (2) If the right is not personal but official, the home government must make the waiver in behalf of the chief of mission. (3) In the case of subordinates, the waiver of non-personal rights is done either by the home government or by the chief of mission himself. Q – How may the waiver be made? A – Waiver may be made in the following ways: (1) Express waiver – as already discussed; (2) Implied waiver – failure to assert immunity at the time of suit; (3) Presumed waiver – when the envoy himself sues, he necessarily should allow a counterclaim against himself if it should arise from the same transaction; and sometimes even if the countersuit comes

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from an unrelated claim. (National City Bank of New York vs. Rep. of China, 348 U.S. 356) ASYLUM Q – What is the “right of asylum”? A – The “right of asylum” is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. (Oppenheim-Lauterpact, Public International Law, Vol. I, p. 618) Q – What are the two species of asylum? A – (1.) Territorial asylum – refuge within the territory of the sheltering state, the protection which a refugee obtain by escaping to, or remaining upon, the territory of a State other than that the State that “wants” him, until the protection is terminated by his extradition. (McNair, Law on Treaties, Vol. II, p. 67) (2.) Exterritorial asylum – asylum in what are considered the “extensions” of a State’s territory. This type includes: (a) asylum in foreign public ships; (b) diplomatic asylum – the protection afforded by a State to a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the State that wants him. (Ibid.) Q – What is the duration of the said immunities and privileges? A – The same are enjoyed by the envoy from the moment he enters the territory of the receiving State and shall cease when he leaves the country. With respect to official acts, however, immunity shall continue indefinitely. Q – Are the said immunities and privileges available when the envoy is not in the territory of the receiving State? A – Yes. They are available even in transitu, or while travelling through a third State on the way to or from the receiving State. Q – When is a diplomatic mission terminated? A – It is terminated in case of death, resignation, removal or abolition of office, recall by the sending State, dismissal by the receiving State, war between the receiving and the sending State, or by the extinction of the State. EXTRADITION BAR QUESTION, 1937, 1941, 1946, 1949 Q – What is extradition?

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A – Extradition is the removal of an accused from the requested State (the Asylum State) with the object of placing him at the disposal of foreign authorities to enable the requesting State or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting State or government. (Presidential Decree No. 1069, Philippine Extradition Law, Article 2[a]) BAR QUESTION, 1922, 1924, 1930, 1931, 1937, 1939, 1941, and 1946 Q – Briefly State (a) under what authority a fugitive from justice may be extradited, (b) the persons, and (c) offenses subject to extradition. A – (a) the extradition may be implemented on the basis of an extradition treaty between the parties (the party requesting the same and the party being requested). (b) they are those charged or convicted of offenses which under the treaty are grounds for extradition. (c) they are those offenses which are defined and listed in the extradition treaty. Q – Can the State being requested be compelled to surrender a criminal to a requesting State? A – Yes, if there is an extradition treaty to that effect. Of course, a State may voluntarily extradite a criminal even without an extradition treaty. BAR QUESTION, 1993 Q – What is the difference, if any, between extradition and deportation? A – Extradition

Deportation

1. The surrender by force of a wanted person by the requested State to the requesting State. 2. May only be made pursuant to a treaty between the requesting State and the requested State. 3. It is for the benefit of the requesting State.

1. The expulsion of an unwanted or undesirable alien.

2. It is an exercise of sovereignty and a decision made by a State.

3. It is an order of a State acting on its own and according to its laws, interest and processes.

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BAR QUESTION, 1969 Q – A Japanese woman came to the Philippines and was admitted as a transient. It was found a few days later that her passport was forged. Deportation proceedings were then started against her. Ten days later, she married a Filipino. Could she still be subject of deportation? A – The Government of the Republic of Philippines has absolutely the right to allow, prohibit or deport any alien whose presence is inimical to its interest. The continuing stay of any alien is therefore subject to the approval and consent of our government and if it decides to deport an alien, that is purely a matter of right on the part of our government. CONSULAR OFFICIALS Q – What is a consul? A – A consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein and thus protect the rights of his country’s nationals. (Paras citing Wilson and Tucker, International Law) Q – What are the different kinds of consuls? A – As to character a) Consules missi (consuls de carriere) – Literally this means “consuls of career.” They are professional consuls, hence, they are not allowed to engage in any other profession or business; b) Consules electi – They are also known as honorary or commercial consuls. They are selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of the foreign state involved. As to rank a) Consul-general – He heads several consular districts, or one exceptionally large consular district; b) Consul – He takes charge of a small district or town or port; c) Vice-consul – He assists the consul; d) Consular-agent – He is usually entrusted with the performance of certain functions of the consul. Q – What are the two important documents necessary before the assumption of consular functions? A – 1) Letter patent (lettre de provision) – This is the letter of appointment or commission which is transmitted by the sending State to the

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Secretary of Foreign Affairs of the country in which the consul is to serve; and 2) Exequator – This is the authorization given by the sovereign of the receiving State to the consul, allowing him to exercise his functions within the territory (See Lawrence, Principles of International Law, p. 297). The exequator may be granted conditionally; the grant may even be refused for any or no reason; once granted, the exequator may be unilaterally withdrawn. What are the functions of consular officers? Generally, the functions pertain to commerce and navigation and other administrative functions like issuing visas (permits to visit his country), as contradistinguished from passports (permits to leave the country, and which are usually issued by the Department of Foreign Affairs). Under Article 10 of the Family Code of the Philippines, “marriages between Filipino citizens abroad may be solemnized by a consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.” What are the immunities and privileges of consular officials? Unless given some diplomatic functions, consuls are not generally entitled to diplomatic immunity (U.S. vs. Wong Kim Ark, 167 U.S. 649). They are, however, granted some privileges and immunities which may be essential for the proper performance of their consular duties, such as those granted under the 1963 Vienna Convention on Consular Relations, to wit: 1. They are not allowed freedom of communication in cipher or otherwise; 2. Inviolability of archives, but not of the premises where legal processes may be served and arrests made; 3. They are exempt from local jurisdiction for offenses committed in the discharge of official functions, but not other offenses except minor infractions; 4. They are exempt from testifying on official communications or on matters pertaining to consular functions; 5. They are exempt from taxes, customs duties, military or jury service; and 6. They may display their national flag and emblem in the consulate. What are the causes of termination of consular functions? 1) Death of consular official

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Recall or dismissal of the consul Withdrawal of the exequator Outbreak of war between the two states involved Expiration of the period of appointment (if such period had been specified) Disruption of consular relations. 13. JURISDICTION OF STATES

Q – What is referred to as the jurisdiction of a State? A – It is the power exercised by the State over persons, property, transactions or events. Q – What must be considered by a State in the definition of its jurisdiction over persons, property, transactions or events? A – A State must give due consideration to the interests of the international community as a whole and it should avoid undue encroachments on the interests of the other members of the community. Q – What is the basis of jurisdiction of a State? A – It is based on the following principles: 1. Territorial principle 2. Nationality principle 3. Protective principle 4. Universality principle 5. Passive personality principle EXPLANATION OF EACH 1.

TERRITORIAL PRINCIPLE a. With respect to all persons, things, transactions or happenings within its territorial limits A State exercises exclusive jurisdiction (executive, legislative, and judicial) b. Extent to which a State exercises jurisdiction over persons or acts done outside its territory. It is narrower and depends on the kind of jurisdiction it seeks to invoke. Example: There are no territorial limitations on the exercise of legislative functions in civil matters but the State, as a rule, has criminal jurisdiction

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only over offenses committed within its territory except in the following instances: (a) If the same are continuing offenses which means that the commission of the crime has started in one State and is consummated in another State, in which case, both States have jurisdiction. The State where the crime is committed assumes what may be called “subjective” jurisdiction, while the State where the crime is completed assumes “objective” territorial jurisdiction. NOTE: The exemptions from territorial power and jurisdiction, as discussed later. NATIONALITY PRINCIPLE – This means that the State may punish offenses committed by its nationals anywhere in the world. In civil matters, the personal laws of many countries which have adopted the continental legal system follow their nationals wherever they are. (i.e., Income tax laws also apply to persons on the basis of nationality rather than territoriality). Example: Article 15 of our New Civil Code which provides as follows: “Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” PROTECTIVE PRINCIPLE – States claim extraterritorial criminal jurisdiction to punish crimes committed abroad which are prejudicial to their national security or vital interests, even where the offenses are perpetrated by non-nationals. Article 2 of our Revised Penal Code provides as follows: “Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.” THE UNIVERSALITY PRINCIPLE – Under this principle, a State also claims extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them, whether nationals or non-nationals. Although this principle is generally considered as forbid-

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den by international law, it is recognized with respect to crimes which threaten the international community as a whole and which are considered criminal offenses in all countries. These are referred to as universal crimes (i.e., terrorism, genocide, piracy, slavery and hijacking). The recognition, however, does not extend with respect to the enforcement of an action (i.e., The agents of a State cannot effect an arrest or make an apprehension in the territory of another State without the latter’s consent). This is considered as a serious violation of international law and an infringement of the sovereignty of the non-consenting State. 5. PASSIVE PERSONALITY PRINCIPLE The State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. Q – What is the power and jurisdiction of the State (1) over persons and things within its territory; (2) over its nationals; (3) outside its territory? A – 1. Territorial power and jurisdiction – The State has power and jurisdiction over persons and things within its territory. Those who are exempt from this power and jurisdiction are the following: 1.a) Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; 1.b) Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities; 1.c) Acts of state; 1.d) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as arrival under stress; 1.e) Foreign armies passing through or stationed in its territory with its permission; and 1.f) Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waive jurisdiction. CASE CALLADO VS. INTERNATIONAL RICE RESEARCH INSTITUTE G.R. NO. 106483, MAY 22, 1995 PARTICULAR SUBJECT: IMMUNITY FROM SUIT PRINCIPLE: The International Rice Research Institute, Inc., enjoys immunity from penal, civil and administrative proceedings. FACTS: Ernesto Callado was employed as a driver at the International Rice Research Institute (IRRI) from April 11, 1983 to December 14, 1990. On

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February 11, 1990, while driving an IRRI vehicle on an official trip to the Ninoy Aquino International Airport and back to the IRRI, petitioner figured in an accident. IRRI issued a notice of termination to Callado on December 7, 1990. Thereafter, Callado filed a complaint on December 19, 1990, before the Labor Arbiter for illegal dismissal, illegal suspension and indemnity pay with moral and exemplary damages and attorney’s fees. On January 2, 1991, IRRI, through counsel, wrote the Labor Arbiter to inform him that the Institute enjoys immunity from legal process by virtue of Article 3 of Presidential Decree No. 1620, and that it invokes such diplomatic immunity and privileges as an international organization in the instant case filed by Callado, not having waived the same. While admitting IRRI’s defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the Institute on August 13, 1991 to the effect that “in all cases of termination, IRRI waives its immunity, and, accordingly, considered the defense of immunity no longer a legal obstacle in resolving the case.” On October 31, 1991, the Labor Arbiter ordered to reinstate Callado and to pay him backwages. The NLRC found merit in IRRI’s appeal and, finding that IRRI did not waive its immunity, set aside the Labor Arbiter’s decision and dismissed the complaint. Callado contended that the immunity of the IRRI as an international organization granted by Article 3 of Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch as it waived the same by virtue of its Memorandum on “Guidelines on the handling of dismissed employees in relation to P.D. 1620.” It is also Callado’s position that a dismissal of his complaint before the Labor Arbiter leaves him no other remedy through which he can seek redress. He further states that since the investigation of his case was not referred to the Council of IRRI Employees and Management (CIEM), he was denied his constitutional right to due process. ISSUE: Is PD.No. 1620 constitutional? Is IRRI immuned from the jurisdiction of the Department of Labor and Employment? HELD: Presidential Decree No. 1620, Article 3, provides: “Article 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives.”

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The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is the only way by which it may relinquish or abandon this immunity. On the matter of waiving its immunity from suit, IRRI had made it position clear. Through counsel, the Institute wrote the Labor Arbiter categorically informing him that the Institute will not waive its diplomatic immunity. In the second place, Callado’s reliance on the Memorandum with “Guideline in handling cases of dismissal of employees in relation to P.D. 1620” dated July 26, 1983, is misplaced. The Memorandum reads, in part: “Time and again the Institute has reiterated that it will not use its immunity under P.D. 1620 for the purpose of terminating the services of any of its employees. Despite continuing efforts on the part of IRRI to live up to his undertaking, there appears to be apprehension in the minds of some IRRI employees. To help allay these fears the following guidelines will be followed hereafter by the personnel/legal office while handling cases of dismissed employees.” Callado’s allegation that he was denied due process is unfounded and has no basis. He was informed of the findings and charges resulting from an investigation conducted of his case in accordance with IRRI policies and procedures. He had a chance to comment thereon in a Memorandum he submitted to the Manager of Human Resource and Development Department. Therefore, he was given proper notice and adequate opportunity to refute the charges and findings, hereby fulfilling the basic requirements of due process. Callado was not denied due process, and this, notwithstanding the nonreferral to the Council of IRRI Employees and Management. IRRI correctly pointed out that Callado, having opted not to seek the help of the CIEM Grievance Committee, prepared his answer by his own self. He cannot now fault the Institute for not referring his case to the CIEM. OTHER CASES In International Catholic Migration Commission vs. Hon. Calleja, et al., and the Kapisanan ng Manggagawa at TAC sa IRRI vs. Secretary of Labor and Employment and IRRI, 190 SCRA 130 [1990] – In this case, the constitutionality of P.D. No. 1620 was sustained. The court took into consideration that the Acting Secretary of Foreign Affairs wrote a letter to the Secretary of Labor and Employment. The Court stated that the opinion contained in the said letter constituted “a categorical recognition by the Executive Branch of the Government that IRRI enjoy immunities accorded to international organization,” which determination has been held to be a political question conclusive upon the courts in order not to embarrass a political department of government.

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In Southeast Asian Fisheries Development Center vs. NLRC, et al., G.R. No. 82631, February 23, 1995 – In this case, Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDEC-AQD), an international agency, enjoys diplomatic immunity. Lasco, et al. vs. UNRFNRE, etc., G.R. No. 109095, February 23, 1995 – In this case, the diplomatic immunity of respondent was sustained. In World Health Organization vs. Aquino, 48 SCRA 242 [1972] – In this case, the diplomatic immunity of World Health Organization was sustained. The Supreme Court justified its decision in this manner: “As a matter of state policy as expressed in the Constitution, the Philippine government adopts the generally accepted principles of international law (1987 Constitution, Article II, Section 20). Being a member of the United Nations and a party to the convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force of law. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government. It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. In Holy See vs. Rosario, G.R. No. 101949, December 1, 1994 – In this case, the diplomatic immunity of respondent was sufficiently established by the letter of the Department of Foreign Affairs recognizing and confirming the immunity of the UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine government was a party. 2. Personal jurisdiction – The State has power of jurisdiction over its nationals, which may be exercised by the State even if the individual is outside the territory of the State. 3. Extraterritorial jurisdiction – The State has power and jurisdiction beyond or outside its territory: 3.a. When it asserts its personal jurisdiction over its nationals abroad; or the exercise of its rights to punish certain offenses

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committed outside its territory against its national interests even if the offenders are non-resident aliens; When the local state waives its jurisdiction over persons and things within its territory, such as when a foreign army stationed therein remains under the jurisdiction of the sending state; When it establishes a colonial protectorate, or a condominium, or administers a trust territory, or occupies enemy territory in the course of war; When it enjoys easements or servitudes (i.e., easement of innocent passage or arrival under stress; When it exercises jurisdiction over its vessels in the high seas, or over pirates while doing a hot pursuit operation; When it exercises limited jurisdiction over the contiguous zone and the patrimonial sea to prevent infringement of its customs, fiscal, immigration or sanitary regulations; When it exercises the principle of exterritoriality (i.e., immunities of a head of state in a foreign country). 14. EXEMPTIONS FROM JURISDICTION

Q – What are the exemptions from jurisdiction? A – 1) Doctrine of sovereign immunity a. Restrictive doctrine of sovereign immunity 2) Act of State doctrine 3) Diplomatic immunity

EXPLANATION OF EACH 1.

DOCTRINE OF STATE IMMUNITY

Q – What is the doctrine of sovereign immunity? A – Under this doctrine, a State enjoys immunity from the exercise of jurisdiction by another State. The courts of one State may not assume jurisdiction over another State. Q – Is this rule absolute? A – Originally, it was absolute, hence, a State then may invoke sovereign immunity irrespective of the nature of its activities. However, the application of this doctrine was restricted and qualified in the following manner:

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Sovereign immunity was granted only to acta jure imperii (government act) and not to acta jure gestionis (commercial act). Example: When a State engages in international trade, it shall be regarded as a private entity and may not claim the rights, privileges and immunities of a sovereign. (1.a) RESTRICTIVE DOCTRINE OF SOVEREIGN IMMUNITY As already mentioned, absolute sovereign immunity is no longer recognized. This doctrine denies sovereign immunity with respect to State’s activities of commercial nature. 1.

2.

ACT OF STATE DOCTRINE (Already discussed)

3.

DIPLOMATIC IMMUNITY

Q – What are the diplomatic immunities and privileges which are accorded by traditional usage? A – 1. Personal dignity and inviolability of diplomatic envoy; 2. Inviolability of the official residence, archives, and letters; 3. Freedom to communicate on official matters with the home state and with the envoy’s nationals; 4. Exemption from local criminal and civil jurisdiction for official and private acts; 5. Exemption from being subpoenaed as a witness or from being forced to give testimony through a deposition; 6. Exemption from taxation and customs duties. (NOTE: This is granted because of international courtesy); 7. Right to display the national flags and coat of arms in the proper buildings; 8. Freedom of movement within the territory; 9. Right of transit through third states. (NOTE: A diplomat in transitu would be entitled to the same immunity as a diplomat in situ) (Bergmann vs. De Sieyes, 170 F. 2nd 360). 10. Freedom of religion; 11. Right to exercise jurisdiction within his residential and official domicile (thus he may for instance arrest a member of his suite). 12. Right to precedence and to certain ceremonial honors, according to rank. (Opprenheim, op. cit.., pp. 627-631); 13. Right to grant asylum. (In certain instances). BAR QUESTION, 1980 Q – “J,” a foreign national, is an official of specialized agency of the United Nations assigned to the Philippines. Almost a year after his arrival

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in Manila (where his office is located), 20 big crates all consigned to him arrived in the port of Manila and were immediately stored in a bonded warehouse. The Constabulary Anti-smuggling Unit, acting on a reliable tip that the crates contained an assortment of highly dutiable goods and also prohibited importations, apply to you, as a Judge of the Court of First Instance, to issue a search warrant. The application, under oath, describes particularly the goods to be searched as well as the place where they are located. (1) Would you, assuming you were a CFI Judge, issue the search warrant? Why? (2) Assuming that you decide to issue the search warrant, and the Solicitor General moves to quash the same because the owner of the goods to be searched is entitled to diplomatic privileges including immunity from search warrants, what will you do, convinced as you are that the crates in question contain highly dutiable goods and even prohibited items of importation? A – (1) If “J” is indeed an official of a specialized agency of the U.N. with an assignment in the Philippines and this is certified by the Department of Foreign Affairs and the Office of Solicitor General, I will, in the exercise of prudence and caution, act upon advice, consultation with and motion of the Office Solicitor General. (2) It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. NOTE: The decisions of the Supreme Court, as mentioned earlier. BAR QUESTION, 2005 Q – Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Baker’s house and its premises for dangerous drugs being trafficked to the United States.

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The search purportedly yield positive results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams was prosecution’s principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted. Baker then sued Adams for damages for filing trumped up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the U.S. Drug Enforcement agency tasked with “conducting surveillance operations” on suspected drug dealers in the Philippines believed to be the sources of prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adam’s diplomatic immunity. It is submitted that Adams allegation of being a diplomatic agent is not supported by more appropriate evidence usually accorded to diplomatic agents. He has no valid diplomatic passport or a diplomatic note to prove his assignment to diplomatic functions. His allegation that he was tasked with “conducting surveillance operations” is not a diplomatic function and for which reason his claim of diplomatic immunity cannot be sustained. As counsel of defendant Adams, argue for the dismissal of the complaint. As counsel for defendant Adams, I will base my argument on the defense that my client was truly assigned to perform specific function as an agent of the U.S. Drug Enforcement Agency. As such, Adams is acting for in and behalf of his principal, the US, which is immune from suit. To allow the suit therefore against Adams amounts to suing his principal which is the State itself.

EXPLANATION OF IMPORTANT DIPLOMATIC IMMUNITIES AND PRIVILEGES 1.

Personal dignity and inviolability: As a rule, he shall not be liable to any form of arrest or detention. Any person who inflicts physical harm to an ambassador or minister is criminally liable under Republic Act No. 75. Q – Is this rule absolute? A – No. It is subject to the following exceptions: (1) A diplomatic envoy may be arrested temporarily if he commits an act of violence. He should, however, be released and sent home in due time.

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Inviolability of official residence, archives and letters: The agents of the receiving State may not enter the premises occupied by a diplomatic mission except when it is necessary to enter the premises (i.e., when there is imminent danger that criminal violence will be perpetrated in the premises) Suppose peace officers of the receiving State are pursuing a criminal or criminals who are taking refuge within the premises of the diplomatic mission, can they enter the premises so they can apprehend the said criminals? This is prohibited. However, the said criminals should be surrendered upon demand by local authorities except when the right of asylum exists. Freedom of official communication: The diplomatic mission may send and receive messages, whether ordinary or in cipher, by any of the usual means of communication or by means of diplomatic couriers. Exemption from local criminal and civil jurisdiction: A diplomatic agent cannot be arrested, prosecuted and punished for any offense he may commit, unless he waives his immunity. Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction (Dickinson vs. Del Solar, 1 K.B. 376). A complaint for legal separation may be dismissed on the ground of diplomatic immunity. (Tsiang vs. Tsiang, 86 N.Y.S. 2nd p. 556) Are his properties subject to garnishment, seizure and execution? No, except in the following instances: 1. In an action relating to his professional or commercial activity in the receiving State outside his official functions. 2. In an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legacy as a private person and not on behalf of the sending State. 3. In any real action relating to private and movable property situated in the territory of the receiving State, unless the envoy holds it on behalf of the sending State for the purposes of the mission. Can a diplomatic agent be compelled to testify before any judicial or administrative tribunal in the receiving State? No. It can only do so with the consent of his government. Can he be sued for unlawful acts committed by him in his private capacity? Yes. (Shauf vs. Court of Appeals, 191 SCRA 713) What is the effect of a writ or process issued out or prosecuted by any person in any court of the Philippines, or by any judge or justice

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whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, is arrested or in prison? Said writ is void, subject to the rule on reciprocity. (Republic Act No. 75) Are there instances where these privileges are not granted? Yes. It is not granted: (a) to domestic servants of the ambassador or minister whose names are not registered with the DFA; (b) to citizens or inhabitants of the Philippines, if the process is founded upon a death contracted before its employment in the diplomatic service. What else is an envoy’s immunity from local jurisdiction?

5.

6.

7.

If children are born to him while he possesses diplomatic status, said children are regarded as born in the territory of his home State. Right of transit through third States: A diplomat in transitu is entitled to the same immunity as a diplomat in situ. (Bergmann vs. De Sieyes, 170 F. 2nd 360) Right to exercise jurisdiction within his residential and official domicile: This is recognized in cases where he makes an arrest of a member of his suite. Exemption from taxes and customs duties: Diplomatic agents are exempt from all dues and taxes, whether they are personal or real, national, regional or municipal except the following: 1. Indirect taxes normally incorporated in the price of goods or services; 2. Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for purpose of the mission; 3. Estate, succession or inheritance taxes levied by the receiving State; 4. Dues and taxes on private income having its source in the receiving State and capital taxes on investments in commercial ventures in the receiving State; 5. Charges levied for specific services rendered; and 6. Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property. (Vienna Convention) 15. PRINCIPLES CONCERNING TREATIES

Q – What is a treaty? A – It is an international agreement embodied in a single, formal instrument entered into by and between signatory States or in-

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ternational organizations of States, intended to create rights and obligations, or to establish relationships, governed by international law.

Various appellations have been given to treaties, thus: (a)

Pact – this is a special treaty usually entered into for sentimental reasons. (b) Convention – this is an informal treaty which deals with specific subjects. (c) Agreement, arrangements, accord – this is an agreement on administrative or technical matters. (d) Concordats – agreements entered into by the Pope with various Heads of States. (e) Declarations – these are formal reciprocal agreements which may deal with: (1) the rights and privileges of the nationals of a state; or (2) principles in accordance with which States propose to act; or (3) grounds for mutual action on the part of States (Wilson and Tucker, op. cit. p. 209). There are two special kinds of declarations, to wit: (1) “reversales” – declarations that an error in etiquette or in the draftmanship of a treaty should not be considered as a precedent; (2) “lettres reversales” – declarations that an alteration in ceremonial practices is being made only as an exception to the general rule. (f) Protocol – this may refer either to a supplemental treaty or to an amendment to a treaty. (Paras, Public International Law, p. 192) Q – Is an executive agreement a treaty? A – Within the context of municipal law, it may not be considered as a treaty (Commissioner of Custom vs. Eastern Sea Trading, SCRA 351). It is, however, equally binding as a treaty from the standpoint of international law. Q – What, if any is the distinction between a treaty and executive agreement? A – A treaty is concluded by the President with the advice and consent of the Senate. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate (1987 Article VII, Section 21, 1987 Constitution). An executive agreement is concluded by the President based on authority granted by Congress or based on the inherent authority granted the President by the Constitution.

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NOTE: CONCURRENCE OF CONGRESS TO THE TREATY OR

INTERNATIONAL AGREEMENT IS NEEDED To guide the reviewee on the other ancilliary issues about this topic, and there being no test case that was raised in the Supreme Court on whether the “VFA” (Visiting Forces Agreement) is an agreement or a treaty, I share my thoughts on the matter as I have originally written in the textbook in 1999, thus: “The concurrence of all members of Congress is needed in order that a treaty or international agreement shall be valid and effective. The reason for this is because a treaty or international agreement contains terms and conditions which bind the whole country and its people and the consequences and responsibilities arising therefrom should not be taken lightly.” The Visiting Forces Agreement, popularly known as VFA, has been approved by the Senate. Is it constitutional? Article 18, Section 25, provides as follows: “Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.” The above-quoted provision has four essential parts, which are as follows: 1. “After the expiration in 1991 of the agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities, shall not be allowed in the Philippines.” 2. Said foreign military bases, troops, or facilities may be allowed in the Philippines if there is a “treaty duly concurred in by the Senate.” 3. Even if there is a treaty duly concurred in by the Senate, the same has still to be “ratified by the majority of the votes cast by the people in a national referendum held for that purpose,” when the Congress so requires. 4. Even if there is a treaty approved by the Senate and ratified by the people, the same has a still to be “recognized as a treaty by the other contracting Sate.

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The prohibitions in the first sentence of Section 25, Article 18, supports the view of some legal luminaries that the said VFA agreement, even if approved and even if considered as a treaty, is still a violation of the Constitution. The last two requirements are restraints to the final approval of the VFA agreement. Assuming that it is approved as a treaty by our Senate, it will need ratification by a majority of the votes cast by the people in a national referendum, ”when Congress so requires.” If this happens, this will again entail a lot of time, debate and protracted deliberations especially so that Section 25 uses the word “Congress” which obviously refers to the two houses of Congress. Assuming further that all first three requirements are complied with, another question arises: Will it be recognized as a treaty by the other contracting State? This issue will be decided by the U.S. Senate and not by our government, nor by the Filipino people, and for this reason, all the effort, time, and resources of our Senate and the executive department, including those contributed by broadcast and print media, may, after all, end up as an exercise in futility. More than this, it will place our government in a ridiculous situation of having to take all the initiatives of having it approved, only eight years after rejecting the military bases agreement in 1991, thereby raising speculations and serious doubt that our government is doing all it can to have it approved in exchange for alleged economic assistance from the U.S. government. Unfounded or not, what is disturbing is that the last say, after all, is the recognition of the treaty “by the other contracting State,” when it is our country’s permission and hospitability to the “visiting forces” that is precisely being sought for.” Q – Recently, there was a suggestion coming from no less than President Benigno Simeon C. Aquino III and Senator Miriam Defensor Santiago, that the VFA should be reviewed and re-examined, what could be the possible areas of concern that should be addressed by Congress? A – There should be a definition on (1) whether it is a treaty or executive agreement; (2) the specific jurisdiction of the Philippines regarding crimes or offenses committed in our jurisdiction by officers/soldiers or any employee or staff of the U.S. Government who are in the Philippines on account of the visiting forces agreement; (3) fixed rentals due and payable to the Philippine Government for use of any land area or facility anywhere in the Philippines; (4) Respect and compliance

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with our local laws and with the processes, authority and jurisdiction of our courts of justice, among several others that may be decided by Congress. In case of conflict between the said constitutional provision and a provision in a treaty allowing friendly foreign troops participating in training exercises, which prevails? The said constitutional provision prevails by express provision of Article 8, Section 5(2)(a) of 1987 Constitution. May the constitutionality or validity of a treaty, international or executive agreement be reviewed by the lower courts? The Supreme Court has the power to review, revise, modify, or affirm on appeal on certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, is in question (Article VIII, Section 5[2][a]). On the basis of this provision, the lower courts may, if warranted, review question or questions related to the same but the resolution is subject to review by the highest tribunal. Considering, however, that the resolution of lower courts will affect our relationship with a foreign country, lower courts should observe a becoming modesty in examining constitutional question. For the said reason, the lower courts should defer to the highest judgment of the Supreme Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion. (Drilon vs. Lim, G.R. No. 112497, August 4, 1994) May a treaty be nullified when it conflicts with our Constitution or when it is contrary to an act of Congress? Yes. Remember this was the ruling of the Supreme Court in Ichong vs. Hernandez where it was then held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China. Name some treaties to which the Philippines is a party 1. RP- US Treaty of General Relation, 1946 2. UN charter, 1945 3. Genocide Convention, 1950 4. RP-US Mutual Defense Treaty, 1951 5. Treaty of Peace with Japan, 1951 6. SEATO, 1954 7. Convention on the Law of the Sea, 1982 8. RP-US Extradition Treaty, 1994

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Q – What are the restrictions on the subject matter of treaties? 1. Jus Cogens Restrictions – A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law. (Vienna Convention, Article 53) 2. UN Charter Restrictions – In case of conflict between the obligations of the Members of the UN under the UN Charter and their obligations under any other international agreement, their obligations under the UN charter shall prevail. (Principle of Charter Supremacy, UN Charter; Article 103) Q – What is a jus cogens norm? A – It is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character. (Vienna Convention, Artticle 53) THREE GROUPS OF JUS COGENS NORM First Group

This group covers the maxims of International Law which protect the foundations of law, peace and humanity in the international order and which at present are considered by nations as the minimum standard for their mutual relation

SecondGroup

This group covers the rules of peaceful cooperation in sphere of International Law which protects fundamental common interests

Third Group

This covers the protection of humanity, especially the most essential human rights

Distinction between Jus cogens and Jus dispositivum Jus Dispositivum

Jus Cogens

Refers to norms of ordinary Customary International Law which are derived from the consent of the states and therefore only bind states which consent thereto.

They are duties which every state owes to the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character.

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Q – What is the classification of treaties? A – 1) From the viewpoint of the parties thereto (a) bipartite (two signatories); (b) tripartite (three signatories); (c) multipartite (more than three signatories) (Kelsen, Principles of International Law, p. 317) 2) From the viewpoint of who should shoulder the obligations (a) Unilateral (only one signatory is bound); (b) Bilateral (the two signatories are responsible); (c) Trilateral (three signatories are bound); (d) Multilateral (four or more or all of the signatories are given certain obligations). 3) From the Viewpoint of Presence or Absence of Conditions (a) Conditional (either suspensive or resolutory); (b) Unconditional. Q – What are the essential requisites for a valid treaty? A – 1) CAPACITY (which means that the parties which could either be a sovereign State, or an international organization, must have capacity to contract) 2) AUTHORITY (which means that the agents must be duly authorized and competent to act on behalf of the States represented) 3) CONSENT (which means that the parties must freely give their consent). 4) CONFORMITY (which means that the object and subject matter must be in conformity with the principles of international law) 5) RATIFICATION (which means that the treaty must be properly ratified by the various States concerned in accordance with their constitutional processes) Q – What are the steps in treaty-making? A – 1) Diplomatic negotiation 2) Signing of the treaty by the representatives 3) Ratification of the treaty by the constitutional organs of the respective States. In the Philippines, the power to ratify a treaty is vested in the President subject to the provision of Section 21, Article VII of the 1987 Constitution which provides as follows: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” 3.a. A non-signatory State may be bound by a treaty through a process known as accession. (i.e., Upon permission of the

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contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty) 3.b. A State which signs, accedes or ratify a treaty may make a reservation to exclude or modify the legal effect of certain provisions of a treaty. The State remains a party to the treaty despite its reservation provided that it is compatible with the object and purpose of the treaty. 4) Exchange of the ratification instruments or deposit with the government of one of the contracting parties or with an organ of an international organization. 5) Registration with and publication by the Secretariat of the United Nations. (Article 102, No. 2 UN Charter) Q – When does a treaty become effective? A – It becomes effective on the date agreed upon by the negotiating parties. If there is none, the treaty becomes effective as soon as the consent of all the parties to be bound by the treaty is established. REPRESENTATIVE OF THE STATE FOR THE PURPOSE OF EXPRESSING THE CONSENT OF THE STATE TO BE BOUND BY A TREATY One who produces appropriate plein pouvoir (full powers) is considered as a representative of a State for such purpose. Q – Can said representative be considered as representing his Sate if he has no full powers or plein pouvoir? A – The following are considered as representing their State without having to produce full powers: 1. Heads of State, Heads of Government and Ministries for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; 2. Heads of Diplomatic missions, for the purposes of the text of a treaty between the accrediting State and the Sate to which they are accredited; 3. Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purposes of adopting the text of a treaty in that conference, organization or organ. (Vienna Convention, Article 7[2]) Q – What is alternat? A – It is a principle whereby a States own name will be listed ahead of the other signatory, or signatories, in its own official copy of a treaty. It is a

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practice devised to handle sensitivities over precedence and to maintain the principle of equality between the contracting parties. AQUILINO PIMENTEL, JR. VS. OFFICE OF THE EXEC. SEC., ET AL. G.R. NO. 158088, JULY 6, 2005 Q – After a treaty is signed by the State’s representative, is it the legal or moral duty or obligation of the President to ratify a treaty? A – No. REASON: After the treaty is signed by the State’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the State and its people. The President therefore has the discretion even after the signing by the Philippine Representative whether or not to ratify the same. Q – More specifically, what then are the respective roles of the President and the Senate with respect to ratification of a treaty? A – Under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate, or having secured its consent for its ratification, refuse to ratify it. Although the refusal of a State to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached upon by the Court via a writ of mandamus. (Ibid.) Q – What, if any, could be the basis behind the refusal to ratify a treaty? A – There is no legal obligation to ratify a treaty but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other State would be justified in taking offense. (Ibid.) ACCESSION TO TREATIES Q – What is accession? A – Accession is the process whereby a non-signatory State later becomes a party to a treaty. There are two (2) kinds of accession, namely: (a) A non-signatory becomes a party in all its provisions in which case the process is termed “accession proper.” (b) A non-signatory becomes a party in some of the provisions in which case the process is called either “adhesion” or “adherence.”

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Q – Can a State which is not a party or signatory to a treaty be bound by the said treaty? A – Yes, in the following instances: (1) through the process of accession, as aforementioned; and (2) through the most favored nation clause. Q – What is the most favored nation clause? A – A clause which provides that a State pledges to give to the other signatory whatever privileges or concessions the first State may give the third State. Example: If there is a such a clause in our treaty with Japan, we should also give to Japan whatever rights we may give to other countries. If the clause is reciprocal, we will also be given the same treatment by Japan. If in all treaties of the Philippines with the other States, there is such a clause, the result will be that all States will be equally favored. In such a case, none will be the “most favored.” 15.

FUNDAMENTAL PRINCIPLES CONCERNING TREATIES 1.

“Pacta sunt servanda” (treaties must be observed in good faith). If a treaty is contrary to a signatory’s national constitution, the international legal order demands faithful compliance with the treaty to avoid international embarrassment. If necessary, the State concerned must even modify its national legislation and constitution to make it conform to the treaty. 2. “Rebus sic stantibus” (a State may unilaterally withdraw from a treaty when there is a vital change of circumstances). The reason for this is because if the change in circumstances affects a signatory State, and to comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to exist is stronger than its duty to comply with the treaty. Q – Is the said principle absolute? A – No, but it can be invoked if the following requisites are present: (1) There is a vital change of circumstances; (2) That the said change and circumstances so affect a signatory State that for it to continue to comply with the treaty provisions would seriously jeopardize its own existence; (3) The change must have been unforeseen or unforeseeable at the time a treaty was perfected; (4) The change must not have been caused by the party who is invoking the doctrine; (5) The doctrine must be invoked within a reasonable time; (6) The duration of the treaty must be indefinite; and (7) The doctrine cannot operate retroactively.

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REVISION OF TREATIES Q – May the General Assembly make recommendations on the revision of treaties? A – Article 14 of the UN Charter answers this question, thus: “Article 14. Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.” INTERPRETATION OF TREATIES Q – How are treaties interpreted? A – Rules in the interpretation of contracts are followed in the interpretation of treaties. Interpretations made by the national courts of one State cannot bind the other but that made by an international tribunal ought to have a conclusive effect. (Tunis-Morocco Nationality Decrees Case, P.C.I. J. Pub. Ser. B. No. 4, pp. 29-30) TERMINATION OF TREATIES Q – What are the causes for termination of treaties? A – Treaties may: (1) Expire – (a) because the period of its duration has come to an end; (b) because a resolutory condition has occurred; (c) because its purpose has been achieved; (d) because its objective has become an impossible thing to accomplish. (2) Be dissolved – (a) because a party to a bipartite treaty has become extinct; (b) because of mutual withdrawal or cancellation; (c) because of a unilateral denunciation (but only if such a right to unilaterally denounce is given in the treaty); (d) because of unilateral act of termination if the other party has violated the terms of the treaty; (e) because of “rebus sic stantibus”; (f) because of a subsequent change in status of one of the parties; (g) because war has broken out (however, in some cases, the treaties may only be suspended; in still other instances, the treaties may be specially applicable only DURING the war); (h) because of the conclusion of a subsequent inconsistent treaty (Be it noted, however, that in case of conflict between the UN Charter and subsequent treaties between or among States, the former prevails). (Article 103, UN Charter)

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Be annulled or voided – (a) because one of the signatories to the treaty was at the time of perfection incapacitated; (b) because error or fraud (but not force, pressure, or undue influence) may have vitiated the consent of the contracting parties; (c) because the object of the treaty is contrary to the principles of international law; (d) because the subject matter of the contract is outside the commerce of nations. (Wilson and Tucker, International Law, pp. 223-225; Fenwick, International Law, p. 350; Kelsen, Principles of International Law, pp. 354-358)

BAR QUESTION, 1992 (Regarding validity of executive agreement) Q – The Japanese Government confirmed that during the Second World War. Filipinas were among those conscripted as “comfort women” (or prostitutes) for Japanese troops in various parts of Asia. The Japanese Government has accordingly launched a goodwill campaign and has offered the Philippine Government substantial assistance for a program that will promote – through government and non- governmental organizations – women’s rights, child welfare, nutrition, and family health care. An executive agreement is about to be signed for that purpose. The agreement includes a clause whereby the Philippine Government acknowledges that any liability to the “comfort women” or their descendents are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. Juliana Iglesias, a descendant of a now deceased comfort woman, seeks your advice on the validity of the agreement. Advise her. A – The agreement by itself may be a valid one if the parties voluntarily give their consent to the same. The question, however, does not state if the said acknowledgement clause is with the knowledge and consent of the comfort women or their descendants. If they have agreed to the same, then the agreement is valid, but if there will be a claim by the said comfort women or descendants arising from the terms of the agreement, such claim may only be pursued upon the consent and initiative of the Philippine government. The said comfort women or their descendants have no legal standing to file and prosecute their claims directly against Japan. 16. THE LAW OF WAR Q – Define war. A – 1. WAR AS A CONTEST OF ARMS – Using this as basis, Oppenheim defines war as a “contention between two or more States through

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their armed forces, for the purpose of overpowering each other and imposing conditions of peace as the other pleases.” 2. WAR AS A STATE OR CONDITION OF THINGS – War is not the mere employment of force but the existence of the legal condition of things in which rights are or may be prosecuted by force. (John B. Moore, A Digest of International Law, Vol. 7, pp. 153) 3. CONCEPT OF WAR IN THE INTERNATIONAL SENSE – War is a sustained struggle by armed forces of a certain intensity between groups of certain size, consisting of individuals who are armed, who wear destructive insignia and who are subjected to military discipline under responsible command. (Salonga, citing Ingrid Detter de Lupes, The Law of War) 4. From the point of view of municipal law – A State of war may exist even when there is no war in the international sense. Does a State have the right to wage war? The right to wage war is a prerogative of national sovereignty but it can resort to war only in case of individual or collective self-defense, or pursuant to the decision or recommendation of the Security Council to take forcible action against an aggressor; provided, however, that the use of force in self-defense is permitted only while the Security Council has not taken the necessary measures to maintain or restore international peace and security. (Article 51, UN Charter) Does the UN Charter prohibits war? Article 2, paragraph 4, of the UN Charter provides as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” What is the “war power” of Congress? “The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a State of war.” (Section 23[1], Article VI) Is the said power of Congress absolute and unrestricted? The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. The restriction means that by the time “the existence of a state of war” is declared by Congress, a was has already been commenced by an enemy state, or we have already been provoked, and that being already the subject or victim of an attack, we are

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merely being compelled to defend our State and our people. (Principles, Comments and Cases in Constitutional Law I, Suarez, p. 202) 1987 CONSTITUTIONAL PROVISIONS REGARDING WAR 1.

2.

3.

4.

5.

Renunciation of war as an instrument of national policy. (Article II, Section 2) “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy peace, equality, justice, freedom, cooperation, and amity with all nations.” Declaration of the existence of a State of War. (Article VI, Section 23[1]) “The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” Defense of the State. (Article II, Section 4) “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.” Emergency powers. (Article VI, Section 23[1]) “The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” Martial law powers. (Article VII, Section 18, par. 1) “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place in the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

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Proclamation of martial law is subject to review by the Supreme Court. (Article VII, Section 18, par. 3) “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.” A State of martial law is subject to review by the Supreme Court. (Article VII, Section 18, par. 4) “A state of martial does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

COMMENCEMENT OF WAR Q – When is a war commenced? A – It is commenced by: (1) an act of belligerent force without a previous declaration of war; or by (2) a declaration of war, which must be communicated. (Stone, Legal Controls of International Conflict, pp. 310) EFFECTS OF THE OUTBREAK OF WAR Q – What are the effects of war? A – 1. Disruption of diplomatic, consular and other non-hostile relations between the two countries. 2. Commercial intercourse between citizens of the belligerents is prohibited, with some exceptions. 3. Enemy corporations are not allowed to continue their operations. 4. Enemy persons are usually allowed to leave. If they decide to remain, they may be interned and be provided with food, clothing, shelter, medical attendance, religious facilities, and be allowed to communicate with foreign States. This may, however, be restricted. (1949 Geneva Convention) 5. Enemy property on land may be confiscated if owned by the government. 6. Requisitioned if owned by private persons. 7. Enemy private property on the sea may be confiscated 8. The same is true with respect to enemy merchant ships. (Hague Convention of 1907)

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PARTICIPANTS IN THE WAR Q – Who are the two (2) participants in a war? A – 1. The non-combatants 2. The combatants a. Non-privileged combatants (i.e., Spies. When caught, they do not get the privilege of being considered as “prisoners of war”) (Article 29, Hague Convention, 1907) b. Privileged combatants (if captured, they are not supposed to become prisoners of war”) Example: Regular armed forces (army, navy, marine, air); doctors or chaplains; war correspondents; levees en masse (spontaneous uprising of the populace); guerillas provided that: (a) they are under a responsible commander (b) they wear a fixed, distinctive emblem, recognizable at a distance (c) they carry their arms openly (d) they conduct their operations according to customs of war and on land. (Article 1, Hague Convention of 1907 and Articles 4 and 8, Geneva Convention of 1949) PRISONERS OF WAR Q – What are the rights and privileges of prisoners of war? A – 1. They must be treated humanely, shall not be subjected to physical or mental torture, shall be allowed to communicate with their families, and may receive food, clothing, educational and religious articles. 2. They may not be forced to reveal military data except the name, rank, serial number, army and regimental number, and date of birth; they may not be compelled to work for military services. 3. All their personal belongings except arms, horses, and military papers, remain their property. They are entitled in certain cases to be compensated for work done. 4. They may be interned in a town, fortress, camp, or any other locality (so long as the place is healthful and hygienic); they are bound not to go beyond certain limits. 5. After the conclusion of peace, their speedy repatriation must be accomplished as soon as practicable. (1949 Geneva Convention on the Treatment of Relatives of War)

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RULES OF WARFARE Q – What is the brief historical background that led to the adoption of the rules of war? A – 1. Down to the middle ages – War was waged with savage and unsparing cruelty. 2. Latter part of the middle ages – Christianity mitigated the ruthlessness of war. 3. During the 17th century – The devastation and general suffering caused by the thirty years war led writers like Grotius to advocate moderation in the conduct of hostilities for reasons of humanity and religion. 4. Declaration of Paris of 1856 – The movement for the codification of rules of warfare gained impetus. 5. Geneva Convention of 1864 – There was a convention on the treatment of the wounded. 6. First Hague Conference of 1899 – Efforts to formulate the laws of war took place. 7. Second Hague Conference in 1907 – Revised the declarations in 1899 and adopted new ones. II. Between the First and Second World Wars 1.

Protocol of 1925 – Concerning the use of asphyxiating, poisonous and other gases. 2. Geneva Convention of 1929 – Concerning the treatment of the sick and the wounded in the field and prisoners of war . 3. London Protocol of 1936 – Concerning the use of submarines against merchant vessels. III. After World War II 1. Red Cross Convention 2. The Convention for the amelioration of the condition of the wounded and the sick in the Armed Forces in the Field which revised the Geneva Convention of 1929. 3. The Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the Armed Forces at sea which revised the Hague Convention No. X of 1907. 4. The Convention relative to the treatment of prisoners of war which revised the Geneva Condition of 1929 on this subject. 5. The Convention relative to the protection of civilian persons in times of war.

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After 1950 1.

Hague Convention in 1954 – Concerning the protection of cultural property, such as works of art, in case of armed conflict. 2. 1972 Convention – Prohibiting military use of environmental modification techniques (EN-MOD Convention). 3. 1977 (Red Cross Conventions) – Expanding humanitarian protection to combatants and non-combatants. 4. 1981 (Conventional Weapons Convention) – Updating the law in weaponry. Q – If the UN Charter prohibits war, why should it still be necessary to devise rules of warfare? A – 1. The protagonists should not be left free to do as they please, unfettered by any rules regulating their conduct. 2. Rules of war have been made to temper the suffering and destruction that are the inevitable concomitants of war, regardless of its legality or illegality. (Oppenheim, Vol. 2, p. 218) 3. The laws of war are not applicable to war alone in its technical sense, but to all armed conflicts. 4. The UN has stressed the need to apply basic humanitarian principles in all armed conflicts, and has called upon all parties to armed conflicts to observe international humanitarian rules. (UN General Assembly Resolution 2444 [XXIII], December 12, 1968) SOME IMPORTANT RULES OF WARFARE Q – State some important rules of warfare. A – It is prohibited: 1. To kill with treachery 2. To pillage a town or place even when taken by assault 3. To employ poison or poisoned arms 4. To loot 5. To bomb undefended places (i.e., hospital, religious ship, places or worship) 6. To plant anchored mines 7. To bomb undefended or “open cities” 8. To deliberately bomb civilians 9. To kill hostages (1949 Geneva Convention)

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SANCTIONS Q – What are the sanctions recognized by international law for not observing the rules of warfare? A – CODE: RPPC R-reprisals P-unishment of war crimes P-rotest lodged with neutral powers C-ompensation TERMINATION OF WAR Q – What are the causes for termination of war? A – CODE: CTU C-essation of hostilities without conclusion of a formal treaty of peace T-reaty of Peace (The decisive victory of one of the belligerents leads it to impose its will upon the other.) U-nilateral declaration (defeat or unconditional surrender) Q – What is the meaning of Status Quo Anti Vellum? A – Each of the belligerents is entitled to the territory and property which it had possession of at the commencement of the war. Q – What is the doctrine of postliminium? A – The territory, individuals and property that have come to the possession or authority of the enemy reverts to the possession and authority of the original or legitimate sovereign. This also means that when a territory which has been occupied by the enemy comes again into the power of the State during the progress of the war through conquest or otherwise, the legal State of the things existing prior to the hostile occupation is reestablished. (Principles, Cases and Comments in Constitutional Law I, by Suarez, citing Aruego, International Law, p. 60) SPECIFIC EFFECTS OF WAR Q – What are the specific effects of war on (1) Diplomatic relatives; (2) Enemy persons; (3) Enemy Property; (4) Trading and intercourse; (5) Contracts; (6) Treaties A – 1. On diplomatic relations a. The respective diplomatic envoys are allowed to leave for their home countries. b. The official residence of the envoy, as well as the archives of the mission, if left behind, is usually placed under the protection of another foreign envoy.

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2.

3.

4.

5.

6.

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On enemy persons a. Enemy persons who are within the territory of a belligerent at the time of the outbreak of hostilities may be detained or allowed a reasonable time within which to leave the country. b. Those who choose to stay or are prevented from leaving, conditions or restrictions may be imposed on their continued residence in the country. Usually, they are placed under special restrictions or interned. On enemy property a. Goods belonging to enemy persons are considered as enemy property. b. Goods found on board an enemy vessel are presumed to be enemy property unless the contrary is established by the natural owners. c. Vessels sailing under enemy flag bears enemy character, regardless of the nationality or domicile of its owner. d. Vessels sailing under neutral flag, while ordinarily regarded as neutral in character, may under certain circumstances be considered to bear enemy character. On trading and intercourse a. The practice of belligerents in modern wars is to forbid by legislation all intercourse with alien enemies, except those permitted under license. The main object is to prohibit transactions which would benefit the enemy or enemy persons. On contracts a. The rules of municipal law, rather than international law governs. b. In general, the States treat as void contracts which may give aid to the enemy or add to his resources. On treaties a. Treaties concerning political matters (i.e., treaties of alliance and commercial transactions) are deemed abrogated by the outbreak of war between the parties thereto. b. Executed treaties (i.e., fixing of boundaries) are not affected by war. c. A treaty which regulates the conduct of the parties in times of war is clearly intended to become operative when war breaks out between them.

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Q – What are the limitations on targets of attack? A – Only military targets are subject to attack. Civilian objectives are immune from attack. (Note: This distinction is clear in theory but not so easy to observe considering the nature of modern weapons.) Q – What are the places and objectives which are not subject to attack? A – 1. Neutralized areas/zones (i.e., Suez Canal, Panama Canal) 2. Open towns/cities 3. Cultural property and places of worship 4. Civilian defense personnel, buildings and assets, indicated by distinctive signs, are immune from attack under Protocol I of 1997 5. Civilians a. Those who never took part in hostilities b. Hors de combat (former combatants but wounded or have permanently joined the population) 7. Parachutists (those who bail out from aircrafts in distress. If they land in enemy territory, they must be given a chance to surrender and be treated as prisoners of war) 8. Hospitals, hospital ships and medical counts 9. Food supplies and crops FORBIDDEN METHODS OF WARFARE Q – What are the forbidden methods of warfare? A – 1. “No quarter” method (An order to the effect that no survivors are to be left open after an attack. This is inhuman and not allowed as a method of warfare.) 2. Starvation method – (Starvation of the civilian population is inhuman.) 3. Reprisals – (Acts of vengeance by a belligerent directed against groups of civilians or prisoners of war.) 4. Perfidy or Treachery – (It is treachery for soldiers who have surrendered to take up arms and attack the enemy.) 5. Indiscriminate attacks – (Prohibited in any form.) Unlawful act or omission causing the death or serious danger to the health of the prisoners. BAR QUESTION, 1988 Q – What is Genocide? A – Genocide includes any of the following acts committed with intent to

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destroy, in whole or in part, a national, ethical, racial or religious group, such as: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. (1948 Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention], which entered into force on January 12, 1951) NOTE: 1. 2. 3.

4.

Genocide is a crime under International law whether it is committed in time of peace or in time of war. (Article 1, ibid.) Heads of State and government are not immune from prosecution for Genocide. (Article 4, ibid.) Persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to parties to the Genocide Convention which shall have accepted its jurisdiction. (Article 5, ibid.) Acts punishable under the genocide convention are the following: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit genocide; d) Attempt to commit genocide; and e) Complicity in genocide.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, 1984 CONVENTION Q – What is “torture”? A – Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or

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at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Torture Convention, 1984) NOTE: 1.

2.

Exceptional circumstances whatsoever, whether a state of war, or retreat of war, internal political instability or any public emergency, may not be invoked as a justification of torture. (Article 2 [2], Torture Convention) An order from a superior officer or a public authority may not also be invoked as justification of torture.

BAR QUESTION, 1991 Q – What is reprisal? A – The seizing of property or persons by way of retaliation. Reprisal when they are taken by a State may denote any kind of coercive action not amounting to war whereby a State attempts to secure satisfaction from another for some wrong which the latter has committed against it. (Briely, 321) Distinctions, Embargo, Blockade and Boycott Embargo

Blockade

Boycott

Commerce and trade with the offending State is prohibited.

Maritime commerce between an enemy State and the rest of the world is cut off in order to prevent the goods from reaching the enemy or to prevent the enemy from exporting to the outside world thereby sustaining its war economy.

There is a concerted action made by the citizens of one State to suspend trade and business relations with the citizens of the offending state.

LEGALITY OF BLOCKADE, BOYCOTT, EMBARGO Blockade is lawful if it is made upon the order or authority of the UN Security Council (Article 42, UN Charter). Without the said authority, it will fall under the General prohibition against the use of force as provided in the UN Charter. (Article 2 [4])

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If the boycott is a voluntary act of the citizens, either acting individually or in concert, it is outside the scope of international law. It will be a ground of protest by a foreign government if there is an element of pressure from a government. If an embargo upon all the vessels of the offending State takes place at a time when they are in the ports of the State seeking redress, the same does not contemplate a confiscation which is considered as an act of war, except in case the redress for injuries suffered should be finally refused.

AGGRESSION Meaning: It is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. (Resolution 3314 [XXIX],UN General Assembly, December 14, 1974) Under the said resolution, any of the following acts, regardless of a declaration of war, shall qualify as an act of aggression: a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof; b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state; c) The blockade of the ports or coasts of a state by the armed forces of another state; d) An attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; e) The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of the state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; g) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein.

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Q – In the last several weeks, the Armed Forces of Israel, has been causing bombardment and blockade in Gaza resulting in death, starvation and injury to hundreds and thousands of Palestinians including innocent civilians. The Israel government alleges that it is merely acting in retaliation to Palestinian attack and rockets to a portion of its territory. Is Israel guilty of aggression. Is the allegation of Israel justified under international law? A – The UN charter prohibits not only recourse to war but also resort to the use of war, and even in the use of war, the measure to be taken must be consistent with “necessity and proportionality,” as already applied in previous cases that have reached the International Courts of Justice. Under the circumstances, it is submitted that Israel committed not only an aggression but also an unjustified war of aggression because the repeated bombardments have caused death, injury, extensive damage even to innocent civilians, children, hospitals, patients therein, public and private buildings, which are not supposed to be targets of attack. Aggression can never be justified. A war of aggression is a crime against international peace and it gives rise to international responsibility. (General Assembly Resolution 3314[XXIX], Article 3 in relation to Article 5) BAR QUESTION, 1998 Q – At the Nuremberg trial of the Nazi war criminals at the end of World War II, the defense argued on behalf of the German defendants that although a nation could not wage aggressive war without transgressing International Law, it could use war as an instrument of self-defense, and that the nation itself must be the sole judge of whether its actions were in self-defense. How would you meet the argument if you were a member of the Tribunal trying the case? A – In accordance with the agreement and previous conventions to which Germany was a signatory (Kellog-Briand Pact, Pact of Paris August 27, 1928, and the 1899 Convention for the Pacific Settlement of International Disputes), Germany bound itself under an obligation not to resort to war as an instrument of national policy or to wage war without previous and explicit warning. The invasion of Austria, Denmark, Belgium, Netherlands, Norway, Luxemburg and the aggression against Yugoslavia, Greece, Poland and U.S.S.R. were pre-meditated acts of aggression as part of the plan of global denomination. 17. PEACEFUL AND FORCIBLE SANCTIONS Q – What are the peaceful sanctions in public international law?

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A – Traditionalists list down the following as the peaceful sanctions in public international law: (1) Diplomatic negotiations (2) Tender and exercise of good offices (3) Mediation (4) Enquiry and conciliation (5) Arbitration (6) Reference to the Security Council of the UN (7) Reference to the International Court of Justice. (Wilson and Tucker, International Law, pp. 228-242; Fenwick, International Law, pp. 405-440) Q – Explanation of each. A – (1) Diplomatic negotiations – It constitutes the process by which States settle their differences through an exchange of views between diplomatic agencies. Discussions may be oral or written, brief or prolonged. (Mavromamatis Palestine Concessions Case, P.C.I.J. Pub. Ser. A/2, p. 11) (2) Tender and exercise of good offices – It exists when third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. When the offer is accepted, there shall be an “exercise of good offices.” (3) Mediation – A third party offers to help with a solution, usually based on compromise (as contradistinguished from “good offices,” mediation offers a solution; “good offices” merely brings that parties together). (4) Enquiry – It simply means an ascertainment of the pertinent facts and issues in a dispute. (5) Conciliation and Arbitration – It is the reference of the dispute to a commission or international body, whose decision, however, is NOT BINDING on the parties; when the decision is final and conclusive on the parties, the process is referred to as arbitration. (6) Reference to the Security Council of the UN – When no danger to international peace is foreseen, the Security Council may step in, but only if ALL THE PARTIES to the dispute request its intervention (Article 52, UN Charter). When there is DANGER to international peace, the Security Council intervenes: (a) On its own motion (Article 34, UN Charter) (b) On motion of the General Assembly (Article 11, UN Charter) (c) On motion of the UN Secretary-General (Article 99, UN Charter)

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On motion by a UN Member (Article 35, No. 1, UN Charter) On motion by a Non-Member of the UN (Article 35, No. 2, UN Charter) In case the Security Council discovers a threat to international peace, it shall make the proper recommendations on the dispute. (Article 39, UN Charter) If the recommendations are not heeded, the Council may take “enforcement action” under Article 41 of the Charter. Reference to regional organizations – Under Article 52 of the UN Charter, regional arrangements or agencies may be established to maintain international peace through regional action and to peacefully settle local disputes before referring them to the Security Council. Its function should be reported to the Council (Article 54, UN Charter). However, it should be noted that the existence of these agencies will not prevent the Security Council from itself investigating and settling these disputes. (Article 52, No. 4, UN Charter) (d) (e)

(7)

Settlement by the International Court of Justice – The court shall remain permanently in session except during the judicial vacations, the dates and duration of which shall be fixed by the Court. (Article 23, ibid.) Jurisdiction of the case – The jurisdiction of the court comprises all cases which the parties refer to it and all matters specifically provided for in the Charter of the UN or in treaties and conventions in force. (Article 36, ibid.) Basis of Court’s jurisdiction – It is based on the consent of the parties. Article 36 of the Statute of the International Court of Justice provides: “The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court, disputes concerning: (f) The interpretation of a treaty; (g) Any question of international law; (h) The existence of any fact which, if established, could constitute a breach of an international obligation. (i) The nature or extent of the reparation to be made for the breach of an international obligation.” Can it give advisory opinion? – The Court may give an advisory opinion on any legal question at the request of whatever body that may be authorized by or in accordance with the UN Charter to make such a request (Article 65, ibid.) (i.e., General Assembly or the Security Council) or other organs of the UN when authorized by the General Assembly.

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18. BELLIGERENT OCCUPATION AS DISTINGUISHED FROM MILITARY OCCUPATION BELLIGERENT OCCUPATION

MILITARY OCCUPATION

1. It is a temporary military occupation of the territory of the enemy during the war. International law recognizes the occupant’s authority over the occupied territory and its inhabitants. Example: Japanese occupation of the Philippines during the last Pacific War.

1. There is military occupation when the victory takes over enemy territory after the conclusion of the war. The rights and obligations of the “military occupant” are generally premised on the provisions of an agreement or treaty on the matter. Example: Occupation of Germany and Japan by the Allied Powers at the end of World War II.

19. EFFECT OF BELLIGERENT OCCUPATION ON THE SOVEREIGNTY OF THE LEGITIMATE GOVERNMENT The sovereignty of the legitimate government is suspended during the belligerent occupation (U.S. vs. Rice, 4 U.S. 246, reiterating the doctrine in U.S. vs. Hayward [26 Ted Cas. 240]). However, the Philippine Supreme Court ruled in Laurel vs. Misa, 42 O.G. 1176, that upon military occupation, the sovereignty of the legitimate government is NOT SUSPENDED. What is suspended was merely the exercise of the acts of sovereignty. More specifically, the belligerent occupation did not obtain sovereignty over the Philippines during the Japanese military occupation. This remained with the United States although the Americans could not exercise any control over the occupied territory. What the belligerent occupant took over was merely the exercise of the acts of sovereignty. (Principles, Comments and Cases in Constitutional Law I, Suarez, p. 58) Q – When is a territory deemed under military occupation? A – When the government of the invaded territory is rendered incapable of publicly exercising its authority and the invader is in the position to substitute and has substituted its own authority for that of the legitimate government of the occupied territory.

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Q – Suppose there are still guerilla forces in the barrios, mountains and even in towns of the invaded place, will all these make the military occupation ineffective? Will all these cause the end of the military occupation? A – They are not enough. The belligerent occupant is not required to have its feet continuously planted on every square foot of the territory occupied, provided he maintains effective control and military superiority therein, being able to send, in case of attack, sufficient force to assert its authority within a reasonable time. Q – What are the rights and duties of the belligerent occupant? A – 1. To continue the processes of orderly government. 2. To enact necessary legislation, and even penal laws, provided they are not ex post facto in character. The imposition of death penalty is however restricted to certain offenses. (i.e., espionage and deliberate homicide). (Articles 67-70, Geneva Convention, 1949) 3. To protect the inhabitants, to protect them from torture and brutal treatment. (Articles 27-34; 52-59, Geneva Convention, 1949) 4. To demand taxes and contributions over and above the taxes, to finance the needs of military and local administration. (Articles 48, 49, 51, Hague Regulations) 5. To issue legal currency, both for the preservation of peace and order, and for military needs. (Article 43, Hague Regulations) 6. To use enemy property, public or private. (Villanueva vs. Manila Motor Co., 2-10394, December 31, 1958) In short, the rights of a belligerent occupant over the occupied territory are merely that of administration. Q – During the period of occupation, can the belligerent occupant annex the occupied territory or set it up as our independent State? A – No. (Co Kim Chan vs. Valdez Tan Keh, 75 Phil. 371) REASON: Because the rights of the belligerent territory are merely that of administration. SUMMARY OF IMPORTANT PHILIPPINE SUPREME COURT DECISIONS REGARDING THE RIGHTS OF BELLIGERENT OCUPANT 1.

2.

ANASTACIO LAUREL VS. ERIBERTO, MISA, 44 O.G. 1176: The sovereignty of the legitimate government of the Philippines was not suspended. What was suspended was merely the exercise of that sovereignty. HAW PIA VS. CHINA BANKING CORPORATION, L-554, APRIL 9, 1948:

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(a)

3.

The Japanese Military Administration, as a belligerent occupant, had the right to liquidate, sequester or freeze the assets of enemy banks. (b) Payment by Haw Pia to the Bank of Taiwan extinguished the mortgage indebtedness because under the law then prevailing, the Bank of Taiwan was clearly authorized to receive payment. (c) The Japanese military notes were legal tender because under international law, the invading power has the right to issue currency for circulation in the occupied territory. VILLARUEL VS. MANILA MOTOR CO., L-10394, DECEMBER 31, 1958: This is about a property leased by a Filipino to another Filipino. On account of military need, the Japanese Army occupied the said property. The issue is whether the lessee should pay rent to the lessor during the time the said property was occupied by the Japanese Army. HELD: No. REASON: In International Law, the belligerent occupant has the right to billet or quarter its troops in private lands and buildings during the duration of its military occupation.

SUSPENSION OF HOSTILITIES Q – When are the hostilities between the belligerents suspended? A – 1. When there is a suspension of arms (i.e., to bury the dead or to remove the wounded) 2. When there is armistice (suspension of military operations in all regimes) 3. When there is a cease-fire (stoppage of military firing and advances) 4. When there is a truce (conditional cease-fire for political purposes) 5. When there is a capitulation (an agreement whereby a body of troops or fitness or a town is surrendered) 6. When there is an unconditional surrender (no conditions attached) THE END OF WAR Q – In how many ways can war be ended? A – 1. Cessation of hostilities without any formal treaty 2. By a formal treaty of peace 3. By the complete submission and subjugation of one of the belligerents 4. By unilateral declaration or proclamation

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20. STATELESS PERSONS BAR QUESTIONS, 1995 Q – Who are stateless person? A – They are persons who are not considered as nationals by any State under the operation of its law. (1954 Convention, Article 1, relating to the status of stateless persons which entered into force on June 6, 1960) Q – What are the consequences of statelessness? A – A stateless person is adversely affected as it affects his right to exercise rights and privileges usually enjoyed by citizens of a State such as but not limited to employment, right to work, right to own and acquire property, right to education, freedom of mobility, right of access to health care and other privileges enjoyed by citizens. Q – Is a stateless person entirely without right, protection or recourse under the law of nations? A – No, he shall be issued identity papers when he does not possess a valid travel document; he shall be accorded the same treatment which shall be favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances with respect to rights to movable and immovable property, right of association, wageearning employment, liberal professions, housing, freedom of movement; he shall be accorded the same treatment granted to the national of the country of his habitual residence with respect to rights to artistic rights and industrial property, free access to courts, rationing, elementary education, and public relief and assistance. Q – What measures, if any, has International Law taken to prevent statelessness? A – (a) A contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless; (Convention on the Reduction of Statelessness, Article 1) (b) A contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State. (Convention on the Reduction of Statelessness, December 13, 1975, Article 4) BAR QUESTIONS, 1978 Q – Victor Korchnoi, a stateless resident of Switzerland, was the challenger to the world chess title held by Anatoly Karpov. After 32 grueling

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games were played in Baguio City, Karpov finally retained his title. Korchnoi protested non-payment of his prize money and alleged unfair treatment he received from the tournament organizers in the Philippines, particularly in the 32nd crucial game which he attributes as the main cause of his defeat. May he press for his right to the prize money against the Philippine government through the Swiss government? A – It is submitted that Korchnoi may not press for his right to the price money. REASONS: (1) He is a stateless person; (2) The right of the Swiss government, if it decides to represent Korchnoi in the international level, is based on nationality and not on mere residence 21. LAW OF THE SEA LAW GOVERNING CONTROVERSIES ON THE LAW OF THE SEA THE TREATIES PROMULGATED, 1. 2. 3. 4. 5.

Convention on the Territorial Sea and Contiguous Zone Convention on the High Seas Convention on Fishing and Conservation of the Living Resources of the High Seas Convention on the Continental Shelf UNCLOS

TOPICS IN CONNECTION WITH THE LAW OF THE SEA 1. 2. 3. 4. 5. 6. 7. 8.

Brief background on the adoption of UNCLOS Nationality of vessels Baseline Determination Internal waters and ports Territorial Seas and Contiguous Zone Continental Shelf Exploitation of the Mineral Resources of the Deep Seabed The High Seas

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EXPLANATION OF EACH ONE

1.

BACKGROUND OF THE ADOPTION OF UNCLOS Adoption: The Convention, referred to as UNCLOS, was adopted by the UN Conference on the Law of the Sea on April 30, 1992 Open for signature: On December 10, 1982 at Montego Bay, Jamaica Entered into force: On November 16, 1994, pursuant to its Article 308 (1) When it received its 60th ratification on that date. The Philippines is a party to the Convention, having signed it on December 10, 1982, and ratified on May 8, 1984. 73 States have become parties to the Convention as of February 23, 1995. China and Japan signed it. On July 28, 1994: The US General Assembly adopted the Agreement relating to the implementation of Part XI of the Convention in its Resolution 48/263, with 120 States, including the Philippines, voting in favor. No negative vote, with 7 abstentions. 116 States, including the Philippines, have agreed to apply provisionally the agreement starting Nov. 14, 1994, the date of the Convention’s entry into force. THE PHILIPPINE DECLARATION ON THE SIGNING OF THECONVENTION ON THE LAW OF THE SEA Montego Bay, Jamaica Declaration of the Republic of the Philippines 10 December 1982 The government of the Republic of the Philippines hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit: 1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner

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impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 2. Signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty of agreement to which the Philippines is a party; 4. Such signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; 5. The Convention shall not be construed as amending in any manner or pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution; 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation;

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8. The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty. For and on behalf of THE REPUBLIC OF THE PHILIPPINES (Sgd.) ARTURO M. TOLENTINO Minister of State for Foreign Affairs Chairman of Delegation

COMMENTS: Be it noted that based on the aforementioned Philippine Declaration, the Government of the Republic of the Philippines, through Former Senator and Vice-President Arturo Tolentino, signed and ratified the UNCLOS based on the understanding that: “xxx 1. shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines”; 2. “xxx shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America”; 3. “xxx shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America”; 4. “xxx shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto”; 5. “xxx shall not be construed as amending in any manner or pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines”; 6. “The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and

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do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security”; 7. “The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation”; 8. “The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty.” (Underlining Supplied) What are the implications of the foregoing reservations? 1. This means that sovereignty and jurisdiction shall be exercised over the territorial sea, as provided in Article 1 of the 1987 Constitution, thus: “The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. 1. The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and even in our previous Constitutions. 2. Despite the signing of the UNCLOS, Republic Act No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution. 3. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. The wording of the present Constitution (Article 1, 1987 Constitution, first sentence) is the same as Article 1 of the 1973 Constitution, second sentence, thus: “The waters around, between and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.” On this basis, it means that sovereignty and jurisdiction should be exercised over the territorial sea, the same principle and application of

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sovereignty that was observed when the 1973 and 1987 Constitution was drafted and ratified. Under the UNCLOS, the following have become evident: 1. The internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers, and in permanent harbor works, which results to a drastic contraction of our territorial sovereignty. 2. The application of the UNCLOS rules on the maritime zones such as those governing the territorial sea, deprives the boundary line of the Treaty of Paris (international treaty limits) of any legal function. Assuming these lines or limits to be the boundaries of the Philippines, effect of the UNCLOS is to reorganize the entire territorial regime of the Philippines, resulting in the debasement of its territorial sovereignty. 3. The rights and duties of the Philippines in regard to the international community are those which pertain to the maritime zones, leaving the Treaty of Paris boundary lines without any legal purpose in terms of rights and duties. 4. The territorial sea of the Philippines extends no farther than 12 nautical miles, according to UNCLOS. Hence, it is only up to that limit that the Philippines enjoys sovereignty. Likewise, under the UNCLOS the internal waters of the Philippines are strictly limited to water in lakes, bays, gulfs, mouth of rivers and in permanent harbor works. This means a drastic contraction of its territorial sovereignty. Remember what I have discussed earlier in relation to the position of our government in relation to the archipelagic theory proposed by the Philippines in the U.N. Conference on the Law of the Sea, particularly our position with respect to the more than 7,000 islands comprising our terrestrial domain, thus: Q – (A)

A – (a)

What is the “archipelagic theory” as proposed by the Philippines in the U.N. Conference on “The Law of the Sea,” and give its justification, legal or practical, from the standpoint of the Philippine position? Under the archipelago theory, “the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines and this is provided in Article 1, Section 1 of the 1973 Constitution, now Article 1 of the 1987 Constitution. In this connection, our position is that the more than 7,000 islands comprising our terrestrial domain should be considered as one integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country.

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In effect, the conversion of our internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine State. 2. NATIONALITY OF VESSELS Legal significance of the nationality of a vessel: The nationality, registration or documentation of vessels determines a relationship between the vessel and the State that authorizes it to fly its flag. A ship has the nationality of the State whose flag it is entitled to fly. (Article 92, UNCLOS) A SHIP SHALL SAIL UNDER THE FLAG OF ONE STATE ONLY Exception to this rule: Except in cases provided for international treaties or in the LOS Convention. CONSEQUENCE IF A SHIP SAILS UNDER THE FLAGS OF TWO OR MORE STATES USING THEM ACCORDING TO CONVENIENCE Said ship may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. (1958 Convention on the High Seas, Article 6; UNCLOS, Article 92) LIMITATIONS ON THE RIGHT OF A STATE TO CONFER NATIONALITY UPON A SHIP 1.

2.

One Flag Limitation – A State may not confer its nationality upon a ship that is already flying the flag of another Sate. Article 92 of the LOS Convention states that “a ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.” Genuine Link requirement – Article 91 of the LOS Convention requires that there must exist a genuine link between the ship and the state before the latter may confer its nationality upon the ship.

BAR QUESTIONS, 2004 Q – Discuss flag state and flag of convenience. A – The flag State is the State that grants nationality upon a ship and authorizes it to fly its flag. If there is no genuine link between the ship and the flag State, the latter becomes a “flag of convenience.” The genuine link between a ship and the state granting nationality upon it may be any or more than one of the following:

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a) b) c) d) 3.

The ship owned by its nationals; The officers of the ship are its nationals; The crew are its nationals; or The ship was built in that state.

BASELINE DETERMINATION

DEFINITION OF BASELINE It is the law-water mark along the coast from which the belt of territorial sea is measured. (UK vs. Norway, ICJ, December 18, 1951) RULES REGARDING DELINEATION OF THE BASELINE 1. 2.

3.

4. 5.

6.

7.

In localities where the coastline is deeply indented, the method of straight baselines joining appropriate points may be employed. (Id., Article 7) If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water of its banks. (Id., Article 9) Bays – If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a straight baseline may be drawn between them, and the waters enclosed thereby shall be considered as internal waters; otherwise straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. (Id., Article 10) Historic Bays -- A straight baseline is drawn between appropriate marks of its natural entrance, regardless of distance. Ports – The outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast; however, off-shore installations and artificial islands shall not be considered as permanent harbor works. (Id., Article 12) Low-tide elevation – The low-water line on that elevation may be caused as the baseline for measuring the breadth of the territorial sea. (Id., Article13) Archipelagic states – May draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. (Id., Article 47)

BAR QUESTIONS, 2004 Q – Distinguish territorial sea and the internal waters of the Philippines. A – Internal waters of the Philippines: this refers to the second sentence in Art. 1 of the 1987 Constitution, thus: “the waters around, between, and

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connecting the islands of the archipelago regardless of their breadth and dimensions.” Territorial sea (Already discussed) 4.

INTERNAL WATERS AND PORTS

DISTINCTION, INTERNAL WATERS AND ARCHIPELAGIC WATERS Internal waters: (They are completely within the territory) (a) rivers, (b) Bays and gulfs (c) Straits (d) Canals Archipelagic waters: (2nd sentence of Section 1, Article I, 1987 Constitution) – The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. BAR QUESTIONS, 1951 Q – What are the principal theories on the jurisdiction of authorities of a coastal state over crimes committed on board foreign merchant ships which enter or dock in its ports? Which of the two theories is followed in this jurisdiction? A – The principle theories are: (a) The French Rule (Under this rule, crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory;) (b)The English Rule (Under this rule, crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed.) We follow the English Rule. (People vs. Wong Cheng. G.R. No. L-18924, October 19, 1922) BAR QUESTIONS, 1979 Q – A crime was committed in a private vessel registered in Japan by a Filipino against an Englishman while the vessel is anchored in a port of a State “A.” Where can he be tried? If both are members of the crew, where will the trial be? A – (Already Answered) ( If the crime committed affects the “peace and dignity of State “A” or the “tranquility of its port,” the trial will be in State “A.” If the crime involves matters that are internal to the vessel or its crew, the trial will be in Japan.) 5.

TERRITORIAL SEA AND CONTIGUOUS ZONE

Q – What is the breath of territorial sea? (Already discussed)

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BAR QUESTION, 2004 Q – What is the contiguous zone? A – It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to ensure that customs laws, immigration and sanitary laws are properly and effectively enforced. BAR QUESTION, 1991 Q – What is Innocent Passage? A – It is the right of foreign vessels to pass through territorial waters, especially those connecting two open seas, Provided: 1. That the passage is “innocent” which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; 2. That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. BAR QUESTION, 2004 Q – En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in Country TW entered the Balintang Channel north of Babuyan Island and with special hooks and nets dragged up red corals found near Batanes. By international convention certain corals are protected species. Just before the vessel reached the high seas, the Coast Guards patrol intercepted the vessel and seized its cargo including tuna. The master of the vessel and the owner of the cargo protested, claiming the rights of transit passage and innocent passage, and sought recovery of the cargo and the release of the ship. Is the claim meritorious or not? A – No. REASONS: The two (2) conditions above-mentioned were violated. The passage was not “innocent” as there was an ulterior motive for the passage and the regulations of our country have not been complied with. There was no merely a “passing through”; and there was no loading or unloading any person or goods. In fact, the vessel, with special hooks and nets, dragged up red corals found near Batanes.

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PRIOR NOTICE OR AUTHORIZATION IS NOT REQUIRED FOR INNOCENT PASSAGE OF A FOREIGN WARSHIP IN THE TERRITORIAL SEA OF A COASTAL STATE Requirement: The LOS Convention requires ships, including warship, to comply with the laws and regulation of the coastal State relating to innocent passage. If this is violated, the ship may be required to immediately leave the territorial sea. Submarines must navigate on the surface and show their flag. (Articles 30, 14, 20, UNCLOS) DISTINCTION, TRANSIT PASSAGE AND INNOCENT PASSAGE Transit passage

Innocent passage

1. Applies through straits 2. Covers navigation and over flight by aircrafts. 3. It may not be unilaterally suspended. (Article 45[2] UNCLOS)

1. Applies through territorial seas. 2. Covers navigation only. 3. It may be unilaterally suspended.

BAR QUESTION, 1999 Q – State Epsilon, during peace time, has allowed foreign ships innocent passage through Mantranas Strait, a strait within Epsilon’s territorial sea which has been used by foreign ships for international navigation. Such passage enabled the said ships to traverse the strait between one part of the high seas to another. On June 7, 1997, a warship of State Beta passed through the above-named strait. Instead of passing continuously and expeditiously, the ship delayed its passage to render assistance to a ship of State Gamma which was distressed with no one nearby to assist. When confronted by Epsilon about the delay, Beta explained that the delay was due to force majeure in conformity with the provision of Article 18(2) of the UN Convention on the Law of the Sea (UNCLOS). Seven months later, Epsilon suspended the right of innocent passage of warships through Mantranas Strait without giving any reason therefor. Subsequently, another warship of Beta passed through the said strait, and was fired upon by Epsilon’s coastal battery. Beta protested the aforesaid act of Epsilon drawing attention to the existing Customary International Law that the regime of innocent passage (even of transit passage) is non-suspendable. Epsilon countered that the Mantranas Strait is not a necessary route, there being mentioned suitable alternative route. Resolve the above-mentioned controversy.

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A – Warships enjoy the right of innocent passage and this applies in straits used for international navigation. Besides, the right of innocent passage to pass through the straits may not be suspended. (Article 45, UNCLOS) The delayed passage of a warship of State Beta was justified on account of force majeure and to be able to render assistance to a ship of State Gamma, a ship under distress, with no one nearby to assist. (Article 18[2], LOS Convention) During peace time, State Epsilon has allowed innocent passage to foreign ships passing through Mantranas Strait, which is within the territorial sea of Epsilon. In other words, it has been used by foreign ships for international navigation. For these reason, the State of Epsilon has no right to suspend the right of innocent passage through Mantranas Strait. 6.

CONTINENTAL SHELF

DEFINITION OF CONTINENTAL SHELF: It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its land territory up to (1) the outer edge of the continental margin, or to (2) a distance of 200 nautical miles from the baselines of the territorial sea, which ever is the farthest. (UNCLOS, Article 76) NOTE: 1.

2.

The continental shelf may extend farther than the continental margin when the continental margin does not extend beyond the 200 nautical miles from baselines. In such case, the continental shelf goes farther than the continental margin and extends up to the 200 nautical miles limit. (Ibid., Article 76[1]) The outer edge of the continental margin may extend beyond the 200 nautical mile limit. In such case, the coastal state shall establish the outer edge of the continental margin. How will the outer limit of the continental shelf be determined or established? The outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines of the territorial sea, or 100 nautical miles from the 2500 meter isobath (or the point where the waters are 2500 meters deep), as required in Article 76(5) of the UNCLOS.

RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF:

It has the sovereign rights for the purpose of exploring it and exploiting its natural resources. These rights are now recognized as customary international law.

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The said natural resources consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable state, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. (Article 77[4], UNCLOS) Q – What is the legal nature of these rights? A – The said rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state. Moreover, rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. It is in the nature of the rights to explore and exploit natural resources, and for no other purposes. The International Court of Justice describes the nature of the said rights in two cases, thus: 1. North Sea Continental Shelf “ The rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of it sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short there is here an inherent right. (ICJ Reports, 1969, pp. 3, 23) 2. Aegean Sea Continental Shelf Case “…it is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law. In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State. (ICJ Reports, 1978, para. 86) Q – Do the rights of the coastal state over the continental shelf change or in any way affect the legal status of the superjacent waters? A – No, they do not affect the legal status of the superjacent waters or of the air space above those waters, under Article 78(1), UNCLOS. Hence, the coastal state in the exercise of its rights is under duly to respect the rights and freedoms of other states, such as the freedom of navigation and of over flight and the right to lay submarine cables and pipelines. (78.2, 79.1 and 79.2, UNCLOS)

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EXPLOITATION OF THE MINERAL RESOURCES OF THE DEEP SEABED

STATUS OF THE LEGAL REGIME GOVERNING THE EXPLOITATION OF MINERAL RESOURCES OF THE DEEP SEABED There are three views on this matter: (1) Common heritage of mankind view; (2) Res Nulluis View; (3) Freedom of the high seas view. The first one, common heritage of mankind view, was adopted by the UN General Assembly in Resolution No. 2749 (XXV), December 17, 1970 in connection with Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof Beyond the Limits of National Jurisdiction. The convention made this declaration: 1. No state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole on whose behalf the Authority shall act. These resources are not subject to alienation. 3. No state or natural or judicial person shall claim, acquire or exercise right with respect to the minerals recovered from the Area except in accordance with the Convention. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized. (Article 137) 8.

HIGH SEAS

DEFINITION OF HIGH SEAS: There are the waters which are not included in the territorial sea or in the internal waters of any State, in the archipelagic waters and exclusive economic zone of the State. Hence, they are beyond the jurisdiction and sovereign rights of the States. Remember my previous regarding the Freedom of the Seas, thus: Q – What is the principle of “The Freedom of the Seas”? A – It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. Q – What then is the meaning of the statement that the open seas is not property of any State? A – This means that “it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive

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prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NON ALIENUM LAEDAS. (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Article 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. Q – Is this rule absolute? A – No. This may be regulated by a treaty. Q – What is the freedom of navigation? A – It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. MAIN CONSTITUENTS OF THE FREEDOM OF THE HIGH SEAS 1. 2. 3. 4. 5. 6.

Freedom of navigation Freedom of overflight Freedom of fishing Freedom to lay submarine cables and pipelines Freedom to construct artificial islands and other installations Freedom of scientific research (Article 87)

DUTIES OF THE STATES RELATIVE TO THE HIGHSEAS 1.

Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress; if informed of their need in assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. (Article 98, UNCLOS)

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Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. (Article 99, UNCLOS)

Exceptions to the flag state’s jurisdiction in the high seas: 1.

2. 3.

4. 5.

Q – A – Q – A –

In penal or disciplinary proceedings against the master or any other person in the service of the ship, arising from collision or any other incident of navigation concerning a ship on the high seas, the state of which that person is a national has jurisdiction, concurrently with the flag state. Every state may seize a pirate ship (or aircraft), or a ship taken by the pirates, arrest the persons on board and seize the property on board. The state of registry of the broadcasting installation, the state of which the offender is a national any state where the broadcast transmission can be received, or any state where authorized radio communication is suffering interference has jurisdiction to arrest a person or ship engaged in unauthorized broadcasting from the high seas, seize the broadcasting apparatus, and prosecute the offender. On the exercise of the right of hot pursuit, a warship or military aircraft of a state may stop and arrest a foreign ship on the high seas. In case of pollution incident from a marine casualty, a coastal state whose coastline is threatened with major harmful consequences may take and enforce measures beyond the territorial sea, including on the high seas. Is the freedom of fishing in the high seas limited to the coastal states? No. The right to fish on the high seas pertains to all states, coastal or landlocked. Is there a duty on the part of the States to conserve the living resources of the high seas? Yes. Individually, every state has the duty to take measures for the conservation of living resources of the high seas. States shall cooperate with each other in the conservation and management of such resources, including the determination of the allowable catch.

PENAL AND ADMINISTRATIVE JURISDICTION INVOLVING THE PENAL OR DISCIPLINARY RESPONSIBILITY OF THE MASTER OR OF ANY OTHER PERSON IN THE SERVICE OF THE SHIP Rules: 1.

The penal and administrative jurisdiction is now limited to: (a) the flag state of the vessel alleged to be responsible; and (b) the State of nationality of the accused.

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The arrest or detention of the ship shall not be ordered by any authorities other than those of the flag States. (Article 97, UNCLOS)

BAR QUESTION, 1986 Q – In the Pacific Ocean, while on its way to Northern Samar to load copra, a Norwegian freighter collides with a Philippine luxury liner resulting in the death of ten Filipino passengers. Upon the Norwegian vessel’s arrival in Catarman, Northern Samar, the Norwegian captain and the helmsman assisting him are arrested and charged with multiple homicide through reckless imprudence. Apart from filing a protest with the Department of Foreign Affairs, the Norwegian Embassy through a local counsel, helps the accused in filing a motion to quash. It is pointed out that the incident happened on the high seas; the accused were on board a Norwegian vessel; and only a Norwegian court can try the case even if the deaths occurred on a Philippine ship. Resolve the motion. A – The above-mentioned rules, Article 97, UNCLOS, are clear, thus: “the penal or disciplinary responsibility of the master or of any other person in the service of the ship,” is now limited to (a) the flag state of the vessel alleged to be responsible; (b) the state of nationality of the accused. Besides, it is likewise provided that arrest or detention of the ship shall not be ordered by any authorities other than those of the flag State. There is therefore a valid basis and justification for filling the said motion to quash. 22. AIR AND SPACE LAW TOPICS: 1. 2. 3. 4.

The Airspace The Outerspace The Moon and other Celestial Bodies Liability for damaged caused by space objects EXPLANATION:

1. AIRSPACE SPECIALIZED AGENCY OF THE UN COORDINATING AND REGULATING INTERNATIONAL AIR TRAVEL ICAO (International Civil Aviation Organization), established by the convention on the International Civil Aviation Organization (Chicago Convention)

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RULES ESTABLISHED BY THE CONVENTION AND EMBODIED IN A DOCUMENT SIGNED IN CHICAGO, ILLINOIS AND WENT INTO FORCE ON APRIL 4, 1947 1. 2. 3.

Rules of Airspace Airplane registration and safety Rights of signatories in relation to air travels

FIVE AIR FREEDOMS: Each contracting State grants to the other contracting States the following freedoms of the air regarding scheduled international air services: 1.) The privilege to fly across its territory without landing (Overflight) 2.) The privilege to land for non-traffic purposes (Non-traffic landing) 3.) The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses (Putting down passengers, mail and cargo) 4.) The privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses (Taking on passengers, mail and cargo) 5.) The privilege to take on passengers, mail and cargo destined for the territory of any other contracting State and the privilege to put down passengers coming from any such territory (Taking on and putting down passengers, mail and cargo) NATIONALITY OF AIRCRAFTS: They have the nationality of the State in which they are registered and they shall bear its appropriate nationality and registration marks when they engage in international air navigation. (Article 17, 20, Chicago Convention) An aircraft cannot be validly registered in more than one State. However, its legislation may be changed from one State to another. (Article 18, Chicago Convention) DEFINITIONS: 1.

Hijacking – It is governed by the 1970 Hague Convention. (Convention for the Suppression of Unlawful Seizure of Aircraft which was signed at The Hague on December 16, 1970). It is committed by any person who on board an aircraft in flight shall unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act. (1970 Hague Convention, Article 1)

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Sabotage – It is governed by the Montreal Convention (Convention for the Suppression of the Unlawful Acts against the Safety of Civil Aviation) which entered into force on January 26, 1973. It covers other acts that place the safety of an aircraft in jeopardy. It is committed by any person who unlawfully and intentionally commit any of the following acts which render an aircraft incapable of flight or are likely to endanger the safety of an aircraft in flight: 1.) Performing an act of violence against a person on board an aircraft in flight; 2.) Destroying an aircraft in service or causing damage to such an aircraft; 3.) Placing or causing to be placed on an aircraft, in service a device or substance which is likely to destroy that aircraft; 4.) Destroying or damaging air navigation facilities or interfering with their operation; 5.) Communicating information which he knows to be false thereby endangering the safety of an aircraft in flight. (Montreal Convention, Article 1)

JURISDICTION OVER OFFENSES COMMITTED ABOARD AN AIRCRAFT: General Rule: It is the flag state or the state where the aircraft is registered that has jurisdiction over the offenses committed on board an aircraft. However, if offenses are committed aboard while the aircraft was flying over the airspace of another state, then the latter state may assert jurisdiction based on the principle or territoriality, or sometimes based on the nationality principles and universality. DUTY OF THE STATE THAT IS A PARTY TO THE 1970 HAGUE CONVENTION OR THE MONTREAL CONVENTION REGARDING HIJACKING AND SABOTAGE: They have a duty to prosecute or extradite hijacking and sabotage in the following cases: 1. When the offense is committed on board an aircraft registered in that State; 2. When the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; 3. When the alleged offender is present in its territory. In case the State does not wish to prosecute the alleged offender, what will be its duty? It has the duty to extradite him to other state parties to the Conventions. (1970 Hague Convention, Article 4; Montreal Convention, Article 5)

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CRIMES OF HIJACKING AND SABOTAGE ARE UNIVERSAL CRIMES. LIKEWISE, TAKING OF HOSTAGES IS ALSO A UNIVERSAL CRIME Basis: 1.

Article 7, 1970 Hague Convention and the Montreal Convention which provides as follows: “The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”

BAR QUESTION, 1981 Q – A Filipino-owned construction company with principal offices in Manila leased an aircraft registered in England to ferry construction workers to the Middle East. While on flight to Saudi Arabia with a Filipino crew provided by the lessee, the aircraft was hijacked by drug traffickers. The hijackers were captured in Damascus and sent to the Philippines for trial. Do Courts in Manila have jurisdiction over the case? A – As above-mentioned, hijacking is a universal crime, and as such, it may be prosecuted and, tried and punished in the competent court of any country were the offender may be found or to any country were he may be brought. Jurisdiction over hijacking has no territorial limits. (US vs. Furlong [1820], 5 Wheat., 184, cited in People vs. Lol-lo, 43 Phil. Reports 19, February 27, 1922) 2.

OUTER SPACE

BAR QUESTIONS, 2003 Q – What is outer space? A – The area that lies beyond the airspace of the Earth. But as to where it begins, there is no university accepted reference point. The Outer Space Treaty did not define outer space because of its non-identifiable dimension. Over the years, several definitions have also been supported: 1.) It is the limit of the atmosphere; 2.) It is the limit of air flight; 3.) It is the point at which the atmosphere will no longer sustain human life; 4.) It is the lowest point at which a satellite can orbit; 5.) It is the point at which centrifugal forces replace aerodynamic forces;

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6.) It is the limit of a state’s effective control over its airspace; and 7.) It is the current orbital minimum (approximately 100 to 110 kms.). Q – Who or which can exercise jurisdiction over astronauts while in outer space? A – A state on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. It further state that ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. (Outer Space Treaty, Article 8) NOTE: 1.

No State can claim sovereignty over the outer space, including the moon and other celestial bodies. However, States may explore the use of outer space, including the moon and other celestial bodies, provided it is carried out for the benefit and interest of all countries, irrespective of their degree of scientific development, and shall be the province of all mankind. Likewise, the same shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with International Law, and there shall be free access to all areas of celestial bodies.

3.

MOON AND OTHER CELESTIAL BODIES

BAR QUESTION, 1979 Q – May the USA lay exclusive claim over the moon, having explored it and having planted her flag thereon to the exclusion of other States? A – The moon being the common heritage of mankind is not subject to appropriation by any State by means of use or occupation. Likewise, the planting of the flag thereon does not create a right to own the surface or any area of the moon. (Article 11, Moon Treaty) NOTE:

The moon and other celestial bodies shall be used exclusively for peaceful purposes. The following military applications are prohibited: 1. Placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction; 2. Installing nuclear weapons or any other kinds of weapons of mass destruction on celestial bodies; 3. To station nuclear weapons or any other kinds of weapons of mass destruction in outer space in any other manner;

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4.

4.

Establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies. (Article 4, Outer Space Treaty)

RULES ON LIABILITY FOR DAMAGED CAUSED BY SPACE OBJECTS LAUNCHED INTO OUTER SPACE 1. A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. (Article 2, Liability Convention of 1972) 2. In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. (Article 3) 3. Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damaged caused…A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching. (Article 4) II. AT A GLANCE OF: (TERMS/PHRASES/MAXIMS/PRINCIPLES/DOCTRINES IN PUBLIC INTERNATIONAL LAW)

I.

In connection with treaties 1. PACTA SUNT SERVANDA (Treaties must be observed in good faith). If a treaty is contrary to a signatory’s national constitution, the international legal order demands a faithful compliance with the treaty to avoid international embarrassment. If necessary, the State concerned must even modify its national legislation and constitution to make it conform to the treaty. 2. REBUS SIC STANTIBUS A State may unilaterally withdraw from a treaty when there is a vital change of circumstances. The reason for this is because if the change in circumstances affects a signatory State, and to comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to exist is stronger than its duty to comply with a treaty. 3. LEX POSTERIOR DEROGAT PRIORI– That which comes last in point of time will usually be upheld by the municipal tribunal. (Remember the rule in case of conflict between public

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4. 5. 6. 7. 8.

9.

10.

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international and municipal law, thus: If the conflict is with respect to international law and a statute, the rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogat priori, that which comes last in time, will usually be upheld by the municipal tribunal.) PACT – this is a special treaty usually entered into for sentimental reasons. CONVENTION – this is an informal treaty which deals with specific subjects. AGREEMENT, ARRANGEMENTS, ACCORD – this is an agreement on administrative or technical matters. CONCORDATS – agreements entered into by the Pope with various Heads of States. DECLARATIONS – these are formal reciprocal agreements which may deal with: (1) the rights and privileges of the nationals of a state; or (2) principles in accordance with which States propose to act; or (3) grounds for mutual action on the part of States (Wilson and Tucker, op. cit. p. 209). There are two special kinds of declarations, to wit: 1. reversales – declarations that an error in etiquette or in the draftmanship of a treaty should not be considered as a precedent; 2. lettres reversales – declarations that an alteration in ceremonial practices is being made only as an exception to the general rule. 3. Protocol – this may refer either to a supplemental treaty or to an amendment to a treaty. (Paras, Public International Law, p. 192) MOST FAVORED NATION CLAUSE – A clause which provides that a State pledges to give to the other signatory whatever privileges or concessions the first State may give the third State. Example: If there is such a clause in our treaty with Japan, we should also give to Japan whatever rights we may give to other countries. If the clause is reciprocal, we will also be given the same treatment by Japan. If in all treaties of the Philippines with the other States, there is such a clause, the result will be that all States will be equally favored. In such a case, none will be the “most favored.” TREATY – It is an international agreement embodied in a single, formal instrument entered into by and between signatory States or

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international organizations of States, intended to create rights and obligations, or to establish relationships, governed by international law. II. In connection with the fundamental rights of States (particularly the right of property and jurisdiction) 1. Continental shelf of a country – It is that part of the seabed and subsoil of the submarine areas contiguous to the coast but outside the area of the maritime zone. Why is the “continental shelf” important? It is important because of the rich natural resources found therein. This is, in fact, incorporated in the Petroleum Act. 2. Easement of Innocent Passage – It is the right of foreign vessels to pass through territorial waters, specially those connecting two open seas, provided: (1) That the passage is “innocent” which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; and (2) That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. 3. Territorial Sea – This is also known as the maritime belt. It is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control. 4. Freedom of the Seas – It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. 5. Freedom of Navigation – It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. 6. Contiguous Zone – It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that customs laws, immigration and sanitary laws are properly and effectively enforced. 7. Exclusive Economic Zone – It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. 8. Archipelago Doctrine III. In connection with the right of legation or diplomatic intercourse 1. Right of Legation – This is the right of a State to send envoys or establish diplomatic missions, or the right to receive such envoys

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IV.

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or missions. The first is known as the active right of legation. The second is known as the passive right of legation. 2. Ambassadors – They are the political, cultural, economic, and social representatives of their countries to a foreign State. Their offices are called as embassies. 3. Ministers plenipotentiary or envoys extraordinary – They are ministers assigned to attend to a special function (i.e. signing a treaty). 4. Ministers resident – They are the political, cultural, economic, and social representatives of their countries to a foreign principal city. Their offices are known as legations. 5. The Charges d’affaires (in charge of affairs) – They are those officially below the rank of the ministers resident. They take over when the latter is absent. In other words, they are temporarily in charge no matter what their official rank or designation may be. 6. Diplomatic Corps – All diplomatic envoys accredited to the same State form a body known as a “Diplomatic Corps.” The head of this body is usually the Papal Nuncio, if there is one, or the oldest ambassador. If there are no ambassadors, it is the oldest minister plenipotentiary who is the head of the “diplomatic corps.” 7. Agreation – It is an informal inquiry (enquiry) to find out the acceptability of a proposed envoy and an informal conformity (agremen) of the receiving State to the appointment of the said envoy. 8. Letre de creance – This states the name of the representative, his rank, the character and general object of this mission. It also contains a request for favorable reception and full credence. It is sealed but the ambassador has copies of the same. 9. Diplomatic passport – This authorizes his travel and describes both his person and his office. 10. Diplomatic mission – To promote friendly relations between the sending State and the receiving State, and the development of their economic, cultural and scientific relations; to observe and report to his country the developments in the receiving State; to protect the interests of the nationals of his country within the limits allowed by international law; to represent his country in the receiving State; to negotiate with the government of the receiving State. In connection with diplomatic immunities and privileges 1. Asylum – is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection.

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Territorial Asylum – refuge within the territory of the sheltering state, the protection which a refugee obtain by escaping to, or remaining upon, the territory of a State other than that the State that “wants” him, until the protection is terminated by his extradition. (McNair, Law on Treaties, Vol. II, p. 67) 3. Exterritorial Asylum – Asylum in what are considered the “extensions” of a State’s territory. This type includes: asylum in foreign public ships; diplomatic asylum – the protection afforded by a State to a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the State that wants him. (Ibid.) In connection with consular officials 1. Consul – A consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein, and thus protect the rights of his country’s nationals. (Paras citing Wilson and Tucker, International Law) 2. Consules Missi (consuls de carriere) – Literally this means “consuls of career.” They are professional consuls, hence, they are not allowed to engage in any other profession or business. 3. Consules electi – They are also known as honorary or commercial consuls. They are selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of the foreign state involved. 4. Letre de provision – This is the letter of appointment or commission which is transmitted by the sending State to the Secretary of Foreign Affairs of the country in which the consul is to serve. 5. Exequator – This is the authorization given by the sovereign of the receiving State to the consul, allowing him to exercise his functions within the territory (See Lawrence, Principles of International Law, p. 297). The exequatur may be granted conditionally; the grant may even be refused for any or no reason; once granted. The exequatur may be unilaterally withdrawn. In connection with exemptions from jurisdiction 1. Doctrine of sovereign immunity – Under this doctrine, a State enjoys immunity from the exercise of jurisdiction by another State. The courts of one State may not assume jurisdiction over another State. 2.

V.

VI.

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2. Acta jure imperii – government act 3. Acta jure gestiones – commercial act VII. In connection with war 1. Non-privileged combatants – i.e., Spies. When caught, they do not get the privilege of being considered as “prisoners of war.” (Article 29, Hague Convention, 1907) 2. Privileged combatants – if captured, they are not supposed to become prisoners of war. 3. Jus ad bellum (justice of war) – refers to the conditions under which one may resort to war or to force in general; with a subdivision known as jus contra bellum or the law on the prevention of war; 4. Jus in bello (justice in war) – governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations VIII. Conditions for jus ad bellum 1. There must be a just cause on an injury received; 2. Wars must be proportional to the costs entailed in prosecuting them; 3. There must be a reasonable chance of success; 4. Nations must publicly declare their wars; 5. Only a legitimate authority may declare war; 6. War must always be a last resort; 7. War may be only undertaken with the right intention. (Grotuis, The Law of War and Peace) IX. In connection with termination of war 1. Status quo anti vellum – Each of the belligerents is entitled to the territory and property which it had possession of at the commencement of the war. 2. Doctrine of postliminium – The territory, individuals and property that have come to the possession or authority of the enemy reverts to the possession and authority of the original or legitimate sovereign. This also means that when a territory which has been occupied by the enemy comes again into the power of the State during the progress of the war through conquest or otherwise, the legal State of the things existing prior to the hostile occupation is re-established. (Principles, Cases and Comments in Constitutional Law I, by Suarez, citing Aruego, International Law, p. 60)

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In connection with forbidden methods of warfare No quarter method – An order to the effect that no survivors are to be left open after an attack. This is inhuman and not allowed as a method of warfare. 2. Starvation method – Starvation of the civilian population is inhuman. 3. Reprisals – Acts of vengeance by a belligerent directed against groups of civilians or prisoners of war. 4. Perfidy or Treachery – It is the treachery for soldiers who have surrendered to take up arms and attack the enemy. In connection with peaceful and forcible sanctions 1. Diplomatic negotiations – It constitutes the process by which States settle their differences through an exchange of views between diplomatic agencies. Discussions may be oral or written, brief or prolonged. (Mavromamatis Palestine Concessions Case, P.C.I.J. Pub. Ser. A/2 p. 11) 2. Tender and exercise of good offices – It exists when third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. When the offer is accepted, there shall be an “exercise of good offices.” 3. Mediation – A third party offers to help with a solution, usually based on compromise (as contradistinguished from “good offices,” mediation offers a solution; “good offices” merely brings that parties together). 4. Enquiry and conciliation – It simply means an ascertainment of the pertinent facts and issues in a dispute. 5. Arbitration – It is the reference of the dispute to a commission or international body, whose decision, however, is NOT BINDING on the parties; when the decision is final and conclusive on the parties, the process is referred to as arbitration. 6. Reference to the Security Council of the UN – When no danger to international peace is foreseen, the Security Council may step in, but only if ALL THE PARTIES to the dispute request its intervention (Article 52, UN Charter). When there is DANGER to international peace, the Security Council intervenes: (a) On its own motion (Article 34, UN Charter) (b) On motion of the General Assembly (Article 11, UN Charter) (c) On motion of the UN Secretary-General (Article 99, UN Charter) (d) On motion by a UN Member (Article 35, No. 1, UN Charter) 1.

XI.

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On motion by a Non-Member of the UN (Article 35, No. 2, UN Charter) In case the Security Council discovers a threat to international peace, it shall make the proper recommendations on the dispute (Article 39, UN Charter). If the recommendations are not heeded, the Council may take “enforcement action” under Article 41 of the Charter. 7. Reference to the International Court of Justice – already discussed XII. In connection with international custom 1. Cabotage – Monopoly of a State in coastwide trade shipping and navigation. 2. Angary – Right of a belligerent to seize or destroy neutral property, if necessary. In maritime law, it means seizure of a vessel for public service. XIII. In connection with modes of acquiring territories 1. Discovery – this is an old mode of acquiring ownership when territories which were not yet discovered and occupied can be acquired by the discovering State under the principle of “Terra Nulius” (which means that since it is a territory which is not yet owned by or belonging to any State [stateless territory], it can be acquired under the principle of discovery and occupation.) 2. Prescription – Elements of prescription as a mode of acquiring territory: 1. Possession which must be continuous, public and adverse. 2. Lapse of a reasonable period of time (which is a question of fact and dependent on the circumstances of each case.) 3. Cession – It is a mode of acquiring territory made either voluntarily (sale or donation) or involuntarily (on account of or as a result of war). Example: (e)

1. 2.

4.

5.

Cession of Alaska by Russia to the US in 1867. Cession of the Philippines by Spain to the US (Treaty of Paris, December 10, 1896) Conquest – It is the acquisition of sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire. Accretion – It is a mode of acquiring property produced by or which is attached or united to a thing already owned by a person. In Roman Law, this is known as accessio which may either be:

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Accessio Continua – Accession occurring as a consequence of forces external of the thing itself. (b) Accessio Discreta – Accession occurring as a consequence of forces inherent in the thing itself. XIV. In connection with subjects of international law 1. State – is a community of persons, more or less numerous, permanently occupying a fixed territory, possessing an organized government, independent of external control, to which a great body of inhabitants render habitual obedience. (Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 3, citing Garner, Introduction to Political Science, 38-41) 2. Colony – is a dependent political community. It is composed of citizens of the same country who have migrated therefrom to live in another country but remain subject to the Mother State. 3. Dependencies – is a territory different from the country in which supreme sovereign power resides, but belongs rightfully to it, hence, it is still subject to the loss which the sovereign may impose. 4. Belligerent – When the insurgency has reached a serious proportion, the rebels, instead of being merely considered insurgents, may be properly called “belligerents.” 5. Mandates – The purpose of creating mandates is to give them an opportunity to develop economically and socially. (Article 22 of the Covenant of the League of Nations) 6. Trust territories – On the other hand, the purpose behind the creation of a trusteeship system are: a) To further international peace and security; b) To promote the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence; c) To encourage respect of human rights for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the people of the world; and d) To ensure equal treatment in social, economic, and commercial matters. (Article 76, UN charter) XV. Other terms/phrases/principles/doctrines: 1. Par in parem non habet imperium – No State can claim jurisdiction over another in accordance with the doctrine of equality of States. (a)

PUBLIC INTERNATIONAL LAW

2. 3. 4. 5.

6.

7.

8.

9.

10.

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Ex aequo et bono – That the case be submitted on the principle of what is good and just. Res inter alias actu – Acts and declarations of persons strangers to a suit. Terra nullius – Territory not yet owned by or belonging to any State. Doctrine of Auto limitation -- Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. (Reagan vs. Commission of Int. Revenue, G.R. No. L-26379, December 27, 1969) Doctrine of contingent sovereignty – Sovereignty is contingent upon the fulfillment of certain fundamental state obligations, particularly to its own people. When the state commits, allows, or fails to prevent oppression or acts of violence against its people, it loses its claim to sovereignty and non-intervention, and protection would devolve to the international community. Drago Doctrine – Luis Drago (1859-1921) was a former Minister of Foreign Affairs of Argentina. His doctrine concerns the question of the right of a state to resort to force to collect the claims of its citizens against foreign governments and is advanced by him as supplement to the Monroe Doctrine (America for the Americans). In 1902, at the time of the blockade of Venezuela by the combined fleets of Great Britain, Germany, and Italy with the object of enforcing contractual and other claims of their respective citizens against Venezuela, Drago wrote to the Argentine Minister in the Washington containing what is now known as the Drago Doctrine that “a public debt cannot give rise to the right of intervention, and much less to the occupation of the soil of any American nation by any European power.” (Fenwick, 295) Hinterland Doctrine – Under the hinterland doctrine, the state that discovers and occupies the coast shall also have an exclusive right to occupy the hinterland, i.e., the inland region lying behind a port. Thalweg Doctrine – The Thalweg Doctrine aims to resolve water boundary disputes. According to this doctrine, the boundary between two states divided by a flowing body of water should be drawn along the thalweg, which is the deepest portion of the channel. Extradition – The surrender by force of a wanted person by the requested State to the requesting State. It may only be made pursuant to a treaty between the requesting State and the requested State. It is for the benefit of the requesting State.

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11.

12.

13.

14.

Deportation -- The expulsion of an unwanted or undesirable alien. It is an exercise of sovereignty and a decision made by a State. It is an order of a State acting on its own and according to its laws, interest and processes. Double veto – A veto is first used to establish that a given question is non-procedural, and then on the vote on the question itself. (Example: “double veto” occurred during the 49th meeting of the Council, on 26 June 1946, when a permanent member objected to the President’s interpretation of a vote as procedural, which resulted in a second vote on the procedural nature of the question. This is no longer in practice. Genocide – It includes any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group: a) Killing members of the group; b) Causing serious bodily or mentally harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. (Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention], which entered into force on January 12, 1951) “Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language and national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.” (Lambkin, 79) Torture – Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or

PUBLIC INTERNATIONAL LAW

15.

16.

17. 18.

19.

20.

21. 22.

a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Torture Convention, 1984) Slavery – is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (1926, Slavery Convention, Article 1) Reprisal – The seizing of property or persons by way of retaliation. Reprisal when they are taken by a State may denote any kind of coercive action not amounting to war whereby a State attempts to secure satisfaction from another for some wrong which the latter has committed against it. (Briely, 321) Embargo – Commerce and trade with the offending State is prohibited. Blockade – Maritime commerce between an enemy State and the rest of the world is cut off in order to prevent the goods from reaching the enemy or to prevent the enemy from exporting to the outside world thereby sustaining its war economy. Boycott – There is a concerted action made by the citizens of one State to suspend trade and business relations with the citizens of the offending State. Agression – It is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. (Resolution 3314 [XXIX], UN General Assembly, December 14, 1974) Persona non grata – An individual who is unaccepted to or unwelcome by the receiving State. Aide Memoaire – It is a written summary of the key points made by a diplomat in an official conversation. Literally, a document left with the other party to the conversation, either at the time of the conversation or subsequently, as an aid to memory. III. OTHER RELEVANT INFORMATION

1.

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UN (United Nations)/LEAGUE OF NATIONS

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a)

b)

c)

d)

Historical background of UN The League of Nations was organized in 1919, five years after World War I broke out in 1914. Its purpose is to achieve international peace and encourage international cooperation. The United States was not a member of the League of Nations. The League of Nations was officially dissolved on April 19, 1946. What caused the creation of the United Nations after the collapse of the League of Nations? We have already suffered two world wars since the beginning of the 19th century. All nations, whether or not they were involved, shared equally in the ills of war. When battles are fought, the lives of men and women, including innocent children, disabled and even those who are too old to fight, are either endangered, severely damaged or lost. Costs of living are inflated, and after the war, depression and starvation occur, economic ills and immense losses to business are extensive. Wars, after all, are not instruments of achievements. They cannot decide international disputes to the satisfaction of warring nations. Wars cannot make peace. They destroy. Results of the First World War: 8,000,000 dead, 15,000,000 mutilated, 3,000,000 wounded… more than the entire population of Brazil…and 400 billion dollars went up in smoke of battle. Global cost of World War II: a waste per capita of the world population of $10,000 or 200 Brazilian contos… This cost can never be paid by us who made the war possible, but will have to be paid by many innocent generations, and its liquidation would require more than a century of work on the part of the victors and vanquished alike. History does not record a peace completed by the generation which raged the war… War sacrifices the present, but much more it compromises the future. (Report of Dr. Oswaldo Araha, Ex-President of the General Assembly of the United Nations) Lessons learned: “Indeed, after every war and after all the bitterness that results from war, mankind is taught that it is peace, after all, that is needed by all the countries of the world to enable them and their people to live in happiness. Peace is what we need to build the world, and peace comes from the heart, and not from the minds of men. This desire for peace overwhelmed the hearts of the great men and women who survived the war. They have agreed to establish and pursue the idea of organizing the United Nations.” (Political Law Reviewer 2002 Edition, by Suarez, Page 1021)

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2.

3.

4.

5.

6.

7.

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SEATO (Southeast Asia Treaty Organization) – This is also known as the Manila Pact or the South East Asia Collective Defense Treaty of September, 1954. Their agreement: An aggression against any of the signatories will be considered as endangering their peace and safety, in which case, they obligate themselves to meet the common danger in accordance with their constitutional possesses. ASEAN (Association of South East Asian Nation) – It was established on August 8, 1967 in Bangkok by the five original Member Countries, namely: Indonesia, Malaysia, Philippines, Singapore, and Thailand. Brunei Darussalam joined in 1984, Vietnam in 1995, Lao PDR and Myanmar in 1997, and Cambodia in 1999. Aims and purposes of ASEAN: (1) To accelerate economic growth, social progress and cultural development in the region; and (2) To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries in the region and adherence to the principles of the U.N. Charter. NATO (North Atlantic Treaty Organization) – This is a treaty signed in Washington on April 4, 1949, composed of Nations in the North Atlantic area. Their agreement: The parties agreed, among others, that an armed attack against one or more of them in Europe or in North America is considered as an attack against all of them. AFTA (Asean Free Trade Area) – Launched in 1992, the AFTA aims to promote the region’s competitive advantage as a single production unit. The elimination of tariff and non-tarrif barriers among member countries is expected to promote greater economic efficiency, productivity, and competitiveness. European Court of Human Rights – The Court, also known as the “Strasbourg Court” was established in November 1998 pursuant to the entry into force of Protocol No. 11 to the European Convention for the Protection of Human Rights (1950) establishing a single court sitting fulltime and replacing the European Commission of Human Rights (1954) and the European Court of Human Rights (1959). It has its seat in Strasbourg, France. International Bill of Human Rights: It consists of the following: a) The Universal Declaration of Human Rights; b) The International Covenant on Economic, Social and Cultural Rights; c) The International Covenant on Civil and Political Rights; and d) The two Optional Protocols.

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Three generation of human rights Three generations of human rights as classified by Czech jurist Karel Vasak, the first Secretary General of the International Institute of Human Rights in Strasbourg, follow the three watchwords of the French Revolution; Liberty, Equality and Fraternity:

First Generation Human Rights

They deal essentially with liberty and participation in political life. They are found in Articles 3 to 21 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;

Second Generation Human Rights

They are related to equality. They are fundamentally social, economic, and cultural in nature. They are found in Articles 22 to 27 of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights;

Third Generation Human Rights

8.

9.

Those rights that go beyond the mere civil and social, as expressed in many progressive documents of International Law, including the 1972 Stockholm Declaration of the UN Conference on Human Environment.

Universal Declaration of Human Rights – The Universal Declaration of Human Rights was adopted by the U.N. General Assembly as Resolution 217A (III) on December 10, 1948 and proclaimed “as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedom and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among, the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” International Law of the Sea – It is a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and

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10.

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the exercise of jurisdiction over maritime regimes. It is a branch of public international law, regulating the relations of states with respect to the uses of the oceans. (Article 1, par. 1) Baselines – It is the line from which the breadth of the territorial sea and other maritime zones is measured. These other zones are the contiguous zone and the exclusive economic zone. The object and purpose in making the delimitation is to determine the maritime boundary of the coastal State. The baseline is either normal or straight. (Article 2, par. 1) The declaration consists of a preamble and thirty articles, setting forth the human rights and fundamental freedoms to which all mean and women, everywhere in the world, are entitled, without any discrimination. MULTIPLE CHOICE QUESTIONS

1.

Ratification of a treaty A. B.

2.

The power to ratify a treaty is vested in the Senate. The power to ratify a treaty is vested in the President, subject to concurrence of the Senate. C. The role of the Senate is limited only to giving or withholding its consent, or concurrence to the ratification, but it cannot, by itself ratify a treaty. D. The power to ratify a treaty is vested in the President, subject to concurrence of the Senate, but it is within the authority of the President to refuse to submit a treaty to the Senate, or having secured its consent for its ratification, refuse to ratify it. In the last several weeks, the Armed Forces of Israel, has been causing bombardment and blockade in Gaza resulting in death, starvation and injury to hundreds and thousands of Palestinians including innocent civilians. The Israel government alleges that it is merely acting in retaliation to Palestinians attack and rockets to a portion of its territory. Is Israel guilty of aggression. Is the allegation of Israel justified under international law? A. Yes, because it is merely acting in retaliation to Palestinians attack. B. Yes, any country similarly situated has a rights to defend itself against an enemy. C. No, aggression can never be justified. D. No, the UN Charter prohibits not only recourse to war but also resort to the use of war, and even in the use of war, the

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3.

4.

POLITICAL LAW REVIEWER

measure to be taken must be consistent with “necessity and proportionality,” as already applied in previous cases that have reached the international courts of Justice. Under the circumstances, it is submitted that Israel committed not only an aggression but also an unjustified war of aggression because the repeated bombardments have caused death, injury, extensive damage even to innocent civilians, children, hospitals, patients therein, public and private buildings, which are not supposed to be targets of attack. Aggression can never be justified. A war of aggression is a crime against international peace and it gives rise to international responsibility. After the signing of the UNCLOS, IS IT CORRECT TO SAY THAT the internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers and in permanent harbor works? A. Yes. 116 States, including the Philippines, have agreed to apply provisionally the agreement starting November 14, 1994, the date of the Convention’s entry into force. B. Yes. The Philippines is a party to the convention (United Nations Convention on the Law of the Sea), having signed it on December 10, 1982, and ratified on May 8, 1984. C. Yes. There was no negative vote with 7 abstentions, hence, the UNCLOS was effective, from November 14, 1994. D. No. Despite the signing of the UNCLOS, Republic Act. No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. What, if any, is the exact definition of outer space? A. It is the area that lies beyond the airspace of the earth. B. The Outer Space Treaty did not define outer space because of its non-identifiable dimension. C. It is the space which is beyond the control of human beings on earth. D. There is no exact definition of Outer Space. Over the years, several definitions have also been supported, thus:

PUBLIC INTERNATIONAL LAW

1. 2. 3.

5.

6.

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It is the limit of the atmosphere; It is the limit of air flight; It is the point at which the atmosphere will no longer sustain human life; 4. It is the lowest point at which a satellite can orbit; 5. It is the point at which centrifugal forces replace aerodynamic forces; 6. It is the limit of a state’s effective control over its airspace; and 7. It is the current orbital minimum (approximately 100 to 110 kms.) Effect of belligerent occupation over the Philippines during the Japanese Military occupation A. The Japanese Imperial Government who was in control of our government obtained sovereignty over the Philippines. B. The sovereignty of the legitimate government is suspended during the belligerent occupation. C. The sovereignty of the legitimate government was taken over by the Japanese Imperial Government after the Fall of Bataan. D. The belligerent occupation did not obtain sovereignty over the Philippines during the Japanese Military Occupation. This remained with the United States of America although the Americans could not exercise control over the occupied territory. A Filipino-owned construction company with principal offices in Manila leased an aircraft registered in England to ferry construction workers to the Middle East. While on flight to Saudi Arabia with a Filipino crew provided by the lessee, the aircraft was hijacked by drug traffickers. The hijackers were captured in Damascus and sent to the Philippines for trial. Do Courts in Manila have jurisdiction over the case? A. Damascus has jurisdiction over the case because the hijackers were captured there. B. England has jurisdiction over the case because hijacking was committed aboard an aircraft registered in England. C. Courts in Manila have jurisdiction over the case because hijacking is a universal crime. D. The crime of hijacking may be prosecuted, tried and punished in the competent court of any country where the hijackers may be brought.