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POLITICAL LAW REVIEWER 2003


LEAVE NO MAN BEHIND - SANDOVAL
This reviewer is based on the 2003 BAR REVIEW LECTURE OUTLINE (Political Law and Public International Law [April 2003]) of Atty. EDWIN REY SANDOVAL with his permission. - Compiled by Rene Callanta, Babut Bacena, Joy Tablatin -

POLITICAL LAW
Political Law defined That branch of public law which deals with the organization and operation of the government organs of the state and defines the relations of the state with the inhabitants of its territory. Macariola v Asuncion, 114 SCRA 77 (1982) Political law has been defined as that branch of public law w/c deals w/ the organization and operation of the governmental organs of the State and defines the relations of the state w/ the inhabitants of its territory. Scope of Political Law.-- The entire field of political law may be subdivided into (a) the law of public administration, (b) constitutional law, (c) administrative law, and (d) the law of public corporations. These four subdivisions may be briefly described for the time being, as follows: The first deals with the organization and management of the different branches of the government; the second, with the guaranties of the constitution to individual rights and the limitations on governmental action; the third, with the exercise of executive power in the making of rules and the decision of questions affecting private rights; and the last, with governmental agencies for local government or for other special purposes.

THE NATIONAL TERRITORY

Art. I, 1987 Constitution


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.

The Philippine Archipelago


Basis of Art. 1 of the 1987 Constitution [PIL, I. Cruz] 1- All the waters within the limits set forth in the: a) Treaty of Paris of December 10, 1898 (Cession of the Philippine Islands b) between Spain and U.S., The Treaty of Spain and U.S. at Washington, c) Treaty between U.S. and Great Britain, January 2, 1930 (Turtle and

by Spain to the U.S.),

November 1, 1900 (Cagayan, Sulu & Sibuto), Mangsee Islands);

2 2- All the waters around, between and connecting the various islands of the Philippine Archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines; 3- All the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines. 4- The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining the appropriate points of the outermost islands of the archipelago (straight baseline method); The definition of the baselines of the territorial sea of the Philippine archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. ARCHIPELAGIC DOCTRINE > Outermost points of the archipelago shall be connected by straight baselines and all islands and waters therein are regarded as one integrated unit

Treaty Limits (Treaty of Paris, Art. III; Treaty between Spain and the US concluded
at Washington DC, on November 7, 1900 and that between US and Great Britain on January 2, 1930) 1. Treaty of Paris of 10 December 1898. Article 3 defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth. 2. Treaty of Washington of 7 November 1900 between the United States and Spain. Ceding Cagayan, Sibuto and Sulu. 3. Treaty of 2 January 1930 between the United States and Great Britain. Ceding the Turtle and Mangsee Islands. The SPRATLEYS group of islands is not a part of the Philippine archipelago but it is a part of our national territory. It belongs to the 2nd part of the composition of the national territory [All other territories over which the Philippines has sovereignty or jurisdiction]

P.D. No. 1596 (Declaring Certain Areas Part of the Philippine Territory and
Providing for Their Government and Administration), promulgated on June 11, 1978. PRESIDENTIAL DECREE NO. 1596 DECLARING CERTAIN AREA PART OF THE PHILIPPINE TERRITORY AND PROVIDING FOR THEIR GOVERNMENT AND ADMINISTRATION WHEREAS, by reason of their proximity the cluster of islands and islets in the South China Sea situated within the following: KALAYAAN ISLAND GROUP From a point [on the Philippine Treaty Limits] at latitude 740' North and longitude 11600 East of Greenwich, thence due West along the parallel of 740' N to its intersection with the meridian of longitude 11210' E, thence due north along the meridian of 11210' E to its intersection with the parallel of 900' N, thence northeastward to the intersection of parallel of 1200' N with the meridian of longitude 11430' E, thence, due East along the parallel of 1200' N to its intersection with the meridian of 11800' E, thence, due South along the meridian of longitude 11800' E to its intersection with the parallel of 1000' N, thence Southwestwards to the point of beginning at 740' N, latitude and 11600' E longitude are vital to the security and economic survival of the Philippines;

3 WHEREAS, these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with the international law, such areas must now deemed to belong and subject to the sovereignty of the Philippines; WHEREAS, while other states have laid claims to some of these areas, their claims have lapsed by abandonment and can not prevail over that of the Philippines on legal, historical, and equitable grounds. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby decree as follows:

P.D. No. 1599 (Establishing an Exclusive Economic Zone and For Other Purposes),
promulgated on June 11, 1978. There is established an exclusive economic zone extending "to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured. Provided, That, where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles or international law on delimitation." (Sec. 1 thereof.) Other states shall enjoy in the exclusive economic zone freedoms with respect to navigations and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications. (Sec. 4 thereof.) Purposes: 1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living or non-living, renewable or non-renewable of the seabed, subsoil, and superadjacent waters. Economic exploitation and exploration of the resources of the zone such as the production of energy from the water, currents and winds. 2. Exclusive rights and jurisdiction with repect to the establishment and utilization of artificial islands, off-shore terminals, installations and structures; the preservation of the marine environment, including the prevention and control of pollution and scientific research. 3. Such other rights as are recognized by international law.

Other states are prohibited from using the zone to:


1. Explore or exploit any resources; 2. Carry out any search, excavation or drilling operations; 3. Conduct any research; 4. Construct or operate any artificial island, off-shore terminal, installation, or other structure; 5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and jurisdiction herein provided.

Other states are allowed to use the zone for:

1. Navigation and overflight; 2. Laying of submarine cable and pipelines; 3. Other lawful uses related to navigation and communication.

In case of overlapping of EEZs, the common boundaries are to be detemined by (i) agreement and (ii) international rules on delimitations. UN Convention on the Law of the Sea (30 April 1982.) The exclusive economic zone which shall not extend beyond 200 nautical miles from baselines from which the breadth of the territorial sea is measured, is recognized in the UNCLOS, of which the Philippines is a signatory. Its concept is

4 that although it is not part of the territory, exclusive economic benefit is reserved for the country.

AMENDMENTS OR REVISIONS OF THE CONSTITUTION

Art. XVII, 1987 Constitution SECTION 1.


Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.

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. ( * remains to be a non-self executing provision )

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.

SECTION 4.

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 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 than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

Modes of Proposing Amendments or Revision


Proposal Thru Congress By a vote of All its members Thru Con. Con. By a 2/3 vote of all members of Congress Thru Peoples initiative By petition of at least 12% of the total no. of registered voters of Which at least 3% of Each legislative dist. Must be represented No amendment shall be authorized oftener than once every 5 years beginning Feb. 3 99 By Majority of votes case in a Plebiscite Ratification

Here it will not Act as a legislative Body but a Constituent Body

By a majority vote of all its members if calling is submitted to the people

The plebiscite shall be held not earlier than 60 days nor later Than 90 days After the approval Of such amendment/revision, or after the certification by the COMELEC of the Sufficiency of the Petition as the Case may be

AMENDMENT- Isolated or Piecemeal change REVISION- Revamp or Rewriting of the entire instrument

DOCTRINE OF PROPER SUBMISSION > The entire constitution must be submitted for ratification at one plebiscite only. Submission for ratification of piecemeal amendments disallowed Santiago v. COMELEC, 270 SCRA 106, March 19, 1997 [Peoples Initiative on the Constitution] Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalidxxx It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.

SOVEREIGNTY
Distinguish sovereignty from dominion. Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State . On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, See Footnote 86)
Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban] [Is sovereignty really absolute?] While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." Kinds of Sovereignty
Legal Refers to the Authority that has the power to issue Final commands, Political Refers to the power behind legal sovereignty, ie, the different sectors Internal Refers to the power of the state to control its domestic affairs External Refers to the power of the state to direct its relations with other states a.k.a. Independence

That is the Congress that mold public Opinion

(Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, 347 SCRA 128, 268-270, En Banc [Per Curiam] (Concept of Jura Regalia vs. Concept of Native title)
Generally, under the concept of jura regalia, private title to land must be traced to some grant, express or implied, from the Spanish Crown or its successors, the American Colonial government, and thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land titles in the Philippines has persisted because title to land must emanate from some source for it cannot issue forth from nowhere In its broad sense, the term "jura regalia" refers to royal grants, or those rights which the King has by virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign. The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit of conquest. The Regalian theory, however, does not negate native title to lands held in private ownership since time immemorial. In the landmark case of Carino v. Insular Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594 [1909]), the United States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, made the following pronouncement: x x x Every presumption is and ought to be taken against the Government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as

far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. x x x

The above ruling institutionalized the recognition of the existence of native title to land, or ownership of land by Filipinos by virtue of possession under a claim of ownership since time immemorial and independent of any grant from the Spanish Crown, as an exception to the theory of jura regalia.

Carino was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court were binding as precedent in our jurisdiction (Section 10, Philippine Bill of 1902). We applied the Carino doctrine in the 1946 case of Oh Cho v. Director of Lands (75 Phil. 890 [1946]), where we stated that [a]ll lands that were not acquired from the Government either by purchase or by grant, belong to the public domain, but [a]n exception to the rule would be any land that should have been in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been private property even before the Spanish conquest. .

Dominium was the basis for the early Spanish decrees embracing the theory of jura regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned by the State is likewise founded on dominium. If dominium, not imperium, is the basis of the theory of jura regalia, then the lands which Spain acquired in the
16th century were limited to non-private lands, because it could only acquire lands which were not yet privately-owned or occupied by the Filipinos. Hence, Spain acquired title only over lands which were unoccupied and unclaimed, i.e., public lands.

CITIZENSHIP

Art. IV, 1987 Constitution

SECTION 1.

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

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.

SECTION 3. SECTION 4.

Philippine citizenship may be lost or reacquired in the manner provided by law. 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.

SECTION 5.

Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima] [Jus sanguinis principle; renunciation of Philippine citizenship; Application of Res Judicata in citizenship issues] Jus sanguinis principle The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. Renunciation of Philippine citizenship The mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. As held by this Court in the aforecited case of Aznar, an application for an alien certificate of registration does not amount to an express renunciation or repudiation of ones citizenship. The application of the herein private respondent for an alien certificate of registration, and her holding of an Australian passport, as in the case of Mercado v. Manzano, were mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at the most, private respondent had dual citizenship she was an Australian and a Filipino, as well. Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground for losing ones Philippine citizenship. Since private respondent did not lose or renounce her Philippine citizenship, petitioners claim that respondent must go through the process of repatriation does not hold water. Application of Res Judicata in citizenship issues Petitioner is correct insofar as the general rule is concerned, i.e., the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca v. Republic (51 SCRA 248 [1973]), an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present:

8 1) a persons citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding on citizenship is affirmed by this Court. Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914, Oct. 1, 1999, En Banc [Kapunan] [Failure to elect Philippine citizenship upon reaching the age of majority] Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. xxx The phrase reasonable time has been interpreted to mean that the election should be made within three (3) years from reaching the age of majority. xxx Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed when convenient . One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. Bengzon, III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan] [Natural-born Philippine citizenship; Effect of Repatriation; Naturalization and Repatriation] There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. As defined in the x x x Constitution, natural-born citizens are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530 xxx

To be naturalized, an applicant has to prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any government announced policies (Section 1, R.A. 530).
Filipino citizens who have lost their citizenship may x x x reacquire the same in the manner provided by law. Commonwealth Act No. 63 enumerates the three

modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress .
xxx

Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On naturalization as a mode for reacquiring Philippine citizenship Commonwealth Act No. 63 (An Act Providing for the Ways in Citizenship May Be Lost or Reacquired [1936]). Under this law,

the other hand, is governed by

Which Philippine
a former Filipino

9 citizen who wishes to reacquire Philippine citizenship must possess certain qualifications and none of the disqualifications mentioned in Section 4 of C.A. 473. Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces (Section 4, C.A. No. 63); (2) service in the armed forces of the allied forces in World War II (Section 1, Republic Act No. 965 [1953]); (3) service in the Armed Forces of the United States at any other time (Sec. 1, Republic Act No. 2630 [1960]); (4) marriage of a Filipino woman to an alien (Sec. 1, Republic Act No. 8171 [1995]); and (5) political and economic necessity (Ibid). As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last residedxxx Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug] [Repatriation under

R.A. 8171]

R.A. No. 8171, which has lapsed into law on October 23, 1995, is an act providing for the repatriation (a) of Filipino women who have lost their Philippine citizenship by marriage to aliens and (b) of natural-born Filipinos who have lost their Philippine citizenship on account of political or economic necessity. An application for repatriation could be filed with the Special Committee on Naturalization chaired by the Solicitor General with the Undersecretary of Foreign Affairs and the Director of the National Intelligence Coordinating Agency as the other members. Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza] [Dual

citizenship and dual allegiance]

Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volitionxxx Hence, the phrase dual citizenship in R.A. No. 7160, Section 40(d) (Local Government Code) must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, x x x, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Instances when a Philippine citizen may possess dual citizenship: 1- Those born of parents whose country adopts the jus sanguinis principle in fereign countries which follows the jus soli principle. 2- Those born in the Philippines of Filipino mothers and an alien father, if by the laws of their fathers country such children are citizens of that country.

10 3- Those who marry aliens if by the laws of the latters country, the former are considered citizens, unless, by their act or omission they are deemed to have renounced Philippine citizenship.

DOCTRINE OF STATE IMMUNITY FROM SUIT


* The royal prerogative of dishonesty Sec, 3, Art. XVI, 1987 Constitution

SECTION 3.

The State may not be sued without its consent.

Sec. 2, Art. II, 1987 Constitution 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. Basis of the Doctrine of State Immunity Ethical

Practical

As to a local state
"There can be no legal right against the authority that makes the law on which the right depends"

As to a foreign state
The state will be busy defending Doctrine of sovereign itself from lawsuits "Par in parem non habet imperium"

equality of all states

The Holy See v. Rosario, 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason] In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See. The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156157). The determination of the executive arm of government that a state or

instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in

International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos] [When

is suit deemed suit against the State? Liabilities of public officers who exceeded their authority]
Some instances when a suit against the State is proper are:

11 1) When the Republic is sued by name; 2) When the suit is against an unincorporated government agency; 3) When the suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. 4) When the suit is against a foreign state or embassy As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made

defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. This Court has made it quite clear that even a high position in the
government does not confer a license to persecute or recklessly injure another.

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this Court in Shauf v. Court of Appeals (191 SCRA 713 [1990]), herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages. DA v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug] [Can government properties

be levied to satisfy judgment against the State? Waiver under Act No. 3083]
Waiver of State Immunity

The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relate to the exercise of its sovereign functions.

EXPRESSLY Through a General law


Act 3083 in relation with CA 327 as amended by PD 1445 ACT 3083 deals with money claims arising from contracts

Through a Special law


Art. 2180 NCC "The state is liable for quasi-delicts when it acts through a special agent" Art. 2189 NCC

IMPLIEDLY By entering into a contract


Restrictive Doc. of State Immunity This doctrine provides that only contracts entered into by the government in its proprietary capacity

By filing a pleading
The pleading filed must assert an affirmative relief because in doing so, it opens itself to a possible counterclaim

12

with the gov't. whether jure imperii or jure gestionis Procedure to collect: File your claim with COA COA must act upon it Within 60 days from filing If COA refuses pay, elevate case to SC (certiorari)

"LGUs shall be liable for damages for the death of, or injuries suffered by any person by reason of defective conditions of roads, streets, bridges, public buildings, & other public works under their control & supervision." Where the waiver is through a special law,

amounts to a waiver of its immunity from suit By doing so, it is deemed to have descended to the level of a private individual But if it entered into a contract in its governmental capacity it is not deemed to

When the state litigates, it is not required to put up a bond, or be asked to pay legal fees because it is assumed that it is always solvent.

vb

file the suit with the courts.

have impliedly waived its immunity from suit

Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd Div. [Quisumbing] [Suits

against public officers]

The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State itself to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position.

13

When public officials can be sued personally 1- To REQUIRE him to do a duty required by law 2- To RESTRAIN him from doing an act alleged to be unconstitutional or illegal 3- To RECOVER from him taxes unlawfully assessed or collected

CIVILIAN SUPREMACY CLAUSE

Sec. 3, Art. II, 1987 Constitution 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.

IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan] The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the marines in this case constitutes permissible use of military assets for civilian law enforcement. x x x The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority.

ACADEMIC FREEDOM
UP Board of Regents v. CA, G.R. No. 134625, Aug. 31, 1999, 2nd Div. [Mendoza] Academic freedom of institutions of higher learning is a freedom granted to institutions of higher learning which is thus given a wide sphere of authority certainly extending to the choice of students. If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the graduation of a student, for it is precisely the graduation of such a student that is in question. Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227 SCRA 595, Nov. 8, 1993 [Vitug] The essential freedoms subsumed in the term academic freedom encompassing not only the freedom to determine x x x on academic grounds who may teach, what may be taught (and) how it shall be taught, but likewise who may be admitted to study.

SOCIAL JUSTICE AND HUMAN RIGHTS THE INDIGENOUS PEOPLES RIGHTS ACT

R.A. No. 8371

AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING

14 IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES Isagani Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, [Puno and Kapunan, Separate Opinions] The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under customary law which traces its origin to native titlexxx Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and empowerment (Sections 13 to 20), social justice and human rights (Sections 21 to 28), the right to preserve and protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciences and technologies (Sections 29 to 37)xxx

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of

ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations.

Ancestral lands are lands held by the ICCs/IPs under the same conditions as
ancestral domains except that these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership.

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1) by native title over both ancestral lands and domains; or (2) by torrens title under the Public Land Act and the Land Registration Act with respect to ancestral lands only. (Separate Opinion, Puno, J., in Isagani Cruz v.

Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) Concept of "native title"

Native title refers to ICCs/IPs preconquest rights to lands and domains held under

a claim of private ownership as far back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected (Section 11, IPRA). Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineatedxxx The Regalian theory, however, does not negate native title to lands held in private ownership since time immemorial. In the landmark case of Carino v. Insular Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594 [1909]), the United States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, made the following pronouncement: x x x Every presumption is and ought to be taken against the Government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far

back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. x x x (Carino v. Insular Government, supra note 75, at 941)
The above ruling institutionalized the recognition of the existence of native title to land, or ownership of land by Filipinos by virtue of possession under a claim of

15 ownership since time immemorial and independent of any grant from the Spanish Crown, as an exception to the theory of jura regaliaxxx

Carino was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court were binding as precedent in our jurisdiction (Section 10, Philippine Bill of 1902). We applied the Carino doctrine in the 1946 case of Oh Cho v. Director of Lands (75 Phil. 890 [1946]), where we stated that "[a]ll lands that were not

acquired from the Government either by purchase or by grant, belong to the public domain, but [a]n exception to the rule would be any land that should have been in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been private property even before the Spanish conquest. (Separate Opinion, Kapunan, J., in Isagani Cruz

v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc)

THE FILIPINO FIRST POLICY

Sec. 10, Art. XII, 1987 Constitution SECTION 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to citizens 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.

Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997][Bellosillo] 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 Filipinosxxx Where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic lawxxx From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that that qualified Filipinos must be preferred

[i]n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, it means just

OWNERSHIP/ACQUISITION OF LANDS BY ALIENS

Sec. 7, Art. XII, 1987 Constitution

16

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.

Sec. 8, Art. XII, 1987 Constitution 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.

THE RIGHT OF THE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY

Sec. 16, Art. II, 1987 Constitution 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.

Oposa v. Factoran, Jr., 224 SCRA 792 [1993] [Davide] [the Concept of Inter-

Generational Responsibility]

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the wellfounded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.

THE PREFERENTIAL RIGHT OF MARGINAL AND SUBSISTENCE FISHERMEN

Sec. 7, Art. XIII, 1987 Constitution SECTION 7.


The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local 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.

17 Tano v. Socrates, G.R. No. 110249, Aug. 21, 1997 The preferential right of subsistence or marginal fishermen to the use of marine resources is not absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their exploration, development and utilization x x x shall be under the full control and supervision of the State. Moreover, their mandated protection, development and conservation x x x imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. What must be borne in mind is the State policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature (Section 16, Article II).

THE RIGHT OF THE STATE TO RECOVER PROPERTIES UNLAWFULLY ACQUIRED BY PUBLIC OFFICIALS OR EMPLOYEES Sec. 15, Art. XI, 1987 Constitution
SECTION 15. The right of the State to recover properties unlawfully
acquired by public officials and employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. Presidential Ad Hoc Fact-Finding Committee on Behest Loans, et. al. v. Desierto, G.R. No. 130140, Oct. 25, 1999, En Banc [Davide] Section 15, Article XI, 1987 Constitution provides that The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel. From the proceedings of the Constitutional Commission of 1986, however, it was clear that this provision applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases. Thus, the prosecution of offenses arising from, relating or incident to, or involving ill-gotten wealth contemplated in Section 15, Article XI of the Constitution may be barred by prescription.

SEPARATION OF POWERS
May the Government, through the PCGG, validly bind itself to cause the dismissal of all cases against the Marcos heirs pending before the Sandiganbayan and other courts in a Compromise Agreement entered into between the former and the latter?
Held: This is a direct encroachment on judicial power, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecutor; but the court decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint. The prosecutions motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court to make its own evaluation of the merits of the case, because granting such motion is equivalent to effecting a disposition of the case itself. Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion. (Chavez v. PCGG, 299 SCRA 744,

Dec. 9, 1998 [Panganiban])

DELEGATION OF POWERS

Potestas delegatas non delegari potest

18

What has been delegated cannot be further delegated.

Sec. 23, Art. VI, 1987 Constitution 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 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 out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Delegation of Emergency Powers to the President


Article VI, Sec. 23, Constitution (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 out a declared national policy. Unless sooner withdrawn by resolution of Congress, such powers shall cease upon the next adjournment thereof. Conditions for a valid delegation of Emergency Powers to the President: 1) There must be a law 2) There must be a war or other national emergency

[notes]

3) The delegation must be for a limited period only 4) The delegation must be subject to Congressional limitations & restrictions 5) The power must be exercised to carry out a national policy declared by Congress

other national emergency may include rebellion, economic crisis, pestilence, or epidemic, typhoon, flood or other similar catastrophe or nationwide proportions or effect

Tests of a valid delegation of power


Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority x x x. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. (Santiago v. COMELEC, 270 SCRA 106, March 19, 1997)

THE LEGISLATIVE DEPARTMENT

THE PARTY-LIST SYSTEM

The Party-List Law (R.A. No. 7941)

AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR Veterans Federation Party v. COMELEC, G.R. No. 136781, Oct. 6, 2000, En Banc [Panganiban] A simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The

19 Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. X x x Considering the foregoing statutory requirements, it will be shown x x x that Section 5(2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress.

[NOTES]

Inviolable Parameters in Party List System (Republic Act No. 7941) 1) The twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. 2) The two percent threshold - only those garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives. 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 total number of votes."

Method of Allocating PL Seats

a) Rank all the participating parties from the highest to the lowest based on the number of votes they each received. b) The ration for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. c) All the parties with at least 2% of the total votes cast for PLS are guaranteed one seat each. (Only these parties shall be considered in the computation of additional seats)

Formula: Allocation of Additional Seats

Divide the votes received by a party who is entitled to a Qualifying Seat (QS) by the total number of votes cast in favor of the party who received the highest number of votes cast under the party-list, then multiply it to the number of seat to which the latter is entitled.

Formula for determining Additional Seats of 1st party (with highest votes)
Number of votes of First Party = Proportion of votes of Total votes for the Party List System FP relative to votes of PLS Rules: a) If proportion is greater than 6% - entitled to 2 AS b) If proportion is between 4% to 6% - entitled to 1 AS c) If proportion is less than 4% - NOT entitled to AS

Formula for determining AS of other qualified parties


Number of votes of party entitled to QS x # of AS of 1st party Total votes cast of 1st Party

20

Do away with fractional representation

Formula for determining No. of Party List Representatives


Number of District Representatives = No. of PLR 4

Ang Bagong Bayani OFW labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban] The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the States benevolence, but active participants in the mainstream of representative democracy. The party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives.

Guidelines for screening Party-List Participants

1) The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show through its constitution, articles of incorporation, bylaws, history, platform of government and track record that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interest, it has chosen or is likely to choose the interest of such sectors. 2) While even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives. In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. 3) In view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. x x x Furthermore, the Constitution provides that religious denominations and sects shall not be registered. (Sec. 2 [5], Article IX [C]) The prohibition was explained by a member of the Constitutional Commission in this wise: [T]he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party. 4) A party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: 1) It is a religious sect or denomination, organization or association organized for religious purposes; 2) It advocates violence or unlawful means to seek its goal; 3) It is a foreign party or organization; 4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; 5) It violates or fails to comply with laws, rules or regulations relating to elections; 6) It declares untruthful statements in its petition; 7) It has ceased to exist for at least one (1) year; or

21 8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the partylist system in the two (2) preceding elections for the constituency in which it had registered. Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives. A party or organization, therefore, that does not comply with this policy must be disqualified. 5) The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the partylist system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organization to be elected to the House of Representatives. 6) The party must not only comply with the requirements of the law; its nominees must likewise do so. x x x 7) Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens who belong to marginalized and underrepresented sectors, organizations and parties. Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented. 8) While lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. x x x

PARLIAMENTARY IMMUNITIES AND PRIVILEGES

Sec. 11, Art. VI, 1987 Constitution 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 held liable in any other place for any speech or debate in the Congress or in any committee thereof.

People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago] The immunity from arrest or detention of Senators and members of the House of Representatives x x x arises from a provision of the Constitution. The history of the provision shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six years is not merely authorized by law, it has constitutional foundations.

22

INQUIRY IN AID OF LEGISLATION

Sec. 21, Art. VI, 1987 Constitution 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.

Legislative Contempt

ARNAULT vs. NAZARENO [G.R. No. L-3820. July 18, 1950.] No person can be punished for contumacy as a witness before either House unless his testimony is required in a matter into which that House has jurisdiction to inquire. Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to require a witness to answer any question pertinent to the subject of the inquiry, subject of the course to his constitutional privilege against self-incrimination. The materiality of a question that it may be propounded to a witness is determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. AUTHORITY OF EITHER HOUSE OF CONGRESS TO COMMIT A WITNESS FOR CONTEMPT BEYOND PERIOD OF LEGISLATIVE SESSION. There is no sound reason to limit the power of the legislative body to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that body. While the existence of the House of Representatives is limited to four years, that of the Senate is not so limited. The Senate is a continuing body which does not ceases to exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be exerted. Bengzon v. Senate Blue Ribbon Committee The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the aforequoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self. The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone. As held in Jean L. Aznault vs. Leon Nazareno, et al., the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member. Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure

23 that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly."

THE COMMISSION ON APPOINTMENTS

Secs. 18 and 19, Art. VI, 1987 Constitution 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 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. Guingona v. Gonzales [G.R. No. 106971. October 20, 1992.] The provision of Section 18 on proportional representation is mandatory in character and does not leave any discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation; otherwise, the party with a majority representation in the Senate or the House of Representatives can by sheer force of numbers impose its will on the hapless minority. By requiring a proportional representation in the Commission on Appointments, Section 18 in effect works as a check on the majority party in the Senate and helps to maintain the balance of power. No party can claim more than what it is entitled to under such rule. To allow it to elect more than its proportional share of members is to confer upon such a party a greater share in the membership in the Commission on Appointments and more power to impose its will on the minority, who by the same token, suffers a diminution of its rightful membership in the Commission.

THE ELECTORAL TRIBUNALS

Sec. 17, Art. VI, 1987 Constitution 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.

Bondoc v. Pineda [G.R. No. 97710. September 26, 1991.] As judges, the members of the House Electoral Tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong.

24 Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. Aquino v. COMELEC, 248 SCRA 400, Sept. 18, 1995, En Banc [Kapunan] Under Section 17 of Article VI of the 1987 Constitution, 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. The electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Sec. 6 of RA. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. Romualdez-Marcos v. COMELEC, 248 SCRA 300, Sept. 18, 1995, En Banc [Kapunan] As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. Guerrero v. COMELEC, 336 SCRA 458, July 26, 2000, En Banc [Quisumbing] While the COMELEC is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farias is a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. Thus, the COMELEC's decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET's own jurisdiction and functions. Libanan v. HRET, 283 SCRA 520, Dec. 22, 1997 [Vitug] (No appeal from Decisions of the Electoral Tribunal) The Constitution mandates that the House of Representatives Electoral Tribunal and the Senate Electoral Tribunal shall each, respectively, be the sole judge of all contests relating to the election, returns and qualifications of their respective members. The Court has stressed that x x x so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. The power granted to the Electoral Tribunal x x x excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same.

25

The Court did recognize, of course, its power of judicial review in exceptional cases. In Robles v. HRET (181 SCRA 780), the Court has explained that while the judgments of the Tribunal are beyond judicial interference, the Court may do so, however, but only in the exercise of this Courts so-called extraordinary jurisdiction x x x upon a determination that the Tribunals decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero (Morrero v. Bocar [66 Phil. 429]), upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse. The Court does not x x x venture into the perilous area of correcting perceived errors of independent branches of the Government; it comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution itself calls for remedial action.

POWER OF EACH HOUSE OF CONGRESS TO ADOPT RULES OF PROCEDURE

Sec. 16, Art. VI, 1987 Constitution 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 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 other place than that in which the two Houses shall be sitting.

Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza] The cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the right of private individuals. In Osmena v. Pendatun (109 Phil. At 870-871), it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate that action (taken by a

26 deliberative body) when the requisite number of members have agreed to a particular measure. It must be realized that each of the three departments of our government has its separate sphere which the others may not invade without upsetting the delicate balance on which our constitutional order rests. Due regard for the working of our system of government, more than mere comity, compels reluctance on the part of the courts to enter upon an inquiry into an alleged violation of the rules of the House. Courts must accordingly decline the invitation to exercise their power.

THE LEGISLATIVE PROCESS


Bills That Shall Originate Exclusively in the House of Representatives

Sec. 25, Art. VI, 1987 Constitution 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

(2) 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. (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 proposed 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. Tolentino v. Secretary of Finance Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same

27 problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. To begin with, it is not the law but the revenue bill which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute and not only the bill

which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to " propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate.

The One-Subject, One-Title Rule

Sec. 26[1], Art. VI, 1987 Constitution SECTION 26. (1) Every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.

De Guzman v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima] The objectives of Section 26(1), Article VI of the 1987 Constitution, that "[e]very bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof", are: 1. To prevent hodge-podge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no information, and which might therefore be overlooked and carelessly and unintentionally adopted; and 3. To fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon by petition or otherwise if they shall so desire. Section 26(1) of Article VI of the 1987 Constitution is sufficiently complied with where, as in this case, the title is comprehensive enough to embrace the general objective it seeks to achieve, and if all the parts of the statute are related and germane to the subject matter embodied in the title or so long as the same are not inconsistent with or foreign to the general subject and title.

PJA v. Prado, 227 SCRA 703, Nov. 11, 1993, En Banc [Cruz] The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as to cover every single detail of the measure. It has been held that if the title fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement.

Tobias v. Abalos, 239 SCRA 106, Dec. 8, 1994, En Banc [Bidin] Moreover, a liberal construction of the "one title-one subject" rule has been invariably adopted by this court so as not to cripple or impede legislation. Thus, in Sumulong v. Comelec (73 Phil. 288 [1941]) , we ruled that the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject."

28

How a Bill becomes a Law


Tolentino v. Secretary of Finance The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, 26(2) qualified the two stated conditions before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved. In other words, the "unless" clause must be read in relation to the "except" clause, because the two are really coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second requirement in the "unless" clause (i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of an emergency requiring the calling of a special election for President and Vice-President. Under the Constitution such a law is required to be made within seven days of the convening of Congress in emergency session. That upon the certification of a bill by the President the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice.

The Bicameral Conference Committee


PJA v. Prado, 227 SCRA 703, Nov. 11, 1993, En Banc [Cruz] A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee.

The Enrolled Bill Doctrine


Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza] Under the enrolled bill doctrine, the signing of H. Bill No. 7189 by the Speaker of the House and the President of the Senate and the certification by the secretaries of both Houses of Congress that it was passed on November 21, 1996 are conclusive of its due enactment. x x x To be sure, there is no claim either here or in the decision in the EVAT cases (Tolentino v. Secretary of Finance) that the enrolled bill embodies a conclusive presumption. In one case (Astorga v. Villegas, 56 SCRA 714 [1974]) we went behind an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate. But, where as here there is no evidence to the contrary, this Court will respect the certification of the presiding officers of both Houses that a bill has been duly passed. Under this rule, this Court has refused to determine claims that the threefourths vote needed to pass a proposed amendment to the Constitution had not been obtained, because a duly authenticated bill or resolution imports absolute verity and is binding on the courts. x x x

29

This Court has refused to even look into allegations that the enrolled bill sent to the President contained provisions which had been surreptitiously inserted in the conference committee x x x. (Tolentino v. Secretary of Finance) It has refused to look into charges that an amendment was made upon the last reading of a bill in violation of Art. VI, Sec. 26(2) of the Constitution that upon the last reading of a bill, no amendment shall be allowed. (Philippine Judges Assn v.

Prado, 227 SCRA 703, 710 [1993])

In other cases, this Court has denied claims that the tenor of a bill was otherwise than as certified by the presiding officers of both Houses of Congress. The enrolled bill doctrine, as a rule of evidence, is well-established. It is cited with approval by text writers here and abroad. The enrolled bill rule rests on the following considerations: X x x. As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the court to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution.

(Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 36 L. Ed. 294, 303 [1891])

The Legislative Journal


Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza] The Journal is regarded as conclusive with respect to matters that are required by the Constitution to be recorded therein. With respect to other matters, in the absence of evidence to the contrary, the Journals have also been accorded conclusive effects. Thus, in United States v. Pons (34 Phil. 729, 735 [1916]], quoting ex rel. Herron v. Smith, 44 Ohio 348 [1886]), this Court spoke of the imperatives of public policy for regarding the Journals as public memorials of the most permanent character, thus: They should be public, because all are required to conform to them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory of individuals.

THE PRESIDENTIAL VETO

Sec. 27, Art. VI, 1987 Constitution 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, 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 House 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.

30 (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. Gonzales v. Macaraig [G.R. No. 87636. November 19, 1990.] Paragraph (1) refers to the general veto power of the President and if exercised would result in the veto of the entire bill, as a general rule. Paragraph (2) is what is referred to as the item-veto power or the line-veto power. It allows the

exercise of the veto over a particular item or items in an appropriation, revenue, or tariff bill. As specified, the President may not veto less than all of an item of an

Appropriations Bill. In other words, the power given the executive to disapprove any item or items in an Appropriations Bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. Explicit is the requirement that a provision in the Appropriations Bill should relate specifically to some " particular appropriation" therein. The challenged "provisions" fall short of this requirement. Firstly, the vetoed "provisions" do not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Secondly, the disapproved or reduced items are nowhere to be found on the face of the Bill. Consequently, Section 55 (FY '89) and Section 16 (FY '90) although labelled as "provisions," are actually inappropriate provisions that should be treated as items for the purpose of the President's veto power. An item in a bill refers to the particulars, the details, the distinct and severable parts of the bill. It is an indivisible sum of money dedicated to a stated purpose The United States Supreme Court, in the case of Bengzon v. Secretary of Justice declared "that an 'item' of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill." PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason] As the Constitution is explicit that the provision which Congress can include in an appropriations bill must "relate specifically to some particular appropriation therein" and "be limited in its operation to the appropriation to which it relates," it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered "an inappropriate provision" which can be vetoed separately from an item. Also to be included in the category of "inappropriate provisions" are unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kind of laws have no place in an appropriations bill. By way of definition, a congressional veto is a means whereby the legislature can block or modify administrative action taken under a statute. It is a form of legislative control in the implementation of particular executive actions. The form may be either negative, that is requiring disapproval of the executive action, or affirmative, requiring approval of the executive action. This device represents a significant attempt by Congress to move from oversight of the executive to shared administration Bengzon v. Drilon, 208 SCRA 133, April 15, 1992, En Banc [Gutierrez] The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute. The pertinent provision of the Constitution reads: "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." (Section 27(2), Article VI, Constitution) However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it can not veto the entire bill even if it may contain objectionable features. The President is,

31 therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto powers" to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure.

THE EXECUTIVE DEPARTMENT


PRESIDENTIAL SUCCESSION

Sec. 8, Art. VII, 1987 Constitution 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 Vice-President 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. Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno] Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect.

Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of

prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace

due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity

given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead on the same service of our country. Petitioners 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 petitioners valedictory, his final act of farewell. His presidency is now in the past tense.

IMMUNITY FROM SUIT OF THE PRESIDENT


Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]

32

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 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. Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.

THE APPOINTING POWER OF THE PRESIDENT

Sec. 16, Art. VII, 1987 Constitution 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 for 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 involuntary, but such appointments shall be effective only until after disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Sarmiento v. Mison, 156 SCRA 549 Under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President:

1) The heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;
2) All other officers of the Government whose appointments are not otherwise provided for by law; 3) Those whom the President may be authorized by law to appoint; 4) Officers lower in rank whose appointments the Congress may by law vest in the President alone. It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. Calderon v. Carale, 208 SCRA 254, April 22, 1992, En Banc [Padilla] From the cases of Sarmiento III vs. Mison (156 SCRA 549); Mary Concepcion Bautista v. Salonga (172 SCRA 160), and Teresita Quintos Deles, et al. v. The Commission on Constitutional Commission, et al (177 SCRA 259), these doctrines are deducible: 1. Confirmation by the Commission on Appointments is required only for

33 presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election). 2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law. Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima] Unconstitutional are Sections 26 and 31 of Republic Act 6975 (DILG ACT) which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmedxxx The police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the PNP x x x do not fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments.

LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT

Sec. 13, 2nd par, Art. VII, 1987 Constitution


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.

Sec. 15, Art. VII. 1987 Constitution 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.

In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, 298 SCRA 408, Nov. 9, 1998, En Banc [Narvasa] Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within two months preceding the Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code; while the second consists of the so-called midnight appointments. The SC in clarified this when it held: Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only midnight appointments those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

De Rama v. CA, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago] (Sec. 15,

Art. VII, 1987 Constitution applies only to Presidential appointments; There is no law that prohibits a Local Chief Executive from making appointments before his/her term ends)

34

The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. His solitary reason for recalling these appointments was that they were, to his personal belief, midnight appointments which the outgoing mayor had no authority to make. The CSC correctly ruled, however, that the constitutional prohibition on so-called "midnight appointments," specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.

THE CONTROL POWER OF THE PRESIDENT Sec. 17, Art. VII, 1987 Constitution
SECTION 17. The President shall control of all the executive
departments, bureaus and offices. He shall ensure that the laws be faithfully executed. The Doctrine of Qualified Political Agency 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 law to act in person or 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.

Joson v. Torres, 290 SCRA 279, May 20, 1998 [Puno] Control is said to be the very heart of the power of the presidency. As head of the Executive Department, the President, however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally. The members of Cabinet may act for and in behalf of the President in certain matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority.

THE PRESIDENTS GOVERNMENTS

POWER

OF

GENERAL

SUPERVISION

OVER

LOCAL

Sec. 4, Art. X, 1987 Constitution SECTION 4.


supervision The President of the Philippines shall exercise general over local governments. Provinces with respect to

35 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 powers and functions. Pimentel, Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En Banc [Panganiban] This provision has been interpreted to exclude the power of control. In Mondano v. Silvosa, the Court contrasted the President's power of supervision over local

government officials with that of his power of control over executive officials of the national government. It was emphasized that the two terms supervision and control differed in meaning and extent. The Court distinguished them as follows: ". . . In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter." xxx Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the President's supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law. Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes] The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter." On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control. In Taule vs. Santos, we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act. Drilon v. Lim, 235 SCRA 135, Aug. 4, 1994, En Banc [Cruz] The difference between control and supervision was further delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves. On the other hand, supervision does not cover such authority. Supervising officials merely see to it that

36 the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed. Joson v. Torres, 290 SCRA 279, May 20, 1998 [Puno] The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties. 48 If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.

THE MILITARY POWERS OF THE PRESIDENT

Sec. 18, Art. VII, 1987 Constitution 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 any 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 the 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 the 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.

37 IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan] It is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. The intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powersx x x On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-thespot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the countryx x x

THE PARDONING POWER OF THE PRESIDENT

Sec. 19, Art. VII, 1987 Constitution 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.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. Echegaray v. Secretary of Justice, 301 SCRA 96, Jan. 19, 1999, En Banc [Puno] Section 19, Article VII of the 1987 Constitution is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. This provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after the finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who becomes insane after his final conviction cannot be executed while in a state of insanity (See Article 79 of the Revised Penal Code). The suspension of such a death sentence is undisputably an exercise of judicial power. It is not usurpation of the presidential power of reprieve though its effect is the same the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the Presidents power to commute final sentences of conviction. The powers of the Executive, the Legislative and the

38

Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life.
Monsanto v. Factoran, [170 SCRA 190] While a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. Garcia v. Chairman, COA Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: "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." In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. In Re: Wilfredo Sumulong Torres, 251 SCRA 709, Dec. 29, 1995 [Hermosisima] A conditional pardon is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one (Alvarez v. Director of Prisons, 80 Phil. 50). By the pardonees consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Section 64(i) of the Revised Administrative Code, the Chief Executive is authorized to order the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence. It is now a well-

39 entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial scrutiny. The determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive, and the pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered.

THE TREATY-MAKING POWER OF THE PRESIDENT

Sec. 21, Art. VII, 1987 Constitution 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.

Sec. 25, Art. XVIII, 1987 Constitution 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. Bayan v. Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena] The power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. SC: The Phil. Govt. has complied with the Constitution in that the VFA was concurred in by the Phil. Senate, thus complying with Sec. 21, Art. VII. The Republic of the Philippines cannot require the US to submit the agreement to the US Senate for concurrence, for that would be giving a strict construction to the phrase, recognized as a treaty. Moreover, it is inconsequential whether the US treats the VFA as merely an executive agreement because under international law, an executive agreement is just as binding as a treaty. Lim and Ersando v. Honorable Executive Secretary, G.R. No. 151445, April 11, 2002, En Banc [De Leon] In Ichong v. Hernandez (101 Phil. 1155, 1191 [1957]) , we ruled that provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova (9 SCRA 230, 242 [1963]), x x x as regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it

runs counter to an act of Congress.

The foregoing premises leave no doubt that US forces are prohibited from engaging in an offensive war on Philippine territory. Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban]

40 One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken."

POWER OF IMPOUNDMENT
PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason] Impoundment refers to the refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three principal sources of the authority of the President: 1) The authority to impound given to him either expressly or impliedly by Congress. 2) The executive power drawn from the Presidents role as Commander-in-Chief. 3) The Faithful Execution Clause. The proponents insist that a faithful execution of the laws requires that the President desist from implementing the law if doing so would prejudice public interest. An example given is when through efficient and prudent management of a project, substantial savings are made. In such a case, it is sheer folly to expect the President to spend the entire amount budgeted in the law.

THE JUDICIAL DEPARTMENT


FUNCTIONS OF THE COURTS
ABS-CBN Broadcasting Corporation v. COMELEC, G.R No. 133486, Jan. 28, 2000, En Banc [Panganiban] While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the peoples fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections. In any event, in Salonga v. Cruz Pano (134 SCRA 438, 463, Feb. 18, 1985), the Court had occasion to reiterate that it also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.

JUDICIAL POWER

Sec. 1, Art. VIII, 1987 Constitution 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

41 abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Drilon v. Lim, 235 SCRA 135, Aug. 4, 1994, En Banc [Cruz] (Do lower courts have jurisdiction to consider the constitutionality of a law?) The lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation (Sec. 19[1]), even as the accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article VIII, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. The Expanded Power of Judicial Review The 1987 Constitution expands the concept of judicial review by providing that "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." (Article VIII, Sec. 1 of the 1987 Constitution) Under this definition, the Court cannot agree x x x that the issue involved is a political question beyond the jurisdiction of this Court to review.

THE POLITICAL QUESTION DOCTRINE


Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno] In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clearxxx EDSA I presented a political question; EDSA II involves legal questions. 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. EDSA 1 vs. EDSA 2
EDSA 1 a) Involves the exercise of the people power of revolution Which overthrows the Whole government EDSA 2 a) An exercise of people power of freedom of speech & freedom of assembly to petition the government for redress of grievances which only affected the office of the president b) Is extra-constitutional and the legitimacy of the new government that resulted from it cannot be subject of judicial review c) Political question b) Is intra-constitutional and the resignation of the sitting president that it caused and the succession of the VP as president are subject to judicial review c) Involves legal questions

42

IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan] Political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government." When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court. When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse of discretion.

REQUISITES FOR THE PROPER EXERCISE OF THE POWER OF JUDICIAL REVIEW


Isagani Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, [Puno and Kapunan, Separate Opinions] The time-tested standards for the exercise of judicial review are: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (2) the existence of an actual and appropriate case; (3) a personal and substantial interest of the party raising the constitutional question; (4) the exercise of judicial review is pleaded at the earliest opportunity; and (5) the constitutional question is the lis mota of the case.

Actual Case or Controversy


Isagani Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc, [Puno and Kapunan, Separate Opinions] In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been enacted, and the Implementing Rules and Regulations approved. Money has been appropriated and the government agencies concerned have been directed to implement the statute. It cannot be successfully maintained that we should await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution. It is precisely the contention of the petitioners that the law, on its face, constitutes an unconstitutional abdication of

43 State ownership over lands of the public domain and other natural resources. Moreover, when the State machinery is set into motion to implement an alleged unconstitutional statute, this Court possesses sufficient authority to resolve and prevent imminent injury and violation of the constitutional process. IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan] An "actual case or controversy" means an existing case or controversy which is both ripe for resolution and susceptible of judicial determination, and that which is not conjectural or anticipatory, or that which seeks to resolve hypothetical or feigned constitutional problems.

Moot and Academic Cases


Gonzales v. Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc [Gonzaga-Reyes] An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead. It must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people . Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. ABS-CBN Broadcasting Corporation v. COMELEC, G.R No. 133486, Jan. 28, 2000, En Banc [Panganiban] While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the peoples fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.

Proper Party
IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan] "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."

Taxpayers Suit
The Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 250, Aug. 1, 1996, En Banc [Romero] To constitute a taxpayer's suit, two requisites must be met, namely, that public funds are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularity is committed, and that the petitioner is directly affected by the alleged ultra vires act. Undeniably, as a taxpayer, petitioner would somehow be adversely affected by an illegal use of public money. When, however, no such unlawful spending has been shown, as in the case at bar, petitioner, even as a taxpayer, cannot question the

44 transaction validly executed by and between the Province and Ortigas for the simple reason that it is not privy to said contract. Gonzales v. Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc [Gonzaga-Reyes] A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that public funds have been disbursed in alleged contravention of the law or the Constitution. Thus, a taxpayers action is properly brought only when there is an exercise by Congress of its taxing or spending power

INDEPENDENCE OF THE JUDICIARY


The Fiscal Autonomy Clause
Bengzon v. Drilon, 208 SCRA 133, April 15, 1992, En Banc [Gutierrez] Fiscal autonomy means freedom from outside control. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.

Power of the SC to Discipline Judges and Order their Dismissal


Maceda v. Vasquez, 221 SCRA 464 [1993]

A judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act. However, We agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. In fine, where a criminal complaint against a judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. Dolalas v. Office of the Ombudsman-Mindanao, 265 SCRA 818 [1996]

The complaint against petitioner-judge before the Office of the Ombudsman is basically administrative in nature. In essence, petitioner-judge is being charged with having violated Rule 1.02, Canon 1 and Rule 3.05, Canon 3 of the Code of Judicial Conduct. It must be borne in mind that the resolution of the administrative charge of unduly delaying the disposition of the said criminal case involves the determination of whether, in resolving the alarms and scandals case, petitioner-judge acted in accordance with the guidelines provided in the Rules of Court and in the Administrative Circulars in pursuance of the ideals embodied in the Code of Judicial Conduct. Such is clearly an administrative matter. Unquestionably, this Court is mandated under section 6, Article VIII of the 1987

45 Constitution to assume administrative supervision over all courts and the personnel thereof. De Vera v. Pelayo, 335 SCRA 281, July 6, 2000, 1st Div. [Pardo] Before a civil or criminal action against a judge for a violation of Arts. 204 and 205 (knowingly rendering an unjust judgment or order) can be entertained, there must first be a final and authoritative judicial declaration that the decision or order in question is indeed unjust. The pronouncement may result from either: (a) An action of certiorari or prohibition in a higher court impugning the validity of the judgment; or (b) An administrative proceeding in the Supreme Court against the judge precisely for promulgating an unjust judgment or order. Likewise, the determination of whether a judge has maliciously delayed the disposition of the case is also an exclusive judicial function (In Re: Borromeo, supra,

at 461).

THE JUDICIAL AND BAR COUNCIL


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.

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.

SESSIONS OF THE SUPREME COURT Cases to be Heard by the SC En Banc


Firestone Ceramics, Inc. v. CA, 334 SCRA 465, June 28, 2000, En Banc [Purisima] Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by the Resolution of November 18, 1993:

46

1) Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; 2) Criminal cases in which the appealed decision imposes the death penalty; 3) Cases raising novel questions of law; 4) Cases affecting ambassadors, other public ministers and consuls; 5) Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Elections, and Commission on Audit; 6) Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.00 or both; 7) Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed; 8) Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the court en banc; and 9) All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

THE RULE-MAKING POWER OF THE SUPREME COURT

Sec. 5[5], Art. VIII, 1987 Constitution


(5) 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.

DECISION-MAKING

Sec. 14, Art. VIII, 1987 Constitution 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 stating the legal basis therefor. Memorandum Decisions The distinctive features of a memorandum decision are, first, it is rendered by an appellate court, second, it incorporates by reference the findings of fact or the conclusions of law contained in the decision, order, or ruling under review. Most likely, the purpose is to affirm the decision, although it is not impossible that the approval of the findings of facts by the lower court may lead to a different conclusion of law by the higher court. At any rate, the reason for allowing the incorporation by reference is evidently to avoid the cumbersome reproduction of the decision of the lower court, or portions thereof, in the decision of the higher court. The idea is to avoid having to repeat in the body of the latter decision the findings or conclusions of the lower court since they are being approved or adopted anyway. The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted,

47 which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. Oil and Natural Gas Commission v. CA, 293 SCRA 26, July 23, 1998 [Martinez] The constitutional mandate that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based does not preclude the validity of "memorandum decisions" which adopt by reference the findings of fact and conclusions of law contained in the decisions of inferior tribunals Yao v. CA, 344 SCRA 202, Oct. 24, 2000, 1st Div. [Davide] The memorandum decision should be sparingly used lest it become an additive excuse for judicial sloth. It is an additional condition for the validity of this kind of decision may be resorted to only in cases where the facts are in the main accepted by both parties and easily determinable by the judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and deserves no more than the time needed to dismiss it. Henceforth, all memorandum decisions shall comply with the requirements herein set forth as to the form prescribed and the occasions when they may be rendered. Any deviation will summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the flawed judgment as a lawless disobedience.

Period for Decision-Making


Sec. 15, Art. VIII, 1987 Constitution

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 other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief, or memorandum required by the Rules of Court or 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 a 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 or matter submitted thereto for determination, without further delay. Re: Problem of Delays in Cases Before the Sandiganbayan, A.M. No. 00-8-05SC, Nov. 28, 2001, En Banc [Pardo] The law creating the Sandiganbayan, P.D. No. 1606 is clear on this issue. It provides:

48 Sec. 6. Maximum period for termination of cases As far as practicable, the trial of cases before the Sandiganbayan once commenced shall be continuous until terminated and the judgment shall be rendered within three [3] months from the date the case was submitted for decision. On September 18, 1984, the Sandiganbayan promulgated its own rules, thus: Sec. 3. Maximum Period to Decide Cases The judgment or final order of a division of the Sandiganbayan shall be rendered within three [3] months from

the date the case was submitted for decision.

Given the clarity of the rule that does not distinguish, we hold that the three [3] month period, not the twelve [12] month period, to decide cases applies to the Sandiganbayan. Furthermore, the Sandiganbayan presently sitting in five [5] divisions, functions as a trial court. The term trial is used in its broad sense, meaning, it allows introduction of evidence by the parties in the cases before it . The Sandiganbayan, in original cases within its jurisdiction, conducts trials, has the discretion to weigh the evidence of the parties, admit the evidence it regards as credible and reject that which they consider perjurious or fabricated.

THE CONSTITUTIONAL COMMISSIONS

Art. IX, 1987 Constitution

Constitutional Commissions
A. Common Provisions

SECTION 1. SECTION 2.

The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. 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 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 corporation 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. SECTION 5.

The Constitutional Commissions shall appoint their officials and employees in accordance with law. The Commission shall enjoy fiscal autonomy. appropriations shall be automatically and regularly released. Their approved annual

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 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.

SECTION 8.
B.

Each Commission shall perform such other functions as may be provided by law.

The Civil Service Commission

49

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 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.

SECTION 2.

(1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except as to positions which are policydetermining, primarily confidential, or highly technical, by competitive examination. (3) No officer or employee of 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.

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.

SECTION 4.

All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

SECTION 5.

The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, 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 of any government-owned or controlled corporations or in any of its subsidiaries.

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.

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. C. The Commission on Elections

50

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 a 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.

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. (2) 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 barangay offices shall be final, executory, and not appealable. (3) 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. (4) 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. (5) 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. (6) 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. (7) 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 candidates. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

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 preproclamation controversies. All such election cases shall be heard and decided in division,

51 provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

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 of 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.

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.

SECTION 6. SECTION 7. SECTION 8.

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. 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. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' 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.

SECTION 9.

Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of the election and shall end thirty days after.

SECTION 10. Bona fide candidates for any public office shall be free from any form of
harassment and discrimination.

SECTION 11. Funds certified by the Commission as necessary to defray the expenses for

holding regular and special elections, plebiscites, initiatives, 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. D. 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.

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 post-audit 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

52 law or the granting institution to submit to 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.

SECTION 3.

No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of 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 be required by law. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo] In Republic vs. Imperial, 11 we said that "the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term." Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter.

CONSTITUTIONAL LAW
What is the Doctrine of Constitutional Supremacy?
Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract . (Manila Prince Hotel v. GSIS,

267 SCRA 408 [1997] [Bellosillo])

INHERENT POWERS OF THE STATE

53

POLICE POWER
Requisites 1- LAWFUL SUBJECT: The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power 2- LAWFUL MEANS: The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1st Div. [Puno] Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same . It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000, En Banc [Purisima] The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. Philtread Workers Union [PTWU] v. Confesor, 269 SCRA 393, March 12, 1997

Article 263(g) of the Labor Code (vesting upon the Secretary of Labor the discretion to determine what industries are indispensable to the national interest and thereafter, assume jurisdiction over disputes in said industries) does not interfere
with the workers right to strike but merely regulates it, when in the exercise of such right, national interests will be affected. The rights granted by the Constitution are not absolute. They are still subject to control and limitation to ensure that they are not exercised arbitrarily. The interests of both the employers and the employees are intended to be protected and not one of them is given undue preference.

The Labor Code vests upon the Secretary of Labor the discretion to determine what industries are indispensable to national interest. Thus, upon the determination of the Secretary of Labor that such industry is indispensable to the national interest, it will assume jurisdiction over the labor dispute of said industry. The assumption of jurisdiction is in the nature of police power measure. This is done for the promotion of the common good considering that a prolonged strike or lockout can be inimical to the national economy.

POWER OF EMINENT DOMAIN


Who May Exercise? Heirs of Alberto Suguitan v. City of Mandaluyong, 328 SCRA 137, March 14, 2000, 3rd Div. [Gonzaga-Reyes] The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of property is held by individuals with greater tenacity, and none is guarded by the Constitution and the laws more sedulously, than the right to the freehold of inhabitants. When

54 the legislature interferes with that right, and, for greater public purposes, appropriates the land of ah individual without his consent, the plain meaning of the law should not be enlarged by doubt[ful] interpretation. Exercise of Eminent Domain by LGUs Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban] The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints imposed "through the law conferring the power or in other legislations." In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. Requisites for Proper Exercise 1234Taking of private property Public use/purpose Payment of just compensation Valid offer to buy and refusal of offer

Requisites for valid exercise by LGU 1- An ordinance must be enacted by the Sanggunian authorizing the local chief executive to expropriate on behalf of the LGU. 2- The taking of the private property must be for a public use/purpose, welfare or for the benefit of the poor and landless 3- Payment of just compensation 4- There must first be a valid and definite offer to the owner of the property and said offer was refused. TAKING in the Constitutional Sense May include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses fro which the property was intended. [notes] Requisites for a valid taking:

55 1. 2. 3. 4. Exproprietor must enter a private property Entry must be for more than a momentary period Entry must be under warrant or color of authority Property must be devoted to public use or otherwise informally appropriated or injuriously affected 5. Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment Taking under Eminent Domain distinguished from Taking under the Police Power PPI v. COMELEC, [G.R. No. 119694. May 22, 1995.] To compel print media companies to donate "Comelec space" of the dimensions specified in Section 2 of Resolution No. 2722, amounts to "taking" of private personal property for public use or purposesxxx The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use of private property. The monetary value of the compulsory "donation," measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed. The taking of private property for public use is, of course, authorized by the Constitution, but not without payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying compensation for "Comelec space" is precisely what is sought to be avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an assertion of authority to require newspaper publishers to "donate" free print space for Comelec purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as Section 1 of Resolution No. 2772-A attempts to suggest. The threshold requisites for a lawful taking of private property for public use need to be examined here: one is the necessity for the taking; another is the legal authority to effect the taking. The element of necessity for the taking has not been shown by respondent Comelecxxx Similarly, it has not been suggested, let alone demonstrated, that Comelec has been granted the power of eminent domain either by the Constitution or by the legislative authority. A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown; it is not casually to be assumed. . . . Section 2 does not constitute a valid exercise of the power of eminent domain. TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza] In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. Consequently, a license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide airtime to the Comelec. Meaning of Public Use

Traditional Concept: The number of actual beneficiaries determines public purpose.


the benefits redound in favor of individuals, then the purpose is not public.

If

56

Concept of vicarious benefit: Abandons the traditional concept. The purpose is public as long as the society in general is indirectly benefited, i.e. conversion of a slum area into a
model housing community. There is a vicarious advantage to the society. Filstream International Incorporated v. CA, 284 SCRA 716, Jan. 23, 1998 [Francisco] The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants thereof, and to laborers and low-salaried employees of the city. That only a few could actually benefit from the expropriation of the property does not diminish its public character. It is simply not possible to provide all at once land and shelter for all who need them. Through the years, the public use requirement in eminent domain has evolved into a flexible concept, influenced by changing conditions . Public use now includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and housing. Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon] (Public Use Requirement; Payment of Just Compensation) In the exercise of eminent domain, only as much land can be taken as is necessary for the legitimate purpose of the condemnation. The term "necessary", in this connection, does not mean absolutely indispensable but requires only a reasonable necessity of the taking for the stated purpose, growth and future needs of the enterprise. The respondent cannot attain a self-sustaining and viable ECOZONE if inevitable needs in the expansion in the surrounding areas are hampered by the mere refusal of the private landowners to part with their properties. The purpose of creating an ECOZONE and other facilities is better served if respondent directly owns the areas subject of the expansion program. The Legislature may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well-settled that the utility of the proposed improvement, the existence of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, are all questions exclusively for the legislature to determine, and the courts have no power to interfere or to substitute their own views for those of the representatives of the people. In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered "just" inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. 46 Payment of just compensation should follow as a matter of right immediately after the order of expropriation is issued. Any delay in payment must be counted from said order. However, the delay to constitute a violation of due process must be unreasonable and inexcusable; it must be deliberately done by a party in order to defeat the ends of justice. Payment of Just Compensation

Just compensation is described as a full and fair equivalent of the property taken from the
private owner by the exproprietor. This is intended to indemnify the owner fully for the losss he has sustained as a result of the expropriation.

57 Just compensation = actual or basic value of the property + consequential damages - consequential benefits (which should not exceed the consequential damages)

The basic or market value of the property is the price that may be agreed upon by parties willing but not compelled to enter into a contract of sale. Acquisition of Easement of Right-of-Way The exercise of the power of eminent domain does not always result in the taking or appropriation of title to the expropriated property; it may only result in the imposition of a burden upon the owner of the condemned property, without loss or title or possession. In this case, while it is true that the plaintiff is only after a rightof-way easement, it nevertheless perpetually deprives defendants of their proprietary rights as manifested y the imposition by the plaintiff upon the defendants that below said transmission lines, no plant higher than 3 meters is allowed. (NPC v. Gutierrez, 193 SCRA 1) How expropriation may be initiated? Two Stages in Expropriation of Land Republic v. Salem Investment Corporation, G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza] The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose declared in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint"xxx. The second phase of the eminent domain action is concerned with the determination by the court of "the just compensation for the property sought to be taken." This is done by the court with the assistance of not more than three (3) commissionersxxx It is only upon the completion of these two stages that expropriation is said to have been completed. Moreover, it is only upon payment of just compensation that title over the property passes to the government. Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner. Consequently, the latter can exercise all rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State ultimately to acquire it through expropriation. Is prior unsuccessful negotiation a condition precedent for the exercise of eminent domain? SMI Development Corporation v. Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div. [Panganiban] Current effective law on delegated authority to exercise the power of eminent domain is found in Section 12, Book III of the Revised Administrative Code, which provides: SEC. 12. Power of Eminent Domain The President shall determine when it is necessary or advantageous to exercise the power of eminent domain in behalf of the National Government, and direct the Solicitor General, whenever he deems the action advisable, to institute expropriation proceedings in the proper court. The foregoing provision does not require prior unsuccessful negotiation as a condition precedent for the exercise of eminent domain. In Iron and Steel Authority v. Court of Appeals, the President chose to prescribe this condition as an additional

58 requirement instead. In the instant case, however, no such voluntary restriction was imposed. When Ownership transferred to Expropriator Republic v. Salem Investment Corporation, G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza] The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is consistent both here and in other democratic jurisdictions. When may the Expropriator enter the Property? Upon receipt of the landowner of the corresponding payment or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by DAR of the compensation in cash or in Land Bank Bonds in accordance with this Act, the DAR shall take immediate possession of the land xxx (Land Bank v. When used as Implement of Police Power Power of Eminent Domain is utilized as an implement of Police Power to promote the welfare of the people. It is the Constitution itself which mandated the pursuit of Agrarian Reform Program to address once and for all the plight of the landless and the poor which for centuries has been the source of discontent and unrest. (ASLP v. Sec. DAR)

CA & DAR v. CA)

POWER OF TAXATION
Does the power to tax include the power to destroy?

The power to tax includes the power to destroy if it is used as an implement of the police power (regulatory) of the State. However, it does not include the power to destroy if it is used solely for the purpose of raising revenue. (ROXAS vs. CTA) NOTES: > If the purpose of taxation is regulatory in character, taxation is used to implement the police power of the state. > If the power of taxation is used to destroy things, businesses, or enterprises and the purpose is to raise revenue, the court will come in because there will be violation of the inherent and constitutional limitations and it will be declared invalid.

Taxes distinguished from Licenses Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000, En Banc [Purisima] The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. The power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A

59 business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. The Life-Blood Doctrine Taxes are the life-blood of the Government and their prompt and certain availability are an imperious need. (CIR v. Pineda, 21 SCRA 105) The existence of the government is a necessity; the main source of the government is taxes. These are the life-blood of the government. The government will not be able to survive and continue to perform its functions without taxes. (CIR v. Algue, Inc., 158 SCRA 8) Can taxes be subject to off-setting or compensation? Philex Mining Corporation v. CIR, 294 SCRA 687, Aug. 28, 1998 [Romero] Taxes cannot be subject to compensation for the simple reason that the government and the taxpayer are not creditors and debtors of each other. There is a material distinction between a tax and debt. Debts are due to the Government in its corporate capacity, while taxes are due to the Government in its sovereign capacity . It must be noted that a distinguishing feature of a tax is that it is compulsory rather than a matter of bargain. Hence, a tax does not depend upon the consent of the taxpayer. If any taxpayer can defer the payment of taxes by raising the defense that it still has a pending claim for refund or credit, this would adversely affect the government revenue system. A taxpayer cannot refuse to pay his taxes when they fall due simply because he has a claim against the government or that the collection of a tax is contingent on the result of the lawsuit it filed against the government. Tax Exemptions

Sec. 28[3], Art. VI, 1987 Constitution SECTION 28. (3)


Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

Sec. 4[3], Art. XIV, 1987 Constitution SECTION 4. (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.

CIR v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban] Laws allowing tax exemption are construed strictissimi juris. Hence, for the YMCA to be granted the exemption it claims under the abovecited provision, it must prove with substantial evidence that (1) it falls under the classification non-stock, non-profit educational institution; and (2) the income it seeks to be exempted from taxation is used actually, directly, and exclusively for educational purposes. However, the Court notes that not a scintilla of evidence was submitted by private respondent to prove that it met the said requisites.

60 Who may grant tax exemptions? Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban] The power to tax and to grant exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies. Section 28(4), Article VI of the Constitution, specifically provides: No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress. The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases. Tax Treaties; International Juridical Double Taxation CIR v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, 3rd Div. [Gonzaga-Reyes] The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation.

International juridical double taxation is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods.
The apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.

THE BILL OF RIGHTS


THE RIGHT TO DUE PROCESS

Sec. 1, Art. III, 1987 Constitution 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.

Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero] When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process "refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just."

Secretary of Justice v. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Puno, Dissenting Opinion] Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who can claim the

61 entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings. 18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation. It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt. In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existence of a prima facie case." If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Secretary of Justice v. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno] Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination

should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss." We have explained why an extraditee has no

right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due

process as long as fundamental fairness is assured a party.

People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan] [Void for

Vagueness Doctrine]

Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning. We reiterated these principles in People vs. Nazario: As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle. Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997 [Romero]

62

The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to furnish the person being investigated with counsel. The right to counsel is not indispensable to due process unless required by the Constitution or the law. Fabella v. CA, 282 SCRA 256, Nov. 28, 1998 [Panganiban] In administrative proceedings, due process has been recognized to include the following: (1) The right to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) A real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) A tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) A finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. Indeed, in any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. Central Bank of the Philippines v. CA, 220 SCRA 536, march 30, 1993, En Banc [Bellosillo] (When prior notice and hearing may be dispensed with) We held that a previous hearing is nowhere required in Sec. 29 nor does the constitutional requirement of due process demand that the correctness of the Monetary Board's resolution to stop operation and proceed to liquidation of first adjudged before making the resolution effective. One can just imagine the dire consequences of a prior hearing; bank runs would be the order of the day, resulting in panic and hysteria. In the process, fortunes may be wiped out and disillusionment will run the gamut of the entire banking community." Admittedly, the mere filing of a case for receivership by the Central Bank cab trigger a bank run and drain its assets in days or even hours leading to insolvency even if the bank be actually solvent. The procedure prescribed in Sec. 29 is truly designed to protect the interest of all concerned, i.e., the depositors, creditors and stockholders, the bank itself, and the general public, and the summary closure pales in comparison to the protection afforded public interest. At any rate, the bank is given full opportunity to prove arbitrariness and bad faith in placing the bank under receivership, in which event, the resolution may properly nullified and the receivership lifted as the trial court may determine. TAN vs. BARRIOS, [G.R. Nos. 85481-82. October 18, 1990.] In the interest of justice and consistency, we hold that Olaguer should, in principle, be applied prospectively only to future cases and cases still ongoing or not yet final when that decision was promulgated. Hence, 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. 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 retrial be ordered based on the violation of the constitutional rights of the

63 accused, and not on the Olaguer doctrine. If a retrial, 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 processxxx The public respondents gravely abused their discretion and acted without or in excess of their jurisdiction in misconstruing the third paragraph of the dispositive portion of this Court's decision in Cruz vs. Enrile as their authority to refile in the civil court the criminal actions against petitioners who had been tried and acquitted by Military Commission No. 1 during the period of martial law. It is an unreasonable application of Cruz vs. Enrile, for the decision therein will be searched in vain for such authority to reprosecute every civilian who had ever faced a court martial, much less those who had been acquitted by such bodies more than a decade ago like the petitioners Tan, et al. hereinxxx The doctrine of "operative facts" applies to the proceedings against the petitioners and their co-accused before Military Commission No. 1. The principle of absolute invalidity of the jurisdiction of the military courts over civilians should not be allowed to obliterate the "operative facts" that in the particular case of the petitioners, the proceedings were fair, that there were no serious violations of their constitutional right to due process, and that the jurisdiction of the military commission that heard and decided the charges against them during the period of martial law, had been affirmed by this Court (Aquino vs. Military Commission No. 2, 63 SCRA 546) years before the Olaguer case arose and came before us. Because of these established operative facts, the refiling of the information against the petitioners would place them in double jeopardy, in hard fact if not in constitutional logic.

THE EQUAL PROTECTION CLAUSE

Sec. 1, Art. III, 1987 Constitution 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.

TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza] There are important differences in the characteristics of the two media which justify their differential treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no similar justification for government allocation and regulation of the print media. From another point of view, the SC has also held that because of the unique and pervasive influence of the broadcast media, [n]ecessarily x x x the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

ISAE v. Quisumbing, G.R. No. 128845, June 1, 2000, 1st Div. [Kapunan] Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regards to wages in order to encourage or discourage membership in any labor organization. X x x The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "Equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School (International School, Inc.), its "international character" notwithstanding.

People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]

64

A statute nondiscriminatory on its face may be grossly discriminatory in its operation. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and intentional discrimination." People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago] We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.

THE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES

Sec. 2, Art. III, 1987 Constitution 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.

Sec. 3, 2nd par., Art. III, 1987 Constitution SECTION 3. (2)


Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Requisites of Valid Search Warrant and Warrant of Arrest Government of the USA v. Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban] [Vitug, Dissenting Opinion] (Is Prior Notice and Hearing Required

before Judge Issues Warrant of Arrest in Extradition proceeding?)


1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law

65 could not have intended the word as a mere superfluity but, on the whole, as a means of impairing a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression a prima facie finding sufficient to make a speedy initial determination as regards the arrest and detention of the accusedxxx It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to best serve the ends of justice. He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that probable cause did exist. We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary (See Sec. 9, PD 1069) in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedingsxxx Verily x x x sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrestxxx To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People (280 SCRA 365, October 9, 1997) and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest x x x.

66 At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994). In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage if he so desires in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one not the opposite would be justified in view of respondents demonstrated predisposition to flee. Determination of Probable Cause is a Judicial Function Abdula v. Guiani, 326 SCRA 1, Feb. 18, 2000, 3rd Div. [Gonzaga-Reyes] The determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutors report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutors bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.
The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. Particular Description of Place to be Searched or Persons or Things to be Seized People v. Estrada, 296 SCRA 383 [Martinez] The applicant should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. In the present case, it must be noted that the application for a search warrant was accompanied by a sketch of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City.

67 The sketch indicated the 2-storey residential house of private respondent with a large "X" enclosed in a squarexxx With this sketch as the guide, it could have been very easy to describe the residential house of private respondent with sufficient particularity so as to segregate it from the other buildings or structures inside the same compound. But the search warrant merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of the description of the residence of private respondent sought to be searched has characterized the questioned search warrant as a general warrant, which is violative of the constitutional requirement. People v. CA, 291 SCRA 400, June 26, 1998 [Narvasa] It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Instances of Valid Warrantless Searches 1234567Search incidental to a lawful arrest Consented search Stop & frisk Plain view Search on a moving vehicle Customs search Check points

Search Incidental to a Lawful Arrest People v. Chua Ho San, 308 SCRA 432, June 17, 1999, En Banc [Davide] While a contemporaneous search of a person arrested may be effected to discover dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid arrest must precede the search. The process cannot be reversed. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there be first a lawful arrest before a search can be made the process cannot be reversed. Consented Search People v. Leila Johnson, G.R. No. 138881, Dec. 18, 2000, 2nd Div. [Mendoza] Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified

68 through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures.

(Her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and recovery of shabu in her person in flagrante delicto.)
Plain View Search People v. Doria, 301 SCRA 668, Jan. 22, 1999, En Banc [Puno] The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area . In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized . People v. Abe Valdez, G.R. No. 129296, Sept. 25, 2000, En Banc[Quisumbing] For the doctrine to apply, the following elements must be present: a) A prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) The evidence was inadvertently discovered by the police who have the right to be where they are; and c) The evidence must be immediately apparent; and d) plain view justified mere seizure of evidence without further search. Stop-and-Frisk Search Manalili v. CA, 280 SCRA 400, Oct. 9, 1997 [Panganiban] In the landmark case of Terry v. Ohio, a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s): Where a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and make reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself or others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Malacat v. CA, 283 SCRA 159, Dec. 12, 1997 [Davide] Other notable points of Terry are that while probable cause is not required to conduct a stop-and-frisk, it nevertheless holds that mere suspicion or a hunch will not validate a stop-and-frisk. A genuine reason must exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is

69 not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Searches at Checkpoints People v. Usana, 323 SCRA 754, Jan. 28, 2000, 1st Div. [Davide] This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to free passage without interruption, but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. Instances of Valid Warrantless Arrests Sec. 5, Rule 113, Rules of Court: a) When the person to be arrested has committed, is actually committing, or is attempting to commit an offense in his presence. (Inflagrante delicto) b) When an offense had just been committed and there is probable cause to believe, based on his personal knowledge or of other circumstances, that the person to be arrested committed the offense. (Hot pursuit) 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. (Escapee) In Flagrante Delicto Arrest People v. Molina, 352 SCRA 174, Feb. 19, 2001, En Banc [Ynares-Santiago] Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Arrest in Hot Pursuit When an offense had just been committed and there is probable cause to believe, based on his personal knowledge or of other circumstances, that the person to be arrested committed the offense. Under this paragraph, 2 stringent requirements must be complied with, namely: 5- An offense had just been committed, and 6- There is probable cause, based on his personal knowledge of the person making the arrest or of other circumstances, that the person to be arrested committed the offense. [Nachura, Outline Reviewer in Political Law]

Can the place to be searched, as set out in the warrant, be amplified or modified by the officers own personal knowledge of the premises, or the evidence they adduce in support of their application for the warrant?
Held: Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be

70 searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. Court of Appeals,

291 SCRA 400, June 26, 1998 [Narvasa])

THE RIGHT TO PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE

Sec. 3, Art. III, 1987 Constitution 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. Zulueta v. CA (253 SCRA 699) The right may be invoked against the wife who went to the clinic of her husband and there took documents consisting of private communications between her husband and paramour.

R.A. No. 4200

REPUBLIC ACT NO. 4200


AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

SECTION 1.

It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

SECTION 2.

Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.

71

SECTION 3.

Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving 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 to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed.

SECTION 4.

Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation.

SECTION 5. SECTION 6.

All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. This Act shall take effect upon its approval.

Salcedo-Ortanez v. CA, 235 SCRA 111, Aug. 4, 1994 [Padilla]

72 Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Navarro v. CA, [G.R. No. 121087. August 26, 1999.] Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmativexxx Thus, the law prohibits the overhearing, intercepting, or recording of private communications. Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.

THE RIGHT TO PRIVACY


Is there a Constitutional Right to Privacy? Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno] The essence of privacy is the right to be let alone. The SC clarified that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights. Other facets of the right to privacy are protected in various provisions of the Bill of Rights, i.e., Secs. 1, 2, 6, 8, and 17. Marquez v. Desierto, G.R. No. 135882, June 27, 2001, En Banc [Pardo] Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be absolutely confidential except: 1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, 2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, 3) Upon written permission of the depositor, 4) In cases of impeachment, 5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or 6) In cases where the money deposited or invested is the subject matter of the litigation. Zones of privacy are recognized and protected in our laws. The Civil Code provides that [e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and punishes as actionable torts several acts for meddling and prying into the privacy of another. It also holds public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of the violation of secrets by an officer, revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code.

FREEDOM OF EXPRESSION

Sec. IV, Art. III, 1987 Constitution

73

SECTION 4.

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances. ABS-CBN Broadcasting Corporation v. COMELEC, G.R No. 133486, Jan. 28, 2000, En Banc [Panganiban] The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. It is concluded that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Content-Based and Content-Neutral Restrictions on Free Speech


Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza]

Content-based restrictions are imposed because of the content of the speech and are, therefore, subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v. Comelec (181 SCRA 529 [1990]), prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale or donation of print space and air time to political candidates during the campaign period, are not concerned with the content of the speech. These regulations need only a substantial governmental interest to support them. A deferential standard of review will suffice to test their validity. The clearand-present danger rule is inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed .
SWS, Inc. v. COMELEC, G.R. No. 147571, May 5, 2001, En Banc [Mendoza] Section 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, Section 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. O Brien Test should then be employed to determine the constitutional validity of Section 5.4 (United States v. O Brien): A government regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no greater than is essential to the furtherance of that interest.

74 Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Live Media Coverage of Court Proceedings


Supreme Court En Banc Resolution Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case, dated Oct. 22, 1991 The propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of the public to information and the right to public trial, on the one hand, and on the other hand, the due process rights of the defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of justice. Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against Former President Joseph E. Estrada, A.M. No. 01-4-03SC, June 29, 2001, En Banc [Vitug] The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process.

The Doctrine of Fair Comment


Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo] Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. Vasquez v. CA, 314 SCRA 460, Sept. 15, 1999, En Banc [Mendoza]

75

Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. 26 This is the rule of "actual malice." In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a selfgoverning community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, "public discussion is a political duty" and the "greatest menace to freedom is an inert people."

Right to Peaceably Assemble


Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban] The exercise of the rights of free speech and of peaceful assembly to petition the government for redress of grievances "is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society," regulation was limited to the mayor's reasonable discretion in issuing a permit to determine or specify only the streets or public places to be used for the purpose and to provide adequate and proper policing to minimize the risk of disorder. In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29, 1998 B.P. Blg. 880 did not establish streets and sidewalks, among other places, as public fora. A close look at the law will reveal that it in fact prescribes reasonable time, place, and manner regulations. Thus, it requires a written permit for the holding of public assemblies in public places subject, even, to the right of the mayor to modify the place and time of the public assembly, to impose a rerouting of the parade or street march, to limit the volume of loud speakers or sound system and to prescribe other appropriate restrictions on the conduct of the public assembly. To insulate the judiciary from mob pressure, friendly or otherwise, and isolate it from public hysteria, this Court merely moved away the situs of mass actions within a 200-meter radius from every courthouse. In fine, B.P. Blg. 880 imposes general restrictions to the time, place and manner of conducting concerted actions. On the other hand, the resolution of this Court regulating demonstrations adds specific restrictions as they involve judicial independence and the orderly administration of justice. There is thus no discrepancy between the two sets of regulatory measures. Simply put, B.P. Blg. 880 and the assailed resolution complement each other.

FREEDOM OF ASSOCIATION

Sec. 8, Art. III, 1987 Constitution 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.

Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban]

Does the right of civil servants to organize include their right to strike? Clarify.

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Held: Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja (203 SCRA 596, November 15, 1991). But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes of the association, the overriding considerations of national security and the preservation of democratic institutions (People v. Ferrer, 48

SCRA 382, December 27, 1972, per Castro, J., where the Court, while upholding the validity of the Anti-Subversion Act which outlawed the Communist Party of the Philippines and other "subversive" organizations, clarified, "Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country." It cautioned, though, that "the need for prudence and circumspection [cannot be overemphasized] in [the law's] enforcement, operating as it does in the sensitive area of freedom of expression and belief.")

As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order No. 180 (Issued by former President Corazon C. Aquino on June 1, 1987) which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service" (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service law and rules governing concerted activities and strikes in the government service shall be observed. It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to strike. Alliance of Concerned Government Workers v. Minister

of Labor and Employment (124 SCRA 1, August 3, 1983, also per Gutierrez, Jr., J.)
rationalized the proscription thus:

"The general rule in the past and up to the present is that the 'terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law.' X x x. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements." (Ibid., p. 13) After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) v. Court of Appeals (175 SCRA 686, July 28, 1989) and explained: "Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. But employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the

77 Government to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, which took effect after the instant dispute arose, '[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government-owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes [thereto].'' (Ibid., p.

698)

Petitioners public school teachers walked out of their classes and engaged in mass actions during certain dates in September 1990 protesting the alleged unlawful withholding of their salaries and other economic benefits. They also raised national issues, such as the removal of US bases and the repudiation of foreign debts, in their mass actions. They refused to return to work despite orders to do so and subsequently were found guilty of conduct prejudicial to the best interests of the service for having absented themselves without proper authority, from their schools during regular school days, and penalized. They denied that they engaged in strike but claimed that they merely exercised a constitutionally guaranteed right the right to peaceably assemble and petition the government for redress of grievances - and, therefore, should not have been penalized. Should their contention be upheld?
Held: Petitioners, who are public schoolteachers and thus government employees, do not seek to establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They claim that their gathering was not a strike, therefore, their participation therein did not constitute any offense. MPSTA v. Laguio (Supra, per Narvasa, J., now CJ.) and ACT v. Carino (Ibid.), in which this Court declared that "these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons," should not principally resolve the present case, as the underlying facts are allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work done by the concerted action of employees as a result of an industrial or labor dispute . A labor dispute includes any controversy or matter concerning terms and conditions of employment; or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employers and employees. With these premises, we now evaluate the circumstances of the instant petition.
It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-holding of classes in several public schools during the corresponding period. Petitioners do not dispute that the grievances for which they sought redress concerned the alleged failure of public authorities - essentially, their "employers" - to fully and justly implement certain laws and measures intended to benefit them materially x x x. And probably to clothe their action with permissible character (In justifying their mass actions, petitioners liken their activity to the pro-

bases rally led by former President Corazon C. Aquino on September 10, 1991, participated in, as well, by public school teachers who consequently absented themselves from their classes. No administrative charges were allegedly instituted against any of the participants.), they also raised national issues such as the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of Appeals (G.R. No. 124678, July 31, 1997, per Regalado, J.), however, this Court said
that the fact that the conventional term "strike" was not used by the participants to describe their common course of action was insignificant, since the substance of the situation, and not its appearance, was deemed controlling.

Moreover, the petitioners here x x x were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to

78

participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time - recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or even this Court - could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by their nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable.

FREEDOM OF RELIGION
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Sec. V, Art. III, 1987 Constitution 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.

Sec. 6, Art. II, 1987 Constitution SECTION 6.


The separation of Church and State shall be inviolable.

Sec. 29[2], Art. VI, 1987 Constitution SECTION 29. (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.

Sec. 3[3], Art. XIV, 1987 Constitution SECTION 3.


(3) At the option 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 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.

The Two Aspects of Freedom of Religion The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on ones belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Ebralinag v. Division Superintendent of Schools of Cebu, 219 SCRA 256, March 1, 1993, En Banc [Grino-Aquino] While the highest regard must be afforded their right to the free exercise of their religion, this should not be taken to mean that school authorities are powerless to discipline them if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the

79 flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent. INC v. CA, 259 SCRA 529, July 26, 1996 [Puno] The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. The Iglesia Ni Cristo's postulate that its religious freedom is per se beyond review by the MTRCB should be rejected. Its public broadcast on TV of its religious programs brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of a substantive evil which the State is duty-bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our society today. "For sure, we shall continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still."

Did the MTRCB act correctly when it rated X the Iglesia Ni Cristo's pre-taped TV program simply because it was found to be "attacking" another religion?
Held: The MTRCB may disagree with the criticisms of other religions by the Iglesia Ni Cristo but that gives it no excuse to interdict such criticisms, however unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogma and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis--vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, the MTRCB cannot squelch the speech of the INC simply because it attacks another religion. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth.

Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado] Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philanthropic as much as the religious fervor of the person who is solicited for contribution.

To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if allowed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing.

80 Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan]

An ecclesiastical affair is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed not worthy of membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significancex x x Where what is involved is the relationship of the church as an employer and the minister as an employee and has no relation whatsoever with the practice of faith, worship or doctrines of the church, i.e., the minister was not excommunicated or expelled from the membership of the congregation but was terminated from employment, it is a purely secular affair. Consequently, the suit may not be dismissed invoking the doctrine of separation of church and the state.

THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL


-

Sec. 6, Art. III, 1987 Constitution 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.

THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN

Sec. 7, Art. III, 1987 Constitution 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.

Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban]

1) National security matters and intelligence information. 2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]); 3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution; 4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20, 1989) further prohibits public officials and employees from using or divulging confidential or classified information officially known to them by reason of their office and not made available to the public. (Sec. 7[c], ibid.) 5) Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.

Some of the recognized restrictions to the right of the people to information on matters of public concern:

Legaspi v. Civil Service Commission, elucidated:

As to the meanings of the terms public interest and public concern, the Court, in

81

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

THE NON-IMPAIRMENT CLAUSE

Sec. 10, Art. III, 1987 Constitution SECTION 10. No law impairing the obligation of contracts shall be
passed.

Is the constitutional prohibition against impairing contractual obligations absolute?


Held: Nor is there merit in the claim that the resolution and memorandum circular violate the contract clause of the Bill of Rights. The executive order creating the POEA was enacted to further implement the social justice provisions of the 1973 Constitution, which have been greatly enhanced and expanded in the 1987 Constitution by placing them under a separate Article (Article XIII). The Article on Social Justice was aptly described as the "heart of the new Charter" by the President of the 1986 Constitutional Commission, retired Justice Cecilia Munoz Palma. Social justice is identified with the broad scope of the police power of the state and requires the extensive use of such power . X x x. The constitutional prohibition against impairing contractual obligations is not absolute and is not to be read with literal exactness. It is restricted to contracts with respect to property or some object of value and which confer rights that may be asserted in a court of justice; it has no application to statutes relating to public subjects within the domain of the general legislative powers of the State and involving the public rights and public welfare of the entire community affected by it. It does not prevent a proper exercise by the State of its police power by enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or general welfare of the community, even though contracts may thereby be affected, for such matters cannot be placed by contract beyond the power of the State to regulate and control them. Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity . And under the Civil Code, contracts of labor are explicitly subject to the police power of the State because they are not ordinary contracts but are impressed with public interest. Article 1700 thereof expressly provides: Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. The challenged resolution and memorandum circular being valid implementations of E.O. No. 797 (Creating the POEA), which was enacted under the police power of the State, they cannot be struck down on the ground that they violate the contract clause. To hold otherwise is to alter long-established constitutional doctrine and to subordinate the police power to the contract clause. (The Conference of

Maritime Manning Agencies, Inc. v. POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])

82 Petitioners pray that the present action should be barred, because private respondents have voluntarily executed quitclaims and releases and received their separation pay. Petitioners claim that the present suit is a "grave derogation of the fundamental principle that obligations arising from a valid contract have the force of law between the parties and must be complied with in good faith." The Court disagrees. Jurisprudence holds that the constitutional guarantee of nonimpairment of contract is subject to the police power of the state and to reasonable legislative regulations promoting health, morals, safety and welfare. Not all quitclaims are per se invalid or against public policy, except (1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or (2) where the terms of settlement are unconscionable on their face. In these cases, the law will step in to annul the questionable transactions . Such quitclaim and release agreements are regarded as ineffective to bar the workers from claiming the full measure of their legal rights. In the case at bar, the private respondents agreed to the quitclaim and release in consideration of their separation pay. Since they were dismissed allegedly for business losses, they are entitled to separation pay under Article 283 of the Labor Code. And since there was thus no extra consideration for the private respondents to give up their employment, such undertakings cannot be allowed to bar the action for illegal dismissal. (Bogo-Medellin Sugarcane Planters Association, Inc. v.

NLRC, 296 SCRA 108, 124, [Panganiban])

THE CUSTODIAL INVESTIGATION, RIGHTS OF AN ACCUSED

Sec. 12, Art. III, 1987 Constitution 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 vitiate 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.

People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam] Procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation in accordance with the Constitution, jurisprudence and Republic Act No. 7438 (An Act

Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining, and Investigating Officers and Providing Penalties for Violations Thereof):
1)

2)

The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. Every other warnings, information or communication must be in a language known to and understood by said person; He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;

83 3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting on his behalf; 5) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel of after a valid waiver has been made; 6) The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9) That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10) The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11) He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be admissible in evidence. People v. Obrero, 332 SCRA 190, May 17, 2000, 2nd Div. [Mendoza] There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of Section 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same Section 12. Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing the declarants consent in executing the same has been vitiated, such confession will be sustained. Moreover, the confession contains details that only the perpetrator of the crime could have given. X x x. It has been held that voluntariness of a confession may be inferred from its being replete with details which could possibly be supplied only by the accused, reflecting spontaneity and coherence which cannot be said of a mind on which violence and torture have been applied . When the details narrated in an extrajudicial confession are such that they could not have been concocted by one who did not take part in the acts narrated, where the claim of maltreatment in the extraction of the confession is unsubstantiated and where abundant evidence exists showing that the statement was voluntarily executed, the confession is admissible against the declarant. There is greater reason for finding a confession to be voluntary where it is corroborated by evidence aliunde which dovetails with the essential facts contained in such confession. But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Article III, Section 12(1) was derived, is presumed to be

84 psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel. Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation must be given the following warnings: (1) he must be informed of his right to remain silent; (2) he must be warned that anything he says can and will be used against him; and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will be appointed to represent him x x x There was thus only a perfunctory reading of the Miranda rights to accusedappellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he wanted the police to appoint one for him. This kind of giving of warnings, in several decisions of this Court, has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the police investigator that accused-appellant was specifically asked these questions considering that he only finished the fourth grade of the elementary school. X x x Moreover, Article III, Section 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an independent counsel as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accused-appellant. This is error. As observed in People v. Bandula (232 SCRA 566 [1994]), the independent counsel required by Article III, Section 12(1) cannot be special counsel, public or private prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously assisted accused-appellant in the investigation. To allow such a happenstance would render illusory the protection given to the suspect during custodial investigation. People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div. [Bellosillo][Admissibility of Video-Taped Confessions Given to Media Men] The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. It is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extra-judicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution.

85 People v. Andan, 269 SCRA 95, March 3, 1997 While it is true that a municipal mayor has operational supervision and control over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution, however, appellants confession to the mayor was not made in response to any interrogation by the latter. In fact, the mayor did not question the appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him. When

appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights. Thus, it

has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truthxxx Appellants confessions to the news reporters were given free from any undue influence from the police authorities. The news reporters acted as news reporters when they interviewed appellant. They were not acting under the direction and control of the police. They did not force appellant to grant them an interview and reenact the commission of the crime. In fact, they asked his permission before interviewing him. The Supreme Court further ruled that appellants verbal confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution and, therefore, admissible in evidence. People v. Lugod, 352 SCRA 498, Feb. 21, 2001, En Banc [Gonzaga-Reyes] Records reveal that accused-appellant was not informed of his right to remain silent and to counsel, and that if he cannot afford to have counsel of his choice, he would be provided with one. Moreover, there is no evidence to indicate that he intended to waive these rights. Besides, even if he did waive these rights, in order to be valid, the waiver must be made in writing and with the assistance of counsel. Consequently, the accused-appellant's act of confessing to SPO2 Gallardo that he raped and killed Nairube without the assistance of counsel cannot be used against him for having transgressed accused-appellant's rights under the Bill of Rights. This is a basic tenet of our Constitution which cannot be disregarded or ignored no matter how brutal the crime committed may be. In the same vein, the accused-appellant's act in pointing out the location of the body of Nairube was also elicited in violation of the accused-appellant's right to remain silent. The same was an integral part of theuncounselled confession and is considered a fruit of the poisonous tree.

Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]


In People v. Teehankee, Jr. (249 SCRA 54 [1995]) , later reiterated in the case of Larranaga v. Court of Appeals, et al. (287 SCRA 581 at pp. 596-597 [1998]), we laid down the doctrine that: We cannot sustain appellants 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 accuseds 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.

86 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

What are the two principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases?
Held: There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat . The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc.

THE RIGHT TO BAIL

Sec. 13, Art. III, 1987 Constitution 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.

Government of the USA v. Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban] [Vitug, Dissenting Opinion][Is Right to Bail Available in Extradition Proceeding?]

Extradition Different from Ordinary Criminal Proceedings


We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.

87 Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, Jr. [later CJ]) It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not an issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. Lavides v. CA (GR 129670, Feb. 1, 2000) In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.

THE RIGHTS OF AN ACCUSED DURING TRIAL

Sec. 14[2], Art. III, 1987 Constitution SECTION 14. (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 witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence

The Question of Prejudicial Publicity


Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]

88 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. v. Alejandro, et al., we held that to warrant a finding of

prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity.

The Right to Public Trial


Request for Live Radio/TV Coverage of Trial of Estrada (Vitug) An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.

THE RIGHT AGAINST SELF-INCRIMINATION

Sec. 17, Art. III, 1987 Constitution SECTION 17. No person shall be compelled to be a witness against
himself.

Sec. 12, 3rd par., Art. III, 1987 Constitution SECTION 12. (3)
Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Immunity Statutes
Mapa, Jr. v. Sandiganbayan (231 SCRA 783) They are the transactional immunity and the use-and-derivative-use immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

THE PROHIBITION AGAINST CRUEL, DEGRADING AND INHUMAN PUNISHMENT

Sec. 19, Art. III, 1987 Constitution SECTION 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving heinous

89 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 or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

THE RIGHT AGAINST DOUBLE JEOPARDY

Sec. 21, Art. III, 1987 Constitution SECTION 21. No person shall be twice put in jeopardy of punishment
for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Two kinds of Double Jeopardy People v. Quejada (259 SCRA 191) The first sentence of Clause 20, Section 1, Article III of the Constitution ordains that no person shall be twice put in jeopardy of punishment for the same offense. The second sentence of said clause provides that if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offense charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment or the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case.

Almario v. CA, 355 SCRA 1, March 22, 2001, 2nd Div. [Quisumbing][Will Elevation on Appeal of Civil Aspect of Decision Constitute Double Jeopardy?] Clearly, jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial. Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused's right to speedy trial. Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused, herein petitioner, resulted. For it must be recalled that in the application of the constitutional guaranty

90 of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case.

THE RIGHT AGAINST EX-POST FACTO LAW AND BILL OF ATTAINDER

Sec. 22, Art. III, 1987 Constitution SECTION 22. No ex post facto law or bill of attainder shall be enacted.

ADMINISTRATIVE LAW
ADMINISTRATIVE AGENCIES
Government of the Republic of the Philippines The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. Agency Refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. Department Refers to an executive department created by law. This shall include any instrumentality given having or assigned the rank of department, regardless of name or designation. Bureau Refers to any principal subdivision or unit of any department. This shall include any principal subdivision or unit of any instrumentality given or assigned the rank or a bureau, regardless of actual name or designation, as in the case of departmentwide regional offices. Office Refers to any major functional unit of a department or bureau including regional offices, within the framework of governmental organization. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. Instrumentality A government instrumentality refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. Regulatory Agency A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. Chartered Institution A chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary authority of the State.

91 Government-owned or Controlled Corporation Blaquera v. Alcala, 295 SCRA 366, Sept. 11, 1998, En Banc [Purisima] Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as proprietary are those intended for private advantage and benefit.

ADMINISTRATIVE RELATIONSHIPS
Supervision and Control Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs, and prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word control shall encompass supervision and control as defined in this paragraph. Administrative Supervision Administrative supervision which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently, and economically but without interference with day-to-day activities. Attachment "Attachment" is the lateral relationship between the department or its equivalent and the attached agency or coordination. General Supervision GENERAL SUPERVISION OF THE CHIEF EXECUTIVE; CONCEPT. Presidential power over local governments is limited by the Constitution to the exercise of general supervision "to ensure that local affairs are administered according to law." The general supervision is exercised by the President through the Secretary of Local Government. In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means 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 judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. (Taule vs. Santos, G.R.

No. 90336. August 12, 1991)

Bermudez v. Executive Secretary Ruben Torres, G.R. No. 131429, Aug. 4, 1999, 3rd Div. [Vitug] When the Constitution or the law clothes the President with the power to appoint a subordinate officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. It should be here pertinent to state

92 that the President is the head of government whose authority includes the power of control over all "executive departments, bureaus and offices." Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. Expressed in another way, the President has the power to assume directly the functions of an executive department, bureau and office. It can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations. Beja, Sr. v. CA, 207 SCRA 689, Mar. 31, 1992 [Romero] An attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the "lateral relationship" between the Department and the attached agency. The attachment is merely for "policy and program coordination." With respect to administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced by the fact that even an agency under a Department's administrative supervision is free from Departmental interference with respect to appointments and other personnel actions "in accordance with the decentralization of personnel functions" under the Administrative Code of 1987.

QUASI-LEGISLATIVE POWER OF ADMINISTRATIVE AGENCIES


KMU Labor Center v. Garcia, Jr., 239 SCRA 386, Dec. 23, 1994 [Kapunan] The Legislature delegated to the defunct Public Service Commission the power of fixing the rates of public services. Respondent LTFRB, the existing regulatory body today, is likewise vested with the same under Executive Order No. 202 dated June 19, 1987. Section 5 (c) of the said executive order authorizes LTFRB "to determine, prescribe, approve and periodically review and adjust, reasonable fares, rates and other related charges, relative to the operation of public land transportation services provided by motorized vehicles." Such delegation of legislative power to an administrative agency is permitted in order to adapt to the increasing complexity of modern life. As subjects for governmental regulation multiply, so does the difficulty of administering the laws. Hence, specialization even in legislation has become necessary. Given the task of determining sensitive and delicate matters as route-fixing and rate-making for the transport sector, the responsible regulatory body is entrusted with the power of subordinate legislation. With this authority, an administrative body and in this case, the LTFRB, may implement broad policies laid down in a statute by "filling in" the details which the Legislature may neither have time or competence to provide. However, nowhere under the aforesaid provisions of law are the regulatory bodies, the PSC and LTFRB alike, authorized to delegate that power to a common carrier, a transport operator, or other public service. Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.
An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. Rabor v. CSC, 244 SCRA 614, May 31, 1995, En Banc [Feliciano]

93 "It is well established in this jurisdiction that, while the making of laws is a nondelegable activity that corresponds exclusively to Congress, nevertheless, the latter may constitutionally delegate authority and promulgate rules and regulations to implement a given legislation and effectuate its policies, for the reason that the legislature often finds it impracticable (if not impossible) to anticipate and provide for the multifarious and complex 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 with it, but conform to the standards that the law prescribes." All that may be reasonably demanded is a showing that the delegated legislation consisting of administrative regulations are germane to the general purposes projected by the governing or enabling statute.

Requisites of a Valid Administrative Regulation


Philippine Bank of Communications v. CIR, G.R. No. 112024, Jan. 28, 1999 [Quisumbing] Revenue memorandum-circulars are considered administrative rulings (in the sense of more specific and less general interpretations of tax laws) which are issued from time to time by the Commissioner of Internal Revenue. It is widely accepted that the interpretation placed upon a statute by the executive officers, whose duty is to enforce it, is entitled to great respect by the courts. Nevertheless, such interpretation is not conclusive and will be ignored if judicially found to be erroneous. Thus, courts will not countenance administrative issuances that override, instead of remaining consistent and in harmony with, the law they seek to apply and implement.

Special Requisites of a Penal Regulation


1- The law itself must make the violation of the administrative regulation punishable 2- The law itself must impose the corresponding sanction therefor 3- The regulation must be published

QUASI-JUDICIAL POWER OF ADMINISTRATIVE AGENCIES Investigation distinguished from Adjudication


Carino v. CHR, 204 SCRA 483 [Narvasa] The Commission on Human Rights to have no adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But factfinding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. Simon, Jr. v. CHR, 229 SCRA 117, Jan. 5, 1994, En Banc [Vitug] CHR has no adjudicatory powers (reiterated Cario v. CHR case)

Rules of Procedure of Quasi-Judicial Agencies

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Doctrine of Implication:

Where an administrative body is expressly granted the power of adjudication, it is deemed also vested with the implied power to prescribe the rules to be observed in the conduct of its proceedings. To be valid, the rules must not violate the fundamental rights to encroach upon constitutional prerogatives, like the rule making power of the Supreme Court. The right to notice and hearing is essential to due process and its non-observance will as a rule invalidate the administrative proceedings. The essence of due process in administrative proceedings is the opportunity to explain ones side or a chance to seek reconsideration of the action or ruling complained of. Subpoena power. The power to issue subpoena and subpoena duces tecum is not an inherent in administrative bodies. It is settled that these bodies may summon witnesses and require the production of evidence ONLY WHEN: 1- Duly allowed by law 2- Always in connection with the matter they are authorized to investigate Contempt power. Like the subpoena power, the power to punish for contempt is essentially judicial and cannot be claimed as an inherent right by the administrative body. To be validly exercised: 1- It must be expressly conferred upon the body, and 2- It must be used ONLY in connection with its quasi-judicial as distinguished from its purely administrative or routinary functions.

(C. Cruz, Philippine Administrative Law,

ADMINISTRATIVE DUE PROCESS


Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero] As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. Fabella v. CA, 282 SCRA 256, Nov. 28, 1998 [Panganiban] In administrative proceedings, due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public schoolteachers. Section 9 of said law expressly provides that the committee to hear public schoolteachers' administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers' organization and a supervisor of the division. The inclusion of a representative of a teachers' organization in these committees was indispensable to ensure an impartial tribunal. It was this requirement that would have given substance and meaning to the right to be heard. Indeed, in any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. Singson v. NLRC, 274 SCRA 358 [1997]

95 Requisites of procedural due process in administrative proceedings, to wit: (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 based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) the tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; (7) the Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. It is self-evident from the ruling case law that the officer who reviews a case on appeal should not be the same person whose decision is the subject of review. Thus, we have ruled that "the reviewing officer must perforce be other than the officer whose decision is under review." Central Bank of the Philippines v. CA, 220 SCRA 536, March 30, 1993, En Banc [Bellosillo] Sec. 29 does not contemplate prior notice and hearing before a bank may be directed to stop operations and placed under receivership.

CONTEMPT POWER OF QUASI-JUDICIAL AGENCIES


Simon, Jr. v. CHR, 229 SCRA 117, Jan. 5, 1994, En Banc [Vitug] On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers.

REVIEW OF ADMINISTRATIVE DECISIONS The Doctrine of Primary Jurisdiction


Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. It applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view. In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. Villaflor v. CA, 280 SCRA 287

96 Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence.

The Doctrine of Exhaustion of Administrative Remedies


Paat v. CA, 266 SCRA 167 [1997] Before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts jurisdiction is fatal to ones cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. This doctrine is disregarded: 1) when there is a violation of due process; 2) when the issue involved is purely a legal question; 3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; 4) when there is estoppel on the part of the administrative agency concerned; 5) when there is irreparable injury; 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; 7) when to require exhaustion of administrative remedies would be unreasonable; 8) when it would amount to a nullification of a claim; 9) when the subject matter is a private land in land case proceeding; 10) when the rule does not provide a plain, speedy and adequate remedy, and 11) when there are circumstances indicating the urgency of judicial intervention. Carale v. Abarintos, 269 SCRA 132 [1997] Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. Ambil, Jr. v. COMELEC, 344 SCRA 358, Oct. 25, 2000, En Banc [Pardo] This Court has held consistently that "before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought. The premature invocation of court's intervention is fatal to one's cause of action."

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THE LAW OF PUBLIC OFFICERS


ELEMENTS OF PUBLIC OFFICE
1- It must be created by law or by authority of law 2- It must possess a delegation of a portion of the sovereign powers of the government, to be exercised for the benefit of the people. 3- The powers conferred and the duties to be discharged must be defined by the legislature or through legislative authority 4- The duties must be performed independently and without control of a superior power other than the law, unless the law itself provides otherwise 5- It must have some permanence and continuity.

CHARACTERISTICS OF PUBLIC OFFICE


(1) (2) (3) (4) It is a public trust It is not a hereditary possession It is not property, outside the commerce of men There can be no vested right to a public office

APPOINTMENT
Binamira v. Garrucho, 188 SCRA 154 Appointment may be defined as the selection, by the authority vested with the 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. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in naturexxx Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. The reason is that the decree clearly provides that the appointment of the General Manager of the

Philippine Tourism Authority shall be made by the President of the Philippines, not by any other officer. Appointment involves the exercise of discretion, which because of

its nature cannot be delegated. Legally speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of the President. The appointment (or designation) of the petitioner was not a merely mechanical or ministerial act that could be validly performed by a subordinate even if he happened as in this case to be a member of the Cabinet. Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug] An appointment to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. Sevilla v. CA, 209 SCRA 637 (Appointment distinguished from Designation) Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election. A mere "designation" does not

98 confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. Thus did this Court make such a distinction: Appointment may be defined as the selection, by the authority vested with the 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. Designation on the other hand, connotes merely the imposition by law of additional duties on an incumbent official. . . . It is said that appointment is essentially executive while designation is legislative in nature. "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 of tenure on the person named. "Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. . . . Appointment involves the exercise of discretion, which because of its nature cannot be delegated."

Nature of Appointment
Appointment essentially Discretionary Flores v. Drilon, 223 SCRA 568, June 22, 1993, En Banc [Bellosillo] The power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative. The Luego Doctrine Rimonte v. CSC, 244 SCRA 504, May 29, 1995, En Banc [Bellosillo] Appointment is an essentially discretionary power and must be performed by the officer vested with such power according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he

99 does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is a prerogative of the appointing authority which he alone can decide. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function. As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect the appointment even if it be proved that there are others with superior credentials. The law limits the Commissions authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we. The Next-in-Rank Rule Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano] The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the position next in rank thereto shall be considered for promotion. In Taduran v. Civil Service Commission (131 SCRA 66 [1984]) , the Court construed that phrase to mean that the person next-in-rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission (178 SCRA 733 [1989]), the Court elaborated the import of the rule in the following manner: One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position x x x

REVOCATION OF APPOINTMENT
De Rama v. CA, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago] It has been held that upon the issuance of an appointment and the appointee's assumption of the position in the civil service, "he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing". Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing.

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QUALIFICATIONS TO PUBLIC OFFICE


As an ACT: This refers to an act which a public officer must perform for him to formally commence the discharge of his official duties. Ex. Taking an oath or filing a bond As an ENDOWMENT: This refers to the qualities which the a public officer must possess to insure the proper discharge of the duties of his office. Ex. Age, Citizenship, Suffrage, Literacy, Residency, Academic & Moral qualifications

DISQUALIFICATIONS

Sec. 40, LGC SECTION 40. Disqualifications.


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 one (1) year or more of imprisonment, within two (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) Fugitives from justice in criminal or non-political 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.

Caasi v. CA, (GR 88831, Nov. 8, 1990) To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office"

DE FACTO OFFICERSHIP
A DE FACTO OFFICER is one who actually possesses the office under a colorable title. His acts are regarded as valid and binding in so far as third persons and the general public relying on said acts are concerned. Elements: 1- A validly existing public office 2- Actual physical possession of said office 3- Color of title to the office, by a. Reputation or acquiescence b. Under a known and valid appointment or election, but the officer failed to conform to a requirement imposed by law. c. Under a known appointment or election, void because of the ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public. d. Under a known appointment or election pursuant to an unconstitutional law, before the law is declared unconstitutional.

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Entitlement to Salaries General Rule: The de facto officer is not entitled to salaries. The rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title. Exception: De facto officer is entitled to salary when there is no de jure officer in the given office during the period when he actually discharged the functions of said office.

THE CIVIL SERVICE COMMISSION Scope of the Civil Service


Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo] The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission. The PNRC was not impliedly converted to a private corporation simply because its charter was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc.

KINDS OF APPOINTMENT IN THE CIVIL SERVICE


Permanent A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of laws, rules and standards promulgated in pursuance thereof. [Cruz, LPO] Temporary 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 12 months but the appointee may be replaced sooner if a qualified civil service eligible becomes available. Accordingly, it has been ruled that temporary appointees may be terminated at any time even without cause. They have no fixed tenure. [Cruz, LPO]

CLASSIFICATION OF POSITIONS IN THE CIVIL SERVICE


Career Positions 1) Open career positions for appointment to which prior qualification in an appropriate examination is required; 2) Closed career positions which are which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities. 3) Positions in the Career Executive Service; namely, Usec., Asec., Bureau Dir., Reg. Dir., Chief Dept. Service and other officers as may be identified by the Career Executive Services Board, all of whom are appointed by the President; 4) Career officers, other than those in the CES, who are appointed by the President such as the Foreign Service Officers in the DFA; 5) Commissioned officers and enlisted men of the Armed Forces which sall maintain a separate merit system; 6) Personnel of GOCCs whether performing governmental or proprietary functions, who do not fall under the non-career service; 7) Permanent laborers, whether skilled, semi-skilled or unskilled.

102 Characteristics: 1- Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications; 2- Opportunity for advancement to higher career positions; 3- Security of tenure Non-career Positions 1) Elective officials and their personal or confidential staff; 2) Department heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff; 3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; 4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed 1 year, and performs of accomplishes the specific work or job, under his own responsibility with minimum of direction and supervision from the hiring agency; and 5) Emergency and seasonal personnel. Characteristics: 1- Entrance on bases other than those of usual tests of merit and fitness utilized for the career service; 2- Tenure, which is limited to a period specified by law or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

HIGHLY TECHNICAL POSITIONS A highly technical position according to the Supreme Court in De los Santos v. Mallare, (87 Phil 289) requires the appointee thereto to possess technical skill or training in the supreme
or superior degree.

PRIMARILY CONFIDENTIAL POSITIONS


A primarily confidential position is one which denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950]) The Proximity Rule CSC v. Salas, 274 SCRA 414, June 19, 1997 Under the proximity rule, the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latters belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of trust between them is no longer predominant.

APPOINTMENT IN THE CAREER EXECUTIVE SERVICE


De Leon v. CA, 350 SCRA 1, Jan, 22, 2001, En Banc [Ynares-Santiago] 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.

103 The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-Santiago] It must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.

ADMINISTRATIVE DISCIPLINARY CASES Jurisdiction in Administrative Disciplinary Cases


Fabian v. Ombudsman Desierto Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43xxx In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy.

Appeals in Administrative Disciplinary Cases


CSC v. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo] Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase 'party adversely affected by the decision' refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" or "when the respondent is exonerated of the charges, there is no occasion for appeal." In other words, we overrule prior

104 decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; Mendez v. Civil Service Commission; Magpale v. Civil Service Commission; Navarro v. Civil Service Commission and Export Processing Zone Authority and more recently Del Castillo v. Civil Service Commission.

PREVENTIVE SUSPENSION
Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero] Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. Gloria v. CA, G.R. No. 131012, April 21, 1999, en Banc [Mendoza] There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292). Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted. But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Hagad v. Gozodadole (Vitug) [G.R. No. 108072. December 12, 1995.] The determination of whether the Ombudsman under R.A. No. 6770, (Ombudsman Act of 1989), has been divested of his country to conduct administrative investigation over local elective officials by virtue of the subsequent enactment of R.A. No. 7160, (Local Government Code of 1991), is the pivotal issue. The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon

105 the enactment of R.A No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant The Local Government Code of 1991 (R.A No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President. Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) 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. Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing] The power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. Under Section 24 of R.A. 6770 SECTION 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. We have previously interpreted the phrase "under his authority" to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed, excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.

PROHIBITIONS AND INHIBITIONS

Sec. 7, Art. IX-B, 1987 Constitution 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.

Flores v. Drilon, 223 SCRA 568, June 22, 1993, En Banc [Bellosillo] The view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-out difference in the

106 wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to other government posts, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; the Vice-President, who may be appointed Member of the Cabinet; and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus "MR. MONSOD. In other words, what the Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other positions. "MR. FOZ. Yes. I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions." The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph.

Sec. 13, Art. VII, 1987 Constitution 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 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.

Civil Liberties Union v. Executive Secretary [194 SCRA 317] What is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itselfxxx Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned.

107 xxx The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employmentxxx Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitionsxxx Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down

the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possible refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure. To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." An exofficio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment.

Sec. 13, Art. VI, 1987 Constitution SECTION 13. 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 governmentowned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Sec. 90, LGC SECTION 90. Practice of Profession. (a) All governors, city and
municipal mayors are prohibited from practicing their profession or

108 engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.

The Law on Nepotism


CSC v. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo] Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority; b) recommending authority; c) chief of the bureau or office; and d) person exercising immediate supervision over the appointee. Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. Debulgado v. CSC (GR NO. 111471, Sept. 26, 1994) A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal governments, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list: (a) persons employed in a confidential capacity; (b) teachers; (c) physicians; and (d) members of the Armed Forces of the Philippines. The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and other similar positions." The original appointment of a civil service employee and all subsequent personnel actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, re-employment, etc., must comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. To the extent that all personnel actions occurring after an original appointment, require the issuance of a new appointment to another position (or to the original position in case

109 of reinstatement), we believe that such appointment must comply with all applicable rules and prohibitions, including the statutory and regulatory prohibition against nepotism. Laurel V v. CSC, 203 SCRA 195 "By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty."

LIABILITIES OF PUBLIC OFFICERS Immunity from Suit of the President


Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno] This is in accord with our ruling in In Re: Saturnino Bermudez (145 SCRA 160 [1986]) that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings.

The Doctrine of Condonation


Aguinaldo v. Santos, 212 SCRA 768 [1992] The rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal

cases pending against petitioner for acts he may have committed during the failed coup.

Garcia v. Mojica, G.R. No. 139043, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing] In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioner's prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the

110 question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not.

TERMINATION OF OFFICIAL RELATIONS Expiration of Term


Term of Office Distinguished from Tenure of Incumbent Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo] In the law of public officers, there is a settled distinction between term and tenure. The term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. Term of Office of Persons holding Primarily Confidential Positions The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures (Corpus vs. Cuaderno, 13 SCRA 591). When that confidence is lost and officer holding the position is separated from the service, such cessation is not removal from office but merely an expiration of his/her term (Cadiente vs. Santos, 142 SCRA 280). An incumbent of a primarily confidential position holds office at the pleasure of the appointing power. When the pleasure turns into displeasure, the incumbent is not removed or dismissed from office his term merely expires (Ingles vs. Mutuc, 26 SCRA 171). It is the fact of loss of confidence, not the reason for it, that is important and controlling. The Hold-Over Doctrine Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2nd Div. [Bellosillo] The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same. Galarosa v. Valencia, 227 SCRA 728, Nov. 11, 1993, En Banc [Davide] The rule is settled that unless holding over be expressly or impliedly prohibited, the incumbent may continue to hold over until someone else is elected and qualified to assume the office. This rule is demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended. Otherwise stated, the purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office.

111

Resignation
Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno] Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment (Gonzales v. Hernandez, 2 SCRA 228 [1961]). The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect.

Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998 It is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code.

Abandonment of Office
Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [Gonzaga-Reyes] Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. In order to constitute abandonment of office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. 6 Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or "external" act by which the intention is carried into effect. Generally speaking, a person holding a public office may abandon such office by non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, non-performance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office. Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998

Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser.
Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Therefore, there are two

112 essential elements of abandonment; first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect.

Removal of an Officer
Unconsented Transfer De Guzman, Jr. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima] As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing Ibanez v. Commission on Elections, L-26558, April 27, 1967, 19 SCRA 1002, 1012 and Section 12 of the Tax Code). "x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not pr[o]scribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. x x x" The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only means that an employee cannot be dismissed (or transferred) from the service for causes other than those provided by law and after due process is accorded the employee. What it seeks to prevent is capricious exercise of the power to dismiss. But where it is the lawmaking authority itself which furnishes the ground for the transfer of a class of employees, no such capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purposes of the law.

Abolition of an Office
Reorganization Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them . It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of one's position through removal or abolition of an office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison (176 SCRA 84 [1989]): As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition" which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. R.A. No. 6656

REPUBLIC ACT NO. 6656


AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION

SECTION 1.

It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employees in the reorganization of the various agencies of the National Government and of local governments, state colleges and universities expressly authorized by law, including government-

113 owned or controlled corporations with original charters, without sacrificing the need to promote morale, efficiency in the civil service pursuant to Article IX, B, Section 3 of the Constitution.

SECTION 2.

No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and other performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same function as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof.

SECTION 3.

In the separation of personnel pursuant to reorganization, the following order of removal shall be followed: (a) Casual employees with less than five (5) years of government service; (b) Casual employees with five (5) years or more of government service; (c) Employees holding temporary appointments; and (d) Employees holding permanent appointments: Provided, That those in the same category as enumerated above, who are least qualified in terms of performance and merit shall be laid first, length of service notwithstanding.

SECTION 4.

Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former position or in case there are not enough comparable positions, to positions next lower in rank. No new employees shall be taken in until all permanent officers and employees have been appointed, including temporary and casual employees who possess the necessary qualification requirements, among which is the appropriate civil service eligibility, for permanent appointment to positions in the approved staffing pattern, in case there are still positions to be filled, unless such positions are policy-determining, primarily confidential or highly technical in nature.

SECTION 5.

Officers and employees holding permanent appointments shall be given preference for appointment in other agencies if they meet the qualification requirements of the positions therein.

SECTION 6.

In order that the best qualified and most deserving persons shall be appointed in any reorganization, there shall be created a Placement Committee in each appointments shall be given preference for appointment in the judicious selection and placement of personnel. The Committee shall consist of two (2) members appointed by the head of the department or agency, a representative of the appointing authority, and two (2) members duly elected by the employees holding positions in the first and second levels of the career service: Provided, That if there is a registered employee association with a majority of the employees as members, that employee association shall also have a representative in the Committee: Provided, further That immediately upon approval of the staffing pattern of the department or agency concerned, such staffing pattern shall be made known to all officers and employees of the agency who shall be invited to apply for any of the positions authorized therein.

114 Said application shall be considered by the Committee in the placement and selection of personnel.

SECTION 7.

A list of the personnel appointed to the authorized positions in the approved staffing pattern shall be made known to all the officers and employees of the department or agency. Any of such officers and employees aggrieved by the appointments made may file an appeal with the appointing authority who shall make a decision within thirty (30) days from the filling thereof.

SECTION 8.

An officer or employee who is still not satisfied with the decision of the appointing authority may further appeal within ten (10) days from the receipt thereof to the Civil Services Commission which shall render a decision thereon within thirty (30) days and whose decision shall be final and executory.

SECTION 9.

All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned.

SECTION 10. All heads of department, commissions, bureaus, agencies or

offices who after the effectivity of this Act willfully violate any provision thereof, including failure to abide by the rules promulgated by the Civil Service Commission or to implement a Civil Service Commission reinstatement order, shall upon conviction be punished by a fine not, exceeding ten thousand pesos (P10,000.00) or by imprisonment of not less than three(3) nor more than five (5) years or both such fine and imprisonment in the discretion of the Court, and suffer permanent disqualification to hold public office.

SECTION 11. The executive branch of the government shall implement


reorganization schemes within a specified period of time authorized by law. In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act within which to implement their respective reorganization plans in accordance with the provisions of this Act.

SECTION 12. The Civil Service Commission shall promulgate the necessary
rules and regulations to implement the provisions of this Act.

SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with

the provisions of this Act are hereby repealed or modified accordingly. The rights and benefits under this Act shall be retroactive as of June 30, 1987.

SECTION 14. If any part, section or provisions of this Act shall be held invalid

or unconstitutional, no other part, section or provision thereof shall be affected thereby.

SECTION 15. This Act shall take effect fifteen (15) days from the date of its
publication ion at least two (2) newspapers of general circulation. Canonizado v. Aguirre, G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes]

115 The creation and abolition of public offices is primarily a legislative function . It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees. An abolition of office connotes an intention to do away with such office wholly and permanently, as the word "abolished" denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul (200 SCRA 685 [1991]) we said: It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997 While the Presidents power to reorganize can not be denied, this does not mean however that the reorganization itself is properly made in accordance with law. Wellsettled is the rule that reorganization is regarded as valid provided it is pursued in good faith.

Impeachment
Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno] We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against himxxx Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings.

Recall
Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. (Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc

[Puno])

116 By Whom Exercised By the registered voters of a local government unit to which the local elective official subject to such recall belongs [Sec. 69, RA 7160]. Initiation of Recall Process [Sec. 70, RA 7160] By a preparatory recall assembly or by the registered voters of the LGU. Preparatory Recall Assembly. Composition a) Provincial level: All mayors, vice-mayors and sanggunian members of the municipalities and component cities. b) City level: All punong-barangay and sangguniang barangay members in the city. c) Legislative District level: Where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district, and in cases where sangguniang panglunsod members are elected by district, all elective barangay officials in the district. d) Municipal level: All punong barangay and sangguniang barangay members in the municipality. A majority of all the PRA members may convene in session in a public place and initiate a recall proceeding against any elective official in the LGU concerned. Garcia v. Comelec: Notice to all members of the PRA is imperative; thus where the resolution was adopted without giving notice to all the members of the PRA, the same is fatally flawed. Initiation of recall by registered voters Recall of a 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. Angubong v. COMELEC: The SC underscored the need for a petition signed by at least 25% of the total number of registered voters in the constituency in order to validly initiate a recall election. Thus a where the petition is signed only by the petitioner and does not even bear the names of the citizens who have allegedly lost confidence in the public official, then the petition should be dismissed. Effectivity of Recall The recall of an elective local official 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 is thereby affirmed, and he shall continue in office [Sec. 72, RA 7160] Limitations on Recall [Sec. 74, RA 7160] b) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. c) No recall shall take place within one year from the date of the officials assumption to office or one year immediately preceeding a regular local election. Angubong v. COMELEC: Regular local election referred to in Sec. 74, LGC, means that the approaching local election must be one where the position of the official to be recalled is actually contested and to be filled by the electorate.

117

ELECTION LAWS
QUALIFICATIONS OF VOTERS

Sec. 1, Art. V, 1987 Constitution 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.

REGISTRATION OF VOTERS
Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar. 26, 2001, En Banc [Buena]

The right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996. Stated differently, the act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Thus, contrary to petitioners argument, registration cannot and should not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate the act of voters registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even pre-election activities could be performed by the duly constituted authorities in a realistic and orderly manner one which is not indifferent and so far removed from the pressing order of the day and the prevalent circumstances of the times.

ABSENTEE VOTING

Sec. 2, Art. V, 1987 Constitution 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.

THE MEANING AND PURPOSE OF RESIDENCY REQUIREMENT IN ELECTION LAW


Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza] The place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it

118 speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego v. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualifyx x x The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino (96 Phil. 294 [1954]), this Court held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc [Panganiban] The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office seekers qualifications and fitness for the job they aspire for. Generally, in requiring candidates to have a minimum period of residence in the area in which they seek to be elected, the Constitution or the law intends to prevent the possibility of a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community. Such provision is aimed at excluding outsiders from taking advantage of favorable circumstances existing in that community for electoral gain. Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. This purpose is best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice.

PRINCIPLE OF BALLOT SECRECY

Sec. 2, Art. V, 1987 Constitution 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.

ABS-CBN Broadcasting Corporation v. COMELEC, G.R No. 133486, Jan. 28, 2000, En Banc [Panganiban] The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters verbal and confidential disclosure to a pollster of whom they have voted for.

119

THE HOLDING OF SYNCHRONIZED ELECTIONS


Osmena v. COMELEC (July 30, 1991) Republic Act 7056 provides for two (2) separate elections in 1992 as follows: "Sec. 2. Start of Synchronization To start the process of synchronization of election in accordance with the policy hereinbefore declared there shall be held; "(a) An election for President and Vice-President of the Philippines, twenty four (24) Senators and all elective Members of the Houses Representatives on the second Monday of May, 1992, and "(b) An election of all provincial, city and municipal elective officials on the second Monday of November, 1992. The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement of Policy" ". . . to start, as much as practicable, the synchronization of the elections so that the process can be completed in the 1995 elections with the result that beginning 1995 there shall be only one (1) simultaneous regular elections for national and local elective officials every three (3) years. With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act 7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized election. Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article XVIII, Sections 2 and 5 of the 1987 Constitution.

POLITICAL PARTIES

Sec. 2[5], Art. IX-C, 1987 Constitution SECTION 2.


(5) 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.

Sec. 60, OEC SECTION 60. Political party. "Political party" or "party", when used
in this Act, means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. To acquire juridical personality, qualify it for subsequent accreditation, and to entitle it to the rights and privileges herein granted to political parties, a political party shall first be duly registered with the Commission. Any registered political party that, singly or in coalition with others, fails to obtain at least ten percent of the votes cast in the constituency in which it nominated and supported a candidate or candidates in the election next following its registration shall, after notice and hearing, be deemed to have forfeited such status as a registered political party in such constituency. (Sec. 22, 1971 EC, with amendments)

THE LONE CANDIDATE LAW R.A. No. 8295, June 6, 1997

120 REPUBLIC ACT NO. 8295 AN ACT PROVIDING FOR THE PROCLAMATION OF A LONE CANDIDATE FOR ANY ELECTIVE OFFICE IN A SPECIAL ELECTION, AND FOR OTHER PURPOSES

SECTION 1.

Declaration of Policy. It is hereby declared the policy of the State to provide the people with adequate and constant governance and representation in public affairs. Towards this end, the State shall ensure that, as much as practicable, each and every elective position in the executive and legislative branches of government is occupied at all times at the least of cost to government.

SECTION 2.

Proclamation of a Lone Candidate. Upon the expiration of the deadline for the filing of the certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected.

SECTION 3.

Assumption of Office. In the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code of the Philippines, the candidate referred to in the preceding paragraph shall assume office not earlier than the scheduled election day. Certificates of candidacy filed in violation hereof shall not be given due course. For this purpose, the Commission shall decide petitions for disqualifications not later than election day; otherwise, such petitions shall be deemed dismissed.

SECTION 4.

Disqualification. In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election called to fill the vacancy in an elective office, to wit: a) Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate.

SECTION 5.

Prohibited Acts, Election Offenses and Penalties. Any act of coercion, bribery, threat, harassment, intimidation, terrorism, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidate from running in a special election shall constitute as an election offense. Violations of this provision shall be prosecuted and penalized in accordance with the provision of Section 264 of the Omnibus Election Code.

SECTION 6.

Applicability. The pertinent provisions of Batas Pambansa Bilang 881, as amended, otherwise known as the Omnibus Election Code of the Philippines, and other election laws which are not in

121 conflict with the provision herein provided, shall remain in full force and effect and are hereby adopted as parts hereof.

SECTION 7.

Implementing Authority. The Commission on Elections shall, within fifteen (15) days from the effectivity of this Act, promulgate rules and regulations necessary to carry out the purpose of this Act.

SECTION 8.

Separability Clause. If for any reason or reasons, any section, provision of this Act, or any part thereof, or the application of such section, provision or portion is declared or held unconstitutional or invalid, other parts or the remainder thereof which are not affected thereby shall continue to be in full force and effect.

SECTION 9.

Repealing Clause. All laws, decrees, executive orders, in whole or in part, particularly pertinent provisions of Republic Act Nos. 7160 and 7166, including the rules and regulations promulgated thereunder inconsistent with the provisions of this Act, are hereby amended, repealed or modified accordingly.

SECTION 10. Effectivity. This Act shall take effect fifteen (15) days
after its publication in two (2) national newspapers of general circulation.

FILING OF CERTIFICATE OF CANDIDACY

Sec. 73, OEC SECTION 73. Certificate of candidacy. No person shall be eligible
for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. (Sec. 19, 1978 EC)

Sec. 76, OEC SECTION 76. Ministerial duty of receiving and acknowledging receipt.
The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy. (Sec. 25, 1978 EC)

EFFECT OF FILING OF CERTIFICATE OF CANDIDACY

Sec. 66, OEC SECTION 66. Candidates holding appointive office or positions. Any
person holding a public appointive 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

122 considered ipso facto resigned from his office upon the filing of his certificate of candidacy. PNOC-EDC v. NLRC [May 31, 1993] Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for termination of employment in addition to those set forth in the Labor Code, as amended.

Sec. 26, COMELEC Resolution No. 3636 SECTION 26. Effect of Filing Certificate of Candidacy by Elective Officials. Any elective official, whether national or local who has filed a

certificate of candidacy for the same or any other office shall not be considered resigned from his office. HSATIC

WITHDRAWAL OF CERTIFICATE OF CANDIDACY

Sec. 73, OEC SECTION 73. Certificate of candidacy. No person shall be eligible
for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. (Sec. 19, 1978 EC)

SUBSTITUTION OF CANDIDATES

Sec. 77, OEC SECTION 77. Candidates


in case of death, disqualification or withdrawal of another. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than midday of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. (Sec. 28, 1978 EC) Miranda v. Abaya, G.R. No. 136351, July 28, 1999, En Banc [Melo]

123 All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Recabo, Jr. v. COMELEC, G.R. No. 134293, June 21, 1999, En Banc [GonzagaReyes] It will be recalled that the mother of herein petitioner filed her certificate of candidacy on March 25, 1998 and later withdrew the same on March 31, 1998. In the meantime, private respondent Reyes, Jr. filed his certificate of candidacy on March 27, 1998. Thereafter, herein petitioner Recabo, Jr. filed his certificate of candidacy on April 2, 1998, in substitution of his mother who had withdrawn earlier. Assuming all three candidates were fielded-in by the same political party at the time petitioner Recabo, Jr. filed his certificate of candidacy there was no more void to fill in as respondent Reyes, Jr. had already filed his certificate of candidacy as official candidate of LAKAS NUCD-UMDP. Verily, there was no more vacancy to be substituted for. Disunity and discord amongst members of a political party should not be allowed to create a mockery of our electoral process, which envisions one candidate from a political party of each position."

Sec. 12, R.A. No. 9006


REPUBLIC ACT NO. 9006 AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES

SECTION 12. Substitution of Candidates.

In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same family name, this provision shall not apply.

DISQUALIFICATION CASES BEFORE THE ELECTIONS

Sec. 68, OEC SECTION 68. Disqualifications. Any candidate who, in an action or
protest in which he is a 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. (Sec. 25, 1971 EC)

Sec. 69, OEC

124

SECTION 69. Nuisance candidates. The Commission may, motu


proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. (Sec. 26, 1978 EC) Bautista v. COMELEC, 298 SCRA 480, Nov. 13, 1998, En Banc [Melo] In the present case, it has been established that respondent's known appellation or nickname is not "Efren" as stated in his Certificate of Candidacy, but "Boboy" or "Boboy Tarugo". Two "EFRENS" and two "BAUTISTAS" will necessarily confuse the voters and render worthless a vote for an 'Efren' or 'Bautista' during the appreciation of ballots, thus preventing the determination of the choice and true will of the electorate. Respondent's lack of financial means to support a campaign as an independent candidate is manifested by his inability to file his Income Tax Returns for calendar years 1995 and 1996. This only amplifies the fact that he has no bona fide intention to run for the position of municipal mayor of Navotas, a municipality with 104,601 registered voters. Respondent has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government. Elective public officials are respected leaders in the community. Respondent has not shown any. This Commission as the vanguard of the people in the determination of the chosen representative of the electorate in government will not be an instrument to subvert that choice. The circumstances in the case at bar warrant that respondent be declared a nuisance candidate.

Sec. 78, OEC SECTION 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc [GonzagaReyes] Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to ones qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to ones identity, is not within the scope of the provision. Loong v. COMELEC [Dec. 1992]

125

If a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec Rules of Procedure similarly provides that any voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contest Adjudication Department. The petition may be filed within ten (10) days from the date the respondent is proclaimed (Section 2). It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing the misrepresentation. It would seem, therefore, that there could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is made. During this socalled "gap" the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him .

EFFECT OF DISQUALIFICATION CASES

Sec. 6, R.A. No. 6646


REPUBLIC ACT NO. 6646 AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER PURPOSES

SECTION 6.

Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Trinidad v. COMELEC, G.R. No. 135716, Sept. 23, 1999, En Banc [YnaresSantiago] With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioner's term of office therein contested, COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its second questioned Resolution on the ground that "it comes as a matter of course after his disqualification in SPA No. 95-213 promulgated after the 1998 election." While it is true that the first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor expired, said Resolution had not yet attained finality and could not effectively be held to have removed petitioner from his office. Indeed, removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term.

126 We see no error in the COMELEC's rejection of private respondent's move to be declared as Mayor on account of petitioner's disqualification. To begin with, the issue had been rendered moot and academic by the expiration of petitioner's challenged term of office. Second, even in law and jurisprudence, private respondent cannot claim any right to the office. As held by the COMELEC, the succession to the office of the mayor shall be in accordance with the provisions of the Local Government Code which, in turn, provides that the vice mayor concerned shall become the mayor. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995) on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances." Sunga v. COMELEC, 288 SCRA 76, March 25, 1998 [Bellosillo] Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. 11 The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows RA No. 6646 imperatively requires. This amounts to a quasijudicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasijudicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

PRE-PROCLAMATION CONTROVERSIES

Sec. 241, OEC SECTION 241. Definition. 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.

Sec. 243, OEC SECTION 243. Issues


that may be raised in pre-proclamation controversy. The following shall be proper issues that may be raised in a pre-proclamation controversy: (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 other authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of this Code;

127 (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 controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

Sec. 15, R.A. No. 7166


REPUBLIC ACT NO. 7166 AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES

SECTION 15. Pre-proclamation Cases Not Allowed in Elections for


President Vice-President, Senator, and Member of the House of Representatives. For purposes of the elections for President, VicePresident, Senator and Member of the House of Representatives, no preproclamation 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. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof. Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial board of canvassers or district boards of canvassers in Metro Manila Area, shall be specifically noticed in the minutes of their respective proceedings. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno] The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. This rule is consistent with and complements the authority of the COMELEC under the Constitution to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall" and its power to "decide, except those involving the right to vote, all questions affecting elections." The Doctrine of Statistical improbability Velayo v. COMELEC, G.R. No. 135613, March 9, 2000, En Banc [Puno] Standing alone and without more, the bare fact that a candidate for public office received zero votes in one or two precincts can not adequately support a finding that the subject election returns are statistically improbable. A no-vote for a particular candidate in election returns is but one strand in the web of circumstantial evidence that those election returns were prepared under "duress, force and intimidation." In the case of Una Kibad v. Comelec, we warned that the doctrine on statistical improbability must be viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and corrupt practices, which indeed is called for, innocent voters become disenfranchised, a result which hardly commends itself. This specially applies to the case at bar where respondent COMELEC's ruling is premised on

128 questionable affidavits of private respondent's witnesses, and election returns which appear to be regular on, their, face. Moreover, the doctrine of statistical improbability involves a question of fact and a more prudential approach prohibits its determination ex parte.

PETITION TO DECLARE FAILURE OF ELECTIONS OR ANNUL ELECTION RESULTS

Sec. 6, OEC SECTION 6.


Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (Sec. 7, 1978 EC)

Sec. 4, R.A. No. 7166 SECTION 4.


Postponement, Failure of Election and Special Elections. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election.

Mitmug v. COMELEC, 230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo] Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election. There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected.

Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing] A prayer to declare failure of elections and a prayer to annul the election results x x x are actually of the same nature. Whether an action is for declaration of failure

129 of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous, the Omnibus Election Code denominates them similarly.

ELECTION PROTESTS AND QUO WARRANTO PROCEEDINGS


Jurisdiction in Election Protests and Quo Warranto Proceedings Who has Period to file Position jurisdiciton Remedy
Election Protest - within 30 days after proc. Quo Warranto - within 10 days after proc. EP & QW - SET: w/in 15 days after proc. - HRET: w/in 10 days after proc. Member of Congress (Senator/ Congressman) SET/HRET ~ NO APPEAL SET/HRET: Sole judge of EP ~ CERTIORARI Rule 65 RC President & VP Supreme Court as Presidential Electoral Tribunal ~ NO APPEAL SC is sole judge ~ MOTION FOR RECON

EP & QW - within 10 days after proc.

Regional Provincial City/Comp. City Officials

COMELEC

~ NO APPEAL ~ CERTIORARI Rule 65 RC

Municipal officials

RTC

~ APPEAL TO COMELEC ~ NO APPEAL from COMELEC decision ~ CERTIORARI Rule 65 RC

Barangay officials

MTC

~ APPEAL TO COMELEC ~ NO APPEAL from COMELEC decision ~ CERTIORARI Rule 65 RC

These periods are MANDATORY, but they may be extended if the grounds relied upon by the petition is: 1- Lack of citizenship of the proclaimed candidate, or 2- Disloyalty to the Republic of the Philippines Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53, April 20, 2001, En Banc [Quisumbing] A petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An

130 election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. ELECTION PROTEST vs. QUO WARRANTO
ELECTION PROTEST QUO WARRANTO

~ ISSUE: who really won ~ ISSUE: Whether or not the in the elections proclaimed candidate is ~ Grounds: qualified or disqualified Fraud, Intimidation, Threats Coercion, Vote-buying, Ballot-snatching, etc. ~ Who can file: ~ Who can file: Only a candidate running Any registered voter may for the same office may file a quo warranto file an election protest

COUNTER-PROTESTS
Kho v. COMELEC, 279 SCRA 463, Sept. 25, 1997, En Banc [torres] It should be stressed that under the COMELEC Rules of Procedure, the protestee may incorporate in his answer a counter-protest. It has been said that a counterprotest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. Apparently, the counter-protest of Espinosa was incorporated in his answer. And as what was revealed, this answer with counter-protest was filed only on June 15, 1995, which was obviously late for four (4) days. It appears that Espinosa did not file a motion for extension of time within which to file his answer with counter-protest. In the absence thereof, there is no basis then for the COMELEC First Division to admit the belatedly filed answer with counter-protest. It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this Court had firmly settled the rule that the counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest. In the case at bar, there is no question that the answer with counter-protest of Espinosa was filed outside the reglementary period provided for by law. As such, the COMELEC First Division has no jurisdictional authority to entertain the belated answer with counter-protest much less pass upon and decide the issues raised therein.

EFFECT OF DEATH OF PARTY IN AN ELECTION PROTEST


De Castro v. COMELEC, 267 SCRA 806, Feb. 7, 1997 An election protest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death, thus, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that after the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. The death of the protestant neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest.

WHEN ELECTION PROTEST IS DEEMED ABANDONED

131

Miriam Defensor-Santiago v. Fidel Valdez Ramos [P.E.T. Case 0001, 2-13-96] Protestant seeks to be declared as the truly elected President up to 30 June 1998. In the 8 May 1995 elections, however, she was elected Senator for a term ending on 30 June 2001. As Senator, she has become a member of the legislative department of government impressed with the duty, among others, to fiscalize the executive. She cannot, in my view, opt to fiscalize the executive until she herself becomes the executive, at which point, she will abandon the fiscalizing duty entrusted to her by the people. She must choose only one of the two (2) positions involved; she cannot have both within overlapping periods of time. And she, in fact, made the choice becoming and qualifying as a Senator of the Republic from 30 June 1995 to 30 June 2001. It appears clear that the people (electorate) expect her to perform dutifully, creditably and successfully in the position of her last and most recent choice. She should, in my considered view, be deemed to have abandoned or waived her claim to the Presidency of the Republic, at least until 30 June 1998, when she can run for the said office without relinquishing or forfeiting her seat as Senator (See Sec. 67, Art. IX, BP 881). [PADILLA, J., concurring and dissenting] DISMISS the instant election protest, since it has been rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions thereof. [Majority decision, dispositive portion]

APPRECIATION OF BALLOTS
The Equity-of-the-Incumbent Rule If two or more candidates are running or the same office, and they bear the same first name, surname or both and a voter in his ballot wrote only either of the two, the vote shall be appreciated in favor of the incumbent. The Idem Sonans Rule Same sound Rule. If the name of the candidate is misspelled by the voter, for as long as when it is pronounced it sounds like the name of the candidate, it shall be counted in his favor, unless it can be considered as a marking-- if it is a marking, the entire ballot is invalid. The Description Personae Rule The use of nicknames and appellation of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they are used as a means to identify the voter, in which case the whole ballot is invalid.

JURISDICTION OVER ELECTION OFFENSES


Election offenses 1- Vote-buying and vote-selling 2- Wagering upon the result of the election 3- Threats, intimidation, terrorism, use of fraudulent device and other forms of coercion 4- Appointment of new employee, creation of new positions, promotion, granting salary increases 5- Transfer or detail of government official/EE without COMELEC approval COMELEC : Exclusive jurisdiction to investigate and prosecute RTC : Exclusive original jurisdiction to try and decide any criminal acitons or proceedings for violation of election laws MTC : offenses relating to failure to register or vote

132

PRESCRIPTION PERIOD FOR ELECTION OFFENSES : 5 years from date of commission

THE LAW OF PUBLIC CORPORATIONS


THE POLITICAL AND TERRITORIAL SUBDIVISIONS OF THE STATE

Sec. 1, Art. 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.

Autonomous Regions (Sec. 15, Art. X, 1987 Constitution)

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. Administrative Regions Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, en Banc [Cortes] Administrative regions are mere groupings of contiguous provinces for administrative purposes. They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments x x x There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. Chiongbian v. Orbos, 245 SCRA 253 [1995] Thus the creation and subsequent reorganization of administrative regions have been by the President pursuant to authority granted to him by law. In conferring on the President the power "to merge [by administrative determination] the existing regions" following the establishment of the Autonomous Region in Muslim Mindanao, Congress merely followed the pattern set in previous legislation dating back to the initial organization of administrative regions in 1972. The choice of the President as delegate is logical because the division of the country into regions is intended to facilitate not only the administration of local governments but also the direction of executive departments which the law requires should have regional offices. The regrouping of contiguous provinces is not even analogous to a redistricting or to the division or merger of local governments, which all have political consequences on the right of people residing in those political units to vote and to be voted for. It cannot be overemphasized that administrative regions are mere groupings of contiguous provinces for administrative purposes, not for political representation.

133 Special Metropolitan Political Subdivisions

Constitution)

(Sec. 11, Art. X, 1987

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 hereby be created shall be limited to basic services requiring coordination. MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1st Div. [Puno]

When R.A. No. 7924 took effect, Metropolitan Manila became a special development and administrative region and the MMDA a special development authority whose functions were without prejudice to the autonomy of the affected local government units. The character of the MMDA was clearly defined in the legislative debates enacting its charterxxx Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bills presentation to Congressxxx It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a special
metropolitan political subdivision as contemplated in Section 11, Article X of the Constitution. The creation of a special metropolitan political subdivision requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R.A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA.

Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units,
acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal x x x.

THE CONCEPT OF LOCAL AUTONOMY

Sec. 25, Art. II, 1987 Constitution SECTION 25. The State shall
governments.

ensure

the

autonomy

of

local

Sec. 2, Art. X, 1987 Constitution SECTION 2.


autonomy. The territorial and political subdivisions shall enjoy local

Limbona v. Mangelin, 170 SCRA 786, Feb. 28, 1989, En Banc [Sarmiento]

power.

Autonomy is either decentralization of administration or decentralization of There is decentralization of administration when the central

134 government delegates administrative powers to political subdivisions in order to broaden the base of government and in the process to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in favor of local government units declared autonomous. In that case, the autonomous government is free to chart its own destiny and shape its own future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.
Cordillera Broad Coalition v. COA, 181 SCRA 495, Jan. 29, 1990, En Banc [Cortes]

administrative autonomy of local government units or, cast in more technical


language, the decentralization of government authority. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions. Basco v. PAGCOR, 197 SCRA 52, May 14, 1991, En Banc [Paras] The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy. Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the 1987 Constitutional Commission, pp. 436-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio." "Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government. (emphasis supplied) As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539). What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments. Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima] The principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make local governments sovereign within the state or an imperium in imperio. Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio, the local

The constitutional guarantee of local autonomy in the Constitution refers to the

135 government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources. Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral local government units to develop not only at their own pace and discretion but also with their own resources and assets.

DUAL NATURE AND FUNCTIONS OF LOCAL GOVERNMENTS


Every local government unit created or organized [under the Local Government Code] is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. [Sec. 15, R.A. 7160] Accordingly, it has dual functions, namely: 1) Public or governmental : It acts as an agent of the state for the government of the territory and the inhabitants 2) Private or proprietary : It acts as an agent of the community in the administration of local affairs. As such, it acts as a separate entity for its own purposes, and not as a subdivision of the State [Lidasan v. COMELEC, 21 SCRA 496]

PROPERTIES OF LOCAL GOVERNMENTS


Dacanay v. Asistio, Jr., 208 SCRA 404, En Banc [Grino-Aquino] As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect.xxx The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

CREATION, DIVISION, MERGER AND ABOLITION OF LOCAL GOVERNMENTS


Municipality of San Narciso, Quezon v. Mendez, Sr., 239 SCRA 11, Dec. 6, 1994, en Banc [Vitug] Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal District, and later the Municipality, of San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within one-year period can abrogate an action belatedly filed, so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. Public interest demands it. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the

136 State's recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated 13 June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon. Cdpr At the present time, all doubts on the de jure standing of the municipality must be dispelledxxx Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is preferred. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, 21 and aimed at giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima] Petitioners assail the validity of Republic Act No. 7720, entitled, "An Act Converting the Municipality of Santiago, Isabela into an Independent Component City to be known as the City of Santiago," mainly because the Act allegedly did not originate exclusively in the House of Representatives as mandated by Section 24, Article VI of the 1987 Constitution. Although a bill of local application like HB 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, SB No. 1243, was passed in the Senate, is untenable because it cannot be denied that HB No. 8817 was filed in the House of Representatives first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said Act in question but also of SB No. 1243. Thus, HB 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 attending the instant controversy. Padilla, Jr. c. COMELEC, 214 SCRA 735, Oct. 19, 1992, En Banc [Romero] The deletion of the phrase "unit or" in Section 10, Article X of the 1987 Constitution from its precursor, Section 3 of Article XI of the 1973 Constitution has not affected our ruling in Tan v. COMELEC. It stands to reason that when the law states that the plebiscite shall be conducted "in the political units directly affected," it means that residents of the political entity who would be economically dislocated by the separation of a portion thereof have a right to vote in said plebiscite. Evidently, what is contemplated by the phrase "political units directly affected," is the plurality of political units which would participate in the plebiscite. Logically, those to be included in such political areas are the inhabitants of the 12 barangays of the proposed Municipality of Tulay-Na-Lupa as well as those living in the parent Municipality of Labo, Camarines Norte. Tobias v. Abalos, 239 SCRA 106, Dec. 8, 1994, En Banc [Bidin]

137 Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.

Boundaries of Local Governments


Mariano, Jr. v. COMELEC, 242 SCRA 211, Mar. 7, 1995, En Banc [Puno] The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to be avoided by the Local Government Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with technical descriptions. City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En Banc [YnaresSantiago] (Boundary Dispute) Indeed, a requisite for the creation of a barangay is for its territorial jurisdiction to be properly identified by metes and bounds or by more or less permanent natural boundaries. Precisely because territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not only that, we would be paving the way for potentially ultra vires acts of such barangaysxxx Moreover, considering the expenses entailed in the holding of plebiscites, it is far more prudent to hold in abeyance the conduct of the same, pending final determination of whether or not the entire area of the proposed barangays are truly within the territorial jurisdiction of the City of Pasigxxx Neither do we agree that merely because a plebiscite had already been held in the case of the proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and academic. The issues raised by the Municipality of Cainta in its petition before the COMELEC against the holding of the plebiscite for the creation of Barangay Napico are still pending determination before the Antipolo Regional Trial Court.xxx Therefore, the plebiscite on the creation of Barangay Karangalan should be held in abeyance pending final resolution of the boundary dispute between the City of Pasig and the Municipality of Cainta by the Regional Trial Court of Antipolo City. In the same vein, the plebiscite held on March 15, 1997 to ratify the creation of Barangay Napico, Pasig City, should be annulled and set aside.

POWERS OF LOCAL GOVERNMENTS


Police Power
MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1st Div. [Puno] It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is

no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative

138

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 the general welfare of the inhabitants of Metro Manila. The MMDA is x x x a development authority. It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, peoples organizations, non-governmental organizations 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 and these are actually summed up in the charter itself x x x.

Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDAxxx The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal

councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMCs approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMCxxx

Thus, Metropolitan Manila had a central government, i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMCxxx
Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000, En Banc [Purisima] The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. In the case under consideration, the business permit granted by respondent City Mayor to petitioner was burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in saying that the imposition of said special conditions on petitioner's business permit is well within the authority of the City Mayor as a valid exercise of police power. The issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the state within the contemplation of the general welfare clause of the Local Government Code. Magtajas v. Pryce Properties Corp., Inc. 234 SCRA 255, July 20, 1994

139 The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. 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 government 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. This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinance are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. LLDA v. CA, 251 SCRA 42, Dec. 7, 1995 [Hermosisima] The power of the local government units to issue fishing privileges was clearly granted for revenue purposes. This is evident from the fact that Section 149 of the New Local Government Code empowering local governments to issue fishing permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading, "Specific Provisions On The Taxing And Other Revenue Raising Power of Local Government Units." On the other hand, the power of the Authority to grant permits for fishpens, fishcages and other aqua-culture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region (Section 2, Executive Order No. 927) and for lake quality control and management. It does partake of the nature of police power which is the most pervasive, the least limitable and the most demanding of all State powers including the power of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police power should prevail over the Local Government Code of 1991 on matters affecting Laguna de Bay. Section 149 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, has not repealed the provisions of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it.

Power of Eminent Domain


Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban]

140

The principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agents to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can reach every form of property which the State might need for public use. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it. Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous noncompliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property.

May a local government unit validly authorize an expropriation of private property through a mere resolution of its lawmaking body?
Held: The Local Government Code expressly and clearly requires an ordinance or a local law for that purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. The case of Province of Camarines Sur v. Court of Appeals which held that a mere resolution may suffice to support the exercise of eminent domain by a local government unit is not in point because the applicable law at that time was B.P. 337, the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, R.A. 7160, the present Local Government Code, explicitly required an ordinance for this purpose.

What are the requisites before a Local Government Unit can validly exercise the power of eminent domain?
1) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; 2) The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; 3) There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws; 4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. ORDINANCE a) This is a law b) Permanent in nature c) 3rd reading is required in its enactment RESOLUTION a) Mere expression of the sentiment or opinion b) Temporary in nature c) No 3rd reading is required

Heirs of Alberto Suguitan v. City of Mandaluyong, 328 SCRA 137, march 14, 2000, 3rd Div. [Gonzaga-Reyes] Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable attribute

141 of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfarexxx In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain over petitioners' property by means of a resolution, in contravention of the first requisite. The law in this case is clear and free from ambiguity. Section 19 of the Code requires an ordinance, not a resolution, for the exercise of the power of eminent domainxxx

Power of Taxation
Philippine Petroleum Corp. v. Municipality of Pililla, Rizal, 198 SCRA 82, June 3, 1991 [Paras] The trial court did not err in holding that "since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority (Esso Standard Eastern, Inc. v. Acting Commissioner of Customs, 18 SCRA 488 [1966]). Tax exemptions are looked upon with disfavor (Western Minolco Corp. v. Commissioner of Internal Revenue, 124 SCRA 121 [1983]). Thus, in the absence of a clear and express exemption from the payment of said fees, the waiver cannot be recognized. As already stated, it is the law-making body, and not an executive like the mayor, who can make an exemption. Basco v. PAGCOR, 197 SCRA 52, May 14, 1991, En Banc [Paras] The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax" (b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950) . And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government. Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers.

Province of Bulacan v. CA, 299 SCRA 442, Nov. 7, 1998 [Romero] The tax imposed by the Province of Bulacan is an excise tax, being a tax upon the performance, carrying on, or exercise of an activity. The Local Government Code provides:

142 Section 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: xxx xxx xxx (h) Excise taxes on articles enumerated under the National Internal Revenue Code, as amended, and taxes, fees or charges on petroleum products; xxx xxx xxx A province may not, therefore, levy excise taxes on articles already taxed by the National Internal Revenue Code. Unfortunately for petitioners, the National Internal Revenue Code provides: Section 151. Mineral Products. (A) Rates of Tax. There shall be levied, assessed and collected on minerals, mineral products and quarry resources, excise tax as follows: xxx xxx xxx (2) On all nonmetallic minerals and quarry resources, a tax of two percent (2%) based on the actual market value of the gross output thereof at the time of removal, in case of those locally extracted or produced; or the values used by the Bureau of Customs in determining tariff and customs duties, net of excise tax and value-added tax, in the case of importation. xxx (B) xxx xxx xxx [Definition of Terms]. For purposes of this Section, the term xxx xxx

(4) Quarry resources shall mean any common stone or other common mineral substances as the Director of the Bureau of Mines and Geo-Sciences may declare to be quarry resources such as, but not restricted to, marl, marble, granite, volcanic cinders, basalt, tuff and rock phosphate; Provided, That they contain no metal or metals or other valuable minerals in economically workable quantities. It is clearly apparent from the above provision that the National Internal Revenue Code levies a tax on all quarry resources, regardless of origin, whether extracted from public or private land. Thus, a province may not ordinarily impose taxes on stones, sand, gravel, earth and other quarry resources, as the same are already taxed under the National Internal Revenue Code. The province can, however, impose a tax on stones, sand, gravel, earth and other quarry resources extracted from public land because it is expressly empowered to do so under the Local Government Code. As to stones, sand, gravel, earth and other quarry resources extracted from private land, however, it may not do so, because of the limitation provided by Section 133 of the Code in relation to Section 151 of the National Internal Revenue Code.

Devolved Powers to Local governments

Sec. 17, LGC SECTION 17. Basic Services and Facilities. (a) Local government
units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the basic services and facilities enumerated herein. (b) Such basic services and facilities include, but are not limited to, the following: (1) For Barangay:

143 (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (2) For a (i) Agricultural support services which include planting materials distribution system and operation of farm produce collection and buying stations; Health and social welfare services which include maintenance of barangay health center and day-care center; Services and facilities related to general hygiene and sanitation, beautification, and solid waste collection; Maintenance of katarungang pambarangay; Maintenance of barangay roads and bridges and water supply systems; Infrastructure facilities such as multi-purpose hall, multipurpose pavement, plaza, sports center, and other similar facilities; Information and reading center; and Satellite or public market, where viable; Municipality: Extension and on-site research services and facilities related to agriculture and fishery activities which include dispersal of livestock and poultry, fingerlings, and other seedling materials for aquaculture; palay, corn, and vegetable seed farms; medicinal plant gardens; fruit tree, coconut, and other kinds of seedling nurseries; demonstration farms; quality control of copra and improvement and development of local distribution channels, preferably through cooperatives; interbarangay irrigation system; water and soil resource utilization and conservation projects; and enforcement of fishery laws in municipal waters including the conservation of mangroves; Pursuant to national policies and subject to supervision, control and review of the DENR, implementation of community-based forestry projects which include integrated social forestry programs and similar projects; management and control of communal forests with an area not exceeding fifty (50) square kilometers; establishment of tree parks, greenbelts, and similar forest development projects; Subject to the provisions of Title Five, Book I of this Code, health services which include the implementation of programs and projects on primary health care, maternal and child care, and communicable and non-communicable disease control services, access to secondary and tertiary health services; purchase of medicines, medical supplies, and equipment needed to carry out the services herein enumerated; Social welfare services which include programs and projects on child and youth welfare, family and community welfare, women's welfare, welfare of the elderly and disabled persons; community-based rehabilitation programs for vagrants, beggars, street children, scavengers, juvenile delinquents, and victims of drug abuse; livelihood and other pro-poor projects; nutrition services; and family planning services; Information services which include investments and job placement information systems, tax and marketing information systems, and maintenance of a public library; Solid waste disposal system or environmental management system and services or facilities related to general hygiene and sanitation; Municipal buildings, cultural centers, public parks including freedom parks, playgrounds, and other sports facilities and equipment, and other similar facilities; Infrastructure facilities intended primarily to service the needs of the residents of the municipality and which are funded out of municipal funds including but not limited to,

(ii)

(iii)

(iv)

(v) (vi) (vii) (viii)

144 municipal roads and bridges; school buildings and other facilities for public elementary and secondary schools; clinics, health centers and other health facilities necessary to carry out health services; communal irrigation, small water impounding projects and other similar projects; fish ports; artesian wells, spring development, rainwater collectors and water supply systems; seawalls, dikes, drainage and sewerage, and flood control; traffic signals and road signs; and similar facilities; (ix) Public markets, slaughterhouses and other municipal enterprises; (x) Public cemetery; (xi) Tourism facilities and other tourist attractions, including the acquisition of equipment, regulation and supervision of business concessions, and security services for such facilities; and (xii) Sites for police and fire stations and substations and municipal jail; (3) For a Province: (i) Agricultural extension and on-site research services and facilities which include the prevention and control of plant and animal pests and diseases; dairy farms, livestock markets, animal breeding stations, and artificial insemination centers; and assistance in the organization of farmers and fishermen's cooperatives, and other collective organizations, as well as the transfer of appropriate technology; (ii) Industrial research and development services, as well as the transfer of appropriate technology; (iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to communitybased forestry projects, pollution control law, smallscale mining law, and other laws on the protection of the environment; and mini-hydroelectric projects for local purposes; (iv) Subject to the provisions of Title Five, Book I of this Code, health services which include hospitals and other tertiary health services; (v) Social welfare services which include programs and projects on rebel returnees and evacuees; relief operations; and population development services; (vi) Provincial buildings, provincial jails, freedom parks and other public assembly areas and similar facilities; (vii) Infrastructure facilities intended to service the needs of the residence of the province and which are funded out of provincial funds including, but not limited to, provincial roads and bridges; inter-municipal waterworks, drainage and sewerage, flood control, and irrigation systems; reclamation projects; and similar facilities; (viii) Programs and projects for low-cost housing and other mass dwellings, except those funded by the Social Security System (SSS), Government Service Insurance System p. 172 (GSIS), and the Home Development Mutual Fund (HDMF): Provided, That national funds for these programs and projects shall be equitably allocated among the regions in proportion to the ratio of the homeless to the population; (ix) Investment support services, including access to credit financing; (x) Upgrading and modernization of tax information and collection services through the use of computer hardware and software and other means;

145 (xi) Inter-municipal telecommunications services, subject to national policy guidelines; and (xii) Tourism development and promotion programs; (4) For a City: All the services and facilities of the municipality and province, and in addition thereto, the following: (i) Adequate communication and transportation facilities; (c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and other facilities, programs and services funded by the national government under the annual General Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially funded from foreign sources, are not covered under this Section, except in those cases where the local government unit concerned is duly designated as the implementing agency for such projects, facilities, programs, and services. (d) The designs, plans, specifications, testing of materials, and the procurement of equipment and materials at P170 from both foreign and local sources necessary for the provision of the foregoing services and facilities shall be undertaken by the local government unit concerned, based on national policies, standards and guidelines. (e) National agencies or offices concerned shall devolve to local government units the responsibility for the provision of basic services and facilities enumerated in this Section within six (6) months after the effectivity of this Code. As used in this Code, the term "devolution" refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities. (f) The national government or the next higher level of local government unit may provide or augment the basic services and facilities assigned to a lower level of local government unit when such services or facilities are not made available or, if made available, are inadequate to meet the requirements of its inhabitants. (g) The basic services and facilities hereinabove enumerated shall be funded from the share of local government units in the proceeds of national taxes and other local revenues and funding support from the national government, its instrumentalities and governmentowned or controlled corporations which are tasked by law to establish and maintain such services or facilities. Any fund or resource available for the use of local government units shall be first allocated for the provision of basic services or facilities enumerated in subsection (b) hereof before applying the same for other purposes, unless otherwise provided in this Code. (h) Regional offices of national agencies or offices whose functions are devolved to local government units as provided herein shall be phased out within one (1) year from the approval of this Code. Said national agencies and offices may establish such field units as may be necessary for monitoring purposes and providing technical assistance to local government units. The properties, equipment, and other assets of these regional offices shall be distributed to the local government units in the region in accordance with the rules and regulations issued by the oversight committee created under this Code.

146 (i) The devolution contemplated in this Code shall include the transfer to local government units of the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions, and responsibilities. Personnel of said national agencies or offices shall be absorbed by the local government units to which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said oversight committee: Provided, That the rights accorded to such personnel pursuant to civil service law, rules and regulations shall not be impaired: Provided, further, That regional directors who are career executive service officers and other officers of similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national government, without any diminution of rank, salary or tenure. (j) To ensure the active participation of the private sector in local governance, local government units may, by ordinance, sell, lease, encumber, or otherwise dispose of public economic enterprises owned by them in their proprietary capacity. Costs may also be charged for the delivery of basic services or facilities enumerated in this Section. LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000, 3rd Div. [Vitug] LGUs indubitably now have the power to regulate the operation of tricycles-forhire and to grant franchises for the operation thereof. "To regulate" means to fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; or to subject to governing principles or laws. A franchise is defined to be a special privilege to do certain things conferred by government on an individual or corporation, and which does not belong to citizens generally of common right. On the other hand, "to register" means to record formally and exactly, to enroll, or to enter precisely in a list or the like, and a "driver's license" is the certificate or license issued by the government which authorizes a person to operate a motor vehicle. The devolution of the functions of the DOTC, performed by the LTFRB, to the LGUs, as so aptly observed by the Solicitor General, is aimed at curbing the alarming increase of accidents in national highways involving tricycles. It has been the perception that local governments are in good position to achieve the end desired by the law-making body because of their proximity to the situation that can enable them to address that serious concern better than the national governmentxxx The power over tricycles granted under Section 458(a)(3)(VI) of the Local Government Code to LGUs is the power to regulate their operation and to grant franchises for the operation thereof. The exclusionary clause contained in the tax provisions of Section 133(1) of the Local Government Code must not be held to have had the effect of withdrawing the express power of LTO to cause the registration of all motor vehicles and the issuance of licenses for the driving thereof. These functions of the LTO are essentially regulatory in nature, exercised pursuant to the police power of the State, whose basic objectives are to achieve road safety by insuring the road worthiness of these motor vehicles and the competence of drivers prescribed by R. A. 4136. Not insignificant is the rule that a statute must not be construed in isolation but must be taken in harmony with the extant body of laws.

Have the powers of the Land Transportation Office (LTO) to register, tricycles in particular, as well as to issue licenses for the driving thereof, been devolved likewise to local government units?
Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof have been devolved to local governments under the Local Government Code. Clearly unaffected by the Local Government Code are the powers of the LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles used or operated on or upon any public highway in the country. This can

147 be gleaned from the explicit language of the statute itself, as well as the corresponding guidelines issued by the DOTC. In fact, even the power of LGUs to regulate the operation of tricycles and to grant franchises for the operation thereof is still subject to the guidelines prescribed by the DOTC.

Power to Enter into Contracts


Osmena v. COA, 238 SCRA 463, Nov. 29, 1994, En Banc [Narvasa] The participation by the City in negotiations for an amicable settlement of a pending litigation and its eventual execution of a compromise relative thereto, are indubitably within its authority and capacity as a public corporation; and a compromise of a civil suit in which it is involved as a party, is a perfectly legitimate transaction, not only recognized but even encouraged by law. A compromise is a bilateral act or transaction that it expressly acknowledged as a juridical agreement by the Civil Code and is therein dealt with in some detail. "A compromise," declares Article 2208 of said Code, "is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced." The definition is reflective of the general concept of a compromise in other jurisdictions, as "an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the same manner which they agree on, and which everyone of them prefers in the hope of gaining, balanced by the danger of losing." That the City of Cebu complied with the relevant formalities contemplated by law can hardly be doubted. The compromise agreement was submitted to its legislative council, the Sangguniang Panlungsod, which approved it conformably with its established rules and procedure, particularly the stipulation for the payment of P30,000.00 to the de la Cerna family. Neither may it be disputed that since, as a municipal corporation, Cebu City has the power to sue and be sued, it has the authority to settle or compromise suits, as well as the obligation to pay just and valid claims against it. Osmena v. COA, 230 SCRA 585, Mar. 2, 1994 [Nocon] The Commission on Audit has the power, authority and duty to examine, audit and settle all accounts pertaining to 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. The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof. (Emphasis added) Any contract entered into contrary to the foregoing requirements shall be VOID. Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and unforceable in COA's 2nd Indorsement, dated September 4, 1986. City of Quezon v. Lexber Incorporated, 354 SCRA 493, March 15, 2001, 1st Div. [Ynares-Santiago] We must differentiate the provisions of the old Local Government code of 1983 (BP 337) which was then in force, from that of the LGC of 1991 (RA 7160), which now requires that the mayors representation of the city in its business transactions must be upon authority of the sangguniang panlungsod orpursuant to law or ordinance (Sec. 455 [vi]). This restriction, therefor cannot be imposed on the city mayor then since the two contacts were entered into before RA 7160 was even enacted. Under BP 337, while the city mayor has no power to appropriate funds to support the

148 contracts, neither does said law prohibit him fro entering into contracts unless and until funds are appropriated therefore. In fact, it is his bounden duty to so represent the city in all its business transactions. On the other hand, the city council must provide fro the depositing, leaving or throwing of garbage and to appropriate funds for such expenses. It cannot refuse to provide and appropriate public funds for such services which are very vital to the maintenance of cleanliness of the city and the good health of its inhabitants.

REPRESENTATION OF LOCAL GOVERNMENTS IN LAWSUITS


Ramos v. CA, 269 SCRA 34, Mar. 3, 1997 The recent case of Municipality of Pililla, Rizal vs. Court of Appeals, set in clearcut terms the answer to the question of who may legally represent a municipality in a suit for or against it. Only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits. These exceptions are enumerated in the case of Alinsug vs. RTC, Br. 58, San Carlos City, Negros Occidental. Private lawyers may not represent municipalities on their own. Neither may they do so even in collaboration with authorized government lawyers. This is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be expended to hire private lawyersxxx Although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice, however, we hold that a municipality may adopt the work already performed in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer's work cannot bind the municipality. Province of Bulacan v. CA, 299 SCRA 442, Nov. 7, 1998 [Romero] xxx While it is true that the Provincial Governor can enter into contract and obligate the province only upon authority of the sangguniang panlalawigan, the same is inapplicable to the case at bar. The agreement and modus vivendi may have been signed by petitioner Roberto Pagdanganan, as Governor of the Province of Bulacan, without authorization from the sangguniang panlalawigan, but it was also signed by Manuel Siayngco, the Provincial Legal Officer, in his capacity as such, and as counsel of petitioners. It is a well-settled rule that all proceedings in court to enforce a remedy, to bring a claim, demand, cause of action or subject matter of a suit to hearing, trial, determination, judgment and execution are within the exclusive control of the attorney. With respect to such matters of ordinary judicial procedure, the attorney needs no special authority to bind his client. Such questions as what action or pleading to file, where and when to file it, what are its formal requirements, what should be the theory of the case, what defenses to raise, how may the claim or defense be proved, when to rest the case, as well as those affecting the competency of a witness, the sufficiency, relevancy, materiality or immateriality of certain evidence and the burden of proof are within the authority of the attorney to decide. Whatever decision an attorney makes on any of these procedural questions, even if it adversely affects a client's case, will generally bind a client. The agreement and modus vivendi signed by petitioners' counsel is binding upon petitioners, even if the Sanggunian had not authorized the same, limitation of issues being a procedural question falling within the exclusive authority of the attorney to decide.

INTER-GOVERNMENTAL RELATIONS
Pimentel, Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En Banc [Panganiban]

149 Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. As we stated in Magtajas v. Pryce Properties Corp., Inc., municipal governments are still agents of the national government. Local fiscal autonomy does not however rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country. However, under the Constitution, the formulation and the implementation of such policies and programs are subject to "consultations with the appropriate public agencies, various private sectors, and local government units." The President cannot do so unilaterally. There are therefore several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one. KAPUNAN: The interaction between the national government and the local government units is mandatory at the planning level. Local development plans must thus hew to "national policies and standards" as these are integrated into the regional development plans for submission to the National Economic Development Authority." Local budget plans and goals must also be harmonized, as far as practicable, with "national development goals and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources." Drilon v. Lim, 235 SCRA 135, Aug. 4, 1994, En Banc [Cruz] Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions is accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision. An officer in control lays down the rules in the doing of an act. It they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not

150 prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision. Joson v. Torres, 290 SCRA 279, May 20, 1998 [Puno] Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23. Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee. Moday v. CA, 268 SCRA 586, Feb. 20, 1997 The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not render said resolution null and void. The law, as expressed in Section 153 of B.P. BLG. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements in Velazco vs. Blas, where we cited significant early jurisprudence, are applicable to the case at bar. "The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is 'beyond the powers conferred upon the council or president making the same.' Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative functions of the municipal council or president. Such has been the consistent course of executive authority." Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly Anuncio has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes] In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto. The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels. The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively. The duly elected presidents of the component municipal and city chapters shall constitute the provincial chapter or the metropolitan political subdivision chapter. The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.

ENACTMENT OF ORDINANCES

151

Malonzo v. Zamora, 311 SCRA 224, July 27, 1999, En Banc [Romero]

On its first regular session, may the Sanggunian transact business other than the matter of adopting or updating its existing rules or procedure?
Held: We cannot infer the mandate of the (Local Government) Code that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that on the first regular session x x x the sanggunian concerned shall adopt or update its existing rules or procedures. There is nothing in the language thereof that restricts the matters to be taken up during the first regular session merely to the adoption or updating of the house rules. If it were the intent of Congress to limit the business of the local council to such matters, then it would have done so in clear and unequivocal terms. But as it is, there is no such intent. Moreover, adopting or updating of house rules would necessarily entail work beyond the day of the first regular session. Does this mean that prior thereto, the local council's hands were tied and could not act on any other matter? That would certainly be absurd for it would result in a hiatus and a paralysis in the local legislature's work which could not have been intended by the law. Drilon v. Lim, 235 SCRA 135, Aug. 4, 1994, En Banc [Cruz] An officer in control lays down the rules in the doing of an act. It they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision. That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather

Have the powers of the Land Transportation Office (LTO) to register, tricycles in particular, as well as to issue licenses for the driving thereof, been devolved likewise to local government units?
Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof have been devolved to local governments under the Local Government Code. Clearly unaffected by the Local Government Code are the powers of the LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles used or operated on or upon any public highway in the country. This can be gleaned from the explicit language of the statute itself, as well as the corresponding guidelines issued by the DOTC. In fact, even the power of LGUs to regulate the operation of tricycles and to grant franchises for the operation thereof is still subject to the guidelines prescribed by the DOTC. than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to wit, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness of the tax measure.

152

VETO POWER OF LOCAL CHIEF EXECUTIVES DISQUALIFICATIONS UNDER SECTION 40 OF THE LOCAL GOVERNMENT CODE
Dela Torre v. COMELEC Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine." In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in "Zari v. Flores," to wit: "It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited...xxx Petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioner's theory has no merit. Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza] Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." Marquez, Jr. v. COMELEC, 243 SCRA 538, April 18, 1995 Section 40 of R.A. No. 7160, otherwise known as the Local Government Code of 1991 enumerates those who are disqualified from running for any elective local position, among whom is a: (e) Fugitive from justice in criminal or non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and an undue circumscription of the law. Justice Davide agrees and further submits that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or

153 are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a reexamination of the meaning of the term. Rodriguez v. COMELEC, 259 SCRA 296, July 24, 1996 To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

LIMITATION ON TERM OF OFFICE OF LOCAL ELECTIVE OFFICIALS


Borja, Jr. v. COMELEC, G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza] To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following cases or situations: Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election? Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one "for which he was elected." Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. LibLex Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X, 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.

154

Lonzanida v. COMELEC, 311 SCRA 602, July 28, 1999, En Banc [Gonzaga-Reyes] The two requisites for the application of the three term rule was absent. First, Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections, and second, he did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by the SC that a proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. His opponents' contention that Lonzanida should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Lonzanida vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, Lonzanida did not fully serve the 1995-1998 mayoral term.
In sum, Lonzanida was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. Socrates v. COMELEC, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio] This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code x x x. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an

reelection for a fourth term.

155 immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of servicexxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. Mendoza v. COMELEC G.R. No. 149736, December 17, 2002

VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, a recall term should not be counted or used as a basis for the disqualification whether served prior (as in this case) or subsequent (as in the Socrates case) to the nine-year, full three-term limitxxx
In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1) that the elective local official concerned has been elected for three consecutive terms to the same local government position, and (2) that he has served three consecutive full terms, albeit a voluntary renunciation of the office for any length of time shall not be deemed to be an interruption in the continuity of the service for the full term for which he is elected. The constitutional provision does not appear to be all that imprecise for and in its application. Section 8, Article X, of the Constitution is explicit that the term of office of elective local officials x x x shall be three years which phrase is forthwith followed by its mandate that no such official shall serve for more than three consecutive terms, and that [v]oluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he [is] elected. The law evidently contemplates a continuous full three-year term before the proscription can apply.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a local elective office takes place or a recall election is held should not be counted in determining whether an elective local official has served more than three consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by the incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position.

PROHIBITION UNDER SECTION 90 OF THE LOCAL GOVERNMENT CODE


Javellana v. DILG, [G.R. No. 102549. August 10, 1992.] The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the

156 discharge of their public duties and the private practice of their profession, in those instances where the law allows it. Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools except during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.

VACANCIES AND SUCCESSION IN THE LOCAL GOVERNMENT


Navarro v. CA, 355 SCRA 672, March 28, 2001, 1st Div. [Kapunan] Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, reuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office. What is crucial is the interpretation of Section 45(b) providing that x x x only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancyxxx Farinas v. Barba, 256 SCRA 396, April 19, 1996, En Banc [Mendoza] Since the vacancy in this case was created by a Sanggunian member who did not belong to any political party, the specific provision involved is par. (c) of Sec. 45 of the Local Government Code. But who is the "local chief executive" referred? And which is the "Sanggunian concerned"? With respect to the first ("local chief executive"), petitioners look to Sec. 45(a) for the answer and say that it is the governor, with respect to vacancies in the Sangguniang Panlungsod of component cities and Sangguniang Bayan, or the mayor with respect to vacancies in the Sangguniang Barangay. Reference to Secs. 50 and 63 provisions is appropriate not for the reason advanced by petitioners, i.e., that the power to appoint implies the power to remove, but because implicit in these provisions is a policy to vest in the President, the governor and the mayor in descending order the exercise of an executive power whether to appoint in order to fill vacancies in local officials. These provisions are in pari materia with Sec. 45. To be sure the President of the Philippines can not be referred to as "local chief executive" in Sec. 45(c) but it is apparent that the phrase is a misnomer and that the choice of this phrase was simply dictated by the need to avoid, for stylistic reasons, interminably repeating the officials on whom the power to appoint is conferred. Perhaps "authorities concerned" would have been a more accurate generic phrase to use. For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater, difficulty. For Sec. 45(a)(3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief executive of a barangay is not the mayor. It is the punong barangay. Yet "local chief executive" cannot be applied to the punong barangay without rendering Sec. 45(a)(3) meaningless. For then there would never be any occasion when the mayor, under this provision, can appoint a replacement for a member of the Sangguniang Bayan who for one reason or another ceases from office for reason other than the expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan be filled by a different authority (the governor, according to this view) simply because the vacancy was created by a member who does not belong to a political party when, according to Sec. 45(a)(1), a vacancy created by a member who belongs to a political party must be filled by appointment by the President of the Philippines? With reference to the phrase "sanggunian concerned" in Sec. 45(c), petitioners say it means, with respect to a vacancy in the Sangguniang Bayan, the Sangguniang Panlalawigan. Their reason is

157 that under Sec. 61 of the Code, the power to investigate complaints against elective municipal officials is vested in the Sangguniang Panlalawigan. This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay it is the Sangguniang Barangay which under Sec. 45(a)(3) recommends the appointee, not the Sangguniang Panlungsod or the Sangguniang Bayan, which would be the case if petitioners' view were to prevail. We think that the phrase "sanggunian concerned" in Sec. 45(c) should more properly be understood as referring to the Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in Sec. 45(a)(3). In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for the filling of vacancies in the various Sanggunians when these vacancies are created as a result of the cessation from office (other than expiration of term) of members who belong to political parties. On the other hand, Sec. 45 (c) must be understood as providing for the filling of vacancies created by members who do not belong to any political party. There is only one rule governing appointments to the Sanggunian Barangay. Any vacancy therein caused by the cessation from office of a member must be made by the mayor upon the recommendation of that Sanggunian. The reason is that members of the Sangguniang Barangay are not allowed to have party affiliations Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [YnaresSantiago]

May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)? If no, who may preside in the meantime?
Held: Being the acting governor, the Vice-governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the Provincial Governor calls for a full-time occupant to discharge them. Such is not only consistent with but also appears to be the clear rationale of the new (Local Government) Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding vacancy in the office of the ViceGovernor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an inability on the part of the regular presiding officer (ViceGovernor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code concerning the election of a temporary presiding officer. The continuity of the Acting Governors (ViceGovernor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), in the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.

APPOINTMENT AND REMOVAL OF LOCAL GOVERNMENT OFFICIALS


De Rama v. CA, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago] Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. In doing so, he overstepped the bounds of his authority. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC's jurisdiction to affirm or revoke the recall. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that "an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission." Thus, it is the

158 CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations. Alquizola, Sr. v. Ocol, G.R. No. 132413, Aug. 27, 1999, 3rd Div. [Vitug]

May the Punong Barangay validly appoint or remove the barangay treasurer, the barangay secretary, and other appointive barangay officials without the concurrence of the majority of all the members of the Sangguniang Barangay?
Held: The Local Government Code explicitly vests on the punong barangay, upon approval by a majority of all the members of the sangguniang barangay, the power to appoint or replace the barangay treasurer, the barangay secretary, and other appointive barangay officials. Verily, the power of appointment is to be exercised conjointly by the punong barangay and a majority of all the members of the sangguniang barangay. Without such conjoint action, neither an appointment nor a replacement can be effectual. Applying the rule that the power to appoint includes the power to remove, the questioned dismissal from office of the barangay officials by the punong barangay without the concurrence of the majority of all the members of the Sangguniang Barangay cannot be legally justified. To rule otherwise could also create an absurd situation of the Sangguniang Barangay members refusing to give their approval to the replacements selected by the punong barangay who has unilaterally terminated the services of the incumbents. It is likely that the legislature did not intend this absurdity to follow from its enactment of the law.

ADMINISTRATIVE DISCIPLINARY ACTIONS


Joson v. Torres, 290 SCRA 279, May 20, 1998 [Puno] Administrative disciplinary proceedings against elective local officials are governed by the Local Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent Component Cities, and Cities and Municipalities in Metropolitan Manila." 35 In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987 apply in a suppletory character. 36 An administrative complaint against an erring elective official must be verified and filed with the proper government office. A complaint against an elective provincial or city official must be filed with the Office of the President. A complaint against an elective municipal official must be filed with the Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang Panlungsod or Sangguniang Bayan. Salalima v. Guingona, Jr., 257 SCRA 55, May 22, 1996, En Banc [Davide] An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. This provision sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners' term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. And

159 this Court is not prepared to rule that the suspension amounted to the petitioners' removal from office.

RECALL
Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. (Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc

[Puno])

Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno] The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered part and parcel of every law in case of its silence. The need for notice to all the members of the assembly is also imperative for these members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The resolution to recall should articulate the majority will of the members of the assembly but the majority will can be genuinely determined only after all the members of the assembly have been given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is mandatory for it is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its non-observance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan. Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local Government Code of 1991: The Key to National Development, stressed the same reason why the substantive content of a vote of lack of confidence is beyond any inquiry, thus: There is only one ground for recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective official without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are subject of any recall petition. In the case of Evardone v. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the Court ruled that loss of confidence as a ground for recall is

a political question. In the words of the Court, 'whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question. Malonzo v. COMELEC [G.R. No. 127066. March 11, 1997.] The barangays are represented in the Liga by the barangay captains as provided under Section 492 of the Local Government Code. It also provides that the Kagawad may represent the barangay in the absence of the barangay chairman." The Liga ng mga Barangay is undoubtedly an entity distinct from the Preparatory Recall Assembly. It just so happens that the personalities representing the barangays in the Liga are the very members of the Preparatory Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor of the resolution calling for the recall of Mayor Malonzo, after deliberation reported, in the record in accordance with the existing law. Thus, the Punong Barangays and Sangguniang Barangay members conveyed and voted as members of the Preparatory Recall Assembly of the City of Caloocan, and not as members of the Liga ng mga Barangay. Angubung v. COMELEC, G.R. No. 126576, March 5, 1997

160 A petition for recall signed by just one person is in violation of the statutory 25% minimum requirement as to the number of signatures supporting any petition for recall. Sec. 69(d) of the Local Government Code of 1991 expressly provides that 'recall of any elective x x x municipal x x x official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.' The law is plain and unequivocal as to what constitutes recall proceedings: only a petition of at least 25% of the total number of registered voters may validly initiate recall proceedings. The term regular local election under Sec. 74 of the Local Government Code of 1991 which provides that no recall shall take place within one (1) year x x x immediately preceding a regular local election refers to one where the position of the official sought to be recalled is to be actually contested and filled by the electorate (Paras v. Comelec, G.R. No. 123169, Nov. 4, 1996). The one-year time bar will not apply where the local official sought to be recalled is a Mayor and the approaching election is a barangay election. Claudio v. COMELEC, G.R. No. 140560, May 4, 2000, En Banc [Mendoza]

Does the word Recall in paragraph (b) of Section 74 of the Local Government Code include the convening of the Preparatory Recall Assembly and the filing by it of a recall resolution? Discuss.
Held: Petitioner contends that the term recall in Sec. 74 (b) refers to a process, in contrast to the term recall election found in Sec. 74 (a), which obviously refers to an election. He claims that when several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence, the process of recall began and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void. The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and a day after petitioners assumption of office, the recall was validly initiated outside the one-year prohibited period. Both petitioner Claudio and the COMELEC thus agree that the term recall as used in Sec. 74 refers to a process. They disagree only as to when the process starts for purpose of the one-year limitation in paragraph (b) of Sec. 74. We can agree that recall is a process which begins with the convening of the preparatory recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date. However, as used in paragraph (b) of Sec. 74, recall

refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement .
To sum up, the term recall in paragraph Sec 74(b) refers to the recall election and not to the preliminary proceedings to initiate recall

1) Because Sec. 74 speaks of limitations on recall which, according to Sec. 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); 2) Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and

161 3) Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. Afiado v. COMELEC, 340 SCRA 600, Sept. 18, 2000, En Banc [De Leon] [When

Recall Becomes Moot and Academic]

xxx As to whether or not Mayor Navarro can be the subject of recall election by virtue of Resolution No. 1 of the Preparatory Recall Assembly which was passed when she was still the elected City Vice-Mayor, the same has become moot and academic. We quote below the pertinent portion of the COMELEC's Resolution dated March 31, 2000 in EM No. 99- 006 and to which we agree, to wit: The assumption by legal succession of the petitioner as the new Mayor of Santiago City is a supervening event which rendered the recall proceeding against her moot and academic. A perusal of the said Resolution reveals that the person subject of the recall process is a specific elective official in relation to her specific office. The said resolution is replete with statements, which leave no doubt that the purpose of the assembly was to recall petitioner as Vice Mayor for her official acts as Vice Mayor. The title itself suggests that the recall is intended for the incumbent Vice Mayor of Santiago City. The third paragraph of the resolution recounted "the official acts of City Vice Mayor Navarro that brought forth the loss of confidence in her capacity and fitness to discharge the duties and to perform the functions of her public office." And because of such acts, the assembly "RESOLVED to invoke the rescission of the electoral mandate of the incumbent City Vice Mayor." Clearly, the intent of the PRA as expressed in the said Resolution is to remove the petitioner as Vice Mayor for they already lost their confidence in her by reason of her official. acts as such. To recall, then, the petitioner when she is already the incumbent City Mayor is to deviate from the expressed will of the PRA. Having, thus, succeeded to the position of City Mayor, the petitioner was placed beyond the reach of the effects of the PRA Resolution. The specific purpose of the Preparatory Recall Assembly was to remove Amelita S. Navarro as the elected Vice-Mayor of Santiago City since PRA Resolution No. 1 dated July 12, 1999 expressly states that ". . . it is hereby resolved to invoke the rescission of the electoral mandate of the incumbent City Vice-Mayor Amelita S. Navarro for loss of confidence through a recall election to be set by the Commission on Election as provided for under Section 71 of the Local Government Code of 1991." However, the said PRA Resolution No. 1 is no longer applicable to her inasmuch as she has already vacated the office of Vice-Mayor on October 11, 1999 when she assumed the position of City Mayor of Santiago City. Even if the Preparatory Recall Assembly were to reconvene to adopt another resolution for the recall of Amelita Navarro, this time as Mayor of Santiago City, the same would still not prosper in view of Section 74 (b) of the Local Government Code of 1991 which provides that "No recall shall take place within one (1) year from the date of the official's assumption of office or one (1) year immediately preceding a regular election." There is no more allowable time in the light of that law within which to hold recall elections for that purpose. The then Vice-Mayor Amelita S. Navarro assumed office as Mayor of Santiago City on October 11, 1999. One year after her assumption of office as Mayor will be October 11, 2000 which is already within the one (1) year prohibited period immediately preceding the next regular election in May 2001.

PUBLIC INTERNATIONAL LAW


THE DOCTRINE OF INCORPORATION
The Doctrine of Incorporation means that the rules of international law form part of the law of the land and no legislative action is required to make them applicable to a country. The Philippines follows this doctrine, because Sec. 2

162 Article II of the Constitution states that the Philippines adopt the generally accepted principles of international law as part of the law of the land. Secretary of Justice v. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo] Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban] By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations.

ELEMENTS OF STATE
People a group of individuals, both sexes, living together as community. They must be sufficient in number to maintain and perpetuate themselves. A casual gathering (stranded), or a society of pirates would not constitute a state. Territory fixed portion of the earths surface occupied by the inhabitants. Government must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in government. Is it a Political Question?

163 Effect of Change in Government It is well settled that as far as the rights of the predecessor government are concerned, they are inherited in toto by the successor government. Regarding the obligations, distinction is made according to the manner of the establishment of the new government. The rule is that where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed by the former. Conversely, as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of official business. Sovereignty freedom from outside control in the conduct of its foreign (and internal) affairs. Is Sovereignty Absolute? While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations. Effect of Change in Sovereignty
Political laws Suspended subject to revival under the principle of jus postlimini upon the End of occupation This applies only to civilians & not to members of the armed forces, except laws on treason, because treason is a breach of allegiance to the sovereign. Non-political laws Not affecteda) Non political laws are laws intended to govern the relations of individuals as among themselves b) Political laws are laws intended to govern the relations between the inhabitants & the state Judicial decisions They are valid during the occupation & even beyond it, except those of political complexion, which is automatically annulled upon the restoration of the legitimate authority.

The Principle of State Continuity The disappearance of any of the above-mentioned elements of statehood would cause the extinction of the State, but mere changes as to one or more of those elements would not necessarily, as a rule, bring about such extinction, under the Principle of State Continuity. The identity of a State in international law is also not affected by changes in government, whether brought about legally or illegally by revolution or coup d etat.

THE QUESTION OF RECOGNITION


Recognition the act by which a state acknowledges the existence of another state, a government or a belligerent community, and indicates its willingness to deal with the entity as such under international law.

164

Who has Authority to Recognize? It is a matter to be determined according to the municipal law of each state. In the Philippines, there is no explicit provision in the Constitution which vests this power in any department. But since under the Constitution, the President is empowered to appoint and receive ambassadors and public ministers, it is conceded that by implications, it is the Executive Department that is primarily endowed with the power to recognize foreign governments and States.

Recognition of States Constitutive School (Minority View) recognition is the act which constitutes the entity into an international person. Under this view, recognition is compulsory and legal; it may be compelled once the elements of a state are established. Declaratory School (Majority View) recognition merely affirms an existing fact, like the possession by the state of the essential elements. It is discretionary and political.

Recognition of Government The free act by which one or several states acknowledges that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them. Kinds of Recognition of Government De Facto Recognition extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain judicial relations; it does not bring about full diplomatic intercourse and does not give title to assets of the state held/situated abroad. De Jure Recognition extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent; brings about full diplomatic intercourse and observance of diplomatic immunities; and confers title to assets abroad.

Wilson or Tobar Doctrine precludes recognition to any government coming into existence by revolutionary means so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country. The Estrada Doctrine a policy of never issuing any declaration giving recognition to governments and of accepting whatever government is in effective control without raising the issue of recognition.

Recognition of Belligerency It is the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state. Belligerency exists when a sizable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population, have a political organization, are able to maintain such control, and conduct themselves according to the laws of war. Effects of Recognition of Belligerency

165 Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel government; the legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities; third states recognizing the belligerency shall maintain neutrality; and recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the hostilities. Conditions of Recognition of Belligerency The usual conditions for the recognition of the status of belligerency are: organized civil government having control and supervision over the armed struggle; serious and widespread struggle with the outcome uncertain; occupation of a substantial portion of the national territory; and willingness on the part of the rebels to observe the rules/customs of war. [Note: (1) Absence of any of the foregoing conditions will result

merely in insurgency which is rarely recognized. (2) Recognition may be either express or implied; the proclamation by the parent state of a blockade of a port held by the rebels is implied recognition of belligerency; so is the proclamation of neutrality by a third state.]

TERRITORIES OF STATES
Territory - the fixed portion on the surface of the earth on which the State settles and over which it has supreme authority. The Terrestrial or Land Domain The land mass on which the people live. It may be integrate, as in the case of Iran, or dismembered as in the case of the United States, or may be partly bounded by water like Burma, or completely surrounded like Iceland, or may consist of several islands like the Philippine archipelago. Modes of Acquiring Land Territory a. Discovery and Occupation. Territory not belonging to any State, or terra nullius, is place under the sovereignty of the claiming State. Discovery, alone, merely creates an inchoate right; it must be followed within a reasonable b. Prescription. Territory may also be acquired through continuous and uninterrupted possession over a long period of time, just like in civil law. In international law, however, there is no rule of thumb as to the length of time needed for acquisition of territory through prescription. In this connection, consider the Grotius doctrine of immemorial prescription, which speaks of uninterrupted possession going beyond memory. c. Cession (by treaty). Cession may voluntary, through a treaty of sale or treaty of donation. Cession may also be involuntary or forced. d. Conquest. This mode of acquisition is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any State. Thus, under the Stimson Doctrine, which forbade recognition of any government set up through external aggression, conquest was not considered a valid mode of acquiring territory. e. Accretion. The increase in the land area of the State, either through natural means or artificially through human labor. The Sector Principle, applied in the Polar region of the Arctic and Antartica. The Doctrine of Effective Occupation

166 The nationals of the discovering state, in its name or by its authority, must first take possession of the territory. Thereafter, they must establish thereon an organization or government capable of making its laws respected. The Internal Waters Bodies of water within the land mass, such as rivers, lakes, canals, gulfs, bays and straits. The UN Convention on the Law of Sea defines internal waters as all waters on the landward side of the baselines of the territorial sea. The Maritime or Fluvial Domain consist of the bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. The Regime of the Territorial Sea Defined according to what we call historic right or treaty limits theory. According to this theory, all the non-internal waters delineated

by the latitudes and longitudes specified in Article III of the Treaty of Paris of December 10, 1898, between the United States, are territorial in character. They have been regarded by the rest of the world since Spain claimed them as such after its discovery of the Philippine Island in 1521 and such recognition has vested historic right in us as successor in interest, to such territorial seas. Under the 1982 Convention on the Law of the Sea, of which the Philippines is a signatory, the territorial sea has a uniform breadth of 12 miles measured from the low-water mark of the coast. The Right of Innocent Passage navigation through the territorial sea of a State for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal State. Arrival under stress or involuntary entrance may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit by pirates. The Right of Transit Passage

The 24-Nautical Miles Contiguous Zone extends up to 12 nautical miles from the territorial sea. The coastal State may exercise limited jurisdiction over the contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws. The 200-Mile Exclusive Economic Zone (patrimonial sea) extends 200 nautical miles from the coast or the baselines. All living and non-living resources found therein belong exclusively to the coastal state. The Continental Shelf comprises the sea-bed and the sub-soil 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. The Archipelago Principle The waters around, between and connecting the island of the archipelago, regardless of their breadth or dimension, are to be treated as internal waters. The High Seas also treated as res communes or res nulius, and thus, are not territory of any particular State. The traditional view is freedom of the high seas - they are open and available, without restriction, to the use of all

167 States for the purpose of navigation, flight over them, laying submarine cables and pipes, fishing, research, mining, etc. The Doctrine of Hot Pursuit if an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open sea and upon capture bring it back to its territory for punishment. However, to be lawful, the pursuit must have begun before the offending vessel has left the territorial waters, or the contiguous zone of the coastal State; the pursuit must be continuous and unabated; and it ceases as soon as the ship being pursued enters the territorial sea of its own, or of a third State. The Aerial Domain the airspace above the terrestrial domain and the maritime and fluvial domain of the state, to an unlimited altitude but not including outer space.

The Outer Space the rules governing the high seas apply also to outer space, which is considered as res communes. States have the right to launch satellites in orbit over the territorial air space of other State. The Outer Space Treaty outer space is free for exploration and use by all States; it cannot be annexed by any State; and it may be used exclusively for peaceful purposes. Thus, nuclear weapons of mass destruction may not be placed in orbit around the earth.

FUNDAMENTAL RIGHTS OF STATES IN INTERNATIONAL LAW


The Right of Existence and Self-Defense
By virtue of this right, the state may take such measures, including the use of force, as may be necessary to resist any danger to its existence. Such action being the exercise of an inherent right, it does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states.

The Right of Sovereignty and Independence


Sovereignty is the supreme, uncontrollable power inherent in a state by which that state is governed. It is the supreme power of the State to command and enforce obedience, the power to which, legally speaking, all interests are practically subject and all wills subordinate. Independence Also known as external sovereignty. It signifies the freedom of the state to control its own foreign affairs. The Question of Intervention Intervention may be defined as an act by which a state interferes with the domestic or foreign affairs of another state or states through the employment of force or threat of force. Such force may be physical or in the present state of world affairs, even political or economic. The state must abstain from intervention. Even as it expects its independence to be respected by other states, so too must it be prepared to respect their own independence. The right of independence carries with it, by necessary implication, the correlative duty of non-intervention. Intervention is not sanctioned in international relations except only when it is exercised as an act of self-defense or when it is decreed by the Security Council as a preventive or enforcement action for the maintenance of international peace and security. These are the only two instances, in fact, when the use of force is allowed under the Charter of the United Nations. Some writers would add a third justification for intervention, and this is when such action is agreed upon in a treaty. Intervention may also be allowed

168 when requested from fellow states or from the United Nations by the parties to a dispute or by a state beset by rebellion. Nicaragua v. USA, Communique 86/8 [June 27, 1986] Where the US was found guilty of intervention in the affairs of Nicaragua for sending troops to Nicaragua to aid the contras, in as much as there was no armed attack against the latter. Note that protest or demand for rectification or reparation does not compromise intervention. Thus, the act of President Clinton in discouraging Americans from investing in Burma was not considered as intervention. The Drago Doctrine This Doctrine was embodied in the Hague Convention of 1907 through the provision that the Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals. The force of this rule was later dissipated by the Porter Resolution, under which intervention was permitted if the debtor state refused an offer to arbitrate the creditors claim, or having agreed to arbitrate, prevented agreement on the compromise, or having agreed thereto, refused to abide by the award of the arbitrator. Intervention Under the UN Charter United Nations itself categorically binds itself not to intervene in matters which are essentially within the domestic jurisdiction of any state. In the U.N. Declaration of Rights and Duties of States, it is provided that every State has the duty to refrain from intervention in the internal or external affairs of any other State. The Charter of the Organization of American States is more unequivocal with the statement that no State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic or cultural elements. Furthermore, no State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another state and obtain from its advantages of any kind.

SUBJECTS OF INTERNATIONAL LAW


The Holy See v. Rosario, 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason] Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See . Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the

169 rules of international law. (The Mavrommatis Palestine Concessions, 1 Hudson,

World Court Reports 293, 302 [1924])

Government of the USA v. Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban] [Vitug, Dissenting Opinion] Extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and custodial transfer (Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries.

extradition as the major effective instrument of international co-operation in the suppression of crime. (Bassiouni, supra, p. 21) It is the only regular system that
has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law (Id., p. 67)x x x Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our country. The Requesting State Will Accord Due Process to the Accused. An extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process (Coquia,

Today, a majority of nations in the world community have come to look upon

On Implementation of the RP-US Extradition Treaty, The Lawyers Review, August 31, 2000, p. 4). More pointedly, our duly authorized representatives signature on an

extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. Jeffrey Liang v. People, G.R. No. 125865, March 26, 2001, 1st Div. [Motion for

Reconsideration] [Puno, Concurring Opinion]

xxx The higher rating given to human rights on the hierarchy of values necessarily led to the re-examination of the rightful place of the individual in international law. Given the harshest eye is moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corollary is that sub-doctrine that an individuals right in international law is near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere object transported from one state to the other as an exercise of sovereign will of the two states involved.

INTERNATIONAL ORGANIZATIONS
SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14, 1992

International organizations are institutions constituted by international agreement between two or more States to accomplish common goals. The legal personality of these international organizations has been recognized not only in municipal law, but in international law as well.
Permanent international commissions and administrative bodies have been created by the agreement of a considerable number of States for a variety of

170 international purposes, economic or social and mainly non-political. In so far as they are autonomous and beyond the control of any one State, they have distinct juridical personality independent of the municipal law of the State where they are situated. As such, they are deemed to possess a species of international personality of their own.

DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES AS WELL AS IMMUNITIES OF INTERNATIONAL ORGANIZATIONS
Jeffrey Liang v. People, G.R. No. 125865, March 26, 2001, 1 st Div. [Motion for Reconsideration] [Puno, Concurring Opinion] Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receving ex parte the DFAs advice and in motu proprio dismissiong the two criminal cases without notice to the prosecution, the latters right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was action at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. (See U.S. vs. Guinto, 182 SCRA 644 [1990]). At any rate, it has been ruld that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges (Chavez vs.

Sandiganbayan, 193 SCRA 282[1991]).

The Holy See v. Rosario, 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason] In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14, 1992 One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium through which the host government may interfere in their operations or even influence or control its policies and decisions; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states.

JURISDICTIONAL ASSISTANCE Extradition


Wright v. CA, 235 SCRA 341, Aug. 15, 1994 [Kapunan] A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory. The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice." As it is an act of "surrender" of an individual found in a sovereign State to another State which demands his surrender, an act of extradition, even with a treaty rendered

171 executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State's demand, in accordance with the requested State's own interests. The principles of international law recognize no right of extradition apart from that arising from treaty. Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert them to the State where their offenses were committed, jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition. Secretary of Justice v. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Puno, Dissenting Opinion] It is the process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment. Secretary of Justice v. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno] An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. Xxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him . The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the
procedural due process required by a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. The concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure.

172 Government of the USA v. Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban] Ten Points to Consider in Extradition Proceedings As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused or the fugitive who has illegally escaped back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not

173 allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose.

Asylum
Every foreign State can be at least a provisional asylum for any individual who, being prosecuted in his home State, goes to another State. In the absence of any international treaty stipulating the contrary, no State is by international law obliged to refuse admission into its territory to such a fugitive or, in case he has been admitted, to expel him or deliver him up to the prosecuting State. The right of asylum is not a right possessed by an alien to demand that a State protect him and grant him asylum. At present, it is just a privilege granted by a State to allow an alien escaping from the persecution of his country for political reasons remain and grant him asylum.

Refugees
Any person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well rounded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.

Stateless Persons
Are those persons who are not considered as nationals by any State under the operation of its law.

THE LAW OF TREATIES


A treaty is a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations. Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban]

What is a "protocol de cloture"? Will it require concurrence by the Senate?


Held: A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. It will not require the concurrence of the Senate. The documents contained therein are deemed adopted without need for ratification. Bayan v. Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena] Ratification is generally held to be an executive act, undertaken by the head of state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic

174 legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers . International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.

Jus Cogens
Is a peremptory norm of general international law accepted and recognized by the international community as 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.

The Most-Favored-Nation Clause


The most-favored-nation treatment is that granted by one country to another not less favorable than that which has been or may be granted to the most favored among the countries. Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, 3rd Div. [Gonzaga-Reyes] The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries. The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is liable.

The Pacta Sunt Servanda Rule


It requires the performance in good faith of treaty obligations. The parties must comply with their commitments under a treaty and cannot ignore or modify its provisions without the consent of the other signatories. Willful disregard of a treaty is frowned upon by the society of nations and is likely to stigmatize the erring state, especially if the other contracting parties see fit to invoke the influence of world opinion as a means of enforcing compliance. Violations of treaties can lead to more drastic consequences, including war. Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban] One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A treaty

The Rebus Sic Stantibus Rule (things remaining as they are)

engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992

175 According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. It involves the legal effect of changed conditions upon a treaty. It holds that the obligations of a treaty terminate when a change occurs in circumstances which existed at the time of the conclusion of the treaty and whose continuance formed, according to the intention or will of the parties, a condition of the continuing validity of the treaty. To put an end to treaty obligations, something more than substantial change in circumstances is needed. What puts an end to a treaty us the disappearance of the foundation upon which it rests. There are, however, certain limitations to the application of the doctrine, as follows: 1. It applies only to treaties of indefinite duration; 2. The vital change must have been unforeseen or unforeseeable and should have not been caused by the party invoking the doctrine; 3. It must be invoked within a reasonable time, and 4. It cannot operate retroactively upon the provisions of a treaty already executed prior to the change in circumstances. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head of state, with a statement of the reasons why compliance with the treaty is no longer required.

THE DOCTRINE OF STATE RESPONSIBILITY TO ALIENS


A state is under obligation to make reparation to another state for the failure to fulfill its primary obligation to afford; in accordance with international law, the proper protection due to an alien who is a national of the latter state. Requisites An act or omission in violation of international law Which is imputable to the state, and Which results in injury to the claimant state either directly or indirectly through damage to a national.

Liability will attach to the state where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstance. Even if the laws conform to the international standard of justice, the State may still be held liable if it does not make reasonable efforts to prevent injury to the alien or, having done so unsuccessfully, fails to repair such injury. Nevertheless, responsibility does not immediately attach to the State upon a showing of a failure to prevent or redress an injury to aliens. Distinction must be made between direct and indirect state responsibility. The rule is that where the international delinquency was committed by superior government officials or organs, like the Chief of State or the National Legislature, liability will attach immediately as their acts may not be effectively prevented or reversed under the Constitution and laws of the State. However, when the offense is committed by inferior government officials, or more so, by private individuals, the State will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effect in its commission. Conditions for Enforcement of Claim

176 Nationality of claim Exhaustion of local remedies No waiver No unreasonable delay in filing claim No improper behavior by injured alien.

The doctrine of State responsibility is applied more frequently to tortuous rather than contractual liability because of the unwillingness of most States to act as collection agencies for their nationals entering into private agreements with or in foreign countries. The Calvo Clause a stipulation by which the alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state. The Doctrine of Effective Nationality Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989

Within a Third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a Third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally a resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.

PACIFIC METHODS OF SETTLING INTERNATIONAL DISPUTES


A dispute is defined as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons. A disagreement or conflict has the character of an international dispute if it arises between two or more States. Under the Optimal Clause of the Statute of the International court of Justice (Article 36, par. 2). The following are deemed legal disputes: The interpretation of a treaty Any question of international law The existence of any fact which, if established, would constitute a breach of an international obligation, and The nature and extent of the reparation to be made for the breach of an international obligation

Negotiation It is the legal and orderly administrative process by which governments, in the exercise of their unquestionable powers, conduct their relations with one another and discuss, adjust and settle their differences. By this method, the parties seek a solution of their differences by direct exchange of views between themselves. This is the very essence of diplomacy. If successful, negotiations may result in a treaty or agreement being concluded or in an exchange of notes between the parties concerned.

Good Offices A term applied to the attempt of third party to bring together the disputing States to effect a settlement of their disputes.

Conciliation The process of settling disputes by referring them to commissions or other international bodies whose task is to elucidate the facts and make a report containing proposals, for settlement, which, however, has no binding character. It

177 differs from enquiry in that the main object of the latter is to establish the facts in dispute and thereby prepare for a negotiated settlement; whereas the former, the main object is not only to elucidate the facts but to bring the parties to an agreement. Mediation It is the action of the third party in bringing the parties to a dispute together and helping them in a more or less informal way to find a basis for the settlement of their dispute. In mediation, the role of the mediator is a more active one, for he proposes a solution, offers his advice and in general, attempts to conciliate differences. The mediator does not have to concern himself with the merits of the dispute; his task is to encourage compromise rather than advise adherence to legal principles Arbitration International arbitration is a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted. The main distinction between arbitration and conciliation is that under the latter the parties are not bound to adopt the proposals for a settlement which are suggested to them, whereas in arbitration a legal obligation exists to comply with the award of the arbitrator. Arbitration is a judicial process, while conciliation is essentially a bargaining process. Compromis dArbitrage It is the agreement to arbitrate. It usually defines the questions to be settled, states the method by which the arbitrators are to be selected and their number, provides for the place or meeting, expenses, rules of procedure and sometimes even the law to be applied. The compromis is the charter of the arbitral tribunal. Judicial Settlement It means settlement by a permanent international court of justice, in accordance with judicial methods. It differs from arbitration in that, the tribunal is a permanent body whose members have a secured period of tenure, whereas in arbitration, the tribunals are usually ad hoc bodies appointed to deal with particular disputes or class of disputes and ceasing to exist when these are disposed of. Moreover, in judicial settlement, the choice of the personnel of the court is, in general, independent of the will of the parties to the dispute, while in arbitration, the parties submit only to arbitrators of their own choosing, or have at least been given the opportunity of a free choice of arbitrators.

FORCIBLE MEASURES SHORT OF WAR


Retorsion It consist of an unfriendly, but not internationally illegal act of one State against another in retaliation for the latters unfriendly or inequitable conduct, usually resorted to by States in cases of unfair treatment of their citizens abroad. It need not take the form of retaliation in kind, so long as it is not an internationally illegal act, i.e., not contrary to public international law or to any treaty obligation. Reprisal In a broad sense, denotes any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or to obtain redress or satisfaction, directly or indirectly, for the consequences of the illegal acts of another State, which has refused to make amends for such illegal conduct. They differ from retorsion in that reprisals consist of acts which would ordinarily be illegal, whereas retorsion consists of retaliatory conduct which is legitimate or is not in violation of international law. Moreover, reprisals are generally resorted to by a State in consequence of an act or omission of another State which under

178 international law constitutes an international delinquency. On the other hand, the acts which give rise to retorsion though obnoxious, do not amount to an international delinquency. It is a form of self-help but must be distinguished from reprisals taken by belligerents in the form of a war; while the former is resorted to for the purpose of settling a dispute or redressing a grievance without going to war; while the latter is to compel a belligerent to observe or desist from violating the laws of warfare and, therefore, presupposes the existence of a state of war between the parties concerned. Acts of reprisals may be performed by State organs only. Formerly, which is now 0obsolete, States used to grant letters or marque or reprisals to their subjects who could not obtain redress for injuries suffered abroad, authorizing them to perform acts of self-help against the offending State or its nationals for the purpose of obtaining satisfaction for the wrong sustained, known as special reprisals. Pacific Blockade It is a naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of the coast of another State for the purpose of compelling the latter to yield to certain demands made upon it by the blockading State. It is called pacific because no state of war exists between States concerned. In pacific blockade, since no state of belligerency ensues between the blockader and the State against which the blockade is instituted, third States do not acquire the status of neutrals. A notable case of pacific blockade occurred in 1902 when the combined fleets of Great Britain, Germany and Italy blockaded the coast of Venezuela with the object of compelling the Venezuelan government to honor its financial obligations. This operation led to the formulation of the Drago Doctrine which would prelude any intervention for the purpose of collecting debts. Collective Measures under the UN charter Article 41 of the UN Charter provides that the Security Council may decide what measures not involving the use of armed forces are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures. If these measures should prove inadequate, the Security council may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security under Article 42. These enforcement provisions are brought into play only in the event that the Security council determines, under Article 39, that there exist a threat to the peace, a breach of the peace, or an act of aggression.

THE LAWS OF WAR


The Law of War consists of the rules of international law relating to the proper conduct of belligerents towards each other in the course of war. Situations of Armed Conflict Are the Laws of War Still Relevant? Sanctions of the Laws of War Observance of the rules of warfare by belligerents is secured through several means recognized by international law, namely: 1. 2. 3. 4. Reprisals Punishment of war crimes committed by enemy soldiers and other enemy subjects; Protest lodge with the neural powers; Compensation.

How War Commenced War is supposed to commence on the date specified in the declaration or on the date it is communicated to the enemy.

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War is commenced either by:

1. A declaration of war, giving reasons, or 2. An ultimatum, with a conditional declaration of war. A declaration of war is a communication by one State to another informing the latter that the condition of peace between them has come to an end and condition of war has taken place. An ultimatum is a written communication by one State to another which formulates, finally and categorically, the demands to be fulfilled if forcible measures are to be averted. From the point of view off international law, war commence upon the commission of an act of force by one party done animo belligorendi or even if that party had no such intent, if the other party elects to treat the act of force as having been done with such intent. How War Terminated War may be terminated in any of the following ways: 1. 2. 3. By simple cessation of hostilities, without the conclusion of a formal treaty of peace; By treaty of peace; By unilateral declaration by the victor, which usually takes the form of a decree or presidential proclamation or a notice in the official qazette.

The treaty of peace is described as imposed where the decisive victory of one of the belligerents leads it to impose its will upon the other. It may take the form of a negotiated treaty in cases where hostilities have ceased without either or the belligerents having such a decisive military advantage over the other as to be able to impose its will on the other. Jus Postliminy the revival or reversion to the old laws and sovereignty of territory which has been under belligerent occupation once control of the belligerent occupant is lost over the territory affected. Uti Possidetis it allows retention of property or territory in the belligerents actual possession at the time of the cessation of hostilities. Effect of the Outbreak of War The outbreak of war produces the following general effects: (1) The laws of peace cease to regulate the relations of the belligerents and are superseded by the laws of war. Third States are governed by the laws of neutrality in their dealings with the belligerents; (2) Diplomatic and consular relations between the belligerents are terminated and their respective representatives are allowed to return to their own countries; (3) Treaties of a political nature are automatically cancelled, but those which are precisely intended to operate during the war are activated. Multipartite treaties dealing with technical or administrative matters are deemed merely suspended as between the belligerents; (4) Individuals are impressed with enemy character; (5) Enemy public property found in territory of the other belligerent at the outbreak of hostilities is, with certain exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return, reimbursement or other disposition after the war in accordance with the treaty of peace.

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State the occasions when the use of force may be allowed under the UN Charter. Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A New

World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction?

Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense. Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter.

(Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter?

Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an

article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Combatants

Combatants are those who engage directly in the hostilities. Only the combatants may lawfully wage war and are thus subject to direct attack from the enemy. When captured, combatants are entitled to treatment as prisoners of war. Who are Combatants? (1) Members of the armed forces, except those not actively engaged in combat, such as chaplains and medical personnel; (2) The irregular forces, such as francs tireurs or the guerrillas, provided that (a) they are commanded by a person responsible for his subordinates; (b) they wear a fixed distinctive sign recognizable at a distance; (c) they carry arms openly; and (d) they conduct their operations in accordance with the laws and customs of war;

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(3) The inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves, provided only that they carry arms openly and observe the laws and customs of war; (4) The officers and crew of merchant vessels who forcibly resist attack. Non-Privileged Combatants Non-privileged combatants are individuals who take up arms or commit hostile acts against the enemy without belonging to the armed forces or forming part of irregular forces which comply with the requirements laid down in the relevant international covenants. They are not entitled to protection accorded to lawful combatants under international law. When captured, although they are not entitled to the status of prisoner of war, they shall nevertheless be treated with humanity and shall in no case be deprived of the rights to fair and regular trial as provided in the 1949 Geneva Convention Relatives to the Treatment of Civilian Persons in Time Of War. Non-Combatants Non-combatants are those who should not be subjected to attack as they are not supposed to participate in the actual fighting. They do not enjoy identical rights when captured but are nevertheless protected from inhumane treatment under the Geneva Convention of 1949 relative to the treatment of civilian persons in time of war. Prisoners of War The 1949 Geneva Convention III relative to the Treatment of Prisoners of War provides that it applies to prisoners of war who are captured in a properly declared war or any other kind of armed conflicts, even if any of the combatant powers do not recognize the existence of a state of war. It also applies to cases of partial or total occupation of territory even if the occupation meets with no armed resistance. According to the convention, the following categories of persons who fall into the hands of the enemy must be treated as Prisoners of War: (1) Members of the armed forces, as well as members of militias or volunteer corps forming part of such armed forces; (2) Members of other militias or volunteer groups, including those of organized resistance movements, subject to compliance with certain conditions;

(3) Members of regular armed forces professing allegiance to a government or an authority not recognized by the capturing State; (4) Various categories of person accompanying an army unit, such as civilian members of military aircraft crew, war correspondents, etc., provided they are authorized to be with the army or unit; (5) Members of the crew of merchant vessels and civilian aircraft who do not benefit by more favorable treatment under any other provisions of internal law; (6) Members of the population of non-occupied territory who take up arms as a levee en masse against an invading army. Rights of Prisoners of War (1) Proper respect commensurate to their rank; (2) Adequate food and clothing; (3) Safe and sanitary quarters; (4) Medical assistance; (5) Refuse to give military information or render military service against their own state;

182 (6) Communicate with their families

THE LAWS OF NEUTRALITY


Neutrality is an attitude of impartiality adopted by third states towards belligerents and recognized by the belligerents, such attitude creating rights and duties between the impartial States and the belligerents. It is more that just an attitude of impartiality; it denotes a legal status of a special nature, involving correlative rights and duties as between the neutral States and the belligerents. Distinguished from Neutralization (1)

Neutrality is dependent in the attitude of the neutral state, which is free to join either of the belligerents any time it sees fit; Neutralization is the
result of a treaty wherein the duration and other conditions of such neutralization are agreed upon by the neutralized state and other states

(2) (3) (4)

Neutrality is governed by the law of nations; Neutralization is governed


by the neutralization agreement. in peace and in war.

Neutrality obtains only during war; Neutralization is intended to operate


Only states may become neutral; Neutralization may apply to portions of the territory of the state like islands, rivers and canals.

Duties of a Neutral State Duty of Abstention - to abstain from taking part in the hostilities and from giving assistance to either belligerent by: (a) the sending of troops; (b) the official grant of loans; (c) the carriage of contraband. Duty of Prevention to prevent its territory and other resources from being used in the conduct of hostilities. Duty of Acquiescence to acquiesce to certain restrictions and limitations which the belligerents may find necessary to impose.

The Right of Angary A belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offense or defense, neutral property found in its territory, in enemy territory, or in the high seas. The exercise of the right is conditioned upon three requisites, to wit: (a) that the property is in the territory under the control or jurisdiction of the belligerent; (b) that there is urgent necessity for the taking; and (c) that just compensation is paid to the owner.

The Right of Visitation The right of belligerent vessels and aircraft to intercept and inspect neutral merchant vessels on the high seas for the purpose of determining if they are in any way connected with hostilities, carrying and contraband, attempting to breach a blockade, or engaged in unneutral service, in favor of the other belligerent.

Prohibited act Neutral States Breach of Blockade A breach of blockade occurs when a vessel, with the knowledge of the existence of the blockade, enters or leaves the blockaded port through the blockaded or forbidden approach. A mere attempt to violate the blockade is treated as a consummated blockade. Carriage of Contrabands The penalty for carriage of contraband would be confiscation of the contraband cargo; innocent cargo belonging to the same owner would also be

183 subject to confiscation under the doctrine of continuous transport when they are reloaded on another vessel or other form of transportation. Kinds of Contrabands

1. Absolute Contraband goods which are necessarily useful for war under all circumstances, like rifles and ammunition. They are subject to seizure so long as they are bound for enemy or enemy-held territory. 2. Conditional Contraband goods, like food and clothes, which have both civilian and military purposes. They may be seized only when it can be shown that they are intended for the armed forces or the authorities of the belligerent government. The Doctrine of Ultimate Consumption Under this doctrine, goods intended for civilian use which may ultimately find their way to and be consumed by the belligerent forces are also liable to seizure on the way. The Doctrine of Ultimate Destination The liability of contraband to seizure is determined not by their ostensible, but by their real destination. Even if the vessel stops at an intermediate neutral port, it will still be considered as one continuous voyage provided it could be shown that its cargo will ultimately be delivered to a hostile destination. Performance of Unneutral Service Consist of acts of a more hostile character than carriage of contraband or breach of blockade, which are undertaken by merchant vessels of a neutral State in aid of any of the belligerents. It denoted carriage by neutral vessel of certain persons and dispatches for the enemy. A neutral vessel engaged in unneutral service be captured by a belligerent and treated, in general, in the same way as neutral vessels captured for carriage of contraband. Prize and Prize Court Prize refers to a thing captured at sea in time of war, such as a neutral merchant vessel taken by a belligerent warship for engaging in hostile activities or resisting visit and search, or because of reasonable suspicion that it is liable to confiscation. Prize Court a tribunal established by a belligerent under its own laws, in its territory or in the territory of any of its aliens, for the purpose of determining the validity of maritime captures. Termination of Neutrality 1. When the sate joins the other war; 2. Conclusion of peace.