POLITICAL LAW

I. GENERAL PRINCIPLES

Definition of Political Law

• Is the branch of public law which deals with the organization and operation of
the governmental organs of the State and defines the relations of the State
with the inhabitants of its territory. It embraces constitutional law, law of
public officers, law on elections, and law of public corporations.

Background of the 1987 Constitution

1. Proclamation of the Freedom Constitution

a. Proclamation No. 1, February 25, 1986, announcing that she (Corazon

Aquino) and VP Laurel were assuming power.
b. Executive Order No.1, (Febrauary 28, 1986)
c. Proclamation No.3, March 25, 1986, announced the promulgation of the
Provisional (Freedom) Constitution, pending the drafting and ratification
of a new Constitution. It adopted certain provisions in the 1973
Constitution, contained additional articles on the executive department,
on government reorganization, and on existing laws. It also provided of
the calling of a Constitutional Commission to be composed of 30-50
members to draft a new Constitution.

2. Adoption of the Constitution

a. Proclamation No. 9, creating the Constitutional Commission of 50

members.
b. Approval of the draft Constitution by the Constitutional Commission on
October 15, 1986
c. Plebiscite held on February 2, 1987
d. Proclamation No. 58, proclaiming the
e. Ratification of the Constitution.

3. Effectivity of the 1987 Constitution: February 2

In re: Puno

1
 • The government under Cory Aquino and the Freedom Constitution is a de jure
government. It was established by authority of the legitimate sovereign, the
people. It was a revolutionary government in defiance of the 1973
Constitution.

Estrada vs. Arroyo

ISSUE NO. 1:

Our leading case is Tanada v. Cuenco, where this Court, through former Chief
Justice Roberto Concepcion, held that political questions refer "to those
questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality
of a particular measure." To a great degree, the 1987 Constitution has narrowed the
reach of the political question doctrine when it expanded the power of judicial
review of this court not only to settle actual controversies involving rights which are
legally demandable and enforceable but also 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 government.

No less than the Freedom Constitution declared that the Aquino

government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution. In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which
overthrew the whole government. EDSA II is an exercise of people power
of freedom of speech and freedom of assembly to petition the government
for redress of grievances which only affected the office of the President.
EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions. A brief

2
discourse on freedom of speech and of the freedom of assembly to petition the
government for redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.

(in short: Arroyo’s ascendancy is subject to judicial review, which comes to the next
question, is her administration a legitimate one?)

ISSUE NO. 2:

The issue then is whether the petitioner resigned as President or should be

considered resigned as of January 20, 2001 when respondent took her oath as the
14th President of the Public. Resignation is not a high level legal abstraction. It is a
factual question and its elements are beyond quibble: there must be an intent to
resign and the intent must be coupled by acts of relinquishment. The
validity of a resignation is not governed by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied.
As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated Malacañang Palace in the afternoon of January 20,
2001 after the oath-taking of respondent Arroyo. Consequently, whether or not
petitioner resigned has to be determined from his act 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.

The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.

• The petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. The proposal for a snap election for president in
May where he would not be a candidate is an indicium that petitioner had
intended to give up the presidency even at that time.

• Former President Ramos called up Secretary Angara and requested, "Ed,

magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a)
peaceful and orderly transfer of power." There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this stage,
the problem was already about a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.

3
 • Petitioner contends that the impeachment proceeding is an administrative
investigation that, under section 12 of RA 3019, bars him from resigning. We
hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative
proceeding, it cannot be considered pending at the time petitioner
resigned because the process already broke down when a majority
of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance,
and the proceedings were postponed indefinitely. There was, in effect,
no impeachment case pending against petitioner when he resigned.

• "Sec. 12. No public officer shall be allowed to resign or retire pending

an investigation, criminals or administrative, or pending a prosecution
against him, for any offense under this Act or under the provisions of
the Revised Penal Code on bribery."

(Therefore, through his implied acts, notwithstanding section 12 of RA 3019,

petitioner is deemed resigned.)

ISSUE NO. 3

What leaps to the eye from these irrefutable facts is that both houses of
Congress have recognized respondent Arroyo as the President. Implicitly
clear in that recognition is the premise that the inability of petitioner Estrada is no
longer temporary. Congress has clearly rejected petitioner's claim of inability.

Through House Resolution 176 and 178 and Senate Resolution 82 and 83 which
confirms PGMA’s assumption of office and confirming Guingona’s nomination as well
as both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President is clear proof that Estrada’s claim for inability has
been rejected by Congress;

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following
Tañada v. Cuenco, we hold that this Court cannot exercise its judicial
power or this is an issue "in regard to which full discretionary authority
has been delegated to the Legislative xxx branch of the government." Or
to use the language in Baker vs. Carr, there is a "textually demonstrable
or a lack of judicially discoverable and manageable standards for resolving
it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge
the power and duties of the presidency. The question is political in nature and
addressed solely to Congress by constitutional fiat. It is a political issue,

4
which cannot be decided by this Court without transgressing the principle
of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely
unable to govern temporarily. That claim has been laid to rest by Congress
and the decision that respondent Arroyo is the de jure, president made by
a co-equal branch of government cannot be reviewed by this Court.

ISSUE NO. 4

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 him.

We now come to the scope of immunity that can be claimed by petitioner as a non-
sitting President. The cases filed against petitioner Estrada are criminal in character.
They involve plunder, bribery and graft and corruption. By no stretch of the
imagination can these crimes, especially plunder which carries the death penalty,
be covered by the alleged mantle of immunity of a non-sitting president. Petitioner
cannot cite any decision of this Court licensing the President to commit 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 conditions. 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 trespasser.

In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President Nixon's
associates were facing charges of conspiracy to obstruct Justice and other offenses,
which were committed in a burglary of the Democratic National Headquarters in
Washington's Watergate Hotel during the 1972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to
quash the subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings. The claim was

5
rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,
the US Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it
held that the US President's immunity from suits for money damages
arising out of their official acts is inapplicable to unofficial conduct.

ISSUE NO. 5

Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of
prejudicial publicity on his guilt. He submits that the respondent Ombudsman has
developed bias and is all set file the criminal cases violation of his right to due
process.

In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. court of
Appeals, et al., we laid down the doctrine that:

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 impartially. xxx xxx xxx. Our judges are learned in the law and trained
to disregard off-court evidence and on-camera performances of parties to
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

6
simply that they might be, by the barrage of publicity. In the case at a bar,
the records do not show that the trial judge developed actual bias against
appellants 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.'

II. PRINCIPLES AND POLICIES OF THE PHILIPPINE GOVERNMENT

THE PREAMBLE

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.

ART. II: PRINCIPLES AND STATE POLICIES

PRINCIPLES

Section 1. The Philippines is a democratic and republican State. Sovereignty

resides in the people and all government authority emanates
from them.

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.

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.

Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military or civil service.

Section 5. The maintenance of peace and order, the protection of life,

liberty, and property, and promotion of the general welfare are
7
 essential for the enjoyment by all the people of the blessings of
democracy.

Section 6. The separation of Church and State shall be inviolable.

STATE POLICIES

Section 7. The State shall pursue an independent foreign policy. In its

relations with other states, the paramount consideration shall be
national sovereignty, territorial integrity, national interest,
and the right to self-determination.

Section 8. The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in its
territory.

Section 9. The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.

Section 10. The State shall promote social justice in all phases of national
development.

Section 11. The State values the dignity of every human person and
guarantees full respect for human rights.

Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.

Section 13. The State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth patriotism
and nationalism, and encourage their involvement in public
and civic affairs.

Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and
men.

8
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.

Section 17. The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total human
liberation and development.

Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.

Section 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.

Section 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives
to needed investments.

Section 21. The State shall promote comprehensive rural development and
agrarian reform.

Section 22. The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and
development.

Section 23. The State shall encourage non-governmental, community-

based, or sectoral organizations that promote the welfare of the
nation.

Section 24. The State recognizes the vital role of communication and
information in nation-building.

Section 25. The State shall ensure the autonomy of local governments.

Section 26. The State shall guarantee equal access to opportunities for
public service and prohibit political dynasties as may be defined
by law.

Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
9
Section 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its
transactions involving public interest.

The Concept of State

• A State is a community of persons, more or less numerous, permanently

occupying a definite portion of territory, independent of external control, and
possessing a government to which a great body of inhabitants render
habitual obedience. (CIR vs. Campos Rueda)

The Elements of a State

• Territory

• The national territory comprises the

 Philippine archipelago,

• with all the islands and waters embraced therein,

 and all other territories over which the Philippines has

sovereignty or jurisdiction,

• consisting of its terrestrial, fluvial and aerial

domains,

• including its territorial sea, the seabed, the subsoil,

the insular shelves, and other submarine areas.

• The waters around, between, and connecting the

islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of
the Philippines. (ART. I)

• Art. 2 of the Revised Penal Code makes certain crimes punishable even
if committed outside the Philippines or Art. 15 of the Civil Code which
provides that Laws relating to family rights and duties or to the status,
condition, and legal capacity of persons are binding upon the citizens
of the Philippines, even though living abroad.

• People

• Refers to the sovereign Filipino people of the Philippines. The Preamble

of the 1987 Constitution expressly states that “ We, the sovereign
10
 Filipino people” “do ordain and promulgate this Constitution.” They are
the Citizens of the country because they alone enjoy civil and political
rights, entitled to vote and be voted to public positions and be
appointed to public offices, where they meet the required
qualifications. While foreigners living in the country are entitled to
protection under the laws and required to obey the laws, they are not
the sovereign Filipino people.

Citizenship (Art. 4, 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. Philippine citizenship may be lost or reacquired in the manner provided

by law.

Section 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission, they are deemed, under
the law, to have renounced it.

Section 5. Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law.

Bengzon vs Cruz

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.

11
As defined in the same 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. 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.

In Angat v. Republic, we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine citizenship would not even be
required to file a petition in court, and all that he had to do was to take an
oath of allegiance to the Republic of the Philippines and to register that
fact with the civil registry in the place of his residence or where he had
last resided in the Philippines. [Italics in the original.]

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.

Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in accordance
with the aforecited provision, respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status which he acquired at birth as the
son of a Filipino father. It bears stressing that the act of repatriation allows
him to recover, or return to, his original status before he lost his
Philippine citizenship.

The present Constitution, however, now considers those born of Filipino

mothers before the effectivity of the 1973 Constitution and who elected
Philippine citizenship upon reaching the majority age as natural-born.

• Government
12
 Government is defined as that institution or aggregate of institutions by
which an independent society makes and carries out those rules of action
which are necessary to enable men to live in a Social state, or which are
imposed upon the people forming that society by those who possess the
power or authority of prescribing them. Government is the aggregate of
authorities which rule a society.

• Sovereignty

Sovereign means the supreme uncontrollable power, the jures summi imperii,
the absolute right to govern; it is the supreme will of the State, the power to
make laws and enforce them by all the means of coercion it cares to employ;

Immunity from suit

Art. XVI, Section 3. The State may not be sued without its consent.

KAWAWANAKOA vs POLYBANK

A sovereign is exempt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends.

Jus Imperii vs Jus Gestionis

PUBLIC HIGHWAYS vs SAN DIEGO

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

Thus, as pointed out by the Court in Belleng vs. Republic, while the State has
given its consent to be sued in compensation cases, the pauper-claimant
therein must look specifically to the Compensation Guarantee Fund
provided by the Workmen's Compensation Act for the corresponding
disbursement in satisfaction of his claim, since the State in Act 3083, the
general law waiving its immunity from suit "upon any money claim involving liability
arising from contract express or implied," imposed the limitation in Sec. 7 thereof
13
that "no execution shall issue upon any judgment rendered by any Court
against the Government of the (Philippines) under the provisions of this
Act;" and that otherwise, the claimant would have to prosecute his money
claim against the State under Commonwealth Act 327.

ACTS JURE IMPERII AND JURE GESTIONIS, DISTINGUISHED. –

"There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the Courts of
another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private act or acts jure
gestionis. x x x Certainly, the mere entering into a contract by a foreign state with
a private party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for gain or profit." The
service contracts referred to by private respondent have not been intended by the
ADB for profit or gain but are official acts over which a waiver of immunity would
not attach.

OPOSA vs FACTORAN

Since timber licenses are not contracts, the non-impairment clause, which reads:
“Sec. 10. No law impairing, the obligation of contracts shall be passed.”
cannot be invoked.

In the second place, even if it is to be assumed that the same are

contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of
the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police
power of the state for the purpose of advancing the right of the people to
a balanced and healthful ecology, promoting their health and enhancing
the general welfare. In Abe vs. Foster Wheeler Corp. this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and
14
welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the State, in
the interest of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, quoted in
Philippine American Life Insurance Co. vs. Auditor General, to wit:

Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule
is that both shall be free of governmental interference. But neither property
rights nor contract rights are absolute; for government cannot exist if the citizen
may at will use his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the
state.

Art. XII, Sec. 10:

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 vs GSIS

• Whether the provisions of the Constitution, particularly Article XII Section 10,
are self-executing.
• Whether the 51% share is part of the national patrimony.

A provision which lays down a general principle, such as those found in

Article II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the

15
aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by
the constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action. In self-executing constitutional provisions, the
legislature may still enact legislation to facilitate the exercise of powers directly
granted by the constitution, further the operation of such a provision, prescribe a
practice to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision ineffective in the absence
of such legislation. The omission from a constitution of any express provision
for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony
with the constitution, further the exercise of constitutional right and make
it more available. Subsequent legislation however does not necessarily
mean that the subject constitutional provision is not, by itself, fully
enforceable. As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body. Hence, unless
it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead
of self-executing, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. In fine, Section 10, second
paragraph, Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in
operation.

In its plain and ordinary meaning, the term patrimony pertains to heritage. When
the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos. It also refers to
Filipino’s intelligence in arts, sciences and letters. In the present case, Manila Hotel
has become a landmark, a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, a concourse for the
elite, it has since then become the venue of various significant events which have
shaped Philippine history. In the granting of economic rights, privileges, and
concessions, especially on matters involving national patrimony, when a choice has

16
to be made between a “qualified foreigner” and a “qualified Filipino,” the latter shall
be chosen over the former.

The Supreme Court directed the GSIS, the Manila Hotel Corporation, the Committee
on Privatization and the Office of the Government Corporate Counsel to cease and
desist from selling 51% of the Share of the MHC to Renong Berhad, and to accept
the matching bid of Manila Prince Hotel at P44 per shere and thereafter execute the
necessary agreements and document to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the
purpose.

TANADA vs ANGARA

Facts

On April 15, 1994, the Philippine Government represented by its Secretary of the
Department of Trade and Industry signed the Final Act binding the Philippine
Government to submit to its respective competent authorities the WTO (World
Trade Organization) Agreements to seek approval for such. On December 14, 1994,
Resolution No. 97 was adopted by the Philippine Senate to ratify the WTO
Agreement.

This is a petition assailing the constitutionality of the WTO agreement as it violates

Sec 19, Article II, providing for the development of a self reliant and independent
national economy, and Sections 10 and 12, Article XII, providing for the “Filipino
first” policy.

Issue

Whether or not the Resolution No. 97 ratifying the WTO Agreement is

unconstitutional

Ruling

The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, the constitutional policy of a “self-reliant and
independent national economy” does not necessarily rule out the entry of
foreign investments, goods and services. It contemplates neither
“economic seclusion” nor “mendicancy in the international community.”

The Senate, after deliberation and voting, gave its consent to the WTO Agreement
thereby making it “a part of the law of the land”. The Supreme Court gave due
17
respect to an equal department in government. It presumes its actions as regular
and done in good faith unless there is convincing proof and persuasive agreements
to the contrary. As a result, the ratification of the WTO Agreement limits or
restricts the absoluteness of sovereignty. A treaty engagement is not a
mere obligation but creates a legally binding obligation on the parties. A
state which has contracted valid international obligations is bound to
make its legislations such modifications as may be necessary to ensure
the fulfillment of the obligations undertaken.

III. THE BRANCHES OF GOVERNMENT

The Congress (Art. 6)

• Section 1.

The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.

• Section 5

1. The House of Representatives shall be composed of not more than two

hundred and fifty members, unless otherwise fixed by law, who shall
be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number
of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and
sectoral parties or organizations.

2. The party-list representatives shall constitute twenty per centum of the

total number of representatives including those under the party list.
For three consecutive terms after the ratification of this Constitution,
one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious
sector.

3. Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.

18
 4. Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.

BAGONG BAYANI vs COMELEC

It has been held that certiorari is available, notwithstanding the presence of other
remedies, "where the issue raised is one purely of law, where public interest is
involved, and in case of urgency." Indeed, the instant case is indubitably imbued
with public interest and with extreme urgency, for it potentially involves the
composition of 20 percent of the House of Representatives.

In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of
political parties in the party-list system is the most objectionable portion of the
questioned Resolution." For its part, Petitioner Bayan Muna objects to the
participation of "major political parties." On the other hand, the Office of the
Solicitor General, like the impleaded political parties, submits that the Constitution
and RA No. 7941 allow political parties to participate in the party-list elections. It
argues that the party-list system is, in fact, open to all "registered national, regional
and sectoral parties or organizations."

Under the Constitution and RA 7941, private respondents cannot be disqualified

from the party-list elections, merely on the ground that they are political parties.
Section 5, Article VI of the Constitution provides that members of the House of
Representatives may "be elected through a party-list system of registered national,
regional, and sectoral parties or organizations."

That political parties may participate in the party-list elections does not mean,
however, that any political party -- or any organization or group for that matter --
may do so. The requisite character of these parties or organizations must be
consistent with the purpose of the party-list system, as laid down in the Constitution
and RA 7941. Section 5, Article VI of the Constitution, provides as follows:

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law,
except the religious sector." (Emphasis supplied.)

The intent of the Constitution is clear: to give genuine power to the

people, not only by giving more law to those who have less in life, but
more so by enabling them to become veritable lawmakers themselves.
Consistent with this intent, the policy of the implementing law, we repeat, is
19
likewise clear: "to enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, x x x, to become
members of the House of Representatives." Where the language of the law is
clear, it must be applied according to its express terms.

The import of the open party-list system may be more vividly understood when
compared to a student dormitory "open house," which by its nature allows outsiders
to enter the facilities. Obviously, the "open house" is for the benefit of outsiders
only, not the dormers themselves who can enter the dormitory even without such
special privilege. In the same vein, the open party-list system is only for the
"outsiders" who cannot get elected through regular elections otherwise; it is not for
the non-marginalized or overrepresented who already fill the ranks of Congress.

The Supreme Court ruled likewise that “not only must the candidate party or
organization represent marginalized and underrepresented sectors; so must its
nominees.”

Sec. 9 of RA 7941 lists the qualifications of nominees, as follows:

1. natural-born citizen;

2. registered voter;

3. resident of the Philippines for not less than one year immediately preceding
the election day;

4. able to read and write;

5. twenty-five years of age; and

6. “a bona fide member of the party or organization which he seeks to represent

for at least ninety (90) days preceding the day of the election.”

• Section 6

No person shall be a Member of the House of Representatives unless he is a

natural-born citizen of the Philippines and, on the day of the election, is at
least twenty-five years of age, able to read and write, and, except the party-
list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election.

MARCOS vs COMELEC (residence and domicile, for purposes of election

laws are synonymous…)

20
The mischief which this provision — reproduced verbatim from the 1973
Constitution — seeks to prevent is the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community."

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the

position of Representative of the First District of Leyte with the Provincial Election
Supervisor on March 8, 1995.

Private respondent Cirilo Roy Montejo, the incumbent Representative of the First
District of Leyte and a candidate for the same position, filed a "Petition for
Cancellation and Disqualification" with the Commission on Elections alleging that
petitioner did not meet the constitutional requirement for residency. In his petition,
private respondent contended that Mrs. Marcos lacked the Constitution's one year
residency requirement for candidates for the House of Representatives.

Held:

So settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does
not result in a loss or change of domicile.

It stands to reason therefore, that petitioner merely committed an honest mistake

in jotting the word "seven" in the space provided for the residency qualification
requirement. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to his or
her disqualification.

Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the
other hand, domicile can exist without actually living in the place. The important
thing for domicile is that, once residence has been established in one place, there
be an intention to stay there permanently, even if residence is also established in
some other place.

For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct

21
indicative of such intention." Larena vs. Teves reiterated the same doctrine in a
case involving the qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon vs. Quirino, held that the absence
from residence to pursue studies or practice a profession or registration as a voter
other than in the place where one is elected does not constitute loss of residence.
So settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.

In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded

that the framers of the 1987 Constitution obviously adhered to the definition given
to the term residence in election law, regarding it as having the same meaning
as domicile.

AQUINO VS COMELEC

Aquino was a resident of Tarlac for 52 years prior to his winning the Congressional
seat in Makati, to which he only resided for at least 10 months while renting a
condominium;

Held:

Clearly, 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 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 vs. 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.

In fine, we are left with no choice but to affirm the COMELEC's conclusion
declaring herein petitioner ineligible for the elective position of
Representative of Makati City's Second District on the basis of respondent
commission's finding that petitioner lacks the one year residence in the
district mandated by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government those laws are
themselves ordained by the people. Through their representatives, they dictate the
qualifications necessary for service in government positions. And as petitioner
clearly lacks one of the essential qualifications for running for membership in the
House of Representatives, not even the will of a majority or plurality of the
voters of the Second District of Makati City would substitute for a
requirement mandated by the fundamental law itself.
22
• 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.

• 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.

BENGZON VS BLUE RIBBON

Petition for prohibition to review the decision of the Senate Blue Ribbon Committee.
Granted.

FACTS: On 30 July 1987, the Republic of the Philippines, represented by the

Presidential Commission on Good Governance (PCGG), filed a complaint with
Sandiganbayan against the petitioners of this case. PCGG allege, among others,
that: defendants (petitioners therein) Benjamin “Kokoy” Romualdez and Juliette.
Gomez Romualdez, alleged “cronies” of former President Marcos and First Lady
Imelda Romualdez Marcos, engaged in schemes and stratagems to unjustly enrich
themselves at the expense of the Filipino people. Among these stratagems are (1)
obtained control of some big business enterprises such as MERALCO, Pilipinas Shell,
and PCI Bank, (2) manipulated the formation of Erectors Holding Inc, to appear
viable and borrow more capital, reaching a total of more that P2 billion, (3)
collaborated with lawyers (petitioners therein) of the Bengzon Law Offices in
concealing funds and properties, in maneuvering the purported sale of interests in
certain corporations, in misusing the Meralco Pension Fund worth P25 million, and in
cleverly hiding behind the veil of corporate entity. On 13 September 1988, Sen. Juan
Ponce Enrile delivered a speech before the Senate on the alleged take-over of SolOil
Incorporated by Ricardo Lopa (who died during the pendency of this case) and
called upon the senate to look into possible violation of the Anti Graft and Corrupt
Practices Act or RA 3019. The Senate Committee on Accountability of Public Officers
or Blue Ribbon Committee (SBRC) started its investigation through a hearing on 23
May 1989, but Lopa and Bengzon declined to testify. The SBRC rejected petitioner
Bengzon’s plea and voted to pursue its investigation. Petitioner claims that the
SBRC, in requiring their attendance and testimony, acted in excess of its jurisdiction
and legislative purpose. Hence this petition.

ISSUES:
23
1. WON the court has jurisdiction over this case.

2. WON the SBRC’s inquiry has a valid legislative purpose.

3. WON the sale or disposition of the Romualdez corporations is a purely private

transaction which is beyond the power of the SBRC to inquire into.

4. WON the inquiry violates the petitioners’ right to due process.

HELD:

1. YES. As the court held in Angara vs. Electoral Commission, the separation of
powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from
the fact that the three powers are to be kept separate and distinct that
the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution provided for an elaborate
system of checks and balances to secure coordination in the workings of
the departments of the government, and it is the judiciary that was vested of
the powers to determine the scope, nature and extent of such powers.

2. NO. As held in Jean L. Arnault 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 vested by the
Constitution, such as to legislate or to expel a member. The speech of Sen.
Enrile contained no suggestion on contemplated legislation; he merely called upon
the Senate to look into a possible violation of Sec. 5 of RA 3019. The purpose of the
inquiry to be conducted by respondent SBRC was to find out WON the relatives of
President Aquino, particularly Ricardo Lopa, had violated the law in connection with
the alleged sale of the 36/39 corporations of Kokoy Romualdez to the Lopa Group.
There appears, therefore, no intended legislation involved. The inquiry also is not
conducted pursuant to Senate Resolution No. 2123 (SR 2123), as the committee
alleges. The inquiry under SR 2123 is to look into the charges against PCGG filed by
stockholders of Oriental Petroleum in connection with the implementation of Section
26 Article XVIII of the Constitution.

3. YES. Mr. Lopa and the petitioners are not connected with the government and did
their acts as private citizens, hence such a case of alleged graft and corruption is
within the jurisdiction, not of the SBRC, but of the courts. Sandiganbayan already
took jurisdiction of this issue before the SBRC did. The inquiry of the respondent
committee into the same justiciable controversy already before the Sandiganbayan
would be an encroachment of into the exclusive domain of judicial jurisdiction.

24
In Watkins vs United States: The power of congress to conduct investigations
in inherent in the legislative process. That power is broad. it encompasses
inquiries concerning the administration of existing laws as well as proposed, or
possibly needed statutes. It includes surveys of defects in our
social,economic, or political system for the purpose of enabling Congress
to remedy them. It comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or waste. But broad as it is, this
power of inquiry, is not unlimited. There is no general authority to expose
the private affairs of individuals without justification in terms of the
functions of congress. This was freely conceded by Solicitor General in his
argument in this case. Nor is the Congress a law enforcement or trial agency. These
are functions of the executive and judicial departments of government. No inquiry is
an end in itself; it must be related to and in furtherance of a legitimate task of
Congress. Investigations conducted soly for the personal aggrandizement
of the investigators or to "punish" those investigated are indefensible.

4. NO. The Constitution provides the right of an accused of a crime to remain silent;
this extends also to respondents in administrative investigation but only if they
partake of the nature of a criminal proceeding. This is not so in this case. BUT since
the court already held that the inquiry is not in aid of legislation, the petitioners
therein cannot be compelled to testify.

FISCAL PROVISIONS

• Section 24

All appropriation, revenue or tariff bills, bills authorizing increase of the

public debt, bills of local application, and private bills, shall originate exclusively
in the House of Representatives, but the Senate may propose or concur with
amendments.

• Section 28

1. The rule of taxation shall be uniform and equitable. The Congress

shall evolve a progressive system of taxation.

2. The Congress may, by law, authorize the President to fix within

specified limits, and subject to such limitations and restrictions as
it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.

3. Charitable institutions, churches and personages or convents appurtenant

thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious,
25
 charitable, or educational purposes shall be exempt from
taxation.

4. No law granting any tax exemption shall be passed without the

concurrence of a majority of all the Members of the Congress.

TOLENTINO VS SEC. OF FINANCE

Facts:

The value-added tax (VAT) is levied on the sale, barter or exchange of goods and
properties as well as on the sale or exchange of services. RA 7716 seeks to widen
the tax base of the existing VAT system and enhance its administration by
amending the National Internal Revenue Code. There are various suits challenging
the constitutionality of RA 7716 on various grounds.

One contention is that RA 7716 did not originate exclusively in the House
of Representatives as required by Art. VI, Sec. 24 of the Constitution,
because it is in fact the result of the consolidation of 2 distinct bills, H. No.
11197 and S. No. 1630. There is also a contention that S. No. 1630 did not pass 3
readings as required by the Constitution.

Issue: Whether or not RA 7716 violates Art. VI, Secs. 24 and 26(2) of the
Constitution

Held:

The argument that RA 7716 did not originate exclusively in the House of
Representatives as required by Art. VI, Sec. 24 of the Constitution will not bear
analysis. To begin with, it is not the law but the revenue bill which is
required by the Constitution to originate exclusively in the House of
Representatives. 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. 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. Nor does the Constitution prohibit
the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from
the House, so long as action by the Senate as a body is withheld pending receipt of
the House bill.

26
The next argument of the petitioners was that S. No. 1630 did not pass 3 readings
on separate days as required by the Constitution because the second and third
readings were done on the same day. But this was because the President had
certified S. No. 1630 as urgent. The presidential certification dispensed
with the requirement not only of printing but also that of reading the bill
on separate days. That upon the certification of a bill by the President the
requirement of 3 readings on separate days and of printing and distribution can be
dispensed with is supported by the weight of legislative practice.

• Section 26

1. Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.

2. No bill passed by either House shall become a law unless it has

passed three readings on separate days, and printed copies thereof
in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the
necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.

Sec. 1: One Congress, Two Houses

Sec. 1: The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and referendum.

POWERS:

Legislative

• Republican Systems:

a. Original – possessed by the sovereign people

b. Derivative – that which is delegated by the sovereign people to the

legislative bodies and is subordinate to the original power of the people;
vested in Congress

• Power according to its application:

1. Constituent – power to amend the Constitution

2. Ordinary – power to pass ordinary laws

27
Non-legislative

NOTA BENE:

Powers of Congress may be inherent (like the determination of its rules of

proceedings and discipline of its members) or implied (like the power to punish for
contempt in legislative investigations).

The people, through amendatory process, can exercise constituent power, and,
through initiative and referendum, legislative power.

Sec. 12: Full Disclosure

Sec. 13 and 14: Disqualifications

• Cannot hold any other office or employment in the Government, or any

subdivision, agency, or instrumentality thereof, including GOCCs or their
subsidiaries, during term without forfeiting his seat (incompatible office)
• Cannot be appointed to an office created or the emolument of which was
increased during his term (prohibited office)
• Cannot personally appear as counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other administrative bodies
• Cannot be directly or indirectly interested financially in any contract with, or in
any franchise or special privilege granted by the Government, or any
subdivision, agency or instrumentality thereof, including GOCCs or its subsidiary,
during term
• Cannot intervene in any matter before any government office for his pecuniary
benefit or where he may be called upon to act on account of his office

Sec. 15: Sessions

• REGULAR – once every year on the fourth Monday of July, unless a different
date is fixed by law, and shall continue to be in session for such number of
days as it may determine until 30 days before the next regular session
• SPECIAL – anytime when called by the President

Sec. 16: Officers, Quorom, Rules of Proceedings, Discipline of Members

• DISCIPLINE:
 Expulsion – disorderly behavior
 Suspension – should not be for more than 60 days

NOTA BENE: The 60-day suspension imposed by Congress to discipline its member
does not include the preventive suspension which may be imposed by the
Sandiganbayan for prosecution of offenses.
28
Courts have no authority to interfere in the manner of choosing officers in the
Senate; such prerogative belongs to the Senate

Sec. 17: Electoral Tribunals

COMPOSITION: (9 members)
 3 SC Justices – senior Justice is the Chairman
 6 Congressmen (Senators or Representatives)

 Based on proportional representation from the political parties or party-lists

 Instituted within 30 days after organization of Senate and House with election
of President and Speaker

FUNCTIONS:
 Exclusive power to determine the qualifications of members of Congress
 Sole jurisdiction to judge election contest between a member and the
defeated candidate

HRET has sole and exclusive jurisdiction to judge election contests

concerning its members; House has no power to interfere; HRET members
are entitled to security of tenure, regardless of any change in their
political affiliations
Bondoc vs. Pineda, G.R. No. 97710, Sept. 26, 1991

If the validity of the proclamation is the core issue of the disqualification

case, the proclamation of the candidate cannot divest Comelec en banc of
its jurisdiction to review its validity; Ministerial duty of the House to
administer oath of office
Codilla vs. de Venecia, G.R. no. 150605, Dec. 10, 2002

NOTA BENE:

 Distinguish between Codilla and Barbers. In Codilla, the action was still
pending in the Comelec when the proclamation was made and the main issue
raised was the legality of the proclamation. Thus, Comelec could not be
divested of its jurisdiction to see the case through even when the proclaimed
winner already assumed office. On the other hand, in the Barbers case, the
action was only taken after the proclamation of the winning candidate. Thus,
the proper forum should have been the SET, and not the Comelec, since the
act of proclaiming the winner made the latter a member of the Senate and
thus within the sole jurisdiction of the SET.
 Appeal, as a general rule, does not lie in election contests decided by the
SET/HRET. However, the Supreme Court may exercise its power of judicial
review if the circumstances warrant.

29
Q: Who is the proper party to put up an election contest against a winning
candidate?
A: Follow the rule on real party-in-interest. The proper party is the one who stands
to benefit or lose as a result of the decision. Thus, only a losing candidate (2nd or
3rd placer) can file an election contest.

Q: What if the winning candidate is a lone candidate. Who can question his
qualification? Who has jurisdiction?
A: It is submitted that in case of a winning candidate who is a lone candidate, a non-
candidate may question his qualification. In which case, jurisdiction belongs with the
electoral tribunal of the House concerned in quo warranto proceedings.

Remedy: Petition for Cancellation of Candidacy before election, or Quo

Warrant within 10 days from proclamation
Sampayan vs. Daza, 213 SCRA 807

Enrolled Bill and Journal

 MATTERS REQUIRED TO BE ENTERED IN THE JOURNAL:

 The yeas and nays on the third and final reading of a bill
 The yeas and nays on any question, at the request of 1/5 of the members
present
 The yeas and nays upon repassing a bill over the President’s veto
 The President’s objection to a bill he had vetoed

Sec. 18: Commission on Appointments

COMPOSITION:
 President of Senate as ex officio Chairman
 12 Senators
 12 Reps
 Act on all appointments within 30 session days of Congress from their
submission
 Majority vote of all members

KINDS OF APPOINTMENT:
1. Regular – requires concurrence of CA; if revoked by CA, can return to his
old post but cannot be reappointed; if bypassed by CA, reappointment is
allowed
2. Ad Interim – permanent and effective until revoked or disapproved by
CA; if revoked by CA, cannot return to his old post or be reappointed; if
bypassed, the appointment shall only last until the next adjournment of
Congress and official may be reappointed to the same position
Ad interim appointments that the President may make during the recess of
the Congress are those made during a period of time from the adjournment
of the Congress to the opening session, regular or special, of the same
Congress. Thus, the ad interim appointment remains effective until such
30
 disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President. The fear that the President can
withdraw or revoke at any time and for any reason an ad interim
appointment is utterly without basis.An ad interim appointment can be
terminated for two causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of Congress without the
Commission on Appointments acting on his appointment.
3. Temporary – appointments in acting capacity; no need for concurrence
of CA and shall last only for a period not exceeding one year

Legislative Inquiries/Investigations

KINDS:
 In Aid of Legislation (Sec. 21)
 Question Hour (Sec. 22)

In Aid of Legislation

CONDITIONS:

Must be in aid of legislation – either in making a new legislation or improving a

defective one
The rules and regulations providing for its conduct must be duly published
The rights of individuals must be respected (e.g. right against self-incrimination)

Question Hour – Congress may summon heads of executive departments to shed

light on certain matters in aid of legislation or the heads may appear before
Congress upon their own initiative with approval of the President; either in the
Congressional Chamber or the Executive Office

Q: Can a member of the Cabinet refuse to appear before Congress?

A: A distinction must be made between the question hour and inquiries in aid of
legislation. The former is merely permissive and does not, as a rule, include
compulsory processes such that a Cabinet member may validly refuse to appear
before Congress. However, if the inquiry is in aid of legislation, Congress is
empowered to issue subpoenas and may rightly cite anyone called before it in
contempt should they refuse to appear. The only exemption to this power is if the
President or the Executive Secretary by the President’s authority invokes executive
privilege.

Sec. 23: Power to Declare Existence of War and Delegate Emergency

Powers

Q: Can Congress declare war?

A: No. The power to declare war rests with the President. All that the Congress can
do, via two-thirds vote of all its members in a joint session, is to declare its
existence.
31
Q: How does Congress delegate emergency powers to the President?
A: Through a law passed for purpose of carrying out a declared national policy. It
ceases with the passing of another resolution from Congress without need for
President’s approval. If no resolution is passed, the power will automatically cease
upon the next adjournment of Congress.

Requisites to Declare Existence of War (See David vs. Arroyo)

Sec. 24: Bills Originating from the House of Reps

MUST ORIGINATE FROM THE HOUSE OF REPS:

 Appropriation, revenue and tariff bills (ART)
 Bills authorizing the increase of public debt
 Bills of local application
 Private bills

Q: Why should these bills originate from the House of Reps?

A: The House Reps are elected by district, hence, they are more familiar with the
needs of their constituents. They are also more numerous, therefore, representative
of the people.

Q: Does Sec. 24 violate the co-equality between the House Reps and
Senate?
A: No, because the Senate can still file ahead of the House Reps any of the bills
mentioned above. However, they must withhold any action on the bill until it has
received the version filed by the House of Reps.

Sec. 25: ART Bills, Transfer of Funds, Discretionary Funds

Appropriation Bill – a statue the primary and specific purpose of which is to

authorize the release of funds from the treasury

2 KINDS OF APPROPRIATION BILLS:

 General Appropriation
 Special Appropriation

SPECIFIC REQUIREMENTS OF GENERAL APPROPRIATION BILL:

 Must originate from the House of Reps which has the power of the purse
 Must be based on a budget prepared by the President
 The particular provision must relate to a particular item in the said bill
 Must not be for the use, benefit or support of any sect, church, denomination,
sectarian institution, or system of religion, or any priest, preacher, minister or
other religious teacher, or dignitary as such, EXCEPT: when such priest, etc. is
assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium

32
Q: Can a law creating an office and at the same time provide for
disbursement of funds be considered an appropriation bill?
A: No, because the main purpose of that law is not the disbursement of funds but
the creation of an office.

Q: Can Congress increase the budget appropriated or recommended by

the President?
A: No, but Congress can decrease the amount.

Q: What happens if Congress fails to pass a general appropriations act?

A: The previous act will be re-enacted to be used for the fiscal year until such time
that a General Appropriations Bill shall be passed.

SPECIFIC REQUIREMENTS OF SPECIAL APPROPRIATION BILL:

 Must be for a specific purpose
 Must have a certification from the National Treasurer that the funds are
available or if there is an accompanying revenue proposal as to how to raise
the funds needed

 NOTA BENE:

 Certification from the National Treasurer is needed in order to avoid “sub

rosa” appropriation, wherein a special appropriations measure is done even
though the funds are not available.
 But a special appropriation bill may be filed even if there is no budget yet so
long as there is an accompanying revenue proposal on how to raise the
funds.

Tax/Revenue – enforced proportional contributions from persons and property,

levied by the State by virtue of its sovereignty, for the support of government and
for public needs

INHERENT CONSTITUTIONAL LIMITATIONS OF TAXATION:

 Taxes are for public purposes
 Non-delegation of taxing power
 Territoriality or situs of taxation
 Tax exemptions as provided in the Constitution with concurrence of majority
of Congress
 International comity
 Taxes should not be oppressive
 Due process must be observed
 Adheres to the bill of rights
 Non-infringement of religious freedom
 Non-impairment of contracts
33
  Tax levied for a special purpose shall be treated as a special fund and paid
out for such purpose only (any balance shall be transferred to the general
funds of the Government
 Tax laws must be uniform and equitable
 Progressive tax system

Discretionary Funds
CONDITIONS:
 Disbursed for a public purpose
 Duly supported by appropriate vouchers
 Subject to guidelines prescribed by law

Transfer of Funds
GR: transfer of funds is not allowed
EXC: if the transfer is only within one department, or if there is surplus or savings
and the transfer is for the purpose of augmenting any item in the appropriation law

WHO MAY TRANSFER FUNDS:

 President
 Senate President
 Speaker of the House
 Chief Justice
 Heads of the Constitutional Commissions

Sec. 26: Requirements as to Bills

REQUIREMENTS:
 One subject per title – to prevent hodgepodge or logrolling legislation
wherein many subjects are contained in a single bill in order to accommodate
some subjects that cannot possibly pass through a single bill on its own and
so that greater support for the bill is garnered
 Subject of the bill must be expressed in the title – to prevent surprise
or fraud beause some members of Congress might not be able to read the
whole bill; a way of informing the public of what the bill is all about
 Some bills must originate EXCLUSIVELY from the House of Reps
 3 readings on 3 separate days and printing and distribution at least 3
days before final approval – EXCEPTION: when the President certifies the
necessity of its immediate enactment to meet a public calamity or
emergency

NOTA BENE:

Logrolling legislation is sought to be prevented in order to avoid a situation wherein

what had been disapproved if taken on its own, may be approved because it was
lumped in a favorable subject.

34
It is enough that the title must be able to state what the bill is all about, without
necessarily enumerating the details of the bill.
Presidential certification dispenses with both the 3-day printing and the 3 readings
on 3 separate days. But the bill must still go through 3 readings, which may be
done on the same day. This is not subject to judicial review, as a general rule,
because there is no factual basis of grave abuse of discretion to speak of.

Sec. 27: President’s Veto

HOW PRESIDENT EXERCISES VETO POWER:

 General – for all bills except ART bills; veto the whole bill (general rule)
 Line or Item – only for ART bills because each item of ART is a bill in itself in
terms of importance; veto only certain provisions that are inappropriate

INAPPROPRIATE PROVISIONS:
 Any provision that does not relate to a particular, distinctive appropriation or
item; in such a case, the inappropriate provision shall be treated as an item
and therefore can be vetoed
 Any provision blocking admnistrative action in implementing the law or
requiring legislative approval for executive action
 Any provision that is unconstitutional
 Any provision that amends a certain law

Q: When does a bill become a law?

A: A bill becomes a law after the President’s approval. A bill may also become a law
through the President’s inaction (given 30 days to either approve or veto a bill; if no
action, it is implied approval). Another way for a bill to become a law is if Congress,
after the President’s veto, overrides the same by 2/3 votes of the members of each
House.

Q: What is the effect of an invalid veto?

A: It will be like there was no veto at all.

Q: What is a pocket veto?

A: The rule is that if the President, after receiving a copy of the bill, does not act on
the same within 30 days, neither indicating his approval nor veto, the bill shall pass
into law as if he had signed it. The exception is before the lapse of the 30-day
period the Congress adjourns and the President does not act on the bill until the
said period lapses, thus effectively vetoing it. Ignoring legislation, or “putting a bill
in one’s pocket” until Congress adjourns is thus called a pocket veto. Since
Congress cannot vote while in adjournment, a pocket veto cannot be overridden.

Q: When does a law take effect?

A: A law becomes effective 15 days after publication, unless otherwise provided.
The phrase “unless otherwise provided”does not mean that publication may be
dispensed with. Rather, the phrase refers to the 15-day period. In other words, the

35
law itself may provide, through its effectivity clause, that it becomes effective after
the lapse of a different period. (See Tanada vs. Tuvera)

The Legislative Mill

 Drafting – done by either a member of the House or the Bill Drafting
Division. The draft goes to the Plenary Affairs Bureau of the Index and Bills
Division where it will be docketed and assigned a bill number, e.g. House Bill No.
 First Reading – only the title and the number of the bill is read, after which,
the Senate President or the House Speaker will refer it to the right committee,
depending on the title; the committee will study the bill and, if necessary,
conduct public hearings; this is where the bill either gets “killed” or
recommended for approval, with amendments, if any, or consolidated with other
bills on the same subject
 Second Reading – involves a reading of the whole text of the bill, not just
the title and docket number; the sponsor of the bill will make his Sponsorship
Speech, followed by the Turno en Contra who will oppose the passage of the bill;
then comes the debate and interpellation, after which, the amendments agreed
upon are finalized; the bill as amended is then printed and distributed to the
members at least 3 days before the 3rd reading
 Third Reading – no more debates or discussions or questions; members are
only there to vote to approve or reject the bill and, if required by law, to explain
why so; voting will be done through yeas and nays
 Referral – after the 3rd reading, the bill will be referred to the other chamber
where it will also undergo 3 readings; in case of conflict, the bill will be referred
to the Bicameral Chamber, which is a committee composed of members of each
House; the Bicameral Chamber will draft a compromise measure that, if
approved by both Houses, will be submitted to the President for him to veto or
approve into law

Limitations on Legislative Power

 Substantive - curtail the contents of a law
• Non-delegation of legislative power
• Prohibiting passage of irrepealable laws
• Prohibiting passage of law that increases the appellate jurisdiction of
SC without its advice and concurrence (Sec. 30)
• Prohibiting law granting royalty or nobility (Sec. 31)

 Procedural – curtail the manner of passing a law

The President (Art. 7)

• Section 1

The executive power shall be vested in the President of the Philippines.

MARCOS VS MANGLAPUS I AND II

36
Facts: This case involves a petition of mandamus and prohibition asking the court to
order the respondents Secretary of Foreign Affairs, etc. To issue a travel documents
to former Pres. Marcos and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the Philippines.
Petitioners assert that the right of the Marcoses to return in the Philippines is
guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that
Pres. Aquino is without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law. Nor the
President impair their right to travel because no law has authorized her to do so.

They further assert that under international law, their right to return to the
Philippines is guaranteed particularly by the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights, which has been ratified
by the Philippines.

Issue: Whether or not, in the exercise of the powers granted by the constitution, the
President (Aquino) may prohibit the Marcoses from returning to the Philippines.

Held: "It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These are
what the right to travel would normally connote. Essentially, the right involved in
this case at bar is the right to return to one's country, a distinct right under
international law, independent from although related to the right to travel. Thus,
the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights treat the right to freedom of movement and
abode within the territory of a state, the right to leave the country, and
the right to enter one's country as separate and distinct rights. What the
Declaration speaks of is the "right to freedom of movement and residence within
the borders of each state". On the other hand, the Covenant guarantees the right to
liberty of movement and freedom to choose his residence and the right to be free to
leave any country, including his own. Such rights may only be restricted by
laws protecting the national security, public order, public health or morals
or the separate rights of others. However, right to enter one's country cannot
be arbitrarily deprived. It would be therefore inappropriate to construe the
limitations to the right to return to ones country in the same context as those
pertaining to the liberty of abode and the right to travel.

The Bill of rights treats only the liberty of abode and the right to travel, but it is a
well-considered view that the right to return may be considered, as a generally
accepted principle of International Law and under our Constitution as part of the law
of the land.

The court held that President did not act arbitrarily or with grave abuse of
discretion in determining that the return of the Former Pres. Marcos and

37
his family poses a serious threat to national interest and welfare. President
Aquino has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years after the
Marcos regime.

The return of the Marcoses poses a serious threat and therefore prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.

MOTION FOR RECONSIDERATION

No. The Marcoses were not allowed to return. Motion for Reconsideration denied
because of lack of merit.

Ratio:

Petitioners failed to show any compelling reason to warrant reconsideration.

Factual scenario during the time Court rendered its decision has not changed. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. Imelda Marcos also
called President Aquino “illegal” claiming that it is Ferdinand Marcos who is the
legal president.

President has unstated residual powers implied from grant of executive power.
Enumerations are merely for specifying principal articles implied in the definition;
leaving the rest to flow from general grant that power, interpreted in conformity
with other parts of the Constitution (Hamilton). Executive unlike Congress can
exercise power from sources not enumerates so long as not forbidden by
constitutional text (Myers vs. US). This does not amount to dictatorship.
Amendment No. 6 expressly granted Marcos power of legislation whereas 1987
Constitution granted Aquino with implied powers.

It is within Aquino’s power to protect & promote interest & welfare of the people.
She bound to comply w/ that duty and there is no proof that she acted arbitrarily

ALMONTE VS VASQUEZ

A subpoena duces tecum was issued by the Ombudsman in connection with his
investigation of an anonymous letter alleging that funds representing savings from
unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to
have been written by an employee of the EIIB and a concerned citizen, was
addressed to the Secretary of Finance, with copies furnished several government
offices, including the Office of the Ombudsman.

Issues:
38
WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED
LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY
VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS
RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR
1988.

WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS

FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND
THE REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.

Held:

In United States v. Nixon:

The expectation of a President to the confidentiality of his conversations and

correspondence, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must
be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive
privilege for Presidential communications. The privilege is fundamental to the
operation of the government and inextricably rooted in the separation of powers
under the Constitution. . . .

In each case, the showing of necessity which is made will determine how far the
court should probe in satisfying itself that the occasion for invoking the privilege is
appropriate. Where there is a strong showing of necessity, the claim of
privilege should not be lightly accepted, but even the most compelling
necessity cannot overcome the claim of privilege if the court is ultimately
satisfied that military secrets are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made under the circumstances of this
case, will have to prevail.

In the case at bar, there is no claim that military or diplomatic secrets will
be disclosed by the production of records pertaining to the personnel of
the EIIB. Indeed, EIIB's function is the gathering and evaluation of intelligence
reports and information regarding "illegal activities affecting the national economy,
such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar
salting." Consequently, while in cases which involve state secrets it may be
39
sufficient to determine from the circumstances of the case that there is
reasonable danger that compulsion of the evidence will expose military
matters without compelling production, no similar excuse can be made for a
privilege resting on other considerations.

Above all, even if the subpoenaed documents are treated as presumptively

privileged, this decision would only justify ordering their inspection in camera but
not their nonproduction. However, as concession to the nature of the functions
of the EIIB and just to be sure no information of a confidential character is disclosed,
the examination of records in this case should be made in strict confidence by the
Ombudsman himself.

Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only "in any
appropriate case, and subject to such limitations as may be provided by law" and
that because the complaint in this case is unsigned and unverified, the case is not
an appropriate one. This contention lacks merit. As already stated, the
Constitution expressly enjoins the Ombudsman to act on any complaint
filed "in any form or manner" concerning official acts or omissions. Thus,
Art. XI, § 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly
on complaints filed in any form or manner against public officials or employees
of the Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify
the complainants of the action taken and the result thereof. (Emphasis added)

SENATE VS ERMITA

The power of Congressional inquiry is not absolute.

Section 21, Article VI establishes crucial safeguards that proscribe the legislative
power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, or course, remediable before the courts, upon the
proper suit filed by the person affected, even if they belong to the
executive branch. Nonetheless, there may be exceptional circumstances, wherein
a clear pattern of abuse of the legislative power of inquiry might be established,
resulting in palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances, depending on the

40
particulars of each case, attempts by the Executive Branch to forestall these abuses
may be accorded judicial sanction.

Concept of executive privilege.

Executive privilege is “the power of the Government to withhold information

from the public, the courts, and the Congress.” It is the right of the President
and high-level executive branch offices to withhold information from Congress, the
courts and ultimately the public.

Types or kinds of executive privilege.

Executive privilege is not a clear or unitary concept. It has encompassed claims of

varying kinds.

One variety of the privilege, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is such
nature that its disclosure would subvert crucial military or diplomatic objectives.
Another variety is the informer’s privilege, or the privilege of the
Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to
attach to intra-governmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
government decisions and policies are formulated.

Basis for the three kinds of executive privilege.

Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information, the confidentiality of which they
felt was crucial to the fulfillment of the unique role and responsibilities of
the executive branch of our government. Courts ruled early that the executive
had a right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. (In re Sealed, 121 F. ed. 729, 326 U.S.
App. D.C. 276;)

Appearance during the question hour not mandatory.

The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers. To that extent, the question hour, as
it is presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is
41
rendered powerless to elicit information from them in all circumstances. In
fact, in light of the absence of a mandatory question period, the need to enforce
Congress’ right to executive information in the performance of its legislative
function becomes more imperative.

Basis of the power of Congress to compel the appearance of executive

officials or the lack of it.

The power of Congress to compel the appearance of executive officials

under Section 21 and the lack of it under Section 22 find their basis in the
principle of separation powers. While the executive branch is a co-equal branch
of the legislature, it cannot frustrate the power of Congress to legislate by refusing
to comply with its demands for information, otherwise, it would not be able to
perform intelligently its power of legislation.

Meaning of the requirement of prior consent of the President or the head

of office ing an official to appear before the Congress.

Upon a determination by the designated head of office or by the President

that an official is “covered by the executive privilege,” such official is
subject to the requirement that he first secure the consent of the
President prior to appearing before the Congress. This requirement
effectively bars the appearance of the official concerned unless the same is
permitted by the President. The provision allowing the President to give its consent
means nothing more than that the President may reverse a prohibition which
already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by the head
of office, authorized by the President under E.O. 464, or by the President herself,
that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the official’s not showing
up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure
to be present, such invocation must be construed as a declaration to
Congress that the President, or a head of office authorized by the
President, has determined that the requested information is privileged,
and that the President has not reversed such determination. Such
declaration, however, even without mentioning the term “executive privilege,”
amounts to an implied claim that the information is being withheld by the executive

42
branch, by authority of the President, on the basis of executive privilege. Verily,
there is an implied claim of privilege. (Senate, et al. vs. Ermita, et al.).

Invocation of executive privilege to be accompanied by reasons.

The invocation of executive privilege must be accompanied by specific reasons.

Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare
that the President, or an authorized head of office, has determined that it
is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be
classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more pernicious. It
threatens to make Congress doubly blind to the question of why the executive
branch is not providing it with the information that it has requested.

No need to specify the exact reason.

Congress must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information which
the privilege is meant to protect. A useful analogy in determining the requisite
degree of particularity would be the privilege against self-incrimination.

No claim of executive privilege by mere silence.

Such presumptive authorization is contrary to the exceptional nature of the

privilege. Executive privilege is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique rule and
responsibilities of the executive branch, or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus, premised on the fact
that certain information must, as a matter of necessity, be kept confidential in the
pursuit of the public interest. The privilege being, by definition, an exemption from
the obligation to disclose information, in this case to Congress, the necessity must
be of such high degree as to outweigh the public interest in enforcing that
obligation in a particular case.

Only the President can claim privilege.

In view of the highly exceptional nature of the privilege, it is essential to limit to

the President the power to invoke the privilege. She may of course
authorize the Executive Secretary to invoke the privilege on her behalf, in
which case the Executive Secretary must state that the authority is “By
the order of the President,” which means that he personally consulted
with her. The privilege being an extraordinary power, it must be wielded only by

43
the highest official in the executive hierarchy. In other words, the President may
not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization where the authorization is not explicit but mere
silence. Section 3, in relation to Section 2(b), is invalid on this score.

Sec. 1: President

“The executive power shall be vested in the President of the Philippines.”

Sec. 2: Qualifications

Natural-born citizen

Registered voter

Able to read and write

At least 40 yrs old on the day of election

Resident for at least 10 yrs immediately preceding the election

Sec. 3: Vice-President

Same qualifications and term of office as President

Elected and removed in same manner as President

May be a member of the Cabinet without need of confirmation

Sec. 4: Election and Term of Office

PRESIDENT – six years without re-election

VICE-PRESIDENT – six years, 2 successive terms

Q: If the Vice-President succeeds in the Presidency, is he allowed to run for

President in the next election?

A: Yes, provided he did not hold the office of the President for more than 4 yrs.

Congress as Board of Canvassers

PROCEDURE:

Duly certified returns from each province or city shall be transmitted to Congress,
directed to the Senate President
44
Upon receipt of certificate of canvass, the Senate President shall, not later than 30
days after election day, open all the certificates in the presence of the Senate and
the House of reps in a joint public session

Congress shall determine the due authenticity and due execution of the certificate
canvass and start canvassing the votes

Congress shall proclaim the candidate having the highest number of votes

In case of tie, Congress shall vote separately and the candidate having the majority
votes of all members of both Houses shall be proclaimed the winner

Role of Congress in Presidential Election is to canvass the votes (See Barbers vs.
Comelec)

Supreme Court en banc as Presidential Electoral Tribunal

Sole judge of all contents relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the purpose

NOTA BENE:

No pre-proclamation controversy is allowed against Presidential or Vice-Presidential

candidates, EXCEPT: the correction of manifest errors in the certificate of canvass
or election returns or State of Votes.

Only the candidate who garners the second or third highest number of votes may
question the proclamation of a winner.

COMELEC has no jurisdiction over pre-proclamation controversies in

presidential, vice-presidential, senatorial and congressional elections;
Correction of Manifest Error in the Statement of Votes may be filed directly with
COMELEC en banc

Protestant cannot be substituted by widow in case of death of the former pending

resolution of election protest; Substitute must be a real party in interest; Poe vs
Arroyo

Sec. 6: Privilege and Salary

PRIVILEGES:

• Official residence (Malacanang Palace)

45
• Immunity from suit – not provided in the Constitution; to prevent distraction from
performance of duties

SALARY

• Fixed by law

• Cannot be decreased during tenure (actual time he held office) and cannot be
increased during his term (only upon expiration of the term)

• Shall not receive during tenure any other emolument from Government or any
other source

Sec. 7 and 8: Assumption of Office and Succession

• WHEN: before noon of June 30

• If President-elect fails to qualify, dies or is permanently incapacitated, Vice-

President-elect becomes the President

• If the President-elect becomes incapacitated temporarily, the Vice-President-

elect will act as President until such a time that the President can assume office

• If there is failure to elect the president, the Vice-President will assume or act as
President

• If the President, during his term, dies, gets disabled permanently, is removed
from office, or resigns, the Vice-President becomes the President

SUCCESSION IN CASE OF VACANCY:

• Vice-President

• Senate President

• Speaker of the House

Sec. 9: Vacancy of Vice-Presidency

46
The President shall nominate one from the Senate and the House of Reps who shall
assume office upon confirmation by a majority vote of all the Members of the
Houses, voting separately

Sec. 10: Special Election in Case of Vacancy

• WHEN: 10:00 a.m. of the third day after the vacancy

• Congress will convene without need of a call and within 7 days enact a law
calling for a special election to be held not earlier than 45 days nor later than
60 days from time of such call

Sec. 11: Acting President

• GROUND: inability to discharge the powers and duties of the office

• HOW: written declaration of the President or majority of his Cabinet

• Vice-President shall assume office as Acting President

• RESUMPTION OF OFFICE: also through written declaration of the President; if

majority of Cabinet denies such declaration, Congress shall decide the issue
(if not in session, Congress will convene within 48 hrs) within 10 days (12
days if not in session), by 2/3 vote

Sec. 12: Illness of the President

• Public shall be informed of the state of his health

• Members of the Cabinet in charge of national security and foreign relations

and the Chief of Staff of the Armed Forces shall not be denied access to the
President during such illness

Sec. 13: Prohibition

• Cannot hold any other office or employment during tenure

• Cannot, during tenure, directly or indirectly practice any profession,

participate in any business or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government
47
 • Strictly avoid conflict of interest in the conduct of their office

• President’s spouse and relatives by consanguinity or affinity within the 4th

civil degree 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 GOCCs and subsidiaries

WHO CANNOT HOLD ANY OTHER OFFICE DURING TENURE:

• President
• Vice-President
• Cabinet Members
• Deputies and Assistants

EXCEPTIONS:

• When Vice-President is appointed as member of the Cabinet

• When Vice-President acts as President
• When Secretary of Justice is also a member of the Judiciary

Q: Does the President have the same prohibition as Congress?

A: No, because Congress is only prohibited from holding offices in GOCCs and any
other government instrumentality, agency or subsidiary during term while Executive
is prohibited from holding any other office, whether public or private during tenure.

Q: What is ex officio capacity?

A: When an official holds other duties for the same office where he does not receive
additional compensation and the office is required by his primary function.

ESTRADA VS ARROYO SUPRA

CLINTON VS JONES

A sitting President of the United States has no immunity from civil law
litigation against him, for acts done before taking office and unrelated to
the office.

Sec. 14 and 15: Appointments extended by Acting President

• Effective unless revoked by the elected President within 90 days from his
assumption or reassumption of office
48
 • Acting President shall not make appointments 2 mos immediately before the
next presidential elections and up to the end of his term, EXCEPT: temporary
appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety

Sec. 16: Appointing Power

TYPES OF APPOINTMENT:

• Regular
• Ad Interim
• Temporary

Acting Appointments, effect and validity (See Pimentel vs. Executive Secretary)

Q: When is Congress considered to be in recess?

A: Recess it not the time between the adjournment of Congress and the start of its
regular session. The recess referred to here is the times of interval of the session of
the same Congress.

Q: How long will ad interim appointments last?

A: Such appointments will last until disapproved by the Commission on

Appointments or until the next adjournment of Congress.

WHO ARE APPOINTED BY PRESIDENT:

• Heads of 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 – requires confirmation from
Commission on Appointments

• All other officers of the Government whose appointments are not

otherwise provided by law

• Those whom the President may be authorized by law to appoint

• Officers lower in rank whose appointments the Congress may by law vest in
the President alone

Section 17

49
The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

President’s Power of Control

The presidential power of control over the Executive branch of government extends
to all executive employees from the Department Secretary to the lowliest clerk. This
constitutional power of the President is self-executing and does not require any
implementing law. Congress cannot limit or curtail the President’s power of control
over the Executive branch.

GR: Congress has power to abolish

The general rule has always been that the power to abolish a public office is lodged
with the legislature. This proceeds from the legal precept that the power to create
includes the power to create includes the power to destroy. A public office is either
created by the Constitution, by statute, or by authority of law. Thus, except where
the office was created by the Constitution itself, may be abolished by the same
legislature that brought it into existence.

The exception, however, is that as far as bureaus, agencies or offices in

the executive department are concerned, the President’s power of control
may justify him to inactivate the functions of a particular office, or certain
laws may grant him the broad authority to carry out reorganization
measures.

What powers may not be delegated

xxx There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over those
exercised by co-equal branches of government. The declaration of martial law,
the suspension of the writ of habeas corpus, and the exercise of the
pardoning power notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the exclusive
exercise by the President of the constitutionally vested power. The list is by
no means exclusive, but there must be a showing that the executive power in
question is of similar gravitas and exceptional import.

We cannot conclude that the power of the President to contract or guarantee

foreign debts falls within the same exceptional class. Indubitably, the decision to
contract or guarantee foreign debts is of vital public interest, but only akin to any
contractual obligation undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of governance.

50
Another important qualification must be made. The Secretary of Finance or any
designated alter ego of the President is bound to secure the latter’s prior consent to
or subsequent ratification of his acts.

Sec. 18: Commander-in-Chief Powers of the President:

• Power to call on the military or armed forces

• Power to suspend the writ of habeas corpus
• Power to declare martial law

CALLING OUT POWER

Conditions for calling out the armed forces:

• To suppress lawless violence, rebellion or invasion

• Whenever it becomes necessary

MARTIAL LAW

• Conditions for declaration of Martial Law:

• When there is (1) rebellion or (2) invasion (grounds)
• Public safety requires the declaration

NOTA BENE: There must be actual rebellion or invasion. Differ this from the calling
out power which does not require actual rebellion or invasion but only that
whenever it (the exercise of the calling out power) becomes necessary to suppress
lawless violence, rebellion or invasion. (See Sanlakas vs. Reyes, G.R. No. 159085,
Feb. 3, 2004)

What happens when Martial Law is declared:

• No suspension of operation of the Constitution

• No supplanting of the functioning of the civil courts and legislative assemblies
• No conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function
• No automatic suspension of the writ of habeas corpus

Constitutional guards against the power to declare Martial Law:

• Will last only for 60 days, unless sooner revoked by Congress

• Within 48 hours after declaration, President is required to submit a report to
Congress

51
 • Congress shall revoke or extend the period by jointly voting with an absolute
majority and President may not reverse such revocation
• If Congress is not in session, they shall convene within 24 hours from such
declaration without need for call
• Supreme Court may nullify the declaration on the ground of lack of factual
basis, judgment to be rendered within 30 days from its filing by any ordinary
citizen

SUSPENSION OF THE WRIT OF HABEAS CORPUS

(NOTE: the conditions and effect of the suspension of the writ is similar to
declaration of martial law)

Restrictions to the suspension of the writ of habeas corpus:

• Apply only to persons judicially charged for rebellion

• Apply only to persons judicially charged for offenses inherent in or directly
connected with invasion
• The person arrested must be judicially charged within 3 days from arrest,
otherwise he shall be released

DAVID VS ARROYO

• "Take Care" Power of the President

• Powers of the Chief Executive
• The power to promulgate decrees belongs to the Legislature

FACTS:

These 7 consolidated petitions question the validity of PP 1017 (declaring a state of

national emergency) and General Order No. 5 issued by President Gloria Macapagal-
Arroyo. While the cases are pending, President Arroyo issued PP 1021, declaring
that the state of national emergency has ceased to exist, thereby, in effect, lifting
PP 1017.

ISSUE:

• Whether or not PP 1017 and G.O. No. 5 arrogated upon the President the
power to enact laws and decrees
• If so, whether or not PP 1017 and G.O. No. 5 are unconstitutional

HELD:

“Take-Care” Power

52
This refers to the power of the President to ensure that the laws be faithfully
executed, based on Sec. 17, Art. VII: “The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.”

As the Executive in whom the executive power is vested, the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees
of his department. Before assuming office, he is required to take an oath or
affirmation to the effect that as President of the Philippines, he will, among others,
“execute its laws.” In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the
armed forces of the country, including the Philippine National Police under the
Department of Interior and Local Government.

The specific portion of PP 1017 questioned is the enabling clause: “to

enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction.”

Is it within the domain of President Arroyo to promulgate “decrees”?

The President is granted an Ordinance Power under Chap. 2, Book III of E.O. 292.
President Arroyo’s ordinance power is limited to those issuances
mentioned in the foregoing provision. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes
because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution.

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate “decrees.” Legislative power is
peculiarly within the province of the Legislature. Sec. 1, Art. VI categorically states
that “the legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives.” To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo’s exercise of legislative power by issuing decrees.

But can President Arroyo enforce obedience to all decrees and laws through the
military?

As this Court stated earlier, President Arroyo has no authority to enact

decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to “laws,” she cannot call the military to enforce or

53
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress
lawless violence.

Sec. 19: Executive Clemencies

“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.”

EXECUTIVE CLEMENCIES:

• Amnesty
• Pardon
• Reprieve
• Commutation
• Remit fines and forfeitures

Amnesty – an act of grace by the Chief Executive as a result of the grant of

amnesty, the criminal liability of the offender and all the effects of the crime are
completely erased. It is a blanket pardon given to a class of persons who
committed crimes that are political in nature. To be valid, Congress has to
concur with a majority vote (thus, it is a public act) and the accused must admit his
guilt.

Pardon – a private act of the President granted after judgment by final conviction
for ordinary offenses. It may be absolute or condition, in which case, acceptance of
condition – if burdensome to the accused – is necessary. The effect is to relieve the
accused from further punishment, thus, if given after sentence has been served, its
effect is to extinguish the accessory penalties. In case of administrative cases,
effect is reinstatement but no payment of backwages.

Reprieve – discretionary upon the President to suspend the enforcement of

judgment

MONSANTO VS FACTORAN

54
Pardon cannot mask the acts constituting the crime. These are "historical"
facts which, despite the public manifestation of mercy and forgiveness implicit in
pardon, "ordinary, prudent men will take into account in their subsequent dealings
with the actor."

Pardon granted after conviction frees the individual from all the penalties
and legal disabilities and restores him to all his civil rights. But unless
expressly grounded on the person's innocence (which is rare), it cannot bring
back lost reputation for honesty, integrity and fair dealing. This must be
constantly kept in mind lest we lose track of the true character and purpose of the
privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we
are in full agreement with the commonly-held opinion that pardon does
not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon
undoubtedly restores his eligibility for appointment to that office.

To regain her former post as assistant city treasurer, Petitioner must re-apply and
undergo the usual procedure required for a new appointment.

Sec. 20: Power to Contract or Guarantee Foreign Loans

Sec. 21: Treaty-making Power

“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.”

Power to enter into and ratify treaties is sole prerogative of the Executive

Sec. 22: Preparation and Submission of Budget

The President shall submit to the Congress within thirty-days from the opening of
every regular session, as the basis of the general appropriations bill, a budget of
expenditures and sources of financing, including receipts from existing and
proposed revenue measures.

Sec. 23: SONA

The President shall address the Congress at the opening of its regular session. He
may also appear before it at any other time.

Ratification by President vis-à-vis Concurrence of Senate

55
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of
our nation’s consent to be bound by said treaty, with the concomitant duty to
uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the

state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty. 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 our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.

With the ratification of the VFA, which is equivalent to final acceptance, and with
the exchange of notes between the Philippines and the United States of America, it
now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement.

The Supreme Court

Section 1

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

MARBURY VS MADISON

• That for every violation of a vested legal right, there must be a legal remedy.
• Acts of Congress that conflict with the Constitution are not laws and the
Courts are bound instead to follow the Constitution, affirming the principle of
judicial review.

56
 • "To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained?"
• It is emphatically the province and duty of the Judicial Department [the
judicial branch] to say what the law is. Those who apply the rule to particular
cases must, of necessity, expound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each.

Section 5

The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other

public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.

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

law or the Rules of Court may provide, final judgments and orders of lower
courts in:

a. All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or

toll, or any penalty imposed in relation thereto.

c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua

or higher.

e. All cases in which only an error or question of law is involved.

3. Assign temporarily judges of lower courts to other stations as public

interest may require. Such temporary assignment shall not exceed six
months without the consent of the judge concerned.

4. Order a change of venue or place of trial to avoid a miscarriage of justice.

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 under-privileged. 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,

57
 or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court.

6. Appoint all officials and employees of the Judiciary in accordance with

the Civil Service Law.

Legal Standing

KILOSBAYAN VS GUINGONA

Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits the PCSO from
holding and conducting charity sweepstakes races, lotteries, and other similar
activities "in collaboration, association or joint venture with any person, association,
company or entity, foreign or domestic." PCSO enters into a contract of lease with
PGMC, such that the latter would operate lotteries with their own operational
expenses for 15 years after which termination of lease would then succeed all
properties to PCSO; opposed by Kilosbayan composed of concerned citizen;

Do they have legal standing?

Is the contract valid?

Held:

General Rule: "The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of
its enforcement.

However: In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders issued by
President Quirino although they were invoking only an indirect and general
interest shared in common with the public. The Court dismissed the objective that
they were not proper parties and ruled that the transcendental importance to
the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure. We have since
then applied this exception in many other cases.

We find the instant petition to be of transcendental importance to the

public. The issues it raised are of paramount public interest and of a
category even higher than those involved in many of the aforecited cases.
The ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country and

58
the counter-productive and retrogressive effects of the envisioned on-line lottery
system are as staggering as the billions in pesos it is expected to raise. The legal
standing then of the petitioners deserves recognition and, in the exercise of its
sound discretion, this Court hereby brushes aside the procedural barrier which the
respondents tried to take advantage of.

Contract of Lease is contrary to law; Section 1 of R.A. No. 1169, as amending

by B.P. Blg. 42, prohibits the PCSO from holding and conducting lotteries
"in collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign." PCSO had
nothing but its franchise, which it solemnly guaranteed it had in the General
Information of the RFP. Howsoever viewed then, from the very inception, the PCSO
and the PGMC mutually understood that any arrangement between them would
necessarily leave to the PGMC the technical, operations, and management aspects
of the on-line lottery system while the PCSO would, primarily, provide the franchise.

FRANCISCO VS FERNANDO

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial

review, like almost all powers conferred by the Constitution, is subject to several
limitations, namely:

1. an actual case or controversy calling for the exercise of judicial power;

2. the person challenging the act must have "standing" to challenge; he must
have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
3. the question of constitutionality must be raised at the earliest
possible opportunity; and (
4. the issue of constitutionality must be the very lis mota of the case.

Locus standi or legal standing or 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 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.

Standing is a special concern in constitutional law because in some cases

suits are brought not by parties who have been personally injured by the
operation of a law or by official action taken, but by concerned citizens,

59
taxpayers or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he

is "the party who would be benefited or injured by the judgment, or the
'party entitled to the avails of the suit.'"

When suing as a citizen, the interest of the petitioner assailing the

constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also
that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the statute or
act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

Taxpayer’s Suit

In the case of a taxpayer, he is allowed to sue where there is a claim that

public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law. Before
he can invoke the power of judicial review, however, he must specifically prove that
he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement of
the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.

A taxpayer may challenge the validity of a statute, which provides for the
disbursement of public funds, upon the theory that the expenditure of public funds,
by an officer of the State for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds, which may be enjoined by a taxpayer.

As for a legislator, he is allowed to sue to question the validity of any

official action which he claims infringes his prerogatives as a legislator.
Indeed, a member of the House of Representatives has standing to maintain

60
inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.

In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned to enable the court to deal properly
with all interests involved in the suit, for a judgment in a class suit,
whether favorable or unfavorable to the class, is, under the res judicata
principle, binding on all members of the class whether or not they were
before the court. Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners
additionally allege standing as citizens and taxpayers, however, their petition will
stand.

There being no doctrinal definition of transcendental importance, the following

instructive determinants formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive:

1. the character of the funds or other assets involved in the case;

2. the presence of a clear case of disregard of a constitutional or

statutory prohibition by the public respondent agency or instrumentality of
the government; and

3. the lack of any other party with a more direct and specific interest in
raising the questions being raised.

Applying these determinants, this Court is satisfied that the issues raised herein
are indeed of transcendental importance.

RIPENESS AND PREMATURITY

In Tan v. Macapagal, this Court, through Chief Justice Fernando, held that for a case
to be considered ripe for adjudication, "it is a prerequisite that something had by
then been accomplished or performed by either branch before a court may come
into the picture." Only then may the courts pass on the validity of what was done, if
and when the latter is challenged in an appropriate legal proceeding.

JUSTICIABILITY

The term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus
Juris Secundum, it refers 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 Legislature or
61
executive branch of the Government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure. (Italics in the original)

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality

of a governmental act should be avoided whenever possible. Thus, in the case of
Sotto v. Commission on Elections, this Court held:

x x x It is a well-established rule that a court should not pass upon a

constitutional question and decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and that when it is raised, if
the record also presents some other ground upon which the court may
rest its judgment, that course will be adopted and the constitutional question will
be left for consideration until a case arises in which a decision upon such question
will be unavoidable.

Succinctly put, courts will not touch the issue of constitutionality unless it is truly
unavoidable and is the very lis mota or crux of the controversy.

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required
by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the
operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality

It is thus clear that the framers intended "initiation" to start with the filing of
the complaint. In his amicus curiae brief, Commissioner Maambong explained
that "the obvious reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of Section 3 (3) was
to settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the
vote of one-third of the House in a resolution of impeachment does not
initiate the impeachment proceedings which was already initiated by the filing
of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."

Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the members
of the House of Representatives with the Secretary General of the House,
the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed
against the same official within a one year period.

62
Doctrine of Operative Fact

"The doctrine of operative fact, as an exception to the general rule, only applies as
a matter of equity and fair play. It nullifies the effects of an unconstitutional
law by recognizing that the existence of a statute prior to a determination
of unconstitutionality is an operative fact and may have consequences which
cannot always be ignored. The past cannot always be erased by a new judicial
declaration."

- Planters Products vs Fertiphil Corp.

POLITICAL QUESTION

The term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus
Juris Secundum, it refers 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 Legislature or
executive branch of the Government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure. (Italics in the original)

MACEDA VS VASQUEZ

Facts:

Respondent Napoleon Abiera of PAO filed a complaint before the Office of the
Ombudsman against petitioner RTC Judge Bonifacio Sanz Maceda. Respondent
Abiera alleged that petitioner Maceda has falsified his certificate of service by
certifying that all civil and criminal cases which have been submitted for decision
for a period of 90 days have been determined and decided on or before January 31,
1989, when in truth and in fact, petitioner Maceda knew that no decision had been
rendered in 5 civil and 10 criminal cases that have been submitted for decision.
Respondent Abiera alleged that petitioner Maceda falsified his certificates of service
for 17 months.

Issue:

Whether or not the investigation made by the Ombudsman constitutes an

encroachment into the SC’s constitutional duty of supervision over all inferior courts

Held:

63
A judge who falsifies his certificate of service is administratively liable to the SC for
serious misconduct and under Sec. 1, Rule 140 of the Rules of Court, and criminally
liable to the State under the Revised Penal Code for his felonious act.

In the absence of any administrative action taken against him by the 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.

Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC

administrative supervision over all courts and court personnel, from the
Presiding Justice of the CA down to the lowest municipal trial court clerk.
By virtue of this power, it is only the SC that can oversee the judges’ and
court personnel’s compliance with all laws, and take the proper
administrative action against them if they commit any violation thereof. No
other branch of government may intrude into this power, without running afoul of
the doctrine of separation of powers.

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 the SC for determination whether said judge or court
employee had acted within the scope of their administrative duties.

Section 11

The Members of the Supreme Court and judges of lower courts shall hold office
during good behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The Supreme Court en
banc shall have the power to discipline judges of lower courts, or order
their dismissal by a vote of a majority of the Members who actually took part
in the deliberations on the issues in the case and voted thereon.

PEO VS GACOTT

Facts:

For failure to check the citations of the prosecution, the order of respondent RTC
Judge Eustaquio Gacott, Jr. dismissing a criminal case was annulled by the SC. The
respondent judge was also sanctioned with a reprimand and a fine of P10,000.00 for
gross ignorance of the law. The judgment was made by the Second Division of the
SC.

Issue:
Whether or not the Second Division of the SC has the competence to
administratively discipline respondent judge

64
Held:

To support the Court’s ruling, Justice Regalado relied on his recollection of a

conversation with former Chief Justice Roberto Concepcion who was the Chairman
of the Committee on the Judiciary of the 1986 Constitutional Commission of which
Regalado was also a member.

The very text of the present Sec. 11, Art. VIII of the Constitution clearly shows that
there are actually two situations envisaged therein. The first clause which states
that “the SC en banc shall have the power to discipline judges of lower
courts,” is a declaration of the grant of that disciplinary power to, and the
determination of the procedure in the exercise thereof by, the Court en
banc. It was not therein intended that all administrative disciplinary cases
should be heard and decided by the whole Court since it would result in an
absurdity.

The second clause, which refers to the second situation contemplated therein and is
intentionally separated from the first by a comma, declares on the other hand
that the Court en banc can “order their dismissal by a vote of a majority of
the Members who actually took part in the deliberations on the issues in
the case and voted therein.” In this instance, the administrative case must be
deliberated upon and decided by the full Court itself.

Pursuant to the first clause which confers administrative disciplinary

power to the Court en banc, a decision en banc is needed only 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 1 year or a fine exceeding P10, 000.00 or
both.

Indeed, to require the entire Court to deliberate upon and participate in all
administrative matters or cases regardless of the sanctions, imposable or imposed,
would result in a congested docket and undue delay in the adjudication of cases in
the Court, especially in administrative matters, since even cases involving the
penalty of reprimand would require action by the Court en banc.

THE CONSTITUTIONAL COMMISSIONS

IX-A COMMON PROVISIONS

 Civil Service Commission

 Commission on Elections
 Commission on Audit

What are the inhibitions on the members of the Constitutional

Commissions?

Section 2

No member of a Constitutional Commission shall, during his tenure,

65
  Hold any other office or employment
 Engage in the practice of any profession
 Take part in the active management or control of any business which, in any
way, may be affected by the functions of his office,
 Be financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled
corporations or their subsidiaries.

Section 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.

Some evidence of the independence of the Constitutional Commission

1. Salaries are fixed by law and shall not be decreased during their tenure
2. Shall enjoy fiscal autonomy
3. The Commissioners can be removed by impeachment only
4. The President cannot designate an acting Chairman, like the Chairman of the
Comelec (Brillantes vs Yorac)

Nota bene:

• Appointment to any vacancy shall only be for the unexpired term of the
predecessor;

Civil Service Commission

The Civil Service embraces all branches, subdivisions, instrumentalities, and

agencies of the government, including government-owned or controlled
corporations with original charters;

• Chairman
• (2) Commissioners
o Natural born citizens
o At least 355 years at the time of appointment
o Must not have been candidates for any elective position in the
elections immediately preceding their appointment
• Appointed by the President with the consent of the Commission on
Appointments
• 7 years for Chairman
66
 • 5 years for Commissioners and another commissioner for 3 years without
reappointment
• No temporary or acting capacity in appointments
Positions exempt from competitive examination
• Policy determining
• Primarily confidential
• Highly technical

Nota bene:

• No officer or employee in the civil service shall engage directly or

indirectly in any electioneering or partisan political campaign; (soliciting
votes is prohibited) mere introduction in a political rally is not sufficient to
warrant electioneering;

Section 6

No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government or any Government-owned
or controlled corporations or in any of their 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.

Commission on Elections
• Chairman
• 6 Commissioners

Qualifications
• Natural born citizen
• At leats 35 at the time of appointment
67
 • Holders of a college degree
• Must not have been candidates for any elective position in the
immediately preceding elections. A majority of the members, including the
Chairman, shall be members of the Philippine Bar who have been engaged
in the practice of law for at least 10 years;
• Appointed by the President with the consent of the COA
• 7 years for Chairman, three members first appointed shall hold office for 7
years, 2 members for 5 years, and the last members for 3 years;
• No temporary or acting capacity

Nota bene:

• Comelec has the exclusive power to investigate and prosecute election

offenses;
• Can, however, deputize the fiscal to conduct preliminary investigation on
election offenses and prosecute them; if not deputized, fiscal has no power to
assume the role of prosecutor of election offenses;
• Persons holding a public appointive office is considered resigned upon filing
of his certificate of candidacy for public office; whether government owned or
controlled corporation with or without original charters;
• Comelec may issue a writ of injunction only in appellate jurisdiction;

IV. THE AMENDING PROCESS

Article XVII, 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.
SANTIAGO VS COMELEC

Constitutional provision on People's Initiative is not self-executory

Principle of Non-delegation of Powers, Exceptions

FACTS:

Petitioners in this case sought to amend certain provisions of the Constitution,

specifically lifting the limit of terms of elective officials, through people’s initiative.
Santiago et al. opposed on the ground that the constitutional provision on people’s
initiative to amend the Constitution can only be implemented by law to be passed
by Congress. There is no law passed yet and RA 6735, which provides for initiative
on statues and local legislation but not initiative on the Constitution.

ISSUE:

68
Whether or not RA 6735 adequately provided for people’s initiative on Constitution

RULING:

Constitutional provision on people’s initiative is not self-executory;

Sec. 2 of Art. XVII of the Constitution...is not self-executory. xxx

Bluntly stated, the right of the people to directly propose amendments to

the Constitution through the system of initiative would remain entombed
in the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot exercise it if Congress, for whatever reason,
does not provide for its implementation.

Has Congress “provided” for the implementation of the exercise of this right?

There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. xxx

We agree that RA 6735 was, as its history reveals, intended to cover initiative to
propose amendments to the Constitution.

But is RA 6735 a full compliance with the power and duty of Congress to
“provide for the implementation of the exercise of the right?”

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondents COMELEC, Sec. 2 of

the Act does not suggest an initiative on amendments to the Constitution.
The said section reads:

SECTION 2. Statement and Policy. – The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed.

The inclusion of the word “Constitution” therein was a delayed

afterthought. That word is neither germane nor relevant to said section, which
exclusively relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the
Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to
“directly propose, enact, approve, or reject, in whole or in part, the
Constitution” through the system of initiative. They can only do so with
respect to “laws, ordinances, or resolutions.”

xxx
69
Second. It is true that Sec. 3 (Definition of Terms) of the Act defines initiative
on amendments to the Constitution and mentions it as one of the three
systems of initiative, and that Sec. 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of initiative,
the Act does not provide for the contents of a petition for initiative on the
Constitution. Sec. 5, paragraph (c) requires, among other things, statement of the
proposed law sought to be enacted, approved or rejected, amended or repealed, as
the case may be. It does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution.

xxx

Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle
III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is
initiative and referendum on national and local laws. If Congress intended RA
6735 to fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments to the
Constitution is far more important than the initiative on national and local laws.

xxx

The foregoing brings us to the conclusion that RA 6735 is incomplete,

inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned. Its lacunae on
this substantive matter are fatal and cannot be cured by “empowering” the
COMELEC “to promulgate such rules and regulations as may be necessary to carry
out the purposes of the Act.”

Principle of non-delegation of power

The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. The recognized exceptions to
the rule are as follows:

Delegation of tariff powers to the President under Sec. 28(2), Art. VI;
Delegation of emergency powers to the President under Sec. 23(2), Art. VI;
Delegation to the people at large;
Delegation to local governments; and
Delegation to administrative bodies.

Empowering the COMELEC, an administrative body exercising quasi-judicial

functions, to promulgate rules and regulations is a form of delegation of legislative
70
authority under no. 5 above. 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.

Insofar as initiative to propose amendments to the Constitution is concerned, RA

6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.

CONSTITUTIONAL LAW

I. INHERENT POWERS

• POLICE POWER

Police power is the plenary power vested in the legislature to make,

ordain, and establish wholesome and reasonable laws, statutes and
ordinances, not repugnant to the Constitution, for the good and welfare of
the people. This power to prescribe regulations to promote the health, morals,
education, good order or safety, and general welfare of the people flows from the
recognition that salus populi est suprema lex – the welfare of the people is the
supreme law.

While police power rests primarily with the legislature, such power may be
delegated, as it is in fact increasingly being delegated. By virtue of a valid
delegation, the power may be exercised by the President and administrative boards
as well as by the lawmaking bodies of municipal corporations or local governments
under an express delegation by the Local Government Code of 1991. (MMDA, et al.
v. Viron Trans. Co., Inc., supra.).

ERMITA VS MAYOR OF MANILA

• Whether Ordinance No. 4760 of the City of Manila is violative of the due
process clause.
• That Section 1 of the challenged ordinance is unconstitutional and void for
being unreasonable and violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and P4,500.00 for second class
motels;
• That it requires that guest need to fill up required information to be admitted
to such hotel or motels in the presence of the hotel manager, owner, operator
or representative;
• it also being provided that the premises and facilities of such hotels, motels
and lodging houses would be open for inspection either by the City Mayor, or
the Chief of Police, or their duly authorized representatives
71
 • that Section 2 of the challenged ordinance classifying motels into two classes
and requiring the maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room or, restaurant and
laundry similarly offends against the due process clause for being arbitrary,
unreasonable and oppressive, a conclusion which applies to the portion of the
ordinance requiring second class motels to have a dining room
• that the provision of Section 2 of the challenged ordinance prohibiting a
person less than 18 years old from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless accompanied by parents or a
lawful guardian and making it unlawful for the owner, manager, keeper or
duly authorized representative of such establishments to lease any room or
portion thereof more than twice every 24 hours
• and that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party

Held:

The presumption of validity of a statute:

• Primarily what calls for a reversal of such a decision is the absence of
any evidence to offset the presumption of validity that attaches to a
challenged statute or ordinance. As was expressed categorically by
Justice Malcolm: "The presumption is all in favor of validity”. The
Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. It
admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance
is void on its face which is not the case here

Valid exercised of police power:

• On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too
often emphasized, is the power to prescribe regulations to promote the
health, morals, peace, good order, safety and general welfare of the
people. In view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police power
insofar as it may affect the life, liberty or property of any person is subject to
judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call for correction
by the courts.

Taxation may be made to implement the state's police power:

• In the equally leading case of Lutz v. Araneta24 this Court affirmed the
doctrine earlier announced by the American Supreme Court that taxation may be
made to implement the state's police power.

72
 • It has been the settled law, as far back as 1922 that municipal license fees
could be classified into those imposed for 1. regulating occupations or
regular enterprises, 2. for the regulation or restriction of non-useful
occupations or enterprises and 3. for revenue purposes only. As was
explained more in detail in the above Cu Unjieng case: (2) Licenses for non-
useful occupations are also incidental to the police power and the right
to exact a fee may be implied from the power to license and regulate,
but in fixing amount of the license fees the municipal corporations are
allowed a much wider discretion in this class of cases than in the
former, and aside from applying the well-known legal principle that municipal
ordinances must not be unreasonable, oppressive, or tyrannical, courts have,
as a general rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of persons who
might otherwise engage in non-useful enterprises is, of course,
generally an important factor in the determination of the amount of
this kind of license fee. Hence license fees clearly in the nature of privilege
taxes for revenue have frequently been upheld, especially in of licenses for the
sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.

Non-impairment of contracts still subject to police power:

• The liberty of the citizen may be restrained in the interest of the public
health, or of the public order and safety, or otherwise within the proper
scope of the police power.
• A similar observation was made by Justice Laurel: "Public welfare, then, lies
at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state x x x To
this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing, without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over liberty because then
the individual will fall into slavery. The citizen should achieve the required
balance of liberty and authority in his mind through education and
personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all.

ACEBEDO VS CA

• Police Power as exercised by LGUs, restrictions and qualifications

• Power of city mayor to grant/cancel/revoke business permits
• Granting of business permits vs. granting of permit to practice profession

FACTS:

73
Petitioner applied with the Office of the City Mayor of Iligan for a business permit.
Permit was therefor issued, subject to certain conditions like prohibition of putting
up an optical clinic, examining and/or prescribing reading and similar optical
glasses, etc. When it was found that petitioner violated these conditions, its
business permit was cancelled.

ISSUE:
Whether or not the imposition of special conditions by the public respondents were
acts ultra vires

RULING:

Police Power exercised by LGUs

Police power as an inherent attribute of sovereignty is the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety
and general welfare of the people. The State, through the legislature, has
delegated the exercise of police power to local government units, as
agencies of the State, in order to effectively accomplish and carry out the
declared objects of their creation. This delegation of police power is embodied in the
general welfare clause of the Local Government Code xxx

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.

Power of city mayor to grant business permits

• 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.
• But can city mayor cancel business permits or impose special conditions? As
aptly discussed by the Solicitor General in his Comment, the power to issue
licenses and permits necessarily includes the corollary power to revoke,
withdraw or cancel the same. And the power to revoke or cancel, likewise
includes the power to restrict through the imposition of certain conditions.

Did the conditions or restrictions imposed amount to a confiscation of the

business?
• Distinction must be made between the grant of a license or permit to
do business and the issuance of a license to engage in the practice of a
particular profession. The first is usually granted by the local authorities
and the second is issued by the Board or Commission tasked to regulate the
particular profession. A business permit authorizes the person, natural or
otherwise, to engage in business or some form of commercial activity.
A professional license, on the other hand, is the grant of authority to a
74
 natural person to engage in the practice or exercise of his or her
profession.
• In the case at bar, what is sought by petitioner from respondent City Mayor is a
permit to engage in the business of running an optical shop. It does not purport
to seek a license to engage in the practice of optometry as a corporate body or
entity, although it does have in its employ, persons who are duly licensed to
practice optometry by the Board of Examiners in Optometry.

MMDA VS GARIN

MMDA confiscated Respondent’s driver’s license. Respondent opposed the sanction

of MMDA claiming it has no authority to exercise police power; MMDA contends that
a license to operate a motor vehicle is neither a contract nor a property right, but is
a privilege subject to reasonable regulation under the police power in the interest of
the public safety and welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking without due process as long
as the licensee is given the right to appeal the revocation.

Held:

A license to operate a motor vehicle is a privilege that the state may

withhold in the exercise of its police power.

• The petitioner correctly points out that a license to operate a motor vehicle is
not a property right, but a privilege granted by the state, which may be
suspended or revoked by the state in the exercise of its police power, in the
interest of the public safety and welfare, subject to the procedural due process
requirements.
• In State ex. Rel. Sullivan, the Court held that, “the legislative power to regulate
travel over the highways and thoroughfares of the state for the general welfare
is extensive. It may be exercised in any reasonable manner to conserve the
safety of travelers and pedestrians. Since motor vehicles are instruments
of potential danger, their registration and the licensing of their
operators have been required almost from their first appearance. The
right to operate them in public places is not a natural and unrestrained
right, but a privilege subject to reasonable regulation, under the police
power, in the interest of the public safety and welfare. The power to
license imports further power to withhold or to revoke such license upon
noncompliance with prescribed conditions.”
• Likewise, the petitioner quotes the Pennsylvania Supreme Court in
Commonwealth v. Funk, to the effect that: “Automobiles are vehicles of
great speed and power. The use of them constitutes an element of
danger to persons and property upon the highways. Carefully
operated, an automobile is still a dangerous instrumentality, but, when
operated by careless or incompetent persons, it becomes an engine of
destruction. The Legislature, in the exercise of the police power of the
commonwealth, not only may, but must, prescribe how and by whom
motor vehicles shall be operated on the highways. One of the primary
purposes of a system of general regulation of the subject matter, as here by the
75
 Vehicle Code, is to insure the competency of the operator of motor vehicles.
Such a general law is manifestly directed to the promotion of public safety and is
well within the police power.”

The MMDA is not vested with police power

• In Metro Manila Development Authority v. Bel-Air Village Association, Inc., we

categorically stated that Rep. Act No. 7924 does not grant the MMDA with
police power, let alone legislative power, and that all its functions are
administrative in nature.
• Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we
concluded that the MMDA is not a local government unit or a public
corporation endowed with legislative power, and, unlike its
predecessor, the Metro Manila Commission, it has no power to enact
ordinances for the welfare of the community. Thus, in the absence of an
ordinance from the City of Makati, its own order to open the street was invalid.

Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules
and regulations

• This is consistent with our ruling in Bel-Air that the MMDA is a development
authority created for the purpose of laying down policies and coordinating with
the various national government agencies, people’s organizations, non-
governmental organizations and the private sector, which may enforce, but not
enact, ordinances.

SUPERDRUG VS DSWD

Facts:

Petitioners are domestic corporations and proprietors operating drugstores in the

Philippines. Public respondents are DOH, DOJ, DILG and DSWD, which were tasked
to monitor the drugstores’ compliance with the Expanded Senior’s Citizen Act.

Petitioners assail the constitutionality of Sec. 4(a) of the Expanded Senior’s Citizen
Act, on the ground that it constitutes deprivation of private property, since
compelling them to grant the discount will result in a loss of profit and capital,
because they impose a mark-up of only 5% to 10% on branded medicines; and the
law failed to provide a tax deduction scheme which will give them just
compensation.

Issue:

Whether or not the Expanded Senior’s Citizen Act is unconstitutional.

Held:

76
The permanent reduction in their total revenues is a forced subsidy
corresponding to the taking of private property for public use or benefit.
This constitutes compensable taking for which petitioners would ordinarily
become entitled to a just compensation.

Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the taker’s
gain but the owner’s loss. The word just is used to intensify the meaning of the
word compensation, and to convey the idea that the equivalent to be rendered for
the property to be taken shall be real, substantial, full and ample.

A tax deduction does not offer full reimbursement of the senior citizen
discount.
As such, it would not meet the definition of just compensation.

Having said that, this raises the question of whether the State, in promoting the
health and welfare of a special group of citizens, can impose upon private
establishments the burden of partly subsidizing a government program.

The Court believes so.

The law grants a twenty percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory fees; admission fees charged by theaters,
concert halls, circuses, carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel; utilization of services in
hotels and similar lodging establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of senior citizens. As a
form of reimbursement, the law provides that business establishments extending
the twenty percent discount to senior citizens may claim the discount as a tax
deduction.

The law is a legitimate exercise of police power which, similar to the

power of eminent domain, has general welfare for its object. Police power is
not capable of an exact definition, but has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room
for an efficient and flexible response to conditions and circumstances, thus assuring
the greatest benefits. Accordingly, it has been described as “the most essential,
insistent and the least limitable of powers, extending as it does to all the great
public needs.” It is “[t]he power vested in the legislature by the constitution 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,

77
as they shall judge to be for the good and welfare of the commonwealth, and of the
subjects of the same.”

For this reason, when the conditions so demand as determined by the

legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to
general welfare.

Police power as an attribute to promote the common good would be diluted

considerably if on the mere plea of petitioners that they will suffer loss of earnings
and capital, the questioned provision is invalidated. Moreover, in the absence of
evidence demonstrating the alleged confiscatory effect of the provision in question,
there is no basis for its nullification in view of the presumption of validity which
every law has in its favor.

The Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. While the Constitution protects
property rights, petitioners must accept the realities of business and the State, in
the exercise of police power, can intervene in the operations of a business which
may result in an impairment of property rights in the process.

Moreover, the right to property has a social dimension. While Article XIII
of the Constitution provides the precept for the protection of property,
various laws and jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continuously serve as a
reminder that the right to property can be relinquished upon the
command of the State for the promotion of public good.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX

A. Definition, Scope & Basis

1. Definition / Description

Police power is the power of promoting the public welfare by restraining

and regulating the use of liberty and property. (Freund, The Police Power
[Chicago, 1904]).

78
Police power is the power of the State to place restraints on the personal
freedom and property rights of persons for the protection of the public
safety, health, and morals or the promotion of the public convenience and
general prosperity. The police power is subject to limitations of the Constitution,
and especially to the requirement of due process. Police power is the exercise of the
sovereign right of a government to promote order, safety, security, health, morals
and general welfare within constitutional limits and is an essential attribute of
government (Marshall vs. Kansas City, Mo., 355 S.W.2d 877, 883)

Police power has been defined as the “state authority to enact legislation
that may interfere with personal liberty or property in order to promote
the general welfare.” As defined, it consists of (1) an imposition of restraint
upon liberty or property, (2) in order to foster the common good. It is not
capable of an exact definition but has been, purposely, veiled in general terms to
underscore its all-comprehensive embrace. (Sangalang vs. IAC, [GR 71169, 25
August 1989])

2. Scope

Police power regulates not only the property but, more importantly, the
liberty of private persons, and virtually all the people.

The scope of police power, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits. (Sangalang vs. IAC, [GR 71169, 25 August 1989])

3. Basis

The justification for police power is found in the ancient Latin maxims, Salus populi
est suprema lex, and Sic utere tuo ut alienum non laedas, which call for the
subordination of individual benefit to the interests of the greater number.

Salus populi est suprema lex. The welfare of the people is the supreme law.
(Lingo Lumber Co. vs. Hayes, Tex. Civ. App. 64 SW 2d. 835, 839)

Sic utere tuo ut alienum non laedas. (Common law maxim meaning that) one
should use his own property in such a manner as not to injure that of another (1 Bl.
Comm. 306. Chapman vs. Barnett, 131 Ind. App. 30, 169 N.E. 2d 212, 214).

It is a power not emanating from or conferred by the constitution, but

inherent in the state, plenary, suitably vague and far from precisely defined,
79
rooted in the conception that man in organizing the state and imposing upon the
government limitations to safeguard constitutional rights did not intend thereby to
enable individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace, safety, good
order and welfare. (Lozano vs. Martinez, 146 SCRA 323)

The police power of the State is a power coextensive with self-protection,

and it is not inaptly termed the ‘law of overwhelming necessity.’ It may be
said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of society. It
finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the Charter. Along with the taxing power and eminent domain, it is inborn
in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
It is the plenary power of the State “to govern its citizens.” (Sangalang vs. IAC, [GR
71169, 25 August 1989])

B. Characteristics

Pervasive and non-waivable - The police power is the pervasive and non-
waivable power and authority of the sovereign to
secure and promote all the important interests and
needs — or the public order — of the general
community. (Tablarin vs. Judge Gutierrez, [GR
78164, 31 July 1987])

Essential, insistent and illimitable - The police power of the state has been
described as the most essential, insistent and
illimitable of powers, which enables it to prohibit all
things hurtful to the comfort, safety and welfare of
society. (Lozano vs. Martinez, [GR L-63419, 18
December 1986])

Dynamic - Police power is a dynamic force that enables the

state to meet the exigencies of changing times.
There are occasions when the police power of the
state may even override a constitutional guaranty,
such as that the constitutional provision on non-
impairment of contracts must yield to the police
power of the state. (Lozano vs. Martinez, [GR L-
63419, 18 December 1986]) Police power is
dynamic, not static, must move with the moving
80
 society it is supposed to regulate. Once exercised,
it is not deemed exhausted and may be exercised
repeatedly, as often as it is necessary for the
protection or the promotion of the public welfare.

Police power may sometimes use the taxing power as an implement for
the attainment of a legitimate police objective.

C. Who exercises said power?

On the legislative organs of the government, whether national or local,

primarily rest the exercise of the police power, which is the power to prescribe
regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the requirements of due process, equal protection
and other applicable constitutional guaranties, however, the exercise of such police
power insofar as it may affect the life, liberty or property of any person is subject to
judicial inquiry. Where such exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due process or a violation
of any other applicable constitutional guaranty may call for correction by the courts.
(Ermita-Malate Hotel & Motel Operators v. City Mayor, [GR L-24693, 31 July 1967])

Police power is lodged primarily in the national legislature. By virtue of a

valid delegation of legislative power, it may also be exercised by the
President and administrative boards as well as the lawmaking bodies on
all municipal levels, including the barangay. Police power cannot be bargained
away through the medium of a contract or even a treaty.

Police power under the general welfare clause authorizes the municipal council to
enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon
it by law and such as shall seem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort,
and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein. (Villanueva vs. Castaneda, [GR L-61311, 21
September 1987])

The exercise of police power, the choice of measures or remedies if indeed

action is made, and the ascertainment of facts to which police power is to
be based, lies in the discretion of the legislative department. No mandamus
is available to coerce the exercise of the police power. The only remedy against
legislative inaction is a resort to the bar of public opinion, a refusal of the electorate
to return to members of the legislature who have been remiss in the discharge of
81
their duties. The remedy chosen by the legislature cannot be attacked on the
ground that it is not the best suggested solution, that it is unwise, impractical,
inefficacious, or even immoral. These issues are political in nature, and cannot be
inquired into by the legislature.

D. Tests of Police Power

Lawful subject - The interests of the public generally, as distinguished

from those of a particular class, require the exercise of
the police power. The enjoyment of private rights, when within
the scope of police power, may be subordinated to the interests
of the greater number.

Lawful means - The means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. The lawful objective must be pursued through a
lawful method. The means employed for the accomplishment of
the police objective must pass to the test of reasonableness and
conform to the safeguards embodied in the Bill of Rights for the
protection of private rights.

a. Rational Relations Test (property rights)

A mere reasonable or rational relation between the means employed by the law
and its object or purpose — that the law is neither arbitrary nor discriminatory
nor oppressive — would suffice to validate a law which restricts or impairs property
rights. (PBMEO vs. PBM, [GR L-31195, 5 June 1973]) Notwithstanding the “new equal
protection approach” with its emphasis on “suspect classification” and
“fundamental rights and interests standard,” the “rational relation test” still retains
its validity. (Bautista v. Juinio [GR L-50908, 31 January 1984])

b. Clear and present danger Test (human rights)

A constitutional or valid infringement of human rights requires a more stringent

criterion, namely existence of a grave and immediate danger of a
substantive evil which the State has the right to prevent. (PBMEO vs. PBM,
[GR L-31195, 5 June 1973])

Zoning and Regulatory Ordinances:

Test of a valid ordinance

An ordinance must conform to the following substantive requirements:

82
 1. It must not contravene the constitution or any statute,
2. It must not be unfair or oppressive,
3. It must not be partial or discriminatory,
4. It must not prohibit but may regulate trade,
5. It must be general and consistent with public policy, and
6. It must not be unreasonable. (Magtajas v. Pryce Properties Corp. [GR
111097, 20 July 1994])

EMINENT DOMAIN

Eminent domain is an inherent power of the State that enables it to forcibly acquire
private lands intended for public use upon payment of just compensation to the
owner. Obviously, there is no need to expropriate where the owner is willing to sell
under terms also acceptable to the purchaser, in which case an ordinary deed of
sale may be agreed upon by the parties. (Noble v. City of Manila, 67 Phil. 1) It is
only where the owner is unwilling to sell, or cannot accept the price or other
conditions offered by the vendee, that the power of eminent domain will come into
play to assert the paramount authority of the State over the interests of the
property owner. Private rights must then yield to the irresistible demands of the
public interest on the time-honored justification, as in the case of the police power,
that the welfare of the people is the supreme law. (Association of Small Landowners
in the Philippines Inc. vs. Secretary of Agrarian Reform [GR 78741, 14 July 1989])

The following exercise the power of expropriation:

1. The Congress
2. The President of the Philippines
3. The various local legislative bodies
4. Certain public corporations
5. Quasi-public corporations (Example, quasi-public corporation: PEZA)

Expropriation may be initiated by court action or by legislation. (Republic v. De

Knecht, 182 SCRA 142 [1990]). The power of eminent domain is lodged primarily in
the national legislature, but its exercise may validly delegated to other government
entities and even to quasi-public corporations serving essential public needs or
operating public utilities. The utility of the proposed improvement, the extent of the
public necessity for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent necessity of taking the
land selected for its site, are questions which are essentially political and which are
to be exclusively determined by the legislature, and are usually not subject to
judicial review.

Constitutional limitation

Art. III, Sec. 9

83
Section 9. Private property shall not be taken for public use without just
compensation.

The exercise of the right of eminent domain, whether directly by the State, or by its
authorized agents, is necessary 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
laws more sedulously, than the right to the freehold of inhabitants. When the
legislature interferes with that right and, for greater public purposes,
appropriates the land of an individual without his consent, the plain
meaning of the law should not be enlarged by doubtful interpretation.
(Bensley vs. Mountainlake Water Co., 13 Cal. 306, and cases cited 73 Am. Dec.,
576)

The power of eminent domain does not depend for its existence on a
specific grant in the constitution. It is inherent in sovereignty and exists in
a sovereign state without any recognition of it in the constitution. The
provisions found in most of the state constitutions relating to the taking of property
for the public use do not by implication grant the power to the government of the
state, but limit a power which would otherwise be without limit. (Visayan Refining
Co. v. Camus [40 Phil. 550]). The constitutional restraints are public use and just
compensation.

D. Distinguished from destruction due to necessity

The destruction of the property does not come under the right of eminent
domain, but under the right of necessity, of self-preservation. The right of
necessity arises under the laws of society or society itself. It is the right of self-
defense, of self-preservation, whether applied to persons or to property. It is a
private right vested in every individual, and with which the right of the state or
state necessity has nothing to do (American Print Works vs. Lawrence, 23 N.J.L.
590). Destruction from necessity may be validly undertaken even by private
individuals. Such is not allowed in the case of eminent domain. Further, destruction
from necessity cannot require the conversion of the property taken to public use,
nor is there any need for the payment of compensation.

E. Objects of Expropriation

Anything that can come under the dominion of man is subject to expropriation. This
includes real and personal, tangible and intangible properties. Even property
already devoted to public use is still subject to expropriation, provided
this is done directly by the national legislature or under a specific grant of
authority to delegate. The only exceptions to this rule are money and
choses in action. Expropriation of money is futile inasmuch as payment of just
compensation is also money. A chose in action is essentially conjectural as to its
validity and its value.

84
A chose in action is the right of proceeding in a court of law to procure
payment of sum of money, or right to recover a personal chattel or a sum
of money by action (Gregory vs. Colvin, 235 Ark. 1007, 363 S.W.2d 539, 540); or
is the right to receive or recover a debt, demand, or damages on a cause of action
ex contractu or for a tort or omission of a duty (Moran vs. Adkerson, 168 Tenn. 372,
79 S.W.2d 44, 45)

Normally, the power of eminent domain results in the taking or appropriation of title
to, and possession of, the expropriated property; but no cogent reason appears why
said power may not be availed of to impose only a burden upon the owner of
condemned property, without loss of title and possession. Real property may,
through expropriation, be subjected to an easement of right of way.

Property subject of expropriation must be by its nature or condition wholesome, as

it is intended to be devoted to a public use.

Where Expropriation Suit is filed

An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls

within the jurisdiction of the regional trial courts, regardless of the value
of the subject property. (Barangay San Roque v. Heirs of Pastor [GR 138896, 20
June 2000])

Taking
Definition and Scope

Common A physical dispossession of the owner, as when he is ousted from

his land or relieved of his personal property, and is thus deprived of all
beneficial use and enjoyment of his property.

Legal To take is to lay hold of, to gain or receive in possession, to seize, to deprive
one of the use or possession of, or to assume ownership (Black’s Law
Dictionary, 6th Edition, 1453). There is taking of property when
government action directly interferes with or substantially
disturbs the owner’s use and enjoyment of the property
(Brothers vs. US., C.A.Or., 594 F.2d 740, 741). To constitute a “taking,”
within constitutional limitation, it is not essential that there be physical
seizure or appropriation, and any actual or material interference with
private property rights constitutes a taking (Board of Com’rs of Lake
County vs. Mentor Lagoons Inc., Com.Pl., 6 Ohio Msc. 126, 216 N.E.2d
643, 646). Also, taking of property is affected if application of zoning
law denies property owner of economically viable use of his land,
which can consist of preventing best use of land or extinguishing
fundamental attribute of ownership (Vari-Build Inc. vs. Reno, D.C.Nev.,
596 F. Supp. 673, 679).

The general rule at least is that while property may be regulated to a

certain extent, if regulation goes too far it will be recognized as a taking.
(Pennsylvania Coal Co. v. Mahon, 260 US 393)
85
1. Taking under police power and power of eminent domain distinguished

Taking under police power and taking under the power of eminent domain,
however, should be distinguished. The power being exercised was eminent
domain when the property involved was wholesome and intended for a
public use. Property condemned under the police power is noxious or intended for
a noxious purpose, such as a building on the verge of collapse, which should be
demolished for the public safety, or obscene materials, which should be destroyed
in the interest of public morals. The confiscation of such property is not
compensable, unlike the taking of property under the power of
expropriation, which requires the payment of just compensation to the
owner. (City of Baguio v. NAWASA, 106 Phil. 144)

A. Taking under police power

If an owner is deprived of his property outright under the State’s police power, the
property is generally not taken for public use but is urgently and summarily
destroyed in order to promote the general welfare.

Every restriction upon the use of property imposed in the exercise of the police
power deprives the owner of some right theretofore enjoyed, and is, in that sense,
an abridgment by the State of rights in property without making compensation. But
restriction imposed to protect the public health, safety or morals from
dangers threatened is not a taking. The restriction is merely the
prohibition of a noxious use. The property so restricted remains in the
possession of its owner. The state does not appropriate it or make any use
of it. The state merely prevents the owner from making a use which interferes with
paramount rights of the public. Whenever the use prohibited ceases to be noxious
— as it may because of further changes in local or social conditions — the
restriction will have to be removed and the owner will again be free to enjoy his
property as heretofore.

B. Taking under the power of eminent domain

“Taking” under the power of eminent domain may be defined generally as entering
upon private property for more than a momentary period, and, under the
warrant or color of legal authority, devoting it to a public use, or otherwise
informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment
thereof. (Penn. vs. Carolina Virginia Coastal Corporation, 57 SE 2d 817)

In the context of the State’s inherent power of eminent domain, there is a “taking”
when the owner is actually deprived or dispossessed of his property; when there is
a practical destruction or a material impairment of the value of his
property or when he is deprived of the ordinary use thereof. (U.S. v. Causby,
382 U.S. 256, cited in Municipality of La Carlota v. NAWASA, 12 SCRA 164.) There is
a “taking” in this sense when the expropriator enters private property not only for a
momentary period but for a more permanent duration, for the purpose of devoting
the property to a public use in such a manner as to oust the owner and deprive him
86
of all beneficial enjoyment thereof (Republic v. Vda. de Castelvi, 58 SCRA 336
[1974]). For ownership, after all, “is nothing without the inherent rights of
possession, control and enjoyment. Where the owner is deprived of the ordinary and
beneficial use of his property or of its value by its being diverted to public use, there
is taking within the Constitutional sense.” (Municipality of La Carlota v. NAWASA, 12
SCRA 164)

2. Stages

The expropriation of lands consists of two stages. 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 of 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 described in the complaint,
upon the payment of just compensation to be determined as of the date of the filing
of the complaint.” The second phase of the eminent domain action is
concerned with the determination by the court of the just compensation
for the property sought to be taken.” This is done by the court with the
assistance of not more than three (3) commissioners. (Municipality of Biñan v.
Garcia, 180 SCRA 576, 583-584 [1989]) 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. (Association of Small Landowners in the Philippines, Inc. v. Secretary
of Agrarian Reform, 175 SCRA 343 [1989]). 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.

Requisites
1. The expropriator must enter a private property.
2. The entry must be for more than a momentary period.
3. The entry must be under warrant or color of legal authority.
4. The property must be devoted to public use or otherwise informally
appropriated or injuriously affected.
5. The utilization of the property for public use must be in such a way as to oust
the owner and deprive him of beneficial enjoyment of the property.

Deprivation of Use

1. In General

Easement, if permanent and not merely temporary, normally would be the

equivalent of a fee interest. It would be a definite exercise of complete dominion
and control over the surface of the land. (United States vs. Causby [328 US 256, 27
May 1946])

87
2. Local Government Units

An ordinance which permanently so restricts the use of property that it

cannot be used for any reasonable purpose goes, it is plain, beyond
regulation and must be recognized as a taking of the property. The only
substantial difference, in such case, between restriction and actual taking, is that
the restriction leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him of that burden.
(Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116). A regulation
which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment.
(Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor
vs. Jacksonville, 133 So. 114). Specifically, while property may be regulated in
the interest of the general welfare such as to regard the beautification of
neighborhoods as conducive to the comfort and happiness of residents,
and in its pursuit, the State may prohibit structures offensive to the sight, the State
may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or
assure the aesthetic appearance of the community. (People vs. Fajardo [GR L-
12172, 29 August 1958])

Zoning which admittedly limits property to a use which cannot reasonably be made
of it cannot be said to set aside such property to a use but constitutes the taking of
such property without just compensation. Use of property is an element of
ownership therein. Regardless of the opinion of zealots that property may properly,
by zoning, be utterly destroyed without compensation, such principle finds no
support in the genius of our government nor in the principles of justice as we know
them. Such a doctrine shocks the sense of justice. If it be of public benefit that
property remain open and unused, then certainly the public, and not the private
individuals, should bear the cost of reasonable compensation for such property
under the rules of law governing the condemnation of private property for public
use. (Tews vs. Woolhiser (1933) 352 111. 212, 185 N.E. 827)

Public use

Over many years and in a multitude of cases the courts have vainly attempted to
define comprehensively the concept of a public use and to formulate a universal
test. They have found here as elsewhere that to formulate anything ultimate, even
though it were possible, would, in an inevitably changing world, be unwise if not
futile. (Matter of New York City Housing Authority v. Muller, 1 NE 2d 153)

Public Use, as traditionally understood, means any use directly available

to the general public as a matter of right and not merely of forbearance or
accommodation. (Justice Cruz, Constitutional Law, 2000 edition, 74)

Public Use is “the constitutional and statutory basis for taking property by eminent
domain. For condemnation purposes, ‘public use’ is one which confers some benefit
or advantage to the public; it is not confined to actual use by public. It is measured
in terms of right of public to use proposed facilities for which condemnation is
88
sought and, as long as public has right of use, whether exercised by one or many
members of public, a ‘public advantage’ or ‘public benefit’ accrues sufficient to
constitute a public use.” (Montana Power Co. vs. Bokma, Mont. 457 P.2d 769, 772,
773.)

Public use, in constitutional provisions restricting the exercise of the right

to take private property in virtue of eminent domain, means a use
concerning the whole community as distinguished from particular
individuals. But each and every member of society need not be equally
interested in such use, or be personally and directly affected by it; if the
object is to satisfy a great public want or exigency, that is sufficient.
(Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186).
The term may be said to mean public usefulness, utility, or advantage, or what is
productive of general benefit. It may be limited to the inhabitants of a small or
restricted locality, but must be in common, and not for a particular individual. The
use must be a needful one for the public, which cannot be surrendered without
obvious general loss and inconvenience. A ‘public use’ for which land may be taken
defies absolute definition for it changes with varying conditions of society, new
appliances in the sciences, changing conceptions of scope and functions of
government, and other differing circumstances brought about by an increase in
population and new modes of communication and transportation. (Katz v. Brandon,
156 Conn., 521, 245 A.2d 579,586.)

The taking to be valid must be for public use. There was a time when it was felt that
a literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or
parks. Otherwise, expropriation is not allowable. It is not any more. As
long as the purpose of the taking is public, then the power of eminent
domain comes into play. The constitution in at least two cases determines what
public use is. One is the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)

Genuine Necessity

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. (Manila Railroad Co. v. Mitchel, 50 Phil 832, 837-
838 [1927]).

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,
89
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. (City of Manila v. Chinese Community of Manila, 40 Phil 349 [1919])

Just Compensation
Defined

Just compensation means the value of the property at the time of the
taking. It means a fair and full equivalent for the loss sustained. All the
facts as to the condition of the property and its surroundings, its improvements and
capabilities, should be considered. (Export Processing Zone Authority vs. Dulay [GR
L-59603, 29 April 1987])

Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator (Manila Railroad Co. v. Velasques, 32 Phil. 286).
It has been repeatedly stressed by this Court that the measure is not the
taker’s gain but the owner’s loss. (Province of Tayabas v. Perez, 66 Phil. 467)
The word “just” is used to intensify the meaning of the word “compensation” to
convey the idea that the equivalent to be rendered for the property to be taken
shall be real, substantial, full, ample (City of Manila v. Estrada, 25 Phil. 208).

Just compensation means not only the correct amount to be paid to the
owner 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” for then the property owner is made to suffer the consequence 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. (Eslaban
vs. Vda. de Onorio [GR 146062, 28 June 2001])

Determination of Just Compensation

A. In General

The determination of just compensation is a function addressed to the

courts of justice and may not be usurped by any other branch or official of
the government. (Export Processing Zone Authority vs. Dulay [GR L-59603, 29
April 1987])

Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to be taken.
The order of appointment shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify the time within which their
report shall be submitted to the court. (Section 5, Rule 67, 1997 Rules of Civil
Procedure) The commissioners shall assess the consequential damages to the
90
property not taken and deduct from such consequential damages the consequential
benefits to be derived by the owner from the public use or purpose of the property
taken, the operation of its franchise by the corporation or the carrying on of the
business of the corporation or person taking the property. But in no case shall the
consequential benefits assessed exceed the consequential damages assessed, or
the owner be deprived of the actual value of his property so taken. (Section 6, Rule
67, 1997 Rules of Civil Procedure)

Still, according to section 8 of Rule 67, the court is not bound by the commissioners’
report. It may make such order or render such judgment as shall secure to the
plaintiff the property essential to the exercise of his right of condemnation, and to
the defendant just compensation for the property expropriated. This Court may
substitute its own estimate of the value as gathered from the record (Manila
Railroad Company v. Velasquez, 32 Phil. 286).

B. Local Government Units

Section 19, Republic Act 7160. Eminent Domain. – A local government unit may,
through its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, or purpose or welfare for the
benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner, and such
offer was not accepted: Provided, further, That the local government unit
may immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated: Provided finally,
That, the amount to be paid for the expropriated property shall be determined
by the proper court, based on the fair market value at the time of the
taking of the property.

When Determined

A. When

Where the institution of an expropriation action precedes the taking of the

property subject thereof, the just compensation is fixed as of the time of
the filing of the complaint. This is so provided by the Rules of Court, the
assumption of possession by the expropriator ordinarily being conditioned on its
deposits with the National or Provincial Treasurer of the value of the property as
provisionally ascertained by the court having jurisdiction of the proceedings. There
are instances, however, where the expropriating agency takes over the
property prior to the expropriation suit. In these instances, the just
compensation shall be determined as of the time of taking, not as of the
time of filing of the action of eminent domain. (Ansaldo vs. Tantuico [GR 50147, 3
August 1990])

91
When plaintiff takes possession before the institution of the condemnation
proceedings, the value should be fixed as of the time of the taking of said
possession, not of filing of the complaint and the latter should be the basis for the
determination of the value, when the taking of the property involved coincides with
or is subsequent to, the commencement of the proceedings. Indeed, otherwise, the
provision of Rule 69, Section 3, directing that compensation ‘be determined as of
the date of the filing of the complaint’ would never be operative. (Republic v.
Philippine National Bank, 1 SCRA 957 [1961])

B. Why

Where property is taken ahead of the filing of the condemnation

proceedings, the value thereof may be enhanced by the public purpose for
which it is taken; the entry by the plaintiff upon the property may have
depreciated its value thereby; or, there may have been a natural increase
in the value of the property from the time the complaint is filed, due to
general economic conditions. The owner of private property should be
compensated only for what he actually loses; it is not intended that his
compensation shall extend beyond his loss or injury. And what he loses is only the
actual value of his property at the time it is taken. This is the only way that
compensation to be paid can be truly just; i.e., ”just not only to the
individual whose property is taken,” “but to the public, which is to pay for
it.” (Republic v. Lara, 50 O.G. 5778 [1954])

Manner of Payment

A. Manner

1. Traditional

Although it may be said that “where the State itself is the expropriator, it is
not necessary for it to make a deposit upon its taking possession of the
condemned property, as ‘the compensation is a public charge, the good
faith of the public is pledged for its payment, and all the resources of
taxation may be employed in raising the amount.’” (Lewis, Law of Eminent
Domain, 3rd Edition, pp. 1166-1167); the method of expropriation adopted in
Philippine jurisdiction is such as to afford absolute reassurance that no piece of land
can be finally and irrevocably taken from an unwilling owner until compensation is
paid. (Visayan Refining Co. v. Camus and Paredes, 40 Phil. 550) Further, the Rules
provide that “upon the filing of the complaint or at any time thereafter and after
due notice to the defendant, the plaintiff shall have the right to take or enter upon
the possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the property
for purposes of taxation to be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized government depositary. If
personal property is involved, its value shall be provisionally ascertained and the

92
amount to be deposited shall be promptly fixed by the court. xxx” (Section 2, Rule
67, 1997 Rules of Civil Procedure)

2. Revolutionary

Section 16(e) of the CARP Law provides that “Upon receipt by 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
the DAR of the compensation in cash or in LBP bonds in accordance with
this Act, the DAR shall take immediate possession of the land and shall
request the proper Register of Deeds to issue a Transfer Certificate of
Title (TCT) in the name of the Republic of the Philippines. The DAR shall
thereafter proceed with the redistribution of the land to the qualified beneficiaries.”
(Association of Small Landowners in the Philippines Inc. vs. Secretary of Agrarian
Reform [GR 78741, 14 July 1989])

B. Medium

1. Traditional

The fundamental rule in expropriation matters is that the owner of the property
expropriated is entitled to a just compensation, which should be neither more nor
less, whenever it is possible to make the assessment, than the money equivalent of
said property. Just compensation has always been understood to be the just
and complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation. (Manila Railroad
Co. v. Velasquez, 32 Phil. 286)

Just compensation means the equivalent for the value of the property at the time of
its taking. Anything beyond that is more, and anything short of that is less, than just
compensation. It means a fair and full equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the expropriating
entity. The market value of the land taken is the just compensation to
which the owner of condemned property is entitled, the market value
being that sum of money which a person desirous, but not compelled to
buy, and an owner, willing, but not compelled to sell, would agree on as a
price to be given and received for such property. (J.M. Tuazon Co. v. Land
Tenure Administration, 31 SCRA 413)

The medium of payment of compensation is ready money or cash. The

condemnor cannot compel the owner to accept anything but money, nor can the
owner compel or require the condemnor to pay him on any other basis than the
value of the property in money at the time and in the manner prescribed by the
Constitution and the statutes. When the power of eminent domain is resorted to,
there must be a standard medium of payment, binding upon both parties, and the
law has fixed that standard as money in cash. (Mandl v. City of Phoenix, 18 p 2d
273.)

93
Part cash and deferred payments are not and cannot, in the nature of
things, be regarded as a reliable and constant standard of compensation.
(Sacremento Southern R. Co. v. Heilbron, 156 Cal. 408, 104 pp. 979, 980.)

“Just compensation” for property taken by condemnation means a fair equivalent in

money, which must be paid at least within a reasonable time after the taking, and
it is not within the power of the Legislature to substitute for such payment
future obligations, bonds, or other valuable advantage. (City of Waterbury v.
Platt Bros. & Co., 56 A 856, 76 Conn, 435 citing Butler v. Ravine Road Sewer Com’rs,
39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31 Am. Dec.
313; Sanborn v. Helden, 51 Cal 266; Burlington & C.R. Co. v. Schweikart, 14 p. 329,
10 Colo, 178; 23 Words and Phrases, pl. 460.)

2. Revolutionary

The records of the Constitutional Commission do not provide any categorical

agreement among the members regarding the meaning to be given the concept of
just compensation as applied to the comprehensive agrarian reform program being
contemplated. There was the suggestion to “fine tune” the requirement to suit the
demands of the project even as it was also felt that they should “leave it to
Congress” to determine how payment should be made to the landowner and
reimbursement required from the farmer-beneficiaries. Such innovations as
“progressive compensation” and “State-subsidized compensation” were also
proposed. In the end, however, no special definition of the just compensation for the
lands to be expropriated was reached by the Commission. (Record of the
Constitutional Commission, Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247.)

Trial with Commissioners

In an expropriation case where the principal issue is the determination of just

compensation, a trial before the Commissioners is indispensable to allow the parties
to present evidence on the issue of just compensation. Trial with the aid of the
commissioners is a substantial right that may not be done away with capriciously or
for no reason at all. (Manila Electric Company (MERALCO) vs. Pineda [GR 59791, 13
February 1992])

Legal Interest for Expropriation Cases

Article 2209 of the Civil Code, which provides that “If the obligation
consists in the payment of a sum of money, and the debtor incurs a delay,
the indemnity for damages, there being no stipulation to the contrary,
shall be the payment of the interest agreed upon, and in the absence of
stipulation, the legal interest, which is 6% per annum.” Central Bank Circular
416 does not apply as it only applies to loan or forbearance of money, goods or
credits and to judgments involving such loan or forbearance of money, goods or
credits. (National Power Corporation vs. Angas [GR 60225-26, 8 May 1992])
94
Writ of Possession

1. Issuance of writ of possession

A writ of execution may be issued by a court upon the filing by the

government of a complaint for expropriation sufficient in form and
substance and upon deposit made by the government of the amount
equivalent to the assessed value of the property subject to expropriation.
Upon compliance with these requirements, the issuance of the writ of possession
becomes ministerial. (Biglang-awa v. Bacalla, GR 139927 and 139936, 22 November
2000.)

It is imperative that before a writ of possession is issued by the Court in

expropriation proceedings, the following requisites must be met:

1. There must be a Complaint for expropriation sufficient inform and in

substance;
2. A provisional determination of just compensation for the properties
sought to be expropriated must be made by the trial court on the basis of
judicial (not legislative or executive) discretion; and
3. The deposit requirement under Section 2, Rule 67 must be complied
with. (Ignacio v. Guerrero [GR L-49088, 29 May 1987])

2. Remedy for party assailing validity of writ of possession

A petition for review could not have been resorted to inasmuch as the order of the
trial court granting a writ of possession was merely interlocutory from which no
appeal could be taken. Rule 45, §1 of the 1997 Rules of Civil Procedure applies only
to final judgments or orders of the Court of Appeals, the Sandiganbayan, and the
Regional Trial Court. A petition for certiorari is the suitable remedy in view of
Rule 65, §1 which provides “When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.”

95
Expropriation of Utilities, Landed Estates and Municipal Property

Art. XII, Sec. 18

Section 18. The State may, in the interest of national welfare or defense,
establish and operate vital industries and, upon payment of
just compensation, transfer to public ownership utilities and
other private enterprises to be operated by the Government.

Art. XIII, Sec. 4

Section 4. The State shall, by law, undertake an agrarian reform program

founded on the right of farmers and regular farmworkers who
are landless, to own directly or collectively the lands they till
or, in the case of other farmworkers, to receive a just share of the
fruits thereof. To this end, the State shall encourage and undertake the
just distribution of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may prescribe, taking into
account ecological, developmental, or equity considerations, and
subject to the payment of just compensation. In determining retention
limits, the State shall respect the right of small landowners. The State
shall further provide incentives for voluntary land-sharing.

Art. XIII, Sec. 9

Section 9. The State shall, by law, and for the common good, undertake, in
cooperation with the private sector, a continuing program of urban
land reform and housing which will make available at affordable cost,
decent housing and basic services to under-privileged and homeless
citizens in urban centers and resettlement areas. It shall also promote
adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of
small property owners.

Property held by a municipal corporation in its private capacity is not

subject to the unrestricted control of the legislature, and the municipality
cannot be deprived of such property against its will, except by the exercise of
eminent domain with payment of full compensation.” (McQuillin Municipal
Corporation, 2nd Ed., Vol. I, pp. 670-681).

In its private capacity a municipal corporation is wholly different. The people of a

compact community usually require certain conveniences which cannot be
96
furnished without a franchise from the State and which are either unnecessary in
the rural districts, such as a system of sewers, or parks and open spaces, or which
on account of the expenses it would be financially impossible to supply except
where the population is reasonably dense, such as water or gas. But in so far as
the municipality is thus authorized to exercise the functions of a private
corporation, it is clothed with the capacities of a private corporation and
may claim its rights and immunities, even as against the sovereign, and is
subject to the liabilities of such a corporation, even as against third
parties. (19 R.C.L. p. 698)

DE KNECHT VS BAUTISTA

The plan to extend EDSA to Roxas Boulevard to be ultimately linked to the Cavite
Coastal Road Project, originally called for the expropriation of properties along
Cuneta Avenue in Pasay City. Later on, however, the Ministry of Public Highways
decided to make the proposed extension pass through Fernando Rein and Del Pan
Streets. Because of the protests of residents of the latter, the Commission on
Human Settlements recommended the reversion to the original plan, but the
Ministry argued that the new route will save the government P2 million. The
government filed expropriation proceedings against the owners of Fernando Rein
and Del Pan streets, among whom was petitioner.

Held:

There is no question as to the right of the Republic of the Philippines to take private
property for public use upon the payment of just compensation. Section 2, Article IV
of the Constitution of the Philippines provides that “Private property shall not be
taken for public use without just compensation.” It is recognized, however, that
the government may not capriciously or arbitrarily choose what private
property should be taken. A landowner is covered by the mantle of protection
due process affords. It is a mandate of reason. It frowns on arbitrariness, it is the
antithesis of any governmental act that smacks of whim or caprice. It negates state
power to act in an oppressive manner. It is, as had been stressed so often, the
embodiment of the sporting idea off air play. In that sense, it stands as a guaranty
of justice. That is the standard that must be met by any governmental agency in the
exercise of whatever competence is entrusted to it. As was so emphatically stressed
by the present Chief Justice, Acts of Congress, as well as those of the Executive, can
deny due process only under pain of nullity.

The choice of Fernando Rein and Del Pan streets is arbitrary and should not receive
judicial approval. The Human Settlements Commission concluded that the cost
factor is so minimal that it can be disregarded in making a choice between the two
97
lines. The factor of functionality strongly militates against the choice of Fernando
Rein and Del Pan streets, while the factor of social and economic impact bears
grievously on the residents of Cuneta Avenue. While the issue would seem to
boil down to a choice between people, on one hand, and progress and
development, on the other, it is to be remembered that progress and
development are carried out for the benefit of the people.

EPZA VS DULAY

The San Antonio Development Corporation was the owner of a piece of land in Lapu-
Lapu City which the EPZA expropriated in 1979. The commissioners appointed by
the trial court recommended that the San Antonio Development Corp. be paid
P15.00 per square meter. EPZA filed a petition for certiorari, arguing that under PD
1533 the compensation should be the fair and current market value declared by the
owner or the market value determined by the assessor, whichever is lower.

HELD:

The method of ascertaining just compensation under PD 1533 constitutes

impermissible encroachment on judicial prerogatives. It tends to render the
Supreme Court inutile in a matter which under the Constitution is reserved to it for
final determination. The valuation in the decree may only serve as a guiding
principle or one of the factors in determining just compensation but it may not
substitute the court’s own judgment as to what amount should be awarded and how
to arrive at such amount. Although the court technically would still have the power
to determine the just compensation for the property, following the decree, its task
would be relegated to simply stating the lower value of the property as declared
either by the owner or the assessor. Just compensation means the value of the
property at the time of the taking. It means a fair and full equivalent for
the loss sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities should be considered. In this case,
the tax declarations used as basis for the just compensation were made long before
the declaration of martial law when the land was much cheaper. To peg the value of
the lots on the basis of those documents which are outdated would be arbitrary and
confiscatory.

MORENO VS MACTAN-CEBU AIRPORT

Held:

98
In Fery, which was cited in the recent case of Reyes v. National Housing Authority,
we declared that the government acquires only such rights in expropriated parcels
of land as may be allowed by the character of its title over the properties –

If land is expropriated for a particular purpose, with the condition that

when that purpose is ended or abandoned, the property shall return to its
former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. If x
x x land is expropriated for a public street and the expropriation is granted upon
condition that the city can only use it for a public street, it returns to the former
owner, unless there is some statutory provision to the contrary x x x x If,
upon the contrary, however, the decree of expropriation gives to the
entity a fee simple title, then, of course, the land becomes the absolute
property of the expropriator, whether it be the State, a province, or
municipality, and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings x x x x When
land has been acquired for public use in fee simple, unconditionally, either
by the exercise of eminent domain or by purchase, the former owner
retains no rights in the land, and the public use may be abandoned, or the
land may be devoted to a different use, without any impairment of the
estate or title acquired, or any reversion to the former owner x x x x

Our stand on the amount of repurchase price remains unperturbed. When the
State reconveys land, it should not profit from sudden appreciations in
land values. Any increase or decrease in market value due to the proposed
improvement may not be considered in determining the market value. Thus,
reconveyance to the original owner shall be for whatever amount he was paid by
the government, plus legal interest, whether or not the consideration was based on
the land’s highest and best use when the sale to the State occurred.

TAXATION

A. Definition and Nature

1. Definition

a. Taxation is:
 the method by which enforced proportional contributions are
exacted.
 the power by which the sovereign, through its lawmaking body,
raises revenue to defray the necessary expenses of
government.

99
  a way of apportioning the costs of government among those
who in some measure are privileged to enjoy its benefits and must
bear its burden.
 a “Symbiotic” relationship, whereby in exchange for the
protection that the citizens get from the government, taxes
are paid.

b. Taxes

Taxes are enforced proportional contributions from persons and property levied by
the lawmaking body of the State by virtue of its sovereignty for the support of the
government and for public needs. (Cooley, Taxation, 4th edition, Section 1)

Distinction with license fees. The term “tax” applies — generally speaking — to
all kinds of exactions which become public funds. The term is often loosely used to
include levies for revenue as well as levies for regulatory purposes. Thus license
fees are commonly called taxes. Legally speaking, however, license fee is a legal
concept quite distinct from tax; the former is imposed in the exercise of
police power for purposes of regulation, while the latter is imposed under
the taxing power for the purpose of raising revenues (MacQuillin, Municipal
Corporations, Vol. 9, 3rd Edition, p. 26).

Distinction with special assessments. While the word “tax” in its broad
meaning, includes both general taxes and special assessments, and in a general
sense a tax is an assessment, and an assessment is a tax, yet there is a recognized
distinction between them in that assessment is confined to local impositions upon
property for the payment of the cost of public improvements in its immediate
vicinity and levied with reference to special benefits to the property assessed.
The differences between a special assessment and a tax are that:
1. A special assessment can be levied only on land;
2. A special assessment cannot (at least in most states) be made a
personal liability of the person assessed;
3. A special assessment is based wholly on benefits; and
4. A special assessment is exceptional both as to time and locality. The
imposition of a charge on all property, real and personal, in a prescribed area,
is a tax and not an assessment, although the purpose is to make a local
improvement on a street or highway. A charge imposed only on property
owners benefited is a special assessment rather than a tax notwithstanding
the statute calls it a tax. (Apostolic Prefect of the Mountain Province vs. the
Treasurer of Baguio City [GR 47252, 18 April 1941]; citing Cooley)

2. Attributes / Characteristics of taxation

A forced charge, imposition or contribution and as such it operates in invitum.

(Rochester vs. Bloss, 175 NY 42, 27 NE 794, 61 LRA [NS] Ann 7, Cas. 15) Taxes are
not in the nature of contracts between the party and party but grow out of a duty
to, and are the positive acts of the government, to the making and enforcing of
which, the personal consent of individual taxpayers is not required (Republic vs.
Mambulao Lumber [GR L-17725, 28 February 1962]).
100
It is a pecuniary burden payable in money, but such a tax is not
necessarily confined to those payable in money (1 Cooley 3).
It is levied by the legislative body of the State because the taxing power is
pecuniary and exclusively legislative in character. (51 Am. Jr. 71)
It is assessed in accordance with some reasonable rule of apportionment,
conformably with the constitutional mandate on progressivity of a taxing system.
(Article VI, Section 28[1], 1987 Constitution).
It reaches even the citizen abroad and his income earned from sources
outside his State; as well as all income earned in the taxing State,
whether by citizens or aliens, and all immovable and tangible personal
properties found in its territory, as well as tangible personal property
owned by persons domiciled therein, are subject to its taxing power
(Justice Cruz, Constitutional Law, 2000 edition, 86)
A tax is levied for a public purpose as taxation itself involves a burden to provide
revenue for public purposes of a general nature.

3. Nature of taxing power

Inherent The power to tax, an inherent prerogative, has to

be availed of to assure the performance of vital
state functions. It is the source of the bulk of public
funds. Taxes being the lifeblood of the government,
their prompt and certain availability is of the
essence. (Sison v. Ancheta [GR L-59431, 25 July
1984])
High prerogative of sovereignty As the power of taxation is a high
prerogative of sovereignty, the relinquishment is
never presumed and any reduction or diminution
thereof with respect to its mode or its rate, must be
strictly construed, and the same must be coached
in clear and unmistakable terms in order that it
may be applied. (84 C.J.S. pp. 659-800)
Legislative Taxing power is peculiarly and exclusively
legislative in character and remains undiminished
in the legislative in character and remains
undiminished in the legislature in the absence of an
express surrender thereof, clear and explicit in its
terms. (51 Am. Jur. 71-73)
Constitutionally limited The power to tax is an attribute of sovereignty. It is
the strongest of all the powers of government. For
all its plenitude, the power to tax has restrictions.
The Constitution sets forth such limits. Adversely
affecting as it does property rights, both the due
process and equal protection clauses may properly
be invoked to invalidate in appropriate cases a
revenue measure. (Sison v. Ancheta [GR L-59431,
25 July 1984])

101
B. Purpose

Taxes are the lifeblood of the government and so should be collected without
unnecessary hindrance. Despite the natural reluctance to surrender part of one’s
hard-earned income to the taxing authorities, every person who is able to must
contribute his share in the running of the government. The government for its part,
is expected to respond in the form of tangible and intangible benefits intended to
improve the lives of the people and enhance their moral and material values. This
symbiotic relationship is the rationale of taxation and should dispel the erroneous
notion that it is an arbitrary method of exaction by those in the seat of power.
(Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February 1988])

Revenue:
The purpose of taxation is to provide funds or property with which the State
promotes the general welfare and protection of its citizens. (51 Am. Jur. 71-73)
Raising of revenues is the principal object of taxation. (Bagatsing vs. Ramirez [GR L-
41631, 17 December 1976])

Non-Revenue:
Regulation: Taxes may also be imposed for a regulatory purpose as
for example, in the promotion, rehabilitation and
stabilization of industry which is affected with public
interest. (See Lutz vs. Araneta [GR L-7859, 22 December
1955] , and Caltex Philippines vs. Commission on Audit
[GR 92585, 8 May 1992])
Promotion of general welfare: If objective and methods alike are
constitutionally valid, no reason is seen why the state
may not levy taxes to raise funds for their prosecution
and attainment. Taxation may be made to implement the
state’s police power. (Lutz V. Araneta, 98 Phil. 148 [1955];
citing Great Atlantic & Pacific Tea Co. v. Grosjean, 301
U.S. 412, 81 L. Ed. 1193; U.S. v. Butler, 297 U.S. 1, 80 L.
Ed. 477; M’Culloch v. Maryland, 4 Wheat, 316, 4 L. Ed.
579. )
Reduction of social inequality: Made possible through the progressive
system of taxation where the objective is to prevent the
undue concentration of wealth in the hands of a few
individuals. (Aban, Benjamin. Law of Basic Taxation in the
Philippines, Second Edition 1994, page 6).
Encourage economic growth: In the realm of tax exemptions and tax
reliefs, the purpose of taxation (the power to tax being
the power also not to tax. — Ed.) is to grant incentives or
exemptions in order to encourage investments and
thereby promote the country’s economic growth. (Ibid.)
Protectionism: In some important sectors of the economy, taxes
sometimes provide protection to local industries like
protective tariffs and customs duties. (Ibid.)
102
C. Scope (The power to tax is the power to destroy)

Philippine internal revenue laws are not political in nature and as such
were continued in force during the period of enemy occupation and in
effect were actually enforced by the occupation government. As a matter of
fact, income tax returns were filed during that period and income tax payment were
effected and considered valid and legal. Such tax laws are deemed to be the laws of
the occupied territory and not of the occupying enemy. (Hilado vs. CIR [GR. L-9408,
31 October 1956.])

So pervasive is the power of taxation that it reaches even the citizen

abroad and his income earned from sources outside his State. In other
cases, all income earned in the taxing State, whether by citizens or aliens, and all
immovable and tangible personal properties found in its territory, as well as tangible
personal property owned by persons domiciled therein, are subject to its taxing
power (Justice Cruz, Constitutional Law, 2000 edition, 86) Tariff and customs duties
are taxes constituting a significant portion of the public revenue which are the
lifeblood that enables the government to carry out functions it has been instituted
to perform. (Commissioner of Customs v. Makasiar [GR 79307, 29 August 1989])

Legislative taxing power or discretion extends to the following:

 Subjects and objects of tax

 Amount and rate of tax
 Purpose for which taxes are to be levied
 Apportionment of the tax ( general, limited to a particular locality, or mixed)
 Situs of taxation
 Manner and mode of enforcement and collection

(Aban, Benjamin. Law of Basic Taxation in the Philippines, Second Edition 1994,
page 8).

The taxing authority can select the subjects of taxation (Gomez vs. Palomar (GR L-
23645, 29 October 1988). The taxing power has the authority to make
reasonable and natural classifications for purposes of taxation. Where the
differentiation conforms to the practical dictates of justice and equity, it is not
discriminatory within the meaning of this clause and is therefore uniform. There is
quite a similarity then to the standard of equal protection for all that is required is
that the tax applies equally to all persons, firms and corporations placed in similar
situation. Taxpayers may be classified into different categories. It is enough
that the classification must rest upon substantial distinctions that make
real differences. (Sison v. Ancheta [GR L-59431, 25 July 1984])

Thus, a classification is reasonable where

103
 1. It is based on substantial distinctions which make real differences;
2. These are germane to the purpose of the law;
3. The classification applies not only to present conditions but also to
future conditions which are substantially identical to those of the present;
4. The classification applies only to those who belong to the same class
(Felwa v. Salas [GR L-26511, 29 Oct 1966]).
Still, the classification, to be reasonable, should be in terms applicable to future
conditions as well. (Ormoc Sugar Company vs. Treasurer of Ormoc City [GR L-
23794, 17 February 1968])

That the power to tax involves the power to destroy; that the power to destroy may
defeat and render useless the power to create; that there is a plain repugnance in
conferring on one government a power to control the constitutional measures of
another, which other, with respect to those very measures, is declared to be
supreme over that which exerts the control, are propositions not to be denied. But
all inconsistencies are to be reconciled by the magic of the word confidence.
Taxation, it is said, does not necessarily and unavoidably destroy. To carry
it to the excess of destruction, would be an abuse, to presume which,
would banish that confidence which is essential to all government. (Chief
Justice Marshall, McCulloch vs. Maryland, 17 US 316 [1819]) In those days (the case
of McCullough vs. Maryland [1819] — Ed.) it was not recognized as it is today that
most of the distinctions of the law are distinctions of degree. If the States had any
power it was assumed that they had all power, and that the necessary alternative
was to deny it altogether. But this Court which so often has defeated the attempt to
tax in certain ways can defeat an attempt to discriminate or otherwise go too far
without wholly abolishing the power to tax. The power to tax is not the power
to destroy while this Court sits. The power to fix rates is the power to
destroy if unlimited, but this Court while it endeavors to prevent
confiscation does not prevent the fixing of rates. (Dissenting opinion of
Justice Holmes, Panhandle Oil Co. vs. State of Mississippi Ex Rel. Knox, 277 US 218
[1928]). Construing the “power to tax is the power to destroy,” it merely
describes “not the purposes for which the tax may be used but the degree
of vigor with which the taxing power may be employed in order to raise
revenue (1 Cooley 179-181).

D. Who exercises the power?

1. In general

Taxing power is peculiarly and exclusively legislative in character and

remains undiminished in the legislature in the absence of an express
surrender thereof, clear and explicit in its terms. (51 Am. Jur. 71-73) It is
inherent in the power to tax that a state be free to select the subjects of taxation,
and it has been repeatedly held that “inequalities which result from a singling out of
one particular class for taxation, or exemption infringe no constitutional limitation”
(Carmichael vs. Southern Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245, citing
numerous authorities, at p. 1251).

104
Still, tax collection should be made in accordance with law as any arbitrariness will
negate the very reason for government itself. It is a requirement in all
democratic regimes that it be exercised reasonably and in accordance
with the prescribed procedure. It is therefore necessary to reconcile the
apparently conflicting interests of the authorities and the taxpayers so that the real
purpose of taxation, which is the promotion of the common good, may be achieved.
If it is not, then the taxpayer has a right to complain and the courts will then come
to his succor. For all the awesome power of the tax collector, he may still be
stopped in his tracks if the taxpayer can demonstrate that the law has not been
observed. (Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February
1988])

2. Local Government Units

Previously, a municipal corporation has no inherent power of taxation. To

enact a valid ordinance, the City must find in its charter the power to do
so, for said power cannot be assumed. A municipal corporation, unlike a
sovereign state, is clothed with no inherent power of taxation. Its charter
must plainly show an intent to confer that power or the corporation cannot assume
it. And the power when granted is to be construed strictissimi juris. Any doubt or
ambiguity arising out of the term used must be resolved against the municipal
corporation. (Santos Lumber Co. vs. City of Cebu, et al., 102 Phil., 870; See also
Arong vs. Raffiñan, 98 Phil., 422). Now, direct authority has been conferred to
local government units by the 1987 Constitution, specifically Section 5,
Article X thereof, which provides that “Each local government unit shall
have the power to create its own sources of revenues and to levy taxes,
fees and charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local autonomy.
Such taxes, fees, and charges shall accrue exclusively to the local
governments.”

Except as otherwise provided in the Local Government Code (RA 7160), the
province may levy only the taxes, fees, and charges as provided in Article I, Chapter
II, Title I, Book II; such the Tax on Transfer of Real Property Ownership; Tax on
Business of Printing and Publication; Franchise Tax; Tax on Sand, Gravel and Other
Quarry Resources; Professional Tax; Amusement Tax; Annual Fixed Tax For Every
Delivery Truck or Van of Manufacturers or Producers, Wholesalers of, Dealers, or
Retailers in, Certain Products (Section 134). Further, municipalities may levy taxes,
fees, and charges not otherwise levied by provinces (Section 142). Furthermore, the
city, may levy the taxes, fees, and charges which the province or municipality may
impose: Provided, however, That the taxes, fees and charges levied and collected
by highly urbanized and independent component cities shall accrue to them and
distributed in accordance with the provisions of the Local Government Code, and
Provided further that the rates of taxes that the city may levy may exceed the
maximum rates allowed for the province or municipality by not more than 50%
except the rates of professional and amusement taxes (Section 151).

105
Section 130 of the Local Government Code provides for fundamental
principles that shall govern the exercise of the taxing and other revenue-
raising powers of local government units, that is,
a) Taxation shall be uniform in each local government unit;
b) Taxes, fees, charges and other impositions shall:
1. be equitable and based as far as practicable on the taxpayer’s
ability to pay;
2. be levied and collected only for public purposes;
3. not be unjust, excessive, oppressive, or confiscatory;
4. not be contrary to law, public policy, national economic policy,
or in the restraint of trade;
c) The collection of local taxes, fees, charges and other impositions shall in no
case be let to any private person;
d) The revenue collected pursuant to the provisions of the Local Government
Code shall inure solely to the benefit of, and be subject to the
disposition by, the local government unit levying the tax, fee, charge
or other imposition unless otherwise specifically provided herein; and,
e) Each local government unit shall, as far as practicable, evolve a
progressive system of taxation.

Art. VI Sec. 28

Section 28 The rule of taxation shall be uniform and equitable. The

Congress shall evolve a progressive system of taxation.

The Congress may, by law, authorize the President to fix within

specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the
Government.

Charitable institutions, churches and personages 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. (exclusively means primarily not
necessarily solely)

No law granting any tax exemption shall be passed without the

concurrence of a majority of all the Members of the Congress.

Art. XIV, Sec. 4 (3)

Section 4

xxx
106
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.

Art. X, Sec. 5

Section 5 Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such taxes, fees,
and charges shall accrue exclusively to the local governments.

Tax Exemptions

1. Nature

Tax exemptions are either constitutional or statutory. Exemption is

granted religious and charitable institutions because they give
considerable assistance to the State in the improvement of the morality of
the people and the care of the indigent and the handicapped. (Justice Cruz,
Constitutional Law, 2000 Edition, 92-93) Statutory exceptions are granted in the
discretion of the legislature, but such law should be passed with the concurrence of
a majority of all the Members of Congress. Where the taxation is granted
gratuitously, it may be validly revoked at will, with or without cause.
However, if the exemption is granted for valuable consideration it is deemed
to partake of the nature of a contract and the obligation thereof is
protected against impairment (Ibid., 94-95)

By its very nature, the law that exempts one from tax must be clearly
expressed because the exemption cannot be created by implication.
Exemption from taxation are highly disfavored in law; and he who claims an
exemption must be able to justify his claim by the clearest grant of organic or
statute law. An exemption from the common burden cannot be permitted to exist
upon vague implication. (Asiatic Petroleum Co. vs. Llanes, 49 Phil., 466; See also
House vs. Posadas, 53 Phil., 338.)

The test of exemption from taxation is the use of the property for
purposes mentioned in the Constitution (Apostolic Prefect of the Mountain
Province vs. the Treasurer of Baguio City [GR 47252, 18 April 1941]). The phrase
“exempt from taxation,” as employed in the Constitution should not be
interpreted to mean exemption from all kinds of taxes. The exemption from
the payment of taxes assessed on such properties enumerated in the Constitution
are property taxes, as contra-distinguished from excise taxes. A donee’s gift tax is
not a property tax but an excise tax imposed on the transfer of property by way of
gift inter vivos. Its assessment was not on the property themselves. It does not rest
upon general ownership, but an excise upon the use made of the properties, upon
the exercise of the privilege of receiving the properties. The imposition of such
excise tax on property used for religious purposes do not constitute an
107
impairment of the Constitution. (Lladoc v. Commissioner of Internal Revenue
[GR L-19201, 16 June 1965])

As to franchise grantees and other entities specifically granted exemption by the

legislature, “tax exemption must be strictly construed and that the exemption will
not be held to be conferred unless the terms under which it is granted clearly and
distinctly show that such was the intention of the parties.” (Philippine Acetylene vs.
CIR [GR L-19707, 17 August 1967]

2. Burden of Proof

The cardinal rule in taxation is that exemptions therefrom are highly

disfavored in law and he who claims tax exemption must be able to justify
his claim or right thereto by the clearest grant of organic or statute law.
(Wonder Mechanical Engineering vs. CTA [GR L-22805 & L-27858, 30 June 1975])
The burden is on the taxpayer to prove the validity of the claimed deduction. It is
the universal rule that he who claims an exemption from his share of the
common burden of taxation must justify his claim by showing that the
Legislature intended to exempt him by words too plain to be mistaken.
(Statutory Construction by Francisco, citing Government of Philippine Islands vs.
Monte de Piedad, 25 Phil. 42.)

It is axiomatic that when public property is involved, exemption is the rule and
taxation, the exception. (SSS vs. Bacolod City [GR L-35726, 21 July 1982])

Double Taxation

There is double taxation when additional taxes are laid on:

1. the same subject
2. by the same taxing jurisdiction
3. during the same taxing period
4. and for the same purpose. (Cooley on Taxation, Vol. I, 4th ed., p. 48)

Double taxation becomes obnoxious only where the taxpayer is taxed twice for the
benefit of the same governmental entity (cf. Manila vs. Interisland Gas Service, 52
Off. Gaz. 6579, Manuf. Life Ins. Co. vs. Meer, 89 Phil. 357).

National vis-a-vis local

Where one tax is imposed by the state and the other is imposed by the
city, the argument against double taxation may not be invoked, as there is
nothing inherently obnoxious in the requirement that license fees or taxes be
exacted with respect to the same occupation, calling or activity by both the state
and the political subdivisions thereof. (Punsalan v. Municipal Board of Manila [GR L-
4817, 26 May 1954])

Possibly both local, Tax and license fee

Both a license fee and a tax may be imposed on the same business or
occupation, or for selling the same article, this not being in violation of
the rule against double taxation (Compania General de Tabacos de Filipinas vs.
108
Manila [GR L-16619, 29 June 1963]; citing Bentley Gray Dry Goods Co., vs. City of
Tampa 137 Fla. 641, 188 SO. 758; MacQuillin, Municipal Corporations, Vol. 9, 3rd
Edition, p. 83).

National vis-a-vis another country

Double taxation becomes obnoxious only where the taxpayer is taxed
twice for the benefit of the same governmental entity (cf. Manila vs.
Interisland Gas Service, 52 Off. Gaz. 6579, Manuf. Life Ins. Co. vs. Meer, 89 Phil.
357). Where the taxpayers would have to pay two taxes on the same
income (one in the Philippines and one in the United States, for example),
the Philippine government only receives the proceeds of one tax. As
between the Philippines, where the income was earned and where the taxpayer is
domiciled, and the United States, where that income was not earned and where the
taxpayer did not reside, it is indisputable that justice and equity demand that the
tax on the income should accrue to the benefit of the Philippines. Any relief from the
alleged double taxation should come from the United States, and not from the
Philippines, since the former’s right to burden the taxpayer is solely predicated on
his citizenship, without contributing to the production of the wealth that is being
taxed. (CIR vs. Lednicky [GR L-18169, L-18286, & L-21434; 31 July 1964.])

License Fees

There are three kinds of licenses recognized by law:

1. Licenses for the regulation of useful occupations;
2. Licenses for the regulation or restriction of non-useful occupations or
enterprises; and
3. Licenses for revenue only. Non-payment of a license fee for a business
makes the business illegal unlike tax.

The amount of the fee or charge is properly considered in determining whether it is

a tax or an exercise of the police power. The amount may be so large as to itself
show that the purpose was to raise revenue and not to regulate, but in regard to
this matter there is a marked distinction between license fees imposed upon useful
and beneficial occupations which the sovereign wishes to regulate but not restrict,
and those which are inimical and dangerous to public health, morals or safety. In
the latter case the fee may be very large without necessarily being a tax. (Cooley
on Taxation, Vol. IV, pp. 3516-17)

The power to regulate as an exercise of police power does not include the
power to impose fees for revenue purposes. Fees for purely regulatory
purposes “may only be of sufficient amount to include the expenses of issuing the
license and the cost of the necessary inspection or police surveillance, taking into
account not only the expense of direct regulation but also incidental expenses. (Cu
Unjieng vs. Patstone, 42 Phil. 818) The regulatory fee “must be no more than
sufficient to cover the actual cost of inspection or examination as nearly as the
same can be estimated. If it were possible to prove in advance the exact cost, that
would be the limit of the fee (Manila Electric Co. vs. Auditor General, 73 Phil. 129-
135).

109
TOLENTINO VS SECRETARY OF FINANCE, supra

II. DUE PROCESS AND EQUAL PROTECTION

Due Process

Art. III, Sec. 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.

Art. III. Sec. 14 (1) No person shall be held to answer for a criminal offense
without due process of law.

Definition, Nature and Scope

a. Definition / Concept

The concept of due process is that it is a law which hears before it

condemns, which proceeds upon inquiry, and renders judgment only after
trial, so that every citizen shall hold his life, liberty, property, and
immunities under the protection of the general rules which govern
society. (Hurtado vs. People of State of California [110 U.S. 516, 3 March 1884]) It
is responsiveness to the supremacy of reason, obedience to the dictates of justice.
(Ermita Malate Hotel & Motel Operators Association v. City of Manila [GR L-24693,
31 July 1967])

No attempt was made to spell out the meaning of due process or to define the
concept with some degree of exactitude. Due process continues to be dynamic and
resilient, adaptable to every situation calling for its application. The very elasticity
of the provision makes this possible and thus enlarges the rights of the individual to
his life, liberty or property. (Justice Cruz, Constitutional Law, 200 Edition, 98-99)

“Due process of law” mean law in its regular course of administration, according to
prescribed forms, and in accordance with the general rules for the protection of
individual rights. (Hurtado vs. California, citing Rowan v. State, 30 Wis. 129) Due
process, in any particular case, means such an exercise of the powers of the
government as the settled maxims of law permit and sanction under such
safeguards for the protection of individual rights as those maxims prescribe. (Forbes
vs. Chuoco Tiaco, 16 Phil. 534, 572 [1918])

Due process is described as “responsiveness to the supremacy of reason, obedience

to the dictates of justice .”(Ermita Malate Hotel & Motel Operators Association v.
City of Manila [GR L-24693, 31 July 1967]) It has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play. (Frankfurter, Mr.
Justice Holmes and the Supreme Court (1938) pp. 32-33.)

b. Nature

110
Dynamic Due process continues to be dynamic and resilient, adaptable to
every situation calling for its application. The very elasticity of
the provision makes this possible and thus enlarges the rights of
the individual to his life, liberty or property. (Justice Cruz,
Constitutional Law, 200 Edition, 98-99)

Waivable The right to be heard is as often waived as it is invoked,

and validly so, as long as the party is given an
opportunity to be heard on his behalf. If he opts to be silent
where he has a right to speak, he cannot later be heard to
complain that he was unduly silenced (Stronghold Insurance Co.
Inc. vs. Court of Appeals [GR 88050,30 January 1990]).

c. Scope

Due process applies and protects all persons, without regard to any difference of
race, color or nationality. Artificial persons are covered by the protection but
only insofar as their property is concerned (Smith Bell & Co. vs. Natividad, 40
Phil. 163). It includes aliens and their means of livelihood (Villegas v. Hiu Chiong
Tsai Pao Ho [GR L-29646, 10 Nov 1978]). Even the State is entitled to due process
(Uy vs. Genato, 57 SCRA 123, People vs. Bocar, 138 SCRA 166).

Meaning of Life, Liberty, and Property

a. Life

Life includes the right of an individual to his body in its completeness, and
extends to the use of God-given faculties which make life enjoyable (Justice
Malcolm, Philippine Constitutional Law, 380; Buck vs. Bell, 274 US 200).

The constitutional protection of the right to life is not just the protection of the right
to be alive or to the security of one’s limb against physical harm. The right to life
is also the right to a good life. (Fr. Bernas, The 1987 Constitution of the
Republic of the Philippines: A commentary, 1996 Edition, 102).

b. Liberty

Liberty means the right to exist and the right to be free from arbitrary personal
restraint or servitude. It includes the right of the citizen to be free to use
facilities in all lawful ways (Rubi, et. al. vs. Provincial Board of Mindoro [GR
14078, 7 March 1919])

c. Property

Property means anything that can come under the right of ownership and
be the subject of contract. It represents more than the things that a
person owns; it includes the right to secure and dispose of them (Tonaco
vs. Thompson, 263 U.S. 197).

111
Protected property has been deemed to include vested rights as a perfect mining
claim, or a perfected homestead, or a final judgment. It also includes the right to
work and the right to earn a living (Fr. Bernas, The 1987 Constitution of the
Republic of the Philippines: A commentary, 1996 Edition, 101). One’s employment,
profession, trade, or calling is protected property (Callanta vs. Carnation Philippines
Inc., 145 SCRA 268, 279 [28 October 1986]).

A license is not considered protected property, but is deemed a privilege

withdrawn when public interest required its withdrawal. Still, a privilege may
evolve into some form of property protected by the Constitution when a holder of
such privilege has been enjoying it for so long and has put in substantial investment
making the business the source of employment for thousands. Once licenses are
issued, continued possession may become essential in the pursuit of a livelihood.
Suspension of issued licenses involve state action that adjudicated important
interests of the licensees. (Bell vs. Burson, 402 US 535, 539 [1971])

Public office is not property but a public trust or agency. The right to office,
however, is protected right. Due process may be relied upon by public officials to
protect the security of tenure which in the limited sense is analogous to property
(Morfe vs. Mutuc, [GR L-20387, 31 January 1968]).

Substantive Due Process

Substantive due process requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty or property. The inquiry is whether
the law is a proper exercise of legislative power.

Requisites:
 The means are reasonable for the accomplishment of the purpose of
the law; and
 The law must be intended for the interest of the public rather than for
private interest.

Procedural Due Process

The justice that procedural due process guarantees is the one “which hears before
it condemns, which proceeds upon inquiry and renders judgment only after trial.”
(Daniel Webster, Dartmouth College vs. Woodward, 4 Wheaton 518) The twin
requirements of notice and hearing constitutes the essential elements of
due process and neither of these elements can be eliminated without
running afoul of the constitutional guaranty. (Vinta Maritime Co. Inc. vs. NLRC,
286 SCRA 656)

Requisites:
 There must be an impartial tribunal clothed with judicial power to hear
and determine the matter before it.
 The court must have jurisdiction over the person of the defendant and
over the property which is the subject matter of the proceeding, if
any.
112
  There must be opportunity to be heard.
 The judgment must be rendered after trial and in accordance with law.

Publication Requirement

The phrase “unless it is otherwise provided” refers not to the need of

publication but to the requirement of 15 days. The 15 days can be
lengthened or shortened but not to the point of allowing no publication at
all. There can be no such thing as a law that is effective immediately, even if the
law is not penal in nature. The underlying reason for this rule is that due process,
which is a rule of fairness, requires that those who must obey a command must first
know the command. Related to the rule on publication is the rule on
vagueness. A law that is utterly vague is defective because it fails to give
notice of what it commands. (Fr. Bernas, The 1987 Constitution of the Republic
of the Philippines: A commentary, 1996 Edition, 122). 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 (Tribe, American Constitutional Law 718 (1987), citing
Connally vs. General Construction Co., 269 US 385 [1926]). 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 becomes an arbitrary flexing of the
Government muscle. (People vs. Nazario, 165 SCRA 186, 195-196)

Impartial Court or Tribunal

A court affected by bias or prejudice cannot be expected to render a fair

and impartial decision. Every litigant is entitled to the cold neutrality of an
impartial judge (Gutierrez vs. Santos [GR L-15624, 30 May 1961]). There cannot
be equal justice where a suitor approaches a court already committed to the other
party and with a judgment already waiting only to be formalized after the litigants
shall have undergone the charade of a formal hearing. The judge will reach his
conclusions only after all the evidence is in and all the arguments are filed, on the
basis of the established facts and the pertinent law (Javier vs. Commission on
Elections, 144 SCRA 194).

Section 1, Rule 137 of the Revised Rules of Court. Disqualification of judges. — No

judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has been presided in any
inferior court when his ruling or decision is the subject of review, without the written
consent of all parties in interest, signed by them and entered upon the record.

113
A judge may, in the exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons other than those mentioned
above.

Prejudicial Publicity

Pervasive and prejudicial publicity under certain circumstances can deprive an

accused of his due process right to fair trial. However, pervasive publicity is not per
se prejudicial to the right of an accused to fair trial. The mere exposure of
judges to publications and publicity stunts does not per se fatally infect
their impartiality. To warrant a finding of prejudicial publicity, there must
be allegation and proof that the judges have been unduly influenced by
the barrage of publicity. (People v. Sanchez [GR 121039-45, 18 October 2001])
Still, the Supreme Court reminds a trial judge in high profile criminal cases of his/her
duty to control publicity prejudicial to the fair administration of justice. The ability to
dispense impartial justice is an issue in every trial and in every criminal prosecution,
the judiciary always stands as a silent accused. More than convicting the guilty and
acquitting the innocent, the business of the judiciary is to assure fulfillment of the
promise that justice shall be done and is done, and that is the only way for the
judiciary to get an acquittal from the bar of public opinion. (Webb v. de Leon [GR
121234, 23 August 1995])

Notice and Hearing:

Notice to a party is essential to enable it to adduce its own evidence and to meet
and refute the evidence submitted by the other party. A decision rendered
without a hearing is null and void ab initio and may be attacked directly or
collaterally (David vs. Aquilizan, 94 SCRA 707). Due process is not violated
where a person is not heard because he has chosen, for whatever reason,
not to be heard. If he opts to be silent where he has a right to speak, he cannot
later be heard to complain that he was unduly silenced (Stronghold Insurance Co.
Inc. vs. Court of Appeals [GR 88050,30 January 1990]).

Exceptions to notice and hearing requirements

Due process as a constitutional precept does not, always and in all

situations, require trial-type proceedings. The essence of due process is to be
found in the reasonable opportunity to be heard and to submit any evidence
one may have in support of one’s defense. “’To be heard’ does not only mean
verbal arguments in court. One may be heard also through pleadings. Where
opportunity to be head, either through oral arguments or pleadings, is accorded ,
there is no denial of procedural due process. (Zaldivar vs. Sandiganbayan, 166
SCRA 316)

Aside from statute, the necessity of notice and hearing in an

administrative proceeding depends on the character of the proceeding
and the circumstances involved. In so far as generalization is possible in view of
the great variety of administrative proceedings, it may be stated as a general rule
that notice and hearing are not essential to the validity of administrative action
114
where the administrative body acts in the exercise of executive, administrative, or
legislative functions; but where a public administrative body acts in a judicial
or quasi-judicial matter, and its acts are particular and immediate rather
than general and prospective, the person whose rights or property may be
affected by the action is entitled to notice and hearing (73 C.J.S. Public
Administrative Bodies and Procedure, sec. 130, pages 452 and 453; cited in
Philcomsat v. Alcuaz [GR 84818, 18 December 1989]).

The right to appeal is not essential to the right to a hearing. Except when
guaranteed by the constitution, appeal may be allowed or denied by the
legislature in its discretions. But as long as the law allows him to appeal, denial
of that remedy is a denial of due process. The legislature cannot deprive
anyone of the right to appeals in
1. 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;
2. All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto;
3. All cases in which the jurisdiction of any lower court is in issue;
4. All criminal cases in which the penalty imposed is reclusion perpetua or
higher; and
5. All cases in which only an error or question of law is involved; as
specified in Article VIII, Section 5 (2) of the 1987 Constitution.

Administrative Due Process

Requisites:
1. There must be a hearing, which includes the right to present one’s case and
submit evidence in support thereof;
2. The tribunal must consider the evidence presented;
3. The decision must have something to support itself;
4. The evidence must be substantial;
5. The decision must be rendered on the evidence presented at the hearing or
at least contained in the record and disclosed to the parties;
6. The tribunal or any of its judges must act on its or his own independent
consideration of the facts and the law of the controversy, and not simply
accept the views of a subordinate in arriving at a decision; and
7. The board or body should, in all controversial questions, render its decision in
such a manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decision.

PBM EMPLOYEES VS PBM

Facts:

The petitioner Philippine Blooming Mills Employees Organization (PBMEO) is a

legitimate labor union composed of the employees of the respondent Philippine
Blooming Mills Co., Inc., and petitioners. Benjamin Pagcu and Rodulfo Munsod are
officers and members of the petitioner Union. Petitioners claim that on March 1,
115
1969, they decided to stage a mass demonstration at Malacañang on March 4,
1969, in protest against alleged abuses of the Pasig police. PBMEO thru Pagcu
confirmed the planned demonstration and stated that the demonstration or rally
cannot be cancelled because it has already been agreed upon in the meeting.
Pagcu explained further that the demonstration has nothing to do with the
Company because the union has no quarrel or dispute with Management. The
Management, thru Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by
the Constitution but emphasized that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. Workers who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for
work the following morning shall be dismissed, because such failure is a violation of
the existing CBA and, therefore, would be amounting to an illegal strike. Because
the petitioners and their members numbering about 400 proceeded with the
demonstration despite the pleas of the respondent Company that the first shift
workers should not be required to participate in the demonstration and that the
workers in the second and third shifts should be utilized for the demonstration from
6 A.M. to 2 P.M. on March 4, 1969, filed a charge against petitioners and other
employees who composed the first shift, for a violation of Republic Act No.
875(Industrial Peace Act), and of the CBA providing for 'No Strike and No Lockout.'
Petitioners were held guilty by CIR for bargaining in bad faith, hence this appeal.

Issue: Whether or Not the petitioners right to freedom of speech and to peaceable
assemble violated.

Held:

Yes. A constitutional or valid infringement of human rights requires a more stringent

criterion, namely existence of a grave and immediate danger of a substantive evil
which the State has the right to prevent. This is not present in the case. It was to
the interest of herein private respondent firm to rally to the defense of,
and take up the cudgels for, its employees, so that they can report to
work free from harassment, vexation or peril and as consequence perform
more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its
employees with the local police. In seeking sanctuary behind their freedom of
expression well as their right of assembly and of petition against alleged
persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons
afforded them by the Constitution — the untrammelled enjoyment of their basic
human rights. The pretension of their employer that it would suffer loss or damage
by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock
in the afternoon, is a plea for the preservation merely of their property rights. The
employees' pathetic situation was a stark reality — abused, harassment and
persecuted as they believed they were by the peace officers of the municipality. As
above intimated, the condition in which the employees found themselves vis-a-vis
the local police of Pasig, was a matter that vitally affected their right to individual
existence as well as that of their families. Material loss can be repaired or
116
adequately compensated. The debasement of the human being broken in morale
and brutalized in spirit-can never be fully evaluated in monetary terms. As
heretofore stated, the primacy of human rights — freedom of expression,
of peaceful assembly and of petition for redress of grievances — over
property rights has been sustained. To regard the demonstration against police
officers, not against the employer, as evidence of bad faith in collective bargaining
and hence a violation of the collective bargaining agreement and a cause for the
dismissal from employment of the demonstrating employees, stretches unduly the
compass of the collective bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as mortal wound on the constitutional
guarantees of free expression, of peaceful assembly and of petition. Circulation is
one of the aspects of freedom of expression. If demonstrators are reduced by one-
third, then by that much the circulation of the Issue raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be
regarded as a substantial indication of disunity in their ranks which will enervate
their position and abet continued alleged police persecution.

Banco Espanol-Filipino vs. Palanca

 JURISDICTION, HOW ACQUIRED: Jurisdiction over the property which is the

subject of the litigation may result either from a seizure of the property
under legal process, whereby it is brought into the actual custody of
the law, or it may result from the institution of legal proceedings
wherein, under special provisions of law, the power of the court over the
property is recognized and made effective.
 The action to foreclose a mortgage is said to be a proceeding quasi
in rem, by which is expressed the idea that while it is not strictly speaking an
action in rem yet it partakes of that nature and is substantially such.
 DUE PROCESS IN FORECLOSURE PROCEEDINGS: Property is always
assumed to be in the possession of its owner, in person or by agent;
and he may be safely held, under certain conditions, to be affected with
knowledge that proceedings have been instituted for its condemnation and
sale.

FACTS:

Engracio Palanca Tanquinyeng y Limquingco mortgaged various parcels of real

property in Manila to El Banco Espanol-Filipino. Afterwards, Engracio returned to
China and there he died on January 29, 1810 without returning again to
the Philippines. The mortgagor then instituted foreclosure proceeding but
since defendant is a non-resident, it was necessary to give notice by
publication. The Clerk of Court was also directed to send copy of the summons to
the defendant’s last known address, which is in Amoy, China. It is not shown
whether the Clerk complied with this requirement. Nevertheless, after publication in
a newspaper of the City of Manila, the cause proceeded and judgment by default
was rendered. The decision was likewise published and afterwards sale by public
auction was held with the bank as the highest bidder. On August 7, 1908, this sale
117
was confirmed by the court. However, about seven years after the confirmation of
this sale, a motion was made by Vicente Palanca, as administrator of the estate of
the original defendant, wherein the applicant requested the court to set aside the
order of default and the judgment, and to vacate all the proceedings subsequent
thereto. The basis of this application was that the order of default and the
judgment rendered thereon were void because the court had never
acquired jurisdiction over the defendant or over the subject of the action.

ISSUE:
Whether or not the lower court acquired jurisdiction over the defendant and the
subject matter of the action
Whether or not due process of law was observed

RULING:

On Jurisdiction

The word “jurisdiction” is used in several different, though related, senses since it
may have reference (1) to the authority of the court to entertain a particular
kind of action or to administer a particular kind of relief, or it may refer to the
power of the court over the parties, or (2) over the property which is the
subject to the litigation.

The sovereign authority which organizes a court determines the nature and extent
of its powers in general and thus fixes its competency or jurisdiction with reference
to the actions which it may entertain and the relief it may grant.

How Jurisdiction is Acquired

Jurisdiction over the person is acquired by the voluntary appearance of a

party in court and his submission to its authority, or it is acquired by the
coercive power of legal process exerted over the person.

Jurisdiction over the property which is the subject of the litigation may
result either from a seizure of the property under legal process, whereby it
is brought into the actual custody of the law, or it may result from the
institution of legal proceedings wherein, under special provisions of law, the
power of the court over the property is recognized and made effective. In the latter
case the property, though at all times within the potential power of the court, may
never be taken into actual custody at all. An illustration of the jurisdiction acquired
by actual seizure is found in attachment proceedings, where the property is seized
at the beginning of the action, or some subsequent stage of its progress, and held
to abide the final event of the litigation. An illustration of what we term potential
jurisdiction over the res, is found in the proceeding to register the title of land under
our system for the registration of land. Here the court, without taking actual
physical control over the property assumes, at the instance of some person claiming
to be owner, to exercise a jurisdiction in rem over the property and to adjudicate
the title in favor of the petitioner against all the world.

118
In the terminology of American law the action to foreclose a mortgage is
said to be a proceeding quasi in rem, by which is expressed the idea that
while it is not strictly speaking an action in rem yet it partakes of that
nature and is substantially such. The expression "action in rem" is, in its narrow
application, used only with reference to certain proceedings in courts of admiralty
wherein the property alone is treated as responsible for the claim or obligation upon
which the proceedings are based. The action quasi rem differs from the true
action in rem in the circumstance that in the former an individual is named
as defendant, and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property. All proceedings
having for their sole object the sale or other disposition of the property of the
defendant, whether by attachment, foreclosure, or other form of remedy, are in a
general way thus designated. The judgment entered in these proceedings is
conclusive only between the parties.
xxx

It is true that in proceedings of this character, if the defendant for whom publication
is made appears, the action becomes as to him a personal action and is conducted
as such. This, however, does not affect the proposition that where the defendant
fails to appear the action is quasi in rem; and it should therefore be considered with
reference to the principles governing actions in rem.

On Due Process

xxx As applied to a judicial proceeding, however, it may be laid down with certainty
that the requirement of due process is satisfied if the following conditions are
present, namely; (1) There must be a court or tribunal clothed with judicial power to
hear and determine the matter before it; (2) jurisdiction must be lawfully acquired
over the person of the defendant or over the property which is the subject of the
proceeding; (3) the defendant must be given an opportunity to be heard; and (4)
judgment must be rendered upon lawful hearing.

Passing at once to the requisite that the defendant shall have an opportunity to be
heard, we observe that in a foreclosure case some notification of the proceedings to
the nonresident owner, prescribing the time within which appearance must be
made, is everywhere recognized as essential. To answer this necessity the statutes
generally provide for publication, and usually in addition thereto, for the mailing of
notice to the defendant, if his residence is known. Though commonly called
constructive, or substituted service of process in any true sense. It is
merely a means provided by law whereby the owner may be admonished
that his property is the subject of judicial proceedings and that it is
incumbent upon him to take such steps as he sees fit to protect it.

It will be observed that this mode of notification does not involve any absolute
assurance that the absent owner shall thereby receive actual notice. The periodical
containing the publication may never in fact come to his hands, and the chances
that he should discover the notice may often be very slight. Even where notice is
sent by mail the probability of his receiving it, though much increased, is dependent
upon the correctness of the address to which it is forwarded as well as upon the
119
regularity and security of the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does not absolutely require the
mailing of notice unconditionally and in every event, but only in the case where the
defendant's residence is known. In the light of all these facts, it is evident that
actual notice to the defendant in cases of this kind is not, under the law, to be
considered absolutely necessary.

The idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this: Property is
always assumed to be in the possession of its owner, in person or by
agent; and he may be safely held, under certain conditions, to be affected
with knowledge that proceedings have been instituted for its
condemnation and sale.

Did the failure of the clerk to send notice to defendant’s last known address
constitute denial of due process?

The observations which have just been made lead to the conclusion that the failure
of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an
irregularity, as amounts to a denial of due process of law; and hence in our opinion
that irregularity, if proved, would not avoid the judgment in this case. Notice
was given by publication in a newspaper and this is the only form of notice
which the law unconditionally requires. This in our opinion is all that was
absolutely necessary to sustain the proceedings.

It will be observed that in considering the effect of this irregularity, it makes a

difference whether it be viewed as a question involving jurisdiction or as a question
involving due process of law. In the matter of jurisdiction there can be no distinction
between the much and the little. The court either has jurisdiction or it has not; and
if the requirement as to the mailing of notice should be considered as a step
antecedent to the acquiring of jurisdiction, there could be no escape from the
conclusion that the failure to take that step was fatal to the validity of the
judgment. In the application of the idea of due process of law, on the other hand, it
is clearly unnecessary to be so rigorous. The jurisdiction being once established, all
that due process of law thereafter requires is an opportunity for the defendant to be
heard; and as publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. We think that in
applying the requirement of due process of law, it is permissible to reflect upon the
purposes of the provision which is supposed to have been violated and the principle
underlying the exercise of judicial power in these proceedings. Judge in the light of
these conceptions, we think that the provision of Act of Congress declaring that no
person shall be deprived of his property without due process of law has not been
infringed.

Ang Tibay v. CIR

Facts:

120
Ang Tibay, has filed an opposition both to the motion for reconsideration of the CIR
and to the motion for new trial of the National Labor Union.

The Supreme Court found it not necessary to pass upon the motion for
reconsideration of the Solicitor-General, as it found no substantial evidence to
indicate that the exclusion of the 89 laborers here was due to their union affiliation
or activity. The Court granted the motion for a new trial and the entire record of this
case shall be remanded to the CIR, with instruction that it reopen the case, receive
all such evidence as may be relevant, and otherwise proceed in accordance with the
requirements set forth.

1. The Court of Industrial Relations; Departure from rigid concept of

separation of powers

The Court of Industrial Relations is a special court whose functions are specifically
stated in the law of its creation (CA 103). It is more an administrative board than a
part of the integrated judicial system of the nation. It is not intended to be a mere
receptive organ of the Government. Unlike a court of justice which is essentially
passive, acting only when its jurisdiction is invoked and deciding only cases that are
presented to it by the parties litigant, the function of the Court of Industrial
Relations, as will appear from perusal of its organic law, is more active, affirmative
and dynamic. It not only exercises judicial or quasi-judicial functions in the
determination of disputes between employers and employees but its functions are
far more comprehensive and extensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any question, matter
controversy or dispute arising between, and/or affecting, employers and employees
or laborers, and landlords and tenants or farm-laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions of CA 103 (section
1). It shall take cognizance for purposes of prevention, arbitration, decision and
settlement, of any industrial or agricultural dispute causing or likely to cause a
strike or lockout, arising from differences as regards wage shares or compensation,
hours of labor or conditions of tenancy or employment, between employers and
employees or laborers and between landlords and tenants or farm-laborers,
provided that the number of employees, laborers or tenants or farm-laborers
involved exceeds thirty, and such industrial or agricultural dispute is submitted to
the Court by the Secretary of Labor or by any or both of the parties to the
controversy and certified by the Secretary of Labor as existing and proper to be
dealt with by the Court for the sake of public interest. (Section A, ibid.) It shall,
before hearing the dispute and in the course of such hearing, endeavor to reconcile
the parties and induce them to settle the dispute by amicable agreement.
(Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it
shall investigate and study all pertinent facts related to the industry concerned or to
the industries established in a designated locality, with a view to determining the
necessity and fairness of fixing and adopting for such industry or locality a minimum
wage or share of laborers or tenants, or a maximum “canon” or rental to be paid by
the “inquilinos” or tenants or lessees to landowners. (Section 5, ibid.) In fine, it may
appeal to voluntary arbitration in the settlement of industrial disputes; may employ
mediation or conciliation for that purpose, or recur to the more effective system of
official investigation and compulsory arbitration in order to determine specific
121
controversies between labor and capital in industry and in agriculture. There is in
reality here a mingling of executive and judicial functions, which is a departure from
the rigid doctrine of the separation of governmental powers.

2. The CIR free from rigidity of certain procedure requirements, but not
free to ignore or disregard fundamental and essential requirements of due
process involving proceedings of administrative character
The CIR is not narrowly constrained by technical rules of procedure, and the Act
requires it to “act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall not be
bound by any technical rules of legal evidence but may inform its mind in
such manner as it may deem just and equitable.” (Section 20, CA 103.) It shall
not be restricted to the specific relief claimed or demands made by the parties to
the industrial or agricultural dispute, but may include in the award, order or decision
any matter or determination which may be deemed necessary or expedient for the
purpose of settling the dispute or of preventing further industrial or agricultural
disputes. (Section 13) And in the light of this legislative policy, appeals to this Court
have been especially regulated by the rules recently promulgated by this Court to
carry into effect the avowed legislative purpose. The fact, however, that the CIR
may be said to be free from the rigidity of certain procedural requirements
does not mean that it can, in justiciable cases coming before it, entirely
ignore or disregard the fundamental and essential requirements of due
Process in trials and investigations of an administrative character.

3. Cardinal primary rights respected in administrative proceedings;

Guidelines

a. Right to a hearing which includes the right of the party interested or

affected to present his own case and submit evidence in support thereof. The
liberty and property of the citizen shall be protected by the rudimentary
requirements of fair play.
b. The tribunal must consider the evidence presented, after t the party is
given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts. The right to adduce evidence, without
the corresponding duty on the part of the board to consider it, is vain. Such
right is conspicuously futile if the person or persons to whom the evidence is
presented can thrust it aside without notice or consideration.
c. Wile the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing
to support it is a nullity, a place when directly attached. This principle
emanates from the more fundamental principle that the genius of
constitutional government is contrary to the vesting of unlimited power
anywhere. Law is both a grant and a limitation upon power.
d. Not only must there be some evidence to support a finding or conclusion but
the evidence must be “substantial.” Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”

122
 The statute provides that ‘the rules of evidence prevailing in courts of law
and equity shall not be controlling.’ The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical
rules so that the mere admission of matter which would be deemed
incompetent in judicial proceedings would not invalidate the administrative
order. But this assurance of a desirable flexibility in administrative procedure
does not go so far as to justify orders without a basis in evidence having
rational probative force. Mere uncorroborated hearsay or rumor does not
constitute substantial evidence.
e. The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected. Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their right to
know and meet the case against them. It should not, however, detract from
their duty actively to see that the law is enforced, and for that purpose, to
use the authorized legal methods of securing evidence and informing itself of
facts material and relevant to the controversy. Boards of inquiry may be
appointed for the purpose of investigating and determining the facts in any
given case, but their report and decision are only advisory. (Section 9, CA
103.) The CIR may refer any industrial or agricultural dispute of any matter
under its consideration or advisement to a local board of inquiry, a provincial
fiscal, a justice of the peace or any public official in any part of the Philippines
for investigation, report and recommendation, and may delegate to such
board or public official such powers and functions as the CIR may deem
necessary, but such delegation shall not affect the exercise of the Court itself
of any of its powers (Section 10)
f. The CIR or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a
decision. It may be that the volume of work is such that it is literally
impossible for the titular heads of the CIR personally to decide all
controversies coming before them. There is no statutory authority to
authorize examiners or other subordinates to render final decision, with right
to appeal to board or commission, to solve the difficulty.
g. The CIR should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it.

4. New trial granted under circumstances

The interest of justice would be better served if the movant is given opportunity to
present at the hearing the documents referred to in his motion and such other
evidence as may be relevant to the main issue involved. The legislation which
created the Court of Industrial Relations and under which it acts is new. The failure
to grasp the fundamental issue involved is not entirely attributable to the parties
adversely affected by the result.

PEOPLE VS CAYAT
123
Facts:

“Law prohibits any member of a non-Christian tribe to buy, receive, have

in his possession, or drink, any intoxicating liquors of any kind.” The law,
Act No. 1639, exempts only the so-called native wines or liquors which the
members of such tribes have been accustomed to take.

Issue:

Whether or Not the law denies equal protection to one prosecuted and
sentenced for violation of said law.

Held:

No. It satisfies the requirements of a valid classification, one of which is

that the classification under the law must rest on real or substantial
distinctions.

The distinction is reasonable. The classification between the members of the non-
Christian and the members of the Christian tribes is not based upon accident of
birth or parentage but upon the degree of civilization and culture. The term ‘non-
Christian tribes’ refers to a geographical area and more directly to natives of the
Philippines of a low grade civilization usually living in tribal relationship apart from
settled communities. The distinction is reasonable for the Act was intended to meet
the peculiar conditions existing in the non- Christian tribes”

The prohibition is germane to the purposes of the law. It is designed to

insure peace and order in and among the non- Christian tribes has often
resulted in lawlessness and crime thereby hampering the efforts of the
government to raise their standards of life and civilization. This law is not
limited in its application to conditions existing at the time of the enactment. It is
intended to apply for all times as long as those conditions exist. The Act applies
equally to all members of the class. That it may be unfair in its operation
against a certain number of non- Christians by reason of their degree of culture is
not an argument against the equality of its operation nor affect the reasonableness
of the classification thus established.

INTERNATIONAL SCHOOL VS QUISUMBING

Receiving salaries less than their counterparts hired abroad, the local-hires of
private respondent School, mostly Filipinos, cry discrimination.

124
The School grants foreign-hires certain benefits not accorded local-hires. These
include housing, transportation, shipping costs, taxes, and home leave travel
allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more
than local-hires. The School justifies the difference on two "significant economic
disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor"
and (b) limited tenure.

Held:

That public policy abhors inequality and discrimination is beyond contention. Our
Constitution and laws reflect the policy against these evils. The Constitution in the
Article on Social Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance the right
of all people to human dignity, reduce social, economic, and political
inequalities."

International law, which springs from general principles of law, likewise

proscribes discrimination. General principles of law include principles of equity,
i.e., the general principles of fairness and justice, based on the test of what is
reasonable. The Universal Declaration of Human Rights, the International Covenant
on Economic, Social, and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation - all embody the general principle
against discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle as
part of its national laws.

The Constitution specifically provides that labor is entitled to "humane

conditions of work." These conditions are not restricted to the physical workplace
- the factory, the office or the field - but include as well the manner by which
employers treat their employees.

The Constitution also directs the State to promote "equality of

employment opportunities for all." Similarly, the Labor Code provides that the
State shall "ensure equal work opportunities regardless of sex, race or
creed." It would be an affront to both the spirit and letter of these provisions if the
State, in spite of its primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms and conditions of
employment.

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, its "international character" notwithstanding.

The School contends that petitioner has not adduced evidence that local-hires
perform work equal to that of foreign-hires. The Court finds this argument a little
125
cavalier. If an employer accords employees the same position and rank, the
presumption is that these employees perform equal work. This presumption
is borne by logic and human experience. If the employer pays one employee
less than the rest, it is not for that employee to explain why he receives
less or why the others receive more. That would be adding insult to injury. The
employer has discriminated against that employee; it is for the employer to explain
why the employee is treated unfairly.

III. REQUIREMENTS OF FAIR PROCEDURE

Arrest, Searches and Seizures

A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding
him to search for personal property described therein and bring it before the
court. ( Section 1, Rule 126, Revised Rules of Court)

It is undisputed that only judges have the power to issue search warrants. (Salazar
vs. Achacoso, 183 SCRA 145 [1990]) This function is exclusively judicial. Inherent in
the courts’ power to issue search warrants is the power to quash warrants already
issued. In this connection, the Supreme Court has ruled that the motion to quash
should be filed in the court that issued the warrant unless a criminal case has
already been instituted in another court, in which case, the motion should be filed
with the latter. (People vs. Court of Appeals, 291 SCRA 400 [1998]).

Because of the fundamental public interest in implementing the criminal law, the
search warrant, a heretofore effective and constitutionally acceptable enforcement
tool, should not be suppressed on the basis of surmise and without solid evidence
supporting the change. Forbidding the warrant and insisting on the
subpoena instead when the custodian of the object of the search is not
then suspected of crime, involves serious hazards to criminal
investigation. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

What constitutes a reasonable or even an unreasonable search in any

particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. (Valmonte v. De Villa, 178 SCRA
211, 216 [1989])

The house of every one is to him as his castle and fortress, as well for his defence
against injury and violence, as for his repose. (Semayne’s Case, 77 Eng. Rep. 194, 5
Co. Rep. 91a, 91b, 195 [K. B.]) The overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins of the Republic” meant
that absent a warrant or exigent circumstances, police could not enter a
home to make an arrest. An arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect is within.
(Payton v. New York , 445 U. S. 573, 603-604 (1980])

To Whom Directed
126
The constitutional proscription against unlawful searches and seizures
applies as a restraint directed only against the government and its
agencies tasked with the enforcement of the law. Thus, it could only be
invoked against the State to whom the restraint against arbitrary and unreasonable
exercise of power is imposed. The modifications introduced in the 1987 Constitution
(RE: Sec. 2, Art. III; in relation to the phraseology of the 1935 Constitution) relate to
the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against unreasonable
search and seizure is directed against. The restraint stayed with the State and did
not shift to anyone else. (People vs. Andre Marti [GR 81561, 18 January 1991])

Who May Invoke the Right?

a. In general

Alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign
authority. (People vs. Andre Marti [GR 81561, 18 January 1991])

The legality of a seizure can be contested only by the party whose rights have
been impaired thereby, and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third parties. (Stonehill, et al.
vs. Diokno, et al. [GR L-19550, 19 June 1967])

b. Corporations

Although, an officer of a corporation which is charged with a violation of a statute of

the state of its creation, or of an act of Congress passed in the exercise of its
constitutional powers, cannot refuse to produce the books and papers of such
corporation, a corporation is entitled to immunity, under the 4th Amendment,
against unreasonable searches and seizures. A corporation is, after all, but an
association of individuals under an assumed name and with a distinct legal entity.
In organizing itself as a collective body it waives no constitutional
immunities appropriate to such body. Its property cannot be taken without
compensation. It can only be proceeded against by due process of law, and is
protected, under the 14th Amendment, against unlawful discrimination. (Hale v.
Henkel, 201 U.S. 43, 50 L. ed. 652.)

Crime should exist first. In the issuance of search warrants, the Rules of
Court requires a finding of probable cause in connection with one specific
offense to be determined personally by the judge after examination of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized. Hence, since there is no crime to
speak of, the search warrant does not even begin to fulfill these stringent
requirements and is therefore defective on its face. (Solid Triangle Sales Corp. vs.
Sitchon [GR 144309, 23 November 2001])

127
Conditions for a valid warrant

a) Existence of Probable Cause

1. Probable cause defined, construed

Probable cause for a search is defined as such facts and circumstances

which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched. (People vs. Aruta, 288 SCRA
262 [1998]; Burgos v. Chief of Staff, AFP [GR 64261, 26 December 1984]) In the
determination of probable cause, the court must necessarily resolve whether or not
an offense exists to justify the issuance or quashal of the search warrant. (Solid
Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

2. Probable cause in issuance of warrants distinguished from probable cause in

preliminary investigation

While the power to issue search warrants upon showing probable cause is a function
which is exclusively judicial, “the determination of probable cause during a
preliminary investigation has been described as an executive function.”
(People vs. Court of Appeals, 291 SCRA 400 [1998]) The proceedings for the
issuance/quashal of a search warrant before a court on the one hand, and the
preliminary investigation before an authorized officer on the other, are
proceedings entirely independent of each other. One is not bound by the
other’s finding as regards the existence of a crime. The purpose of each proceeding
differs from the other. The first is to determine whether a warrant should
issue or be quashed, and the second, whether an information should be
filed in court. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November
2001])

3. Reliable information as basis for probable cause

Notwithstanding tips from confidential informants and regardless of the fact that the
search yielded contraband, the mere act of looking from side to side while holding
one’s abdomen, or of standing on a corner with one’s eyes moving very fast, looking
at every person who came near, does not justify a warrantless arrest under said
Section 5 (a). Neither does putting something in one’s pocket, handing over one’s
baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction
State intrusion. The same rule applies to crossing the street per se. Personal
knowledge was also required in the case of People v. Doria. Recently, in People v.
Binad Sy Chua, the Court declared invalid the arrest of the accused, who was
walking towards a hotel clutching a sealed Zest-O juice box. For the exception in
Section 5 (a), Rule 113 to apply, the Court ruled, two elements must
concur: (1) the person to be arrested must execute an overt act indicating
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. Reliable information alone is insufficient. In the
128
following cases, the search was held to be incidental to a lawful arrest because of
“suspicious” circumstances: People v. Tangliben (accused was “acting
suspiciously”), People v. Malmstedt (a bulge on the accused’s waist), and People v.
de Guzman (likewise a bulge on the waist of the accused, who was wearing tight-
fitting clothes). There is, however, another set of jurisprudence that deems “reliable
information” sufficient to justify a search incident to a warrantless arrest under
Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong
People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People
v. Montilla, People v. Valdez, and People v. Gonzales. In these cases, the
arresting authorities were acting on information regarding an offense but
there were no overt acts or suspicious circumstances that would indicate
that the accused has committed, is actually committing, or is attempting
to commit the same. Significantly, these cases, except the last two, come
under some other exception to the rule against warrantless searches.
Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving
vehicle, Bagista was both, and Lising and Montilla were consented searches.
Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in
turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase
“in his presence” therein, connoting personal knowledge on the part of the arresting
officer. (People vs. Tudtud [GR 144037, 26 September 2003])

In fine, probable cause exists in the following instances: (a) where the
distinctive odor of marijuana emanated from the plastic bag carried by the accused;
(People v. Claudio, 160 SCRA 646 [1988]) (b) where an informer positively identified
the accused who was observed to be acting suspiciously; (People v. Tangliben, 184
SCRA 220 [1990]) (c) where the accused who were riding a jeepney were stopped
and searched by policemen who had earlier received confidential reports that said
accused would transport a quantity of marijuana; (People v. Maspil, Jr., 188 SCRA
751 [1990]) (d) where Narcom agents had received information that a Caucasian
coming from Sagada, Mountain Province had in his possession prohibited drugs and
when the Narcom agents confronted the accused Caucasian because of a
conspicuous bulge in his waistline, he failed to present his passport and other
identification papers when requested to do so; (People v. Malmsteadt, 198 SCRA
401 [1991]) (f) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy
— one who participated in the drug smuggling activities of the syndicate to which
the accused belong — that said accused were bringing prohibited drugs into the
country; (People v. Lo Ho Wing, 193 SCRA 122 [1991]) (g) where the arresting
officers had received a confidential information that the accused, whose identity as
a drug distributor was established in a previous test-buy operation, would be
boarding MV Dona Virginia and probably carrying shabu with him; (People v.
Saycon, 236 SCRA 325 [1994]) (h) where police officers received an information
that the accused, who was carrying a suspicious-looking gray luggage bag, would
transport marijuana in a bag to Manila; (People v. Balingan, 241 SCRA 277 [1995])
and (i) where the appearance of the accused and the color of the bag he was
carrying fitted the description given by a civilian asset. (People v. Valdez, 304 SCRA
140 [1999])

b) Personal determination by judge

129
In General

Personal examination by the judge of the complainant and his witnesses is

necessary to enable him to determine the existence or non-existence of a probable
cause, pursuant to Article III, Section 2, Article III of the 1987 constitution , and
Section 4, Rule 126 of the Revised Rules of Court, both of which prohibit the
issuance of warrants except “upon probable cause.” The determination of
whether or not a probable cause exists calls for the exercise of judgment
after a judicial appraisal of facts and should not be allowed to be
delegated in the absence of any rule to the contrary. (Bache & Co. (Phil.) Inc. vs.
Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present
Constitution and Rules of Court)

c) Examination of witnesses

The implementing rule in the Revised Rules of Court, Section 5, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
“personally examine on oath or affirmation the complainant and any
witnesses he may produce.” Mere affidavits of the complainant and his
witnesses are thus not sufficient. The examining Judge has to take depositions
in writing of the complainant and the witnesses he may produce and attach them to
the record. (Roan v. Gonzales, GR 71410, 25 November 1986, 145 SCRA 694)

Listening to the stenographer’s readings of her notes, to a few words of warning

against the commission of perjury, and administering the oath to the complainant
and his witness; cannot be consider a personal examination. The reading of the
stenographic notes to the Judge did not constitute sufficient compliance with the
constitutional mandate and the rule; for by that manner the Judge did not have the
opportunity to observe the demeanor of the complainant and his witness, and to
propound initial and follow-up questions which the judicial mind, on account of its
training, was in the best position to conceive. These were important in arriving at a
sound inference on the all-important question of whether or not there was probable
cause. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971])

Sufficiency of deposition or affidavit

The true test of sufficiency of a deposition or affidavit to warrant issuance of a

search warrant is whether it has been drawn in a manner that perjury could be
charged thereon and the affiant be held liable for damage caused. The oath
required must refer to the truth of the facts within the personal knowledge of the
applicant for search warrant, and/or his witnesses, not of the facts merely reported
by a person whom one considers to be reliable. The oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause. (Alvarez vs. Court of First Instance of Tayabas [GR
45358, 29 January 1937])

130
d) Particularity of description

Purpose A search warrant should particularly describe the place to be

searched and the things to be seized. The evident purpose and
intent of this requirement is to limit the things to be seized to those,
and only those, particularly described in the search warrant — to leave
the officers of the law with no discretion regarding what articles they
shall seize, to the end that “unreasonable searches and seizures” may
not be made, — that abuses may not be committed. (Uy Kheytin, et al.
vs. Villareal, etc., et al., 42 Phil. 886, 896)

1. Description of Place

The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. (Prudente vs. Dayrit [GR 82870, 14 December 1989])

2. Description of items to be seized

While it is true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the
description is required to be specific only in so far as the circumstances
will ordinarily allow. (In People v. Rubio, 57 Phil. 384, 389 [1932]) Where by the
nature of the goods to be seized, their description must be rather general, it is not
required that a technical description be given, as this would mean that no warrant
could issue. As a corollary, however, we could not logically conclude that where the
description of those goods to be seized have been expressed technically, all others
of a similar nature but not bearing the exact technical descriptions could not be
lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued
would be defeated by mere technicalities. (Yousef Al-Ghoul vs. Court of Appeals [GR
126859, 4 September 2001])

Tests A search warrant may be said to particularly describe the things to be seized
when the description therein is as specific as the circumstances will
ordinarily allow (People vs. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact — not of law — by which the warrant
officer may be guided in making the search and seizure (idem., dissent of
Abad Santos, J.,); or when the things described are limited to those which
bear direct relation to the offense for which the warrant is being issued
(Sec. 3, Rule 126, Revised Rules of Court).

One of the tests to determine the particularity in the description of objects to be

seized under a search warrant is when the things described are limited to
those which bear direct relation to the offense for which the warrant is
being issued. (Bache and Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823, 835 [1971])

This interdiction against warrantless searches and seizures, however, is not

absolute and such warrantless searches and seizures have long been deemed
permissible by jurisprudence in instances of:
131
 1. Search of moving vehicles,
2. Seizure in plain view,
3. Customs searches,
4. Waiver or consent searches,
5. Stop and frisk situations (Terry search), and
6. Search incidental to a lawful arrest.

The last includes a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected
with a valid warrant of arrest, the Rules of Court recognize permissible
warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests
effected in hot pursuit, and (3) arrests of escaped prisoners. (People vs.
Chua Ho San [GR 128222, 17 June 1999])

Valid Waiver

The constitutional immunity from unreasonable searches and seizures,

being a personal one cannot he waived by anyone except the person
whose rights are invaded or one who is expressly authorized to do so in
his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). The consent must be
voluntary in order to validate an otherwise illegal detention and search, i.e., the
consent is unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion. (68 Am Jur 2d Searches and Seizures, §135.) Hence,
consent to a search is not to be lightly inferred, but must be shown by clear and
convincing evidence. (68 Am Jur 2d Searches and Seizures, §136.)

The Supreme Court is not unmindful of cases upholding the validity of consented
warrantless searches and seizure. But in these cases, the police officers’ request to
search personnel effects was orally articulated to the accused and in such language
that left no room for doubt that the latter fully understood what was requested. In
some instance, the accused even verbally replied to the request demonstrating that
he also understood the nature and consequences of such request. (People vs. Chua
Ho San, 308 SCRA 432 [1999])

The question whether a consent to a search was in fact voluntary is a question of

fact to be determined from the totality of all the circumstances. (Schneckloth vs.
Bustamonte, 412 U.S. 218) In case of consented searches or waiver of the
constitutional guarantee against obtrusive searches, it is fundamental that to
constitute a waiver of a constitutional right, it must first appear, first, that
the right exists; secondly, that the person involved had knowledge, actual
or constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right. ( People v. Burgos,
144 SCRA 1, 16 [1986]; citing Pasion Vda. de Garcia v. Locsin, 65 Phil 689 [1938];
67 C. J., 299)

Relevant to this determination are the following characteristics of the person giving
consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he
132
objected to the search or passively looked on; (4) the education and intelligence of
the defendant; (5) the presence of coercive police procedures; (6) the defendant’s
belief that no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting. It is the State which
has the burden of proving, by clear and positive testimony, that the necessary
consent was obtained and that it was freely and voluntarily given. (United States vs.
Tillman, 963 F. 2d 137; Florida vs. Royer, 460 U.S. 491; United States vs.
Mendenhall, 446 U.S. 544.)

Implied acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview
of the constitutional guarantee. (People v. Encinada, 280 SCRA 72, 91 [1997];
citing Aniog v. Commission on Elections, 237 SCRA 424, 436-437 [1994]) In any
event, the failure to resist or object to the execution of the warrant does not
constitute an implied waiver of constitutional right. It is, as Judge Cooley observes,
but a submission to the authority of the law. (Const. Lim., 8th ed., Vol. I, I,
630.) As the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either contesting an
officer’s authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of the
law. (56 C. J., pp. 1180, 1181.)

A search incident to a lawful arrest is limited to the person of the one

arrested and the premises within his immediate control. The rationale for
permitting such a search is to prevent the person arrested from obtaining
a weapon to commit violence, or to reach for incriminatory evidence and
destroy it.
It is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestee’s person in order to prevent its concealment or destruction. And the
area into which an arrestee might reach in order to grab a weapon or evidentiary
items must, of course, be governed by a like rule. A gun on a table or in a drawer in
front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestee’s person and the area ‘within his
immediate control’ — construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any
room other than that in which an arrest occurs — or, for that matter, for
searching through all the desk drawers or other closed or concealed areas
in that room itself. (Chimel v. California; 23 L. Ed. 2d 685, 23 June 1969)

Plain view doctrine

1. Elements

133
Under the “plain view doctrine,” unlawful objects within the “plain view”
of an officer who has the right to be in the position to have that view are
subject to seizure and may be presented in evidence. (People v. Musa) For
this doctrine to apply, there must be:
a. Prior justification;
b. Inadvertent discovery of the evidence; and
c. Immediate apparent illegality of the evidence before the police.
(People v. Musa)

The elements of plain-view are:

a. A prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties;
b. The evidence was inadvertently discovered by the police who have the right
to be where they are;
c. The evidence must be immediately apparent;
d. “Plain view” justified mere seizure of evidence without further search. (People
v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])

2. When object is in plain view

The law enforcement officer must lawfully make an initial intrusion or properly
be in a position from which he can particularly view the area. (Harris v.
United States, supra) In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. (Coolidge v. New Hampshire,
supra). The object must be open to eye and hand and its discovery
inadvertent. (Roan v. Gonzales, 145 SCRA 687, 697 [1986]) It is clear that an
object is in plain view if the object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container. Where the object seized was
inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if
its contents are obvious to an observer, then the contents are in plain
view and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the prohibited
article, then the article is deemed in plain view. (Robbins v. California, 453 U.S. 420,
69 L. Ed. 2d 744, 751 [1981]) It must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise
subject to seizure. (People v. Musa [GR 96177, 27 January 1993])

3. Plain-view objects as evidence

The warrantless search and seizure, as an incident to a suspect’s lawful arrest, may
extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. Objects in the “plain view” of an officer
who has the right to be in the position to have that view are subject to seizure and
may be presented as evidence. When the discovery of the evidence did not
constitute a search, but where the officer merely saw what was placed before him in
full view, the warrantless seizure of the object was legal on the basis of the “plain
view” doctrine and upheld the admissibility of said evidence. (People v. Musa [GR
134
96177, 27 January 1993]) Merely to observe and look at that which is in plain sight
is not a search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where
the contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution (US v. Lee 274
US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726
[1963]; Moore v. State, 429 SW2d 122 [1968]).

4. Limitations to plain-view

The “plain view” doctrine may not be used to launch unbridled searches
and indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendant’s guilt. The “plain view” doctrine is
usually applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an incriminating
object. What the ‘plain view’ cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of which he came
inadvertently across a piece of evidence incriminating the accused. The doctrine
serves to supplement the prior justification — whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or some other
legitimate reason for being present unconnected with a search directed
against the accused — and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is immediately
apparent to the police that they have evidence before them; the ‘plain view’
doctrine may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. The “plain view” doctrine
neither justify the seizure of the object where the incriminating nature of
the object is not apparent from the “plain view” of the object. (People v.
Musa [GR 96177, 27 January 1993])

Once the valid portion of the search warrant has been executed, the “plain view
doctrine” can no longer provide any basis for admitting the other items
subsequently found. As has been explained that “What the ‘plain view’ cases have
in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification
–whether it be a warrant for another object, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being present unconnected with a
search directed against the accused — and permits the warrantless seizure. Of
course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the ‘plain
view’ doctrine may not be used to extend a general exploratory search from one
object to another until something incriminating at last emerges.” (People vs.
Salanguit [GR 133254-55, 19 April 2001] citing Coolidge v. New Hampshire, 403 U.S.
433,29 L. Ed. 2d 564 [1971])

“Stop and frisk”

135
Where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against the person from
whom they were taken. (Terry vs. Ohio [392 US 1, 10 June 1968])

While probable cause is not required to conduct a “stop and frisk,” it nevertheless
holds that mere suspicion or a hunch will not validate a “stop and frisk.” A
genuine reason must exist, in light of the police officer’s experience and
surrounding conditions, to warrant the belief that the person detained has
weapons concealed about him. Finally, a “stop-and-frisk” serves a two-fold
interest: (1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause;
and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer. (Malacat vs. Court of
Appeals [GR 123595, 12 December 1997])

SEARCH OF MOVING VEHICLES

Peace officers may lawfully conduct searches of moving vehicles — automobiles,

trucks, etc. — without need of a warrant, it not being practicable to secure a judicial
warrant before searching a vehicle, since such vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant may be sought. (People v. Barros [GR
90640, 29 March 1994])

Manner of search

In carrying out warrantless searches of moving vehicles, however, peace officers

are limited to routine checks, that is, the vehicles are neither really searched nor
their occupants subjected to physical or body searches, the examination of the
vehicles being limited to visual inspection. (People v. Barros) When, however,
a vehicle is stopped and subjected to an extensive search, such a
warrantless search would be constitutionally permissible only if the officers
conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender or the
contents or cargo of the vehicle are or have been instruments or the
subject matter or the proceeds of some criminal offense. (People v. Bagista;
Valmonte v. de Villa).
136
One such form of search of moving vehicles is the “stop-and-search”
without warrant at military or police checkpoints which has been declared
to be not illegal per se (People vs. Exala; Valmonte vs. de Villa), for as long as it
is warranted by the exigencies of public order and conducted in a way
least intrusive to motorists (People vs. Escaño). A checkpoint may either be a
mere routine inspection or it may involve an extensive search. Routine inspections
are not regarded as violative of an individual’s right against unreasonable search.
The search which is normally permissible in this instance is limited to the
following instances:
1. Where the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds;
2. Simply looks into a vehicle;
3. Flashes a light therein without opening the car’s doors;
4. Where the occupants are not subjected to a physical or body search;
5. Where the inspection of the vehicles is limited to a visual search or visual
inspection; and
6. Where the routine check is conducted in a fixed area.

Emergency circumstances

As there was general chaos and disorder at that time … [that] the courts in
the surrounding areas were obviously closed and, for that matter, the building and
houses therein were deserted … [and that] the military operatives … had
reasonable ground to believe that a crime was being committed, the case falls
under one of the exceptions to the prohibition against a warrantless search. (People
vs. de Gracia)

Arrests with warrant

a. Probable cause defined

Probable cause means an actual belief or reasonable grounds of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on the part
of the peace officers making the arrest. Thus, the term probable cause had been
understood to mean a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man’s belief that the person
accused is guilty of the offense with which he is charged.

b. Probable cause distinguished from prima facie evidence

The confusing concepts of “prima facie evidence” and “probable cause” were
clarified and set aright by the 1985 amendment of the Rules of Court which
provides in Rule 112 thereof that the quantum of evidence required in preliminary
137
investigation is such evidence as suffices to “engender as well founded belief” as to
the fact of the commission of the crime and the respondent’s probable guilt thereof.
It has the same meaning as the related phraseology used in other parts of the same
Rule, that is, that the investigating fiscal “finds cause to hold the respondent for
trial,” or where “a probable cause exists.” It should, therefore, be in that sense,
wherein the right to effect a warrantless arrest should be considered as legally
authorized.

c. Reliable information as basis for probable cause

The long-standing rule in this jurisdiction, applied with a great degree of

consistency, is that “reliable information” alone is not sufficient to justify a
warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that
the accused perform some overt act that would indicate that he “has committed, is
actually committing, or is attempting to commit an offense.”

d. Personal determination by judge

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.

Since their objectives are different, the judge cannot rely solely on the report
of the prosecutor in finding probable cause to justify the issuance of a
warrant of arrest. Obviously and understandably, the contents of the
prosecutor’s report will support his own conclusion that there is reason to
charge the accused for an offense and hold him for trial. However, the
judge must decide independently. Hence, he must have supporting evidence,
other than the prosecutor’s bare report, upon which to legally sustain his own
findings on the existence (or nonexistence) of probable cause to issue an arrest
order. This responsibility of determining personally and independently the
existence or nonexistence of probable cause is lodged in him by no less
than the most basic law of the land. Parenthetically, the prosecutor could ease
the burden of the judge and speed up the litigation process by forwarding to the
latter not only the information and his bare resolution finding probable cause, but
also so much of the records and the evidence on hand as to enable the His Honor to
make his personal and separate judicial finding on whether to issue a warrant of
arrest.

Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to examine
the complete records of every case all the time simply for the purpose of ordering
138
the arrest of an accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcript of
stenographic notes, if any) upon which to make his independent judgment
or, at the very least, upon which to verify the findings of the prosecutor as
to the existence of probable cause. The point is: he cannot rely solely and
entirely on the prosecutor’s recommendation, as Respondent Court did in
this case. Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the judge to
personally determine probable cause in the issuance of warrants of arrest. This
Court has consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer.” (Ho vs. People, 280
SCRA 365)

The question whether “probable cause” exists or not must depend upon
the judgment and discretion of the judge or magistrate issuing the
warrant. It does not mean that particular facts must exist in each
particular case. It simply means that sufficient facts must be presented to
the judge or magistrate issuing the warrant to convince him, not that the
particular person has committed the crime, but that there is probable
cause for believing that the person whose arrest is sought committed the
crime charged. No rule can be laid down which will govern the discretion of the
court in this matter. If he decides, upon the proof presented, that probable cause
exists, no objection can be made upon constitutional grounds against the issuance
of the warrant. His conclusion as to whether “probable cause” existed or not is final
and conclusive. If he is satisfied that “probable cause” exists from the facts stated
in the complaint, made upon the investigation by the prosecuting attorney, then his
conclusion is sufficient upon which to issue the warrant for arrest. He may, however,
if he is not satisfied, call such witnesses as he may deem necessary before issuing
the warrant. The issuance of the warrant of arrest is prima facie evidence that, in
his judgment at least, there existed “probable cause” for believing that the person
against whom the warrant is issued is guilty of the crime charged. There is no law
which prohibits him from reaching the conclusion that “probable cause” exists from
the statement of the prosecuting attorney alone, or any other person whose
statement or affidavit is entitled to credit in the opinion of the judge or magistrate.

Section 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:
1. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
2. When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
3. 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 is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.

139
Rebellion as Continuing Offense

The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately prosecuting them in
court for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a
judge of the existence of probable cause before the issuance of a judicial warrant of
arrest and the granting of bail if the offense is bailable. Obviously the absence of
a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against government forces, or any other
milder acts but really in pursuance of the rebellious movement. The arrest
or capture is thus impelled by the exigencies of the situation that involves
the very survival of society and its government and duly constituted
authorities. If killing and other acts of violence against the rebels find justification
in the exigencies of armed hostilities which (are) of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their
persons and detaining them while any of these contingencies continues cannot be
less justified. (Umil vs. Ramos [GR 81567, 9 July 1990])

Committed in the Presence of Police Officers

An offense is committed in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant, when the officer
sees the offense, although at a distance, or hears the disturbances
created thereby and proceeds at once to the scene thereof. (People vs.
Sucro [GR 93239, 18 March 1991])

Personal Knowledge of the Offense

In cases of in flagrante delicto arrests, a peace officer or a private person may

without a warrant, arrest a person, when, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of such fact or as
recent case law adverts to, personal knowledge of facts or circumstances
convincingly indicative or constitutive of probable cause. (People vs. Chua
Ho San [GR 128222, 17 June 1999])

Time of Arrest

1. Hot Pursuit

Paragraph (b) of Section 5 is otherwise known as the doctrine of “hot pursuit”

arrests. This doctrine is based on the rule that an arrest can be made without
warrant when an offense has just been committed and the arresting officer has
probable cause to believe based on personal knowledge of facts or circumstances
that a crime has just been committed. It is not necessary that the arresting
officers have direct knowledge of the crime. But they must have direct
140
knowledge or view of the crime right after its commission. (People vs. Doria,
301 SCRA 668)

2. “Has just been committed”

It is not sufficient that a crime was indeed committed but it is required that the said
crime has just been committed. The proximity of time of commission of the
crime must be close to the time of the arrest. Otherwise, the arrest is
illegal. (Pineda, Ernesto L., The Revised Rules on Criminal Procedure, 2003 Edition,
161.)

Marked Money

The discovery of the marked money on [a person] did not mean he was caught [in
fragrante delicto]. The marked money was not prohibited per se. Even if it were,
that fact alone would not retroactively validate the warrantless search and seizure.
(People vs. Enrile [GR 74189, 26 May 1993])

Lack of Urgency

Applications made during weekends and holidays. The Supreme Court’s Circular 19,
dated 14 August 1987, which reads “3. Applications filed after office hours, during
Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted
upon by any judge of the court having jurisdiction of the place to be searched, but
in such cases the applicant shall certify and state the facts under oath, to the
satisfaction of the judge, that the issuance is urgent” merely provides for a
guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant. (Prudente vs. Dayrit [GR 82870, 14 December
1989])

Effect of Entry of Plea

By pleading “not guilty” at their arraignment, the accused submitted to the

jurisdiction of the trial court, thereby curing any defect in their arrest, for the
legality of an arrest affects only the jurisdiction of the court over their persons.
(People vs. Plana [GR 128285, 27 November 2001])

Validity of Conviction

The illegal arrest of an accused is not sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after trial free from
error. (People vs. De Guzman, 224 SCRA 93, 100 [1993]). The warrantless arrest,
even if illegal, cannot render void all other proceedings including those
leading to the conviction of the appellants and his co-accused, nor can the
state be deprived of its right to convict the guilty when all the facts on record
point to their culpability. (People vs. Manlulu, 231 SCRA 701, 710 [1994]; People vs.
De Guia, 227 SCRA 614, 626 [1993])

141
Art. III, Sec. 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.

VALMONTE VS DE VILLA

Facts:

On 1/20/87, the NCRDC was activated w/ the mission of conducting security

operations w/in its area or responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace and order, and
providing an atmosphere conducive to the social, economic and political dev''t of
the NCR. As part of its duty to maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela and MM. Petitioners aver that,
because of the institution of said checkpoints, the Valenzuela residents
are worried of being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the military manning the
checkpoints, considering that their cars and vehicles are being subjected
to regular searches and check-ups, especially at night or at dawn, w/o a
Search Warrant and/ or court order. Their alleged fear for their safety increased
when Benjamin Parpon, was gunned down allegedly in cold blood by members of
the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired
in the air.

HELD:

Constitutional Right against unreasonable searches and seizures is a

personal right
Petitioner’s concern for their safety and apprehension at being harassed
by the military manning the checkpoints are not sufficient grounds to
declare the checkpoints per se, illegal. No proof has been presented
before the Court to show that, in the course of their routine checks, the
military, indeed, committed specific violations of petitioners' rights
against unlawful search and seizure. The constitutional right against
unreasonable searches and seizures is a personal right invocable only by those
whose rights have been infringed, or threatened to be infringed. Not all
searches and seizures are prohibited. Those w/c are reasonable are not forbidden.
The setting up of the questioned checkpoints may be considered as a security
measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public.
Checkpoints may not also be regarded as measures to thwart plots to destabilize
the government, in the interest of public security.

Self-preservation of the State is paramount over individual rights

142
Between the inherent right of the state to protect its existence and
promote public welfare and an individual’s right against a warrantless
search w/c is, however, reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the
military in the same manner that all governmental power is susceptible of abuse.
But, at the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during these abnormal times,
when conducted w/in reasonable limits, are part of the price we pay for an
orderly society and a peaceful community.

Personal Examination (by the judge)

SOLIVEN VS MAKASIAR

Warrant personally determined by the judge

What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2)
if on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts.

President’s immunity from suit

The rationale for the grant to the President of the privilege of immunity from suit is
to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of

143
whether to exercise the privilege or to waive it is solely the President's prerogative.
It is a decision that cannot be assumed and imposed by any other person.

Allowable warrantless Searches

PEOPLE VS GERENTE

Accused conspired with two others to kill the victim. Hours later, the police received
a report of such matter. Right away, Patrolman Urrutia, together with Police
Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where
the mauling incident took place. There they found a piece of wood with blood stains,
a hollow block and two roaches of marijuana. They were informed by the
prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to
Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping.
They told him to come out of the house and they introduced themselves as
policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket
which contained dried leaves wrapped in cigarette foil. The dried leaves were sent
to the National Bureau of Investigation for examination. The Forensic Chemist found
them to be marijuana.

Issue: WON the arrest and subsequent search and seizure was valid.

Held:

ARREST WITHOUT WARRANT IS LAWFUL WHEN ARRESTING OFFICER HAS

PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS
COMMITTED THE CRIME

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court
provide:

SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:
a. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense
b. When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it;

The policemen arrested Gerente only some three (3) hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece of
wood and a concrete hollow block which the killers had used to bludgeon him to
death. The eye-witness, Edna Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente, as one of the killers. Under
those circumstances, since the policemen had personal knowledge of the
violent death of Blace and of facts indicating that Gerente and two others
144
had killed him, they could lawfully arrest Gerente without a warrant. If
they had postponed his arrest until they could obtain a warrant, he would
have fled the law as his two companions did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a
warrant was effected one (1) day after he had shot to death two Capcom
soldiers. The arrest was held lawful by this Court upon the rationale stated by us in
People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the shrewdest, the most expert,
and the most depraved of criminals, facilitating their escape in many
instances."

SEARCH AND SEIZURE IS VALID EVEN WITHOUT A WARRANT WHEN MADE

AS AN INCIDENT TO LAWFUL ARREST
The search conducted on Gerente's person was likewise lawful because it was made
as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of
the Revised Rules of Court which provides:

SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant.

The frisk and search of appellant's person upon his arrest was a
permissible precautionary measure of arresting officers to protect
themselves, for the person who is about to be arrested may be armed and
might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S.
143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was
ruled that "the individual being arrested may be frisked for concealed weapons that
may be used against the arresting officer and all unlawful articles found in his
person, or within his immediate control may be seized."

Custodial Investigations (Section 12)

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

145
 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 the
rehabilitation of victims of torture or similar practices, and their
families.

From Miranda to Bacamante

- To put the accused on equal footing with the State

"in custody" - includes deprivation or mere restriction on physical liberty

Custodial Investigation – investigation conducted by law enforcer

immediately after arrest

The Fruit of the Poisonous Tree Doctrine – all evidence (the fruit) derived
from an illegal search (the poisonous tree) must be suppressed, whether it
was obtained directly through the illegal search itself, or indirectly using information
obtained in the illegal search

“But For” Test – or taint doctrine; the evidence would not have come to light
but for the illegal action of the police

WHEN CUSTODIAL INVESTIGATION BEGINS:

Restrictive View - limited to in-custody interrogations as when the accused
has been arrested and brought to the custody of the police for
questioning
Expanded View – contemplates two situations: (1) general inquiry as to
identification, circumstances of a crime without focus on any
particular suspect; and (2) suspicion is focused on a
particular person and questions are asked from him to
elicit admissions or information

**Under the expanded view, general inquiry as to identification, like in a police line-
up, is not considered part of “custodial investigation” hence the accused may be
identified by a witness in a police line-up even if made not in the presence of
counsel

NOT PART OF CUSTODIAL INVESTIGATION:

Police line-up, or during process of identification
Spontaneous statement not elicited through questioning, but given in an
ordinary manner (spur-of-the-moment statements) – res gestae
146
Volunteered statements
Extrajudicial admission to the prosecutor or a private person
Investigation made by a citizen or private security officer

Miranda Doctrine: Rights Under Custodial Investigation

Miranda vs. Arizona, 16 L. Ed 2d 694

Our holding will be spelled out with some specificity in the pages which follow, but,
briefly stated, it is this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial investigation, we mean
questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. As for the procedural safeguards to be employed, unless other
fully effective means are devised to inform accused persons of their right of silence
and to assure a continuous opportunity to exercise it, the following measures are
required: Prior to any questioning, the person must be warned that he has the right
to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained
or appointed. The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in
any manner and at any stage of the process that he wishes to consult with an
attorney before speaking, there can be no questioning. Likewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the
police may not question him. The mere fact that he may have answered some
questions or volunteered some statements on his own does not deprive him of the
right to refrain from answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx
Q: COA auditor investigated certain anomalies in the accounts of a
government agency. He questioned X, a public employee therein, without
benefit of counsel. Are X’s statements admissible?
A: Yes. A COA auditor is not a law enforcer.

Q: Miguel, an AFP major, arrested B and questioned him without benefit of

counsel. Admissible?
A: Yes. An AFP member is not a law enforcer.

Q: H, a police officer, and husband of W, saw the latter cheating on him

with her paramour. The paramour was able to escape while W was
detained by H and then questioned. Later, H filed a case for adultery
against W and used her statement as evidence. Admissible?

147
A: Yes. Even if H is a police officer, the time when he questioned W, his wife, he was
not acting in his official capacity as a police officer but in his personal capacity as
her husband.

Q: X, the accused in a case for rape, was asked to provide the police
investigating team with samples of his DNA. He did so without assistance
of counsel. Admissible?
A: Yes. The act of providing samples for identification is a mere mechanical act, not
covered by the right against self-incrimination.

Q: If in the above case, X was also made to sign booking sheets and police
reports, also without counsel. Admissible?
A: No. Handwriting is not a mere mechanical act.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

RIGHT TO REMAIN SILENT

• Refers not only to testimonial confessions but also to acts
• But does not apply to acts that are merely mechanical (does not require use of
intelligence) or to general questions

MECHANICAL ACTS:
Paraffin test
DNA test
Examination of physical body
Fingerprinting
Being asked to step on a footprint to compare foot size

NOT MECHANICAL:
Handwriting
Initials on marked money
Signing of inventory receipts in search warrant (see People vs. Go)
Reenactment

PEOPLE VS GALIT

- At the time the person is arrested, it shall be the duty of the arresting officer
to inform him of the reason for the arrrest and he must be shown the warrant
of arrest, if any; he shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might make could be used
against him. The person arrested shall have the right to communicate with
his lawyer, a relative, or anyone he chooses by the most expedient means -
by telephone if possible - or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be waived but the wiaver
shall not be valid unless made with the assistance of counsel. Any statement
148
 obtained in violation of the procedure herein laid down, whether exculpatory
or inculpatory, in whole or in part, shall be inadmissible in evidence."

PEOPLE VS ENDINO

Accused murdered Dennis Aquino. Was later apprehended. Accused then later
confessed in TV Patrol.

Held:

Apropos the court a quo’s admission of accused-appellant’s videotaped confession,

we find such admission proper. The interview was recorded on video and it showed
accused-appellant unburdening his guilt willingly, openly and publicly in the
presence of newsmen. Such confession does not form part of custodial
investigation as it was not given to police officers but to media men in an
attempt to elicit sympathy and forgiveness from the public. Besides, if he
had indeed been forced into confessing, he could have easily sought succor from
the newsmen who, in all likelihood, would have been sympathetic with him. As the
trial court stated in its Decision:

Furthermore, accused, in his TV interview, freely admitted that he had stabbed

Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no
showing that the interview of accused was coerced or against his will.
Hence, there is basis to accept the truth of his statements therein.

We agree. However, because of the inherent danger in the use of television as a

medium for admitting one’s guilt, and the recurrence of this phenomenon in several
cases, it is prudent that trial courts are reminded that extreme caution
must be taken in further admitting similar confessions. For in all probability,
the police, with the connivance of unscrupulous media practitioners, may attempt to
legitimize coerced extrajudicial confessions and place them beyond the
exclusionary rule by having an accused admit an offense on television. Such a
situation would be detrimental to the guaranteed rights of the accused and thus
imperil our criminal justice system.

PEOPLE VS MAHINAY

Accused Larry Mahinay during the custodial investigation and after having been
informed of his constitutional rights with the assistance of Atty. Restituto Viernes of
the Public Attorney’s Office voluntarily gave his statement admitting the
commission of the crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily
given. That accused did not complain to the proper authorities of any maltreatment
on his person (People vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did
not even inform the Inquest Prosecutor when he swore to the truth of his statement
on July 8, 1995 that he was forced, coerced or was promised of reward or leniency.
That his confession abound with details known only to him. The Court noted that a
lawyer from the Public Attorney’s Office, Atty. Restituto Viernes and as testified by
said Atty. Viernes, he informed and explained to the accused his constitutional
149
rights and was present all throughout the giving of the testimony. That he signed
the statement given by the accused. Lawyer from the Public Attorney’s Office is
expected to be watchful and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post mortem findings
shows that the cause of death Asphyxia by manual strangulation; Traumatic Head
injury Contributory substantiate. Consistent with the testimony of the accused that
he pushed the victim and the latter’s head hit the table and the victim lost
consciousness.

Accused pleaded not guilty but was proven guilty on account of his extrajudicial
confession;

Issue:

Was the confession valid and admissible in court?

Held:

Confession is held to be true absent any factors affecting the validity of its
acquisition
There being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward
or leniency nor that the investigating officer could have been motivated to concoct
the facts narrated in said affidavit; the confession of the accused is held to be true,
correct and freely or voluntarily given.
Appellant’s defense is highly improbable; in the words of Vice-Chancellor
Van Fleet of New Jersey:
“Evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself- such as the common experience and
observation of mankind can approve as probable under the circumstances.
We have no test of the truth of human testimony, except its conformity to our
knowledge, observation and experience. Whatever is repugnant to these belongs to
the miraculous, and is outside of judicial cognizance.”

Procedure, guidelines and duties which a law enforcement officer must

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;

1. The person arrested, detained, invited or under custodial investigation must

be informed in a language known to and understood by him of the reason
for the arrest and he must be shown the warrant of arrest, if any; Every other
warnings, information or communication must be in a language known to and
understood by said person;

2. He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;

150
 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 in 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 or 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 ceased 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 inadmissible in evidence.

PEOPLE VS BASAY

151
An accused's right to be informed of the right to remain silent and to counsel
"contemplates the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle.”

PEOPLE VS BACAMANTE

Patrolman Salvador Fradejas of the WPD Homicide Station, testified that he was the
one who was present when accused executed his extrajudicial confession. Fradejas
stated that Atty. Gilbert Zulueta was requested to act as counsel for accused during
the custodial investigation. It is to be noted however that Fradejas admitted that
while accused was undergoing investigation and answering the questions
propounded to him, Atty. Zulueta would "come and go" and that Atty. Zulueta was
not at all times within hearing distance of accused but was merely "within the
premises". Atty. Gilbert Zulueta himself admitted that he could not remember
having informed accused of the constitutional presumption of his innocence.

Held:

The term "effective and vigilant counsel" necessarily and logically requires
that the lawyer be present and able to advise and assist his client from
the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession.
Moreover, the lawyer should ascertain that the confession is made voluntarily and
that the person under investigation fully understands the nature and consequence
of his extrajudicial confession in relation to his constitutional rights. A contrary rule
would undoubtedly be antagonistic to the constitutional rights to remain silent, to
counsel and to be presumed innocent.

RIGHT TO INDEPENDENT AND COMPETENT COUNSEL

- Absolute, even if accused himself is a lawyer

• “Independent” - counsel is not hampered with any conflicts of interest

• “Competent” - counsel who is vigilant in protecting the rights of accused

Accused must be appraised of his rights under custodial investigation

NOTA BENE:
• The right to counsel attaches upon investigation, that is, when the
investigation officer starts to ask question to elicit information or
confession or admission. In case of waiver of rights, the same must be done
in writing and in the presence of counsel.
• A legal officer of a city cannot qualify as “independent” counsel. As to
who has burden of proving the voluntariness of the confession and that the
constitutional safeguards have been complied with, the prosecution has the
burden of proof.
• If admission is made before a private person, then it is admissible even
if done without assistance of counsel.

Waiver:
152
PEOPLE VS PAMON

Accused was charged with murder; he executed an extrajudicial confession which

he later retracted during the trial on the ground that he was not given a counsel of
his own choice; the trial court upheld the voluntariness of the extrajudicial
confession;

Issue:

Was the extrajudicial confession valid?

Held:

Extrajudicial admission is sustained absent any proof of irregularities in

its procurement
The Court upheld the admissibility of his extrajudicial Confession. A confession
constitutes an evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and his conscience. This presumption
of spontaneity and voluntariness stands unless the defense proves otherwise. A
confession is admissible until the accused successfully proves that it was given as a
result of violence, intimidation, threat, or promise of reward of leniency. In People
vs. Quijano, the Court dismissed the plea that the trial court erred in admitting the
accused's allegedly involuntary extrajudicial confession, and which held:

Finally, the alleged use of force and intimidation has not been substantiated by
evidence other than the statements of the appellants. As has been pointed out,
such allegation is another naive attempt of appellants to backtrack from their prior
voluntary admission of guilt. . . . .

In the case at bar, Fortunato Pamon had several chances to deny the voluntariness
of his Confession. First, when he and Atty. Rubencio Ligorio conferred; second, when
he subscribed the Confession before Judge Vicente Aseniero on March 20, 1987; and
third, when he was before the investigating officer on March 23, 1987. In the last
instance, instead of repudiating his Confession, he reaffirmed it.

Where counsel is provided for by investigators, the confession taken in

the presence of such counsel is inadmissible except where there is
conformity with the counsel provided by the investigators and the
confessant, the latter's confession is considered as valid and binding upon
him.

The evidence presented by the prosecution has adequately established that Atty.
Rubencio Ligorio was present when the confession was made and subscribed to. But
Fortunato Pamon claimed that Atty. Rubencio Ligorio was not a counsel of his
choice.

153
We are well aware of the constitutional mandate that the counsel present must not
be just any counsel, but one who has been chosen by the accused. In a recent case,
we affirmed the rule that ". . . no in-custody investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested, by
any person in his behalf or appointed by the court upon petition either of
the detainee himself or by someone in his behalf". Thus, We already had
occasion to rule that where counsel is provided for by investigators, the confession
taken in the presence of such counsel is inadmissible as evidence because it fails to
satisfy the constitutional guarantee. But this doctrine recognizes certain
exceptions. Where the counsel has been appointed by the investigators
with the conformity of the confessant, the latter's confession is
considered as valid and binding upon him. The decision in People vs. Alvarez is
also relevant to the case at bar. We said therein that "while it may be that a
lawyer was provided by the police, Alvarez never signified to have a
lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was
assisted by a counsel of his choice is hereby sustained.

Right to Bail

Art. III, 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.

Rights during trial

Art. III, Section 14

1. No person shall be held to answer for a criminal offense

without due process of law.

2. In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to
be informed of the nature and cause of 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 of the accused: Provided,
that he has been duly notified and his failure to appear is
unjustifiable.

154
NUNEZ VS SANDIGANBAYAN (Co Chiong v. Cuadern, the general guarantees of
the Bill of Rights, included among which are the due process of law and equal
protection clauses must "give way to [a] specific provision)

ISSUE:

Presidential Decree No. 1486, as amended, creating the Sandiganbayan is violative

of the due process, equal protection, and ex post facto clauses of the Constitution.

HELD:

• In categorical and explicit language, the Constitution provided for but did
not create a special Court, the Sandiganbayan with "jurisdiction over criminal
and civil cases involving graft and corrupt practices and such other offenses
committed by public officers and employees, including those in government-
owned or controlled corporations, in relation to their office as may be
determined by law."
• To assure that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection
clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason.”
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew "that the laws operate equally and uniformly on all persons
under similar circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not Identical, are analogous.
If law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest."
• In People v. Vera, Classification to be valid, must be based on substantial
distinctions which make real differences; it must be germane to the
purposes of the law; it must not be limited to existing conditions only,
and must apply equally to each member of the class.
• It follows that those who may thereafter be tried by such court ought to have
been aware as far back as January 17, 1973, when the present
Constitution came into force, that a different procedure for the accused
therein, whether a private citizen as petitioner is or a public official, is
not necessarily offensive to the equal protection clause of the
Constitution. Petitioner, moreover, cannot be unaware of the ruling of this
Court in Co Chiong v. Cuaderno, a 1949 decision, that the general
guarantees of the Bill of Rights, included among which are the due
process of law and equal protection clauses must "give way to [a]
specific provision, " in that decision, one reserving to "Filipino citizens of the
operation of public services or utilities." The scope of such a principle is not to be
constricted. It is certainly broad enough to cover the instant situation.
155
• The Kay Villegas Kami decision promulgated in 1970, cited by petitioner,
supplies the most recent and binding pronouncement on the matter(on ex post
facto). To quote from the ponencia of Justice Makasiar: "An ex post facto law
is one which:
1. makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;
2. aggravates a crime, or makes it greater than it was, when committed;
3. changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
4. alters the legal rules of evidences, and authorizes conviction upon less
or different testimony . than the law required at the time of the
commission to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which when
done was lawful, and
5. deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty."

MARQUEZ VS COMELEC

Please check…too many Marquez cases, each doesn’t make any sense…

Right to be heard

PEOPLE VS AGBAYANI (PRE-ARRAIGNMENT GUIDELINES)

Issue:

Whether or not, at the time appellant was arraigned, the trial court informed him of
his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of
Court.

Held:

Since appellant has miserably failed to show that he was not informed of
his right to counsel, the presumptions that the law has been obeyed and
official duty has been regularly performed by the trial court stands. In
other words, the trial court is presumed to have complied with its four-fold duties
under Section 6[32] of Rule 116 of the Rules of Court, namely,
1. to inform the accused that he has the right to have his own
counsel before being arraigned;
2. after giving such information, to ask accused whether he
desires the aid of counsel;
3. if he so desires to procure the services of counsel, the court
must grant him reasonable time to do so; and
4. if he so desires to have counsel but is unable to employ one,
the court must assign counsel de oficio to defend him.

156
It is settled that the failure of the record to disclose affirmatively that the
trial judge advised the accused of his right to counsel is not sufficient
ground to reverse conviction. The reason being that the trial court must be
presumed to have complied with the procedure prescribed by law for the hearing
and trial of cases, and that such a presumption can only be overcome by an
affirmative showing to the contrary. Thus it has been held that unless the contrary
appears in the record, or that it is positively proved that the trial court failed to
inform the accused of his right to counsel, it will be presumed that the accused was
informed by the court of such right.

In United States v. Labial, in the sense that unless the contrary appears in the
records, it will be presumed that the defendant was informed by the court of his
right to counsel. “***

The cases of People v. Domenden and People v. Cachero cited by appellant are
inapplicable. In both casis the trial courts there clearly failed to inform the accused
of their right to counsel nor appoint de oficio counsel during the arraignment.
Nevertheless, we take this opportunity to admonish trial courts to ensure that their
compliance with their pre-arraignment duties to inform the accused of his right to
counsel, to ask him if he desires to have one, and to inform him that, unless he is
allowed to defend himself in person or he has counsel of his choice, a de oficio
counsel will be appointed for him, must appear on record.

Turning to the alleged violation of appellant’s right to the 2-day period to prepare
for trial, Section 9 of Rule 116 of the Rules of Court reads:

Sec. 9. Time to prepare for trial. -- After a plea of not guilty, the
accused is entitled to two (2) days to prepare for trial unless the court for
good cause grants him further time.

It must be pointed out that the right must be expressly demanded. Only
when so demanded does denial thereof constitute reversible error and a
ground for new trial. Further, such right may be waived, expressly or impliedly.
[43] In the instant case, appellant did not ask for time to prepare for trial, hence, he
effectively waived such right.

Right to Speedy Disposition

Art. III, Section 16. All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative
bodies.

Privilege against Self-Incrimination

Art. III, Section 17 No person shall be compelled to be a witness against

himself.

BILL OF ATTAINDER

157
Art. III, Section 22 No ex post facto law or bill of attainder shall be enacted.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

RIGHT TO BE HEARD

Right to be present at the trial

• Accused has an absolute right to be personally present during the entire

proceedings from arraignment to sentence, if he so desires

• Limited only to trial court proceedings and only to the actual trial therein, not to
appellate proceedings or proceedings subsequent to the entry of final judgment,
looking only to the execution of the sentence

GENERAL RULE: Accused may waive his right to be present during trial

EXCEPTIONS: (Presence of Accused is Mandatory)

Arraignment and plea – presence of lawyer is also indispensable

• during trial, for identification

• during the promulgation of sentence, unless for a light offense wherein the
accused may appear by counsel or a representative

NOTA BENE:

• If the judgment is one of acquittal, the accused need not be present.

• If the judgment is conviction but for a light offense, the accused need
not be present.
• If the judgment is conviction and the offense is grave, the presence of
the accused is mandatory.
• If trial in absentia and judgment is rendered, it will be promulgated even
without presence of accused but he will be furnished with copies sent to
his last known address.
• If appeal, presence of the accused is not necessary. It is the duty of the
appellate court to appoint counsel, whose presence is indispensable.

Right to counsel

• if the accused appears without an attorney, he must be informed by the court

of such right before being arraigned, and must be asked if he desires to have
the aid of counsel
• if he can’t afford one, a counsel de officio shall be appointed for him
• the indispensable aid of counsel continues even at the stage of appeal
158
 • not waivable
• the right to be represented by counsel is ABSOLUTE, but the option of the
accused to hire one of his own choice is LIMITED

Right to an impartial judge

• a judge who had conducted the preliminary investigation and made a finding of
probable cause is not disqualified from trying the case, in the absence of
evidence of partiality

Right of confrontation
• Available only during trial, not during preliminary investigation
• REASON: so defendant may make objection to the witness or so witness may
identify him

Right to cross-examine

if the defense counsel deferred cross-examination of the prosecution witness and

then this witness dies, accused cannot anymore ask the witness’ direct examination
to be expunged from the records since the denial of the right to confrontation is
through no fault of plaintiff

EXCEPTIONS:

• Dying Declaration
• Trial in absentia - REQUISITES: (1) accused has been arraigned; (2) accused
has been duly notified of the date of trial; (3) failure of the accused to
appear is unjustified
• Depositions - witness is dead, insane or otherwise cannot be found, with due
diligence, in the Philippines

Right to compulsory processes

2 KINDS OF SUBPOENA:

• Ad testificandum - to compel a witness to attend and testify

• Duces Tecum - to compel a person having under his control

documents or papers
relevant to the case to bring such items to court during
trial

RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION

159
• presence of accused is indispensable during arraignment and promulgation of
judgment of conviction
• after arraignment, only formal amendments to the Information may be granted
by court
• not waivable
• description, not designation of the offense, controls
• all the attending aggravating and qualifying circumstances must be alleged in
the Information and proved during trial; EXCEPT: for purposes of proving moral
damages only, then it is allowed to be proved even if not alleged

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL

- available in every criminal prosecution

“Speedy” - there is no fixed criterion in our statues to determine with precision the
time for speedy trial. As soon as after indictment as the prosecution
can with reasonable diligence prepare for it. It means a trial free from
vexatious, capricious, and oppressive delays. But justice and fairness,
not speed, are the objectives

NOTA BENE: If the accused is acquitted on ground of denial of his right to speedy
trial, it is a judgment on the merits and therefore, first jeopardy
attaches.

“Impartial” - cold neutrality of an impartial judge; absence of bias or prejudice

“Public” - open to the free observation of all

- EXCEPT: evidence to be adduced at the trial is of such character as to be offensive

to decency and public morals

SECTION 17

Right Against Self-Incrimination

Sec. 17: No person shall be compelled to be a witness against himself.

• Available both before or during criminal prosecution

• Accused is competent to testify in his behalf, but he is entitled to the right not to
testify as a witness against himself. He cannot be compelled to incriminate
himself; that is, to say or do anything that can be used against himself
• Accused can invoke this right from the beginning; however in case of witness, he
can invoke this right only when the questions start to become incriminating

RATIONALE:
• Public policy
160
 • Humanity

GENERAL RULE: The accused cannot be compelled to testify against his co-
accused under the theory that the “act of one is the act of all.”

EXCEPTIONS:

If he is discharged as a state witness

After he is convicted or acquitted
By trying him separately instead of jointly with his other co-accused

IV. SUBSTANTIVE RIGHTS UNDER DUE PROCESS

Privilege of Writ of Habeas Corpus

Section 15 The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion, when the public safety
requires it.

RIGHTS OF AN ACCUSED

Before Criminal Prosecution: (before arraignment)

1. Right to due process (Sec. 14(1))
2. Custodial rights (Sec. 12)
3. Right to be informed of his rights
4. Right to remain silent
5. Right to counsel
6. Right to bail (Sec. 13)
7. Right to speedy disposition of his case (Sec. 16)
8. Right of free access to the courts

During Criminal Prosecution: (after arraignment up to promulgation of

judgment)
1. Right to presumption of innocence (Sec. 14(2))
2. Right to be heard by himself and counsel (Sec. 14(2))
3. Right to be informed of the nature and cause of accusation against him (Sec.
14(2))
4. Right to have speedy, impartial and public trial (Sec. 14(2))
5. Right to confrontation (Sec. 14(2))
6. Right to have compulsory process to secure attendance of witnesses and
production of evidence on his behalf (Sec. 14(2))
7. Right against self-incrimination (Sec. 17)
8. Right against double jeopardy (Sec. 21)
9. 9.Right against ex-post facto law and bill of attainder (Sec. 22)

After Conviction:
• Right against excessive fines and cruel, degrading or inhuman punishment
(Sec. 19)

161
Mendoza vs. CFI, G.R. No. L-35612-14, June 27, 1973

Habeas Corpus: When it is available

Habeas corpus could be invoked by petitioner if he were able to show the

illegality of his detention. There is aptness and accuracy in the characterization
of the writ of habeas corpus as the writ of liberty. Rightfully it is latitudinarian in
scope. It is wide-ranging and all-embracing in its reach. It can dig deep into the
facts to assure that there be no toleration of illegal restraint. Detention must be for
a cause recognized by law. The writ imposes on the judiciary the grave
responsibility of ascertaining whether a deprivation of physical freedom is
warranted. This it has to discharge without loss of time. The party who is
keeping a person in custody has to produce him in court as soon as
possible. What is more, he must justify the action taken. Only if it can be
demonstrated that there has been no violation of one's right to liberty will he be
absolved from responsibility. Unless there be such a showing, the confinement must
thereby cease.

Remedy of Habeas Corpus not available when there is Warrant of Arrest

The above formulation of what is settled law finds no application to the present
situation. Petitioner's deprivation of liberty is in accordance with a warrant
of arrest properly issued after a determination by the judge in compliance
with the constitutional provision requiring the examination under oath or
affirmation of the complainant and the witnesses produced. No allegation to
the contrary may be entertained. It cannot be denied that petitioner's co-accused,
Nelso Unal, Hermogenes Lumanglas and Leopoldo Trinidad, had previously come to
this court to challenge the filing of one information where there were three victims.
Accordingly, this Court, in Unal v. People, required three separate amended
informations. There was no question, however, as to the legality of the warrants of
arrest previously issued, not only in the case of the parties in such petition, but
likewise of petitioner. Habeas corpus, under the circumstances, would not therefore
lie."

Bail, concept, rationale

Even if it be granted that petitioner may not be released on a habeas corpus

proceeding, is he, however, entitled to bail? Precisely that is the remedy by which,
notwithstanding the absence of any flaw in one's confinement, provisional liberty
may still be had. Such a remedy, as a matter of fact, was granted him in accordance
with an order of the municipal court of Mulanay. Thereafter, however, the bail was
revoked by the Court of First Instance in the order now challenged. Such actuation
he would now condemn as a grave abuse of discretion. In the landmark decision of
Chief Justice Concepcion, People v. Hernandez, the right to bail was rightfully
stressed as an aspect of the protection accorded individual freedom
which, in his eloquent language," is too basic, too transcendental and vital
in a republican state, like ours, ...." To be more matter of fact about it, there is
this excerpt from de la Camara v. Enage "Before conviction, every person is
bailable except if charged with capital offense when the evidence of guilt
162
is strong. Such a right 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. Thereby a regime of liberty is honored in the
observance and not in the breach. It is not beyond the realm of probability,
however, that a person charged with a crime, especially so where his defense is
weak, would just simply make himself scarce and thus frustrate the hearing of his
case. A bail is intended as a guarantee that such an intent would be thwarted. It is,
in the language of Cooley, a mode short of confinement which would, with
reasonable certainty, insure the attendance of the accused for the subsequent trial.
Nor is there anything unreasonable in denying this right to one charged with a
capital offense when evidence of guilt is strong, as the likelihood is, rather than
await the outcome of the proceeding against him with a death sentence, an ever-
present threat, temptation to flee the jurisdiction would be too great to be resisted."

Can bail be cancelled without violating the right to bail?

The precise question however, is whether once the provisional liberty has been thus
obtained, it could be terminated by the cancellation of the bail. In the answer filed
on behalf of respondent Court, Solicitor General Estelito Mendoza did stress the
absence of authority on the part of special counselor Antonio R. Robles who was not
authorized to intervene in this case on behalf of the state but did so, his failure to
object being the basis of the bail granted by the municipal court of Mulanay,
Quezon. Such an allegation was denied by petitioner. We are not called upon to rule
definitely on this aspect as independently thereof, there are two other basic
objections. One was that petitioner, when the bail was granted, was still at large.
The municipal court, therefore, could not have granted bail in accordance with our
ruling in Feliciano v. Pasicolan. Thus: "'The constitutional mandate that all persons
shall before conviction be bailable except those charged with capital offenses when
evidence of guilt is strong, is subject to the limitation that the person
applying for bail should be in custody of the law, or otherwise deprived of
his liberty. The purpose of bail is to secure one's release and it would be
incongruous as to grant bail to one who is free.'" Secondly, and what is worse, the
prosecution was never given a chance to present its evidence. The authoritative
doctrine in People v. San Diego is thus squarely in point: "Whether the motion for
bail of a defendant who is in custody for a capital offense be resolved in summary
proceeding or in the course of a regular trial, the prosecution must be given an
opportunity to present, within a reasonable time, all the evidence that it may desire
to introduce before the Court should resolve the motion for bail. If, as in the criminal
case involved in the instant special civil action, the prosecution should be denied
such an opportunity, there would be a violation of procedural due process, and
order of the Court granting bail should be considered void."

PRESUMPTION OF INNOCENCE
Burden of proof lies on his accusers to prove him guilty

Equiponderance of Evidence (Equipoise Doctrine) – when preponderance of

evidence is at equipoise, court will find for the defendant; when the scale stand

163
at an equipoise and there is nothing in evidence to incline it either way,
the court shall rule against the party who has the burden of proof

Proof beyond reasonable doubt – not to be equated with absolute certainty;

moral certainty, or that degree of proof which produces conviction in an
unprejudiced mind

Prosecution has Burden of Proof

ACTS WHICH CANNOT BE CRIMINALIZED

• Section 10 No law impairing the obligation of contracts shall be passed.

• Section 20 No person shall be imprisoned for debt or non-payment of a poll

tax.

• SECTION 22
No Ex Post Facto Law or Bill of Attainder

Sec. 22: No ex post facto law or bill of attainder shall be enacted.

Ex post facto law – one that punishes an act which was not punishable
when committed; or aggravates a crime or makes it greater
than when committed; or changes the laws on evidence so that
lesser evidence is needed for conviction than when the act was
done

Bill of Attainder – a law which inflicts punishment without benefit of

judicial trial

ELEMENTS OF EX POST FACTO LAW:

• Penal
• Retroactive
• Disadvantageous to the accused
• Must take from the accused any right that was regarded, at the time of the
adoption of the constitution as vital for the protection of life and liberty and
which he enjoyed at the time of the commission of the offense charged
against him

ELEMENTS OF BILL OF ATTAINDER:

• There is a law
• The law imposes a penal burden on a specified individual or an easily
ascertainable members of a group
• The penal burden is imposed directly by the law without judicial trial

164
WHICH PUNISHMENTS COULD NOT BE IMPOSED

Section 18
1. No person shall be detained solely by reason of his political beliefs and
aspirations.

2. No involuntary servitude in any form shall exist except as a

punishment for a crime whereof the party shall have been duly
convicted.

Section 19
1. Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be
reduced to reclusion perpetua.

2. The employment of physical, psychological, or degrading

punishment against any prisoner or detainee or the use of substandard
or inadequate penal facilities under subhuman conditions shall be dealt
with by law.

DOUBLE JEOPARDY
SECTION 21
Right Against Double Jeopardy

Sec. 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.

Double Jeopardy – two perils or dangers of being tried and punished

2 KINDS:
1. Same Offense (First sentence of Sec. 21)

REQUISITES:
• First jeopardy
• A valid complaint and information
• A court of competent jurisdiction
• Arraignment and valid plea
• First jeopardy has been terminated
• Second jeopardy for the same offense – includes an attempt or frustration of
the same offense or it necessarily includes or is necessarily included in the
other

165
“Terminated” – either by conviction, acquittal or dismissal upon the merit
without consent of the accused

• CONVICTION: a judgment declaring the accused guilty of the offense

charged and imposing upon him the penalty provided by law; accused may
appeal and this is not double jeopardy
• ACQUITTAL: a termination of the case based upon the merits of the issue;
prosecution cannot appeal anymore
• DISMISSAL: a termination of the case other than upon the merits thereof;
first jeopardy only attaches if dismissal without consent of accused

NOTA BENE:
• Consent means approval, acquiescence, conformity, agreement, etc. Mere
silence of the accused should not be construed as consent.
• Even if the motion to dismiss was filed by the accused, the dismissal is
equivalent to acquittal if it is grounded on (1) insufficiency of
evidence (demurrer to evidence after prosecution has rested its
case); (2) denial of the right to speedy trial
• Supervening Facts – when the second offense was not in existence when
the first offense was charged and tried, then another information may be filed
or the present information may be amended (substantial)

2. Act Punished by a Law and Ordinance (Second sentence of Sec. 21)

• this will only apply if the accused has been either convicted or acquitted
• if the case was only dismissed not upon the merits, the prosecution may re-
file

AFFIRMATIVE RIGHTS

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

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.

166
 4. The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to the
rehabilitation of victims of torture or similar practices, and
their families.

FREEDOM OF EXPRESSION (SEC. 4)

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.

Prior Restraint, Subsequent Punishment

O’BRIEN TEST

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 Government interest
3. If the Governmental interest is unrelated to the suppression of free
expression
4. If the incidental restriction in the freedom of expression is no greater
than is essential to the furtherance of that interest;

• 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 Expression 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.

SWS VS COMELEC

Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days be- fore an election.

Held:

§5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of

speech, expression, and the press.

Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal
connection of expression to the asserted governmental interest makes
167
such interest "not related to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility that
such publication might undermine the integrity of the election, §5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion takers. In effect, §5.4 shows a
bias for a particular subject matter, if not viewpoint, by referring personal opinion to
statistical results. The constitutional guarantee of freedom of expression means that
"the government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content."

The inhibition of speech should be upheld only if the expression falls within one of
the few unprotected categories dealt with in Chaplinsky v. New Hampshire,
xx…These include the lewd and obscene, the profane, the libelous, and the
insulting or 'fighting' words - those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace. [S]uch utterances
are no essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality…xx

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4
cannot be justified on the ground that it is only for a limited period and is only
incidental. The prohibition may be for a limited time, but the curtailment of
the right of expression is direct, absolute, and substantial. It constitutes a
total suppression of a category of speech and is not made less so because it is only
for a period of fifteen (15) days immediately before a national election and seven
(7) days immediately before a local election. ..

Even if the governmental interest sought to be promoted is unrelated to the

suppression of speech and the resulting restriction of free expression is only
incidental, §5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely,
that the restriction be not greater than is necessary to further the
governmental interest. As already stated, §5.4 aims at the prevention of last-
minute pressure on voters, the creation of bandwagon effect, "junking" of weak or
"losing" candidates, and resort to the form of election cheating called "dagdag-
bawas." Praiseworthy as these aims of the regulation might be, they cannot be
attained at the sacrifice of the fundamental right of expression, when such aim can
be more narrowly pursued by punishing unlawful acts, rather than speech because
of apprehension that such speech creates the danger of such evils.

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior
restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is
only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of
expression.

ABS-CBN VS COMELEC

168
Comelec issued a resolution to restrain ABS-CBN from conducting exit polls which
according to them might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also
noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the
exit survey.

Issue:

Whether or not the Respondent Commission acted with grave abuse of discretion
amounting to a lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its agents or
representatives from conducting exit polls during the May 11 elections.

Held:

Procedural Issues: Mootness and Prematurity

• The issue is not totally moot. While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our democratic
government. By its very nature, exit polling is tied up with elections. To set aside
the resolution of the issue now will only postpone a task that could well crop up
again in future elections.
• This Court, however, has ruled in the past that this procedural requirement may
be glossed over to prevent a miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or
resolution sought to be set aside is a nullity, or when the need for relief
is extremely urgent and certiorari is the only adequate and speedy remedy
available.

Main Issue: Validity of Conducting Exit Polls

The freedom of expression is a fundamental principle of our democratic

government. It "is a 'preferred' right and, therefore, stands on a higher level than
substantive economic or other liberties. This must be so because the lessons of
history, both political and legal, illustrate that freedom of thought and speech is
the indispensable condition of nearly every other form of freedom."

In Cabansag v. Fernandez the Court laid down two theoretical tests in

determining the validity of restrictions to such freedoms, as follows:

• Clear and present danger rule means that the evil consequence of the
comment or utterance must be “extremely serious and the degree of
imminence extremely high” before the utterance can be punished. The
danger to be guarded against is the 'substantive evil' sought to be
prevented;
• Dangerous tendency rule means “If the words uttered create a
dangerous tendency which the state has a right to prevent, then such
169
 words are punishable.” It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It is sufficient if the natural
tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent."
• Unquestionably, this Court adheres to the "clear and present danger" test. In
setting the standard or test for the "clear and present danger" doctrine, the
Court echoed the words of justice Holmes: "The question in every case is
whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree."
• A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but
also present. "Present" refers to the time element; the danger must not
only be probable but very likely to be inevitable. The evil sought to be
avoided must be so substantive as to justify a clamp over one's mouth or a
restraint of a writing instrument.
• The freedoms of speech and of the press should all the more be upheld when
what is sought to be curtailed is the dissemination of information meant to add
meaning to the equally vital right of suffrage. We cannot support any ruling or
order "the effect of which would be to nullify so vital a constitutional right as free
speech." When faced with borderline situations in which the freedom of
a candidate or a party to speak or the freedom of the electorate to
know is invoked against actions allegedly made to assure clean and
free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in the
efforts to maintain them, the freedom to speak and the right to know are unduly
curtailed.
• The balancing of interest test requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or
types of situations. It is here where the court has to weigh the individual rights
as against the interest of the public and more often than not, the court has to
uphold the interest of the public.

On exit polls producing a clear and present danger or has a dangerous

tendency
Such arguments are purely speculative and clearly untenable. First, by the very
nature of a survey, the interviewees or participants are selected at random, so that
the results will as much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second, the survey result is
not meant to replace or be at par with the official Comelec count. It consists merely
of the opinion of the polling group as to who the electorate in general has probably
voted for, based on the limited data gathered from polled individuals. Finally, not
at stake here are the credibility and the integrity of the elections, which
170
are exercises that are separate and independent from the exit polls. The
holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all,
the outcome of one can only be indicative of the other.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not
seek access to the ballots cast by the voters. The ballot system of voting is not at
issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through
voter identification. Thus, voters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also proscribed is finding out
the contents of the ballots cast by particular voters or disclosing those of disabled
or illiterate voters who have been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the purpose of
assuring that the votes have been cast in accordance with the instructions
of a third party. This result cannot, however, be achieved merely through the
voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed.
Furthermore, the revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal their identities.
Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so
as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.

NOTA BENE:

CONTENT BASED RESTRICTIONS ARE IMPOSED BECAUSE OF THE CONTENT OF THE

SPEECH AND ARE THEREFORE, SUBJECT TO THE CLEAR AND PRESENT DANGER
TEST;

CONTENT NEUTRAL RESTRICTIONS ARE THOSE WHICH PROHIBIT THE SALE OR

DONATION OF PRINT SPACE AND AIR TIME TO POLITICAL CANDIDATES DURING THE
CAMPAIGN PERIOD, AND ARE NOT CONCERNED WITH THE CONTENT OF THE
SPEECH.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX

OBSCENITY

MILLER VS CALIFORNIA

171
Miller operated a mail order porno. In a campaign for expansion, he mass-mailed
brochure to which one was sent to a restaurant where the manager opened such
mail together with his mother. Thus the proceedings; The prosecution contends that
he committed misdemeanor;

Issue:

What are the tests to determine obscenity?

Held:

• Under common law and in an 1868 case of Regina vs Hicklin, obscenity is

that which tends to "deprave and corrupt those whose minds are open to
such immoral influences" and could be banned on that basis.
• In Roth vs United States, 1957, the court held that obscenity is not one of
those protected by the First Amendment;
• In Memoirs v. Massachusetts, (1966), the Court veered sharply away from the
Roth concept and, with only three Justices in the plurality opinion, articulated a
new test of obscenity. The plurality held that under the Roth definition: "as
elaborated in subsequent cases, three elements must coalesce: it must be
established that (a) the dominant theme of the material taken as a
whole appeals to a prurient interest in sex; (b) the material is patently
offensive because it affronts contemporary community standards
relating to the description or representation of sexual matters; and (c)
the material is utterlywithout redeeming social value."
• While Roth presumed "obscenity" to be "utterly without redeeming social
importance," Memoirs required that to prove obscenity it must be affirmatively
established that the material is "utterly without redeeming social value."
• Apart from the initial formulation in the Roth case, no majority of
the Court has at any given time been able to agree on a standard to
determine what constitutes obscene, pornographic material subject to
regulation under the States' police power.
• The basic guidelines for the trier of fact must be:
a. whether "the average person, applying contemporary community
standards" would find that the work, taken as a whole, appeals to
the prurient interest,
b. whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
c. whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
• We do not adopt as a constitutional standard the "utterly without redeeming
social value" test of Memoirs v. Massachusetts; that concept has never
commanded the adherence of more than three Justices at one time. If a state
law that regulates obscene material is thus limited, as written or
construed, the First Amendment values applicable to the States
through the Fourteenth Amendment are adequately protected by the
ultimate power of appellate courts to conduct an independent review of
constitutional claims when necessary.

172
GONZALES VS KALAW-KATIGBAK

The film Kapit sa Patalim was classified as for adults only. Petitioner contends that
such classification was without basis since it is exercised as impermissible restraint
of artistic expression. The film is an integral whole and all its portions, including
those to which the Board now offers belated objection, are essential for the integrity
of the film.

Issue:

Is the classification valid?

Held:

• It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on

its creation, the power of respondent Board is limited to the
classification of films. It can, to safeguard other constitutional
objections, determine what motion pictures are for general patronage
and what may require either parental guidance or be limited to adults
only. That is to abide by the principle that freedom of expression is the rule and
restrictions, the exemption.
• The test, to repeat, to determine whether freedom of expression may be limited
is the clear and present danger of an evil of a substantive character that the
State has a right to prevent. Such danger must not only be clear but also
present. There should be no doubt that what is feared may be traced to
the expression complained of.
• This Court concludes then that there was an abuse of discretion. Nonetheless,
there are not enough votes to maintain that such an abuse can be considered
grave.
• All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned: a less liberal approach calls for observance. This
is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely be
among the avid viewers of the programs therein shown. It cannot be denied
though that the State as parens patriae is called upon to manifest an
attitude of caring for the welfare of the young.

Nota bene:

The power of the board is limited only to classification and not to the issuance or
denial of permit because that is a previous restraint tantamount to censorship.

FREEDOM OF ASSEMBLY
(CALIBRATED PRE-EMPTIVE RESPONSE)

KMP VS ERMITA, GR NO. 169838

173
Petitioners argue that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines is a signatory. They argue that B.P.
No. 880 requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of
venue and is thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the expression is
sought. Furthermore, it is not content-neutral as it does not apply to mass actions
in support of the government. Also, the phrase “maximum tolerance” shows that
the law applies to assemblies against the government because they are being
tolerated. Furthermore, the law delegates powers to the Mayor without providing
clear standards. Finally, petitioners KMU, et al., argue that the Constitution sets no
limits on the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can set
limits to this right, the limits provided are unreasonable: First, allowing the Mayor
to deny the permit on clear and convincing evidence of a clear and present danger
is too comprehensive. Second, the five-day requirement to apply for a permit is too
long as certain events require instant public assembly, otherwise interest on the
issue would possibly wane.

Held:

The right of peaceful assembly enjoys primacy in the hierarchy of rights.

The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and of the
press, a right that enjoys primacy in the realm of constitutional protection. For
these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. Again, in
Primicias v. Fugoso, the Court likewise sustained the primacy of freedom
of speech and to assembly and petition over comfort and convenience in
the use of streets and parks.

Right of peaceable assembly however, is not absolute

In Primicias, this Court said: The right to freedom of speech, and to peacefully
assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it is a settled principle growing out of the nature
of well-ordered civil societies that the exercise of those rights 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. The power to regulate the exercise of such and
other constitutional rights is termed the sovereign “police power,” which is the
power to prescribe regulations, to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. This sovereign police
174
power is exercised by the government through its legislative branch by the
enactment of laws regulating those and other constitutional and civil rights, and it
may be delegated to political subdivisions, such as towns, municipalities
and cities by authorizing their legislative bodies called municipal and city
councils enact ordinances for purpose.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and
manner of the assemblies. This was adverted to in Osmeña v. Comelec, where
the Court referred to it as a “content-neutral” regulation of the time, place,
and manner of holding public assemblies.

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies that would use public places. The reference to “lawful
cause” does not make it content-based because assemblies really have to be
for lawful causes, otherwise they would not be “peaceable” and entitled
to protection. Neither are the words “opinion,” “protesting” and
“influencing” in the definition of public assembly content based, since
they can refer to any subject. The words “petitioning the government for
redress of grievances” come from the wording of the Constitution, so its use cannot
be avoided. Finally, maximum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and
present danger to public order, public safety, public convenience, public
morals or public health. This is a recognized exception to the exercise of
the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.

Not every expression of opinion is a public assembly. The law refers to “rally,
demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place.” So it does not cover any and all kinds of
gatherings. Neither is the law overbroad. It regulates the exercise of the
right to peaceful assembly and petition only to the extent needed to avoid
a clear and present danger of the substantive evils Congress has the right to
prevent. There is, likewise, no prior restraint, since the content of the speech is
not relevant to the regulation.

Freedom Parks allow avenues for free speech (however, only a few
existing)

Considering that the existence of such freedom parks is an essential part of the
law’s system of regulation of the people’s exercise of their right to peacefully
assemble and petition, the Court is constrained to rule that after thirty (30) days
from the finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or municipality
until that city or municipality shall have complied with Section 15 of the
law. For without such alternative forum, to deny the permit would in effect be to
deny the right. Advance notices should, however, be given to the authorities to
ensure proper coordination and orderly proceedings.
175
Maximum Tolerance, definition

“Maximum tolerance” means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public
assembly or in the dispersal of the same.”

Furthermore, there is need to address the situation adverted to by petitioners

where mayors do not act on applications for a permit and when the police demand a
permit and the rallyists could not produce one, the rally is immediately dispersed.
In such a situation, as a necessary consequence and part of maximum
tolerance, rallyists who can show the police an application duly filed on a
given date can, after two days from said date, rally in accordance with
their application without the need to show a permit, the grant of the
permit being then presumed under the law, and it will be the burden of the
authorities to show that there has been a denial of the application, in which case
the rally may be peacefully dispersed following the procedure of maximum
tolerance prescribed by the law.

For this reason, the so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned
as unconstitutional; it does not curtail or unduly restrict freedoms; it
merely regulates the use of public places as to the time, place and manner
of assemblies. Far from being insidious, “maximum tolerance” is for the
benefit of rallyists, not the government. The delegation to the mayors of the
power to issue rally “permits” is valid because it is subject to the constitutionally-
sound “clear and present danger” standard.
In this Decision, the Court goes even one step further in safeguarding liberty by
giving local governments a deadline of 30 days within which to designate
specific freedom parks as provided under B.P. No. 880. If, after that
period, no such parks are so identified in accordance with Section 15 of
the law, all public parks and plazas of the municipality or city concerned
shall in effect be deemed freedom parks; no prior permit of whatever kind shall
be required to hold an assembly therein. The only requirement will be written
notices to the police and the mayor’s office to allow proper coordination and orderly
activities.

VI. FREEDOM OF RELIGION

Art. III, 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.

176
EBRALINAG VS SUPERINTENDENT (freedom to believe and act on one’s
belief)

Facts:

Two special civil actions for certiorari, Mandamus and Prohibition were filed and
consolidated for raising same issue. Petitioners allege that the public respondents
acted without or in excess of their jurisdiction and with grave abuse of discretion.
Respondents ordered expulsion of 68 HS and GS students of Bantayan,
Pinamungajan, Caracar, Taburan and Asturias in Cebu. Public school authorities
expelled these students for refusing to salute the flag, sing the national anthem and
recite the “Panatang Makabayan” required by RA1265. They are Jehovah’s
Witnesses believing that by doing these are religious worship/devotion
akin to idolatry against their teachings. They contend that to compel
transcends constitutional limits and invades protection against official
control and religious freedom. The respondents relied on the precedence of
Gerona et al v. Secretary of Education. Gerona doctrine provides that we are a
system of separation of the church and state and the flag is devoid of religious
significance and it doesn’t involve any religious ceremony. The freedom of religious
belief guaranteed by the Constitution does not mean exception from non-
discriminatory laws like the saluting of flag and singing national anthem. This
exemption disrupts school discipline and demoralizes the teachings of civic
consciousness and duties of citizenship.

Issue: Whether or Not religious freedom has been violated.

Held:
Religious freedom is a fundamental right of highest priority. The 2 fold aspect of
right to religious worship is: 1.) Freedom to believe which is an absolute
act within the realm of thought. 2.) Freedom to act on one’s belief
regulated and translated to external acts. The only limitation to religious
freedom is the existence of grave and present danger to public safety,
morals, health and interests where State has right to prevent. The
expulsion of the petitioners from the school is not justified.

The 30 yr old previous GERONA decision of expelling and dismissing students and
teachers who refuse to obey RA1265 is violates exercise of freedom of speech and
religious profession and worship. Jehovah’s Witnesses may be exempted from
observing the flag ceremony but this right does not give them the right to
disrupt such ceremonies. In the case at bar, the Students expelled were
only standing quietly during ceremonies. By observing the ceremonies quietly,
it doesn’t present any danger so evil and imminent to justify their expulsion. What
the petitioner’s request is exemption from flag ceremonies and not exclusion from
public schools. The expulsion of the students by reason of their religious
beliefs is also a violation of a citizen’s right to free education. The non-
observance of the flag ceremony does not totally constitute ignorance of patriotism
and civic consciousness. Love for country and admiration for national heroes, civic
177
consciousness and form of government are part of the school curricula. Therefore,
expulsion due to religious beliefs is unjustified.

Petition for Certiorari and Prohibition is GRANTED. Expulsion is ANNULLED.

VII. NON-IMPAIRMENT CLAUSE

Art. III, Section 10 No law impairing the obligation of contracts shall be

passed.

VIII. LIBERTY OF ABODE AND TRAVEL

Art. III, 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.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxx

PUBLIC INTERNATIONAL LAW

The Seven (7) Principles of International Law Concerning Friendly

Relations and Cooperation Among States in Accordance with the
Charter of the United Nations

The United Nation's "Declaration on the Principles of International Law

Concerning Friendly Relations and Cooperation Among States in Accordance
with the Charter of the United Nations", adopted by the UN General
Assembly, thru Resolution No. 2625 (XXV) on October 24, 1970, after ten (10)
years of work and study, contain the following seven (7) basic principles of
international law:

1. The principle that states shall refrain in their international

relations from the threat or use of force against the territorial

178
integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations;

2. The principle that states shall settle their international

disputes by peaceful means in such a manner that international peace
and security and justice are not endangered;

3. The duty not to intervene in matters within the domestic

jurisdiction of any state, in accordance with the Charter;

4. The duty of states to cooperate with one another in accordance

with the Charter

5. The principle of equal rights and self-determination of peoples;

6. The principle of sovereign equality of states; and

7. The principle that states shall fulfill in good faith the obligation
assumed by them in accordance with the Charter. (cf. fifth (5th)
Introductory Clauses of the "Declaration" in Merlin M. Magallona, 96).

WHAT IS INTERNATIONAL LAW?

It is a body of rules and principles of action which are binding upon civilized
states in their relations to one another.

The law which defines the conduct of states and of international

organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical;

Some theories about international law

Command theory

Law consists of commands originating from a sovereign and backed up by

threats of sanction if disobeyed

Consensual theory

International law derives its binding force from the consent of states. Treaties
are an expression of consent; likewise, custom, as voluntary adherence to
common practices, are seen as expression of consent;

Natural law theory

Law is derived by reason from the nature of man. Most customary laws are
derivations from natural laws;

179
Note:

International law is law because it is seen as such by states and other

subjects of international law;

Public international law – governs the relations between and among states as
well as international organizations and individual persons;

Private international law – domestic law which deals with cases where foreign
law intrudes in the domestic sphere, where there are questions of the
applicability of foreign law or the role of foreign courts;

SOURCES OF INTERNATIONAL LAW

a. international conventions, whether general or particular, establishing

rules expressly recognized by contesting states

b. international custom, as evidence of a general practice accepted as

law

c. the general principles of law recognized by civilized nations

d. subject to the provisions of Art. 59 “ the decision of the Court has no

binding force except between the parties and in respect to that particular
case.” Judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of
rules of law

The principle of sovereign equality of states.

All States enjoy sovereign equality. They have equal rights and duties and are
equal members of the international community, notwithstanding differences
of an economic, social, political or other nature.

In particular, sovereign equality includes the following elements:

a. States are juridically equal;

b. Each state enjoys the rights inherent in full sovereignty;
c. Each state has the duty to respect the personality of other states;
d. The territorial integrity and political independence of the state
are inviolable;
e. Each state has the right freely to choose and develop its
political, social, economic and cultural systems;
f. Each state has the duty to comply fully and in good faith with its
international obligations and to live in peace with other states." (cf.

180
 Principle No. 6 of the main body of the "Declaration" in Magallona,
104).

The Subjects and Objects of International Law

A subject of international law is an entity with capacity of possessing

international rights and duties and of bringing international claims. This
entity is said to be an international person or one having an international
personality, on the basis of customary or general international law.
(Magallona, 18-19).

A subject of Public International Law is an entity directly possessed of rights

and obligations in the international legal order, e.g. a sovereign state, such as
the Philippines. (Paras, 43).

An object of Public International Law, on the other hand, is merely

indirectly vested with rights and obligations in the international sphere,
e.g. a Filipino private citizen is generally regarded not as a subject but an object of
Public International Law because, while he is entitled to certain rights which other
states ought to respect, he usually has no recourse except to course his grievances
through the Republic of the Philippines and its diplomatic officers. (id.).

Kinds of Subjects in International Law

A. The STATE

Magallona distinguishes between:

a. general or objective international personality and

b. particular or special international personality, as follows:

"x x x As to the first (general or objective international personality), rights and

obligations are conferred by general international law and such
personality is binding erga omnes; and as to the second (particular or special
international personality), personality binds only those which give consent
(express or tacit).

"The distinction is implied in the Reparation for Injuries Case, in which on the
question as to the legal personality of the United Nations to claim reparation for
injury to its agents committed by nationals of a non-Member State, the
(International Court of Justice or ICJ) states: "xxx fifty States, representing the
vast majority of the members of the international community, had the
power, in conformity with international law, to bring into being an entity
possessing objective international personality and not merely personality
recognized by them alone, together with capacity to bring international
claims xxx [ICJ Reports, 1949, p. 185]." (Magallona, 19).

B. STATES: Single/Simple and Composite

181
Paras categorizes "subjects in international law" into two (2) categories: (a) the
complete or perfect international personality, and (b) the incomplete or imperfect,
or qualified or quasi-international personality. (Paras, 47).

He classifies states into the following species: (a) single or simple state (e.g.,
Philippines), and (b) composite state.

The 1933 Monteviedo Convention on the Rights and Duties of States provides for
the legal characteristics of a State, thus:

"The State as a person of international law should possess the following

qualifications:
a. a permanent population;
b. a defined territory;
c. government;
d. and capacity to enter into relations with other States." (cf. Magallona,
20).

The "capacity to enter into relations with other States" refers to independence,
which many highly qualified publicists consider as the decisive criterion of
statehood. (Magallona, 20-21).

RECOGNITION is considered as "the act by which another State acknowledges that

the political entity recognized possesses the attributes of statehood." (Magallona,
21, citing Jessup, Modern Law of Nations: An Introduction, 1949, p. 4).

There are two theories on the nature and effect of recognition, as

discussed by Magallona (at pp. 22-22):

• The constitutive school maintains that it is the act of recognition

which constitutes or creates the status of a State as a subject of law
and thus gives it a legal personality. The international status of any entity
as a State is to be determined by the will and consent of already existing States.

• The declaratory theory asserts that recognition merely confirms the

acceptance by States of the status of an entity as a State. A new State
acquires legal personality by its own creative act in bringing about the
objective criteria of statehood, rather than by the subjective act of other
States.

The declaratory school is the preferred approach, the prevailing view being that
recognition is not an element of statehood.

Paras, Coquia and Defensor-Santiago classify the different kinds of composite states
as follows:

1. The Federation or Federal State (such as the United States and the United
States of Switzerland);

182
 2. The Confederation (such as the original Confederation of the American
States, which eventually became the nucleus of the present United States).

(NOTE: The principal difference between a federal union and a confederation is that
a federal union of states exists when the central or federal government
exercises authority over both the various states in the union and the
citizens thereof; while the confederation has some sort of power over its
individual states, but not over the individual citizens of the member
states. The federal union, as such, is an International Person, thus the United
States is represented in the United Nations as one juridical or international entity;
on the other hand, the confederation as such is not an International Person,
each of the member-states being represented by its own delegate.
However, there is at present no confederation of confederated states).

3. The Real Union (such as the former United Arab Republic which was
formed by two sovereign states [Egypt and Syria] linked by a
common government in external affairs and by a common chief of
state. The union then possessed a single international personality [the
separate personalities of the states having been merged into a unified
whole]. xxx.

4. The Personal Union (this is the merger of two separate sovereign

states in the sense that both have the same individual as the
accidental or temporary head of state. However, the union as such has
no separate international personality since each of the member-states has its
own government and its own separate international personality. It would
seem that today, there is no Personal Union in existence. xxx.

5. The Incorporate Union (one where the internal and external organs
of government of two states are merged into one, resulting in a
single international personality. An example is the United Kingdom
of Great Britain and Ireland xxx. While in a Real Union there is a merger
only of foreign affairs or external relations, in the Incorporate Union the
merger is actually complete and concerns internal as well as external affairs
and relations).

NOTE: The British Commonwealth of Nations xxx apparently does not fall under any
of the preceding classifications xxx. (Paras, 49-50; Coquia & Defensor-Santiago, 64-
100).

C. The INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL

PERSONALITIES

Paras lists the incomplete, imperfect, qualified or quasi-international personalities

as follows:

"xxx among them are the dependent states (protectorate and suzerainties);
belligerent communities (and in a very, very modified way, insurgent communities,
183
subject to certain conditions); colonies; dependencies and possessions; mandates
and trust territories; certain public and political corporations or companies; and
international administrative bodies." (Paras, 52; underscoring supplied).

It is noteworthy to state that "international Organizations such as the former League

of Nations and the present United Nations are of course in their own way
International Persons." (Paras, 60).

The United Nations, being possessed of juridical personality, has the

following capacities: to contract; to acquire and dispose of immovable and
movable property; and to institute legal proceedings. (Paras, 63, citing Art. 1,
Convention on the Privileges and Immunities of the United Nations, adopted by the
UN General Assembly on Feb. 13, 1946, in 1 UN Treaty Series 15).

Paras classifies the three (3) groups of International Organizations, aside from the
United Nations, as follows:

1. Inter-governmental bodies, including specialized agencies of the UN, e.g.,

Food and Agricultural Organization, International Labor Organization,
International Monetary Fund, United Nations Educational, Scientific and Cultural
Organization;

2. Other Inter-Governmental Bodies, e.g., Permanent Court of Arbitration,

International Criminal Police Commission, Bank of International Settlements;
3. Non-Governmental International Bodies, e.g. International Commission of
Jurists, Christian Family Movement Moral Re-Armament, International Chamber
of Commerce, Rotary International. (cf. Paras, 60-61).

Private Individuals: Developing New Status in International Law

Paras discusses that while traditional writers insist that private

individuals are merely objects and not subjects of international law, some
recognized writers in recent years have accorded to the individual a new status in
international law: they say, and with good reason, that private individuals should
now be regarded as subjects in the international order, in view of the importance
laid on them by the following:

1. the Charter of the United Nations Organization, and the Universal Declaration
of Human Rights;

2. the Nuremberg and Tokyo War Tribunals for War Crimes;

3. the norm of general international law which prohibits piracy;

184
 4. espionage rules; conventions punishing acts of illegitimate warfare; rules of
general international law punishing private individuals for breach of blockade
and carriage of contraband;

5. the practice of certain courts of permitting foreigners to appear and

prosecute claims;

6. the Genocide Convention of 1948 which directly holds liable not only states,
but also private individuals, for the mass extermination of a racial group;

7. the existence of rules safeguarding the rights of aliens and minorities;

8. punishment for the illegal use of the flag (Reporter's Note: this refers to
vessels using the flag of s state with which such vessel is not registered);

9. the procedure in admiralty and maritime matters;

10.the special status accorded to refugees, and to displaced persons, such as

those fleeing from South Vietnam, from Cambodia, and, more recently, from
Cuba. (cf. Paras, 44-46).

BELLIGERENT AND INSURGENT COMMUNITIES

A status of belligerency recognized under international law may arise if

1. there exists within the State an armed conflict of a general character;

2. the insurgents occupy a substantial portion of the national territory; and
3. They conduct the hostilities in accordance with the rules of war thru
organized groups acting under a responsible authority. (Coquia/Defensor-
Santiago, 85).
Recognition of a status of belligerency on the part of other States is
necessary for the legal creation of the status of "belligerent community.
(id.).

A fourth requirement that has been suggested for the recognition of belligerency is
that there must exist a circumstance which makes it "necessary" for the
recognizing State to define its attitude to the conflict. Coquia and Defensor-
Santiago explains the matter, thus:

The reason for this final requirement is that if the parties to the struggle
propose to exercise belligerent rights on the high seas in such a manner
as to affect the recognizing State's maritime interests, the need for it to
define its attitude to the struggle has arisen. If, on the other hand, a distant inland
state with no maritime interests, and in no way affected by the conflict were to
recognize the rebels as belligerents, it could open itself to the charge of
encouraging rebellion. (id., 86).

Recognition of belligerency before the four conditions are fulfilled is

considered as contrary to international law (id., 86, citing Sorensen, 286).
185
Recognition of belligerency by a State not a party to the contest is
frequently announced in a formal proclamation of neutrality between the
two contending parties. Recognition may be express or implied. (id., 87).

If the foreign government gives aid to the de facto (belligerent)

government recognized by it, and that de facto government is defeated in
the war, then the lawful government may hold the foreign State
responsible for an act of unjustifiable aggression and of premature
recognition. (id., citing Oppenheim-Lauterpacht, 13).

The recognized belligerent community lacks the right to send or receive diplomatic
agents to join international organizations, and to benefit in a normal manner from
multilateral conventions concerned with peacetime international relations and
activities of States. (id., 86).

Coquia and Defensor-Santiago cite the legal implications of recognition of

a belligerent community, thus:

The granting of recognition of belligerency to rebels is only provisional.

While conferring an equal status to warring groups, it does so only for the purposes
and for the duration of the war. For the purposes and for the duration of the
war, the insurgents recognized as a belligerent power possess for the
most part, the duties and rights of States when engaged in war. (id., citing
Kelsen, 413).

A state of insurgency is not equivalent to a state of belligerency. The

former is "a rebellion which has not yet achieved the standing of a
belligerent community xxx, a condition described as intermediate between
internal tranquility and civil war." (Coquia, 88).

The conditions for a state of insurgency are:

1. the insurgents must have a government and a military organization of
their own;
2. the insurrection must be conducted in the technical forms of war,
that is, it must be more than a petty revolt and must assume the true
characteristics of a war; and
3. the government of the insurgents must in fact control a certain part of the
territory of the State in which the civil war takes place. (id., citing
Kelsen, 412).
A related matter is the "government in exile". It has two classes,
according to Coquia and Defensor-Santiago:

The first category consists of governments whose heads and cabinets

move from the national territory temporarily during the moments of crisis.
In such cases, no formal act of recognition is necessary because it is deemed that
there is no break in legal continuity.

186
A second category consist of governments formed abroad, in which case
there can be no legal connection between the government in exile and the
government operating on the national territory at the time. A formal act of
recognition is necessary.

The governments under the second category do not have any international
status. While there may be groups assuming governmental powers for their
national territory for political or other reasons, the fact is that they are merely
hoping to form a legitimate government or State at some time in the future.

A recognition accorded during the effective continuance of the lawful (de

jure) government over the greater part of the national territory may be
considered as an act of interference in the national affairs of another State.
(id., 97, citing the recognition of the Franco regime in Spain by Germany and Italy
only five months after the Spanish civil war broke out at the time when the
republican government was still in control of the greater part of Spain).

ADDENDUM:

PHILIPPINE TERRITORY IN RELATION TO THE U.N. CONVENTION ON THE LAW OF THE

SEA

Article I of the 1987 Philippine Constitution defines the Philippine

territory, thus:

The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestial, fluvial,a nd 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.

Pursuant to Art. 47.1 of the UN Convention on the Law of the Sea (UNCLOS) which
entered into force on November 16, 1994, the Philippines, as an archipelagic state,
may determine its archipelagic baselines as follows:

It may draw straight archipelagic baselines surrounding itself. This is done

by locating "the outermost points of ... (its) outermost islands and drying reefs" and
then by joining such points. It is required that the main islands are included within
the baselines as well as an area in which "the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to 1." (Magallona, 80,
citing Art. 47.1 of UNCLOS).

The "maritime zones" of the Philippines, under the provisions of UNCLOS, consist of
the following:

1. the territorial sea;

2. the contiguous zone; and
187
 3. the exclusive economic zone.

The breadth of its territorial sea is measured from archipelagic baselines up

to a distance seaward not exceeding 12 nautical miles.

If it declares a contiguous zone, this shall not exceed 24 nautical miles from
the archipelagic baselines.

Its exclusive economic zone shall not exceed beyond 200 nautical miles
from the archipelagic baselines.(id., citing Arts. 2, 33.2, and 57 of UNCLOS).

The waters enclosed by the archipelagic baselines of the Philippines,

which are called "archipelagic waters," are within Philippine sovereignty. It
also extends to "airspace over archipelagic waters as well as their bed and
subsoil, including the resources therein." (id., citing Art. 49 of UNCLOS).

Pursuant to Articles 52 and 53 of UNCLOS, "ships of all states enjoy the

right of innocent passage through archipelagic waters" (which includes
"internal waters" or the "territorial sea") and such archipelagic waters
may also be subject to "the continuous and expeditious passage of foreign
ships and aircraft, known as the right of archipelagic sealanes." All ships
and aircraft enjoy this right thru designated sea lanes and air routes. The "territorial
sea", which is a zone of Philippine sovereignty, is subject to the right of innocent
passage by ships of all states, including "foreign nuclear-powered ships, those
carrying nuclear or other inherently dangerous or noxious substances, submarines
and warships." Also, the Philippine territorial sea is also restricted by the right of
archipelagic sea lanes passage but "only such portions of the territorial sea adjacent
to the Philippine archipelagic waters." All of the above provisions of UNCLOS pose
potential constitutional problems. (id., 82, citing Arts. 2, 17, 20, 23, 24, 30, 52 and
53 of UNCLOS).

Magallona discusses the legal status of the "contiguous zone" thus:

Adjacent to the territorial sea, it is a zone where the Philippines may

exercise certain protective jurisdiction, i.e., to prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations and to punish violation
of laws committed within its territory or in the territorial sea.

The Philippines does not have sovereignty over the contiguous zone. It is a
zone of jurisdiction, not of sovereignty.(id., 82-83, citing Art. 33.1 of UNCLOS).

As to the "exclusive economic zone", the Philippines has sovereign rights

over the same "for purposes of exploring, exploiting, conserving and
managing the natural resources" therein and it as "jurisdictional rights with
regard to artificial islands, environmental protection and maritime scientific
research." (id., 83, citing Arts. 52.1 [a] and [b] of UNCLOS).

The Philippines may be required to grant other states access to living resources in
its EEZ:
188
It must determine its capacity to harvest living resources. If it does not
have the capacity to harvest the entire allowable catch, it shall give other
states access to the surplus of the allowable catch by means of
agreements consistent with the UNCLOS.
In the EEZ, all states continue to enjoy the freedom of the high seas, subject to the
rights of the Philippines as thus mentioned. Generally, the rules of international law
pertaining to the high seas apply to the EEZ.(id., 84-85, citing Arts. 56.1 [a], 58.1,
58.2, 61.1, and 62.3 of UNCLOS).

There thus appears an apparent incompatibility with the 1987 Constitution. It will be
noted that Sec. 2, Art. XII of the 1987 Constitution provides that "the State shall
protect the nation's marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve it use and enjoyment
exclusively to Filipino citizens." (id., 84; original underscoring by the author).

What is the Philippine "continental shelf" under UNCLOS? Magallona discusses

its extent, thus:

It is the sea-bed and sub-soil of the submarine areas extending beyond the
Philippine territorial sea throughout the natural prolongation of the land
territory. It extends up (1) the outer edge of the continental margin or (2) up to
the distance of 200 nautical miles from the archipelagic baselines, whichever is
farthest. (id., 85, citing Art. 76 of UNCLOS).

The continental shelf does not form part of the "Philippine territory." (id.,
85). But the Philippines has the sovereign right for the purpose of exploring
it and exploiting its natural resources. (id., citing Art. 77 and 78 of UNCLOS).

Elucidating further on the "continental shelf", Magallona writes:

The UNCLOS describes these rights (i.e, to explore and exploit natural
resources in the continental shelf) as exclusive in the sense that if the
Philippines does not explore the continental shelf or exploit its natural
resources, no one may undertake these activities without its consent Rights of the
Philippines over the continental shelf "do not depend on occupation, effective or
notional, or on any express proclamation. (Art. 77.2, UNCLOS; underscoring
supplied).

The Philippines has the exclusive right to construct, to authorize and

regulate the construction, operation and use of artificial islands and
installations. (Arts. 60 and 80, UNCLOS). Its jurisdiction over these is exclusive, in
particular with respect to customs, fiscal, health, safety and immigration
regulations. (Art. 60.2, UNCLOS).

The Philippines has exclusive right to authorize as well as to regulate

drilling for all purposes. (Art. 81, UNCLOS). (id., 86, citing Arts. 77.2, 60.2, and
81 of UNCLOS).

189
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

Nota bene:

Q— How may international law become a part of domestic law? Explain.

ANS: Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic
law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.

Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that “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.” Thus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts. (Pharmaceutical & Health Care Assn. of the Phil. v. Health
Secretary Duque, et al., G.R. No. 173034, October 19, 2007).

Q — May generally accepted principles of international law form part of

the law of the land even if they do not derive from treaty obligations?
Explain.

ANS: Yes. Generally accepted principles of international law, by virtue of

the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted as binding
result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it. (Mijares v. Ranada,
G.R. No. 139325, April 12, 2005, 455 SCRA 397).

Q — State the concept of the term “generally accepted principles of

international law” and give examples.

190
ANS: “Generally accepted principles of international law” refers to norms
of general or customary international law which are binding on all states,
i.e., renunciation of war as an instrument of national policy, the principle of
sovereign immunity, a person’s right to life, liberty and due process, and pacta sunt
servanda, among others. The concept of “generally accepted principles of law” has
also been depicted in this wise:

Some legal scholars and judges upon certain “general principles of law” as
a primary source of international law because they have the “character of
jus rationale” and are “valid through all kinds of human societies.” (Judge
Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966, I.C.J.
296). O’Conell holds that certain principles are part of international law because
they are “basic to legal systems generally” and hence part of the jus gentium.
These principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law principle
provides a just and acceptable solution. (Pharmaceutical & Health Care Assn. of the
Phil. v. Sec. of Health Duque, et al., G.R. No. 173034, October 9, 2007).

Q— What is customary international law? Explain.

ANS: Custom or customary international law means “a general and

consistent practice of states followed by them from a sense of legal
obligation (opinion juris)”. This statement contains the two basic elements of
custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way they
do.

The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.

The required duration can be either short or long.

Duration therefore is not the most important element. More important is

the consistency and the generality of the practice.

Once the existence of state practice has been established it becomes necessary to
determine why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do they do it only
as a matter of courtesy? Opinio juris or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without it, practice is not
law. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et
al., G. R. No. 173034, October 9, 2007).

Q— What is a soft law? Is it an international law? Explain.

ANS: Soft law is an expression of non-binding norms, principles and

practices that influence state behavior. (David Fidler, Development Involving
191
SARS, International Law & Infections Disease Control at the Fifty-Six Meeting of the
World Health Assembly, June 2003, ASIL; Pharmaceutical & Health Care Assn. of the
Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does
not fall under the international law set forth in Article 38, Chapter III of the 1946
Statute of the International Court of Justice.

Q— Give examples of soft law.

ANS: Certain declarations and resolutions of the UN General Assembly fall under
this category. (Louis Henkins, et al., International Law, Cases and Materials, 2nd
Ed.). The UN Declaration of Human Rights is an example. This was applied in
Government of Hongkong Special Administrative Region v. Olalia; Mejoff v. Director
of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel
Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March
31, 2006, 486 SCRA 405).

It is resorted to in order to reflect and respond to the changing needs and demands
of constituents of certain international organizations like the WHO.

THE COUNT BERNADOTTE CASE

The question concerning reparation for injuries suffered in the service of the United
Nations, was referred to the Court by the General Assembly of the United Nations
(Resolution of the General Assembly dated December 3rd. 1948) in the following
terms:

I. In the event of an agent of the IJnited Nations in the performance of his

duties suffering injury in circumstances involving the responsibility of a State,
has the United Nations, as an Organization, the capacity to bring an
international claim against the responsible de jure or de facto
government with a view to obtaining the reparation due in respect
of the damage caused (a) to the United Nations, (b) to the victim or
to persons entitled through him

II. In the event of an affirmative reply on point I (b), how is action by the United
Nations to be reconciled with such rights as may be possessed by the State
of which the victim is a national?

Held:

Accordingly the Court concludes that the Organization possessing as it does rights
and obligations, has at the same time a large measure of international personality
and the capacity to operate upon an international plane, although it is certainly not
a super-state

On the first point:, I (a), of the Request for Opinion the Court unanimously reached
the conclusion that the Organization has the capacity to bring an
international claim against a State (whether a Member or non-member) for
192
damage resulting from a breach by that State of its obligations towards
the Organization. The Court points out that it is not called upon to determine the
precise extent of the reparation which the Organization would be entitled to
recover; the measure of the reparation should depend upon a number of factors
which the Court gives as examples.

On question I (b) the Court was of opinion by 11 votes against 4 that the
Organization has the capacity to bring an international claim whether or
not the responsible State is a Member of the United Nations.

Finally, on point II, the Court was of opinion by 10 votes against 5 that when the
United Nations as an organization is bringing a claim for reparation for
damage caused to its agent, it can only do so by basing its claim upon a
breach of obligations due to itself; respect for this rule 'will usually prevent a
conflict between the action of the United Nations and such rights as the agent's
national State may possess; moreover, this reconciliation must depend upon
considerations applicable to each particular case, and upon agreements to be made
between the Organization and individual States.

THE UN CHARTER (refer to 7 principles above)

Universal Declaration on Human Rights

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and peace
in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last

resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between

nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith
in fundamental human rights, in the dignity and worth of the human person and in
the equal rights of men and women and have determined to promote social
progress and better standards of life in larger freedom,

193
Whereas Member States have pledged themselves to achieve, in co-operation with
the United Nations, the promotion of universal respect for and observance of human
rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest

importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION

OF HUMAN RIGHTS as a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to promote
respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of
territories under their jurisdiction.

Article 1. All human beings are born free and equal in dignity and rights.They are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, jurisdictional or international status
of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of
sovereignty.

Article 3. Everyone has the right to life, liberty and security of person.

Article 4. No one shall be held in slavery or servitude; slavery and the slave
trade shall be prohibited in all their forms.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

Article 6. Everyone has the right to recognition everywhere as a person before

the law.
Article 7. All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and against
any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him
by the constitution or by law.

Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

194
Article 10. Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.

Article 11.
1. Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which
he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.

Article 12. No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against
such interference or attacks.

Article 13. (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.

Article 14. (1) Everyone has the right to seek and to enjoy in other countries
asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes
and principles of the United Nations.

Article 15. (1) Everyone has the right to a nationality.

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

Article 16. (1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and
at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of
the intending spouses.
(3) The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.

Article 17. (1) Everyone has the right to own property alone as well as in
association with others.
(2) No one shall be arbitrarily deprived of his property.

195
Article 18. Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship
and observance.

Article 19. Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.

Article 20. (1) Everyone has the right to freedom of peaceful assembly and
association.
(2) No one may be compelled to belong to an association.

Article 21. (1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his
country.
(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret vote or by equivalent free voting procedures.

Article 22. Everyone, as a member of society, has the right to social security and
is entitled to realization, through national effort and international co-
operation and in accordance with the organization and resources of
each State, of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.

Article 23. (1) Everyone has the right to work, to free choice of employment, to
just and favourable conditions of work and to protection against
unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for
equal work.
(3) Everyone who works has the right to just and favourable
remuneration ensuring for himself and his family an existence worthy
of human dignity, and supplemented, if necessary, by other means of
social protection.
(4) Everyone has the right to form and to join trade unions for the
protection of his interests.

Article 24. Everyone has the right to rest and leisure, including reasonable
limitation of working hours and periodic holidays with pay.

Article 25. (1) Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability,
196
 widowhood, old age or other lack of livelihood in circumstances beyond
his control.
(2) Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy
the same social protection.

Article 26. (1) Everyone has the right to education. Education shall be free, at
least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be
made generally available and higher education shall be equally
accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of
peace.
(3) Parents have a prior right to choose the kind of education that shall
be given to their children.

Article 27. (1) Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement
and its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.

Article 28. Everyone is entitled to a social and international order in which the
rights and freedoms set forth in this Declaration can be fully realized.

Article 29. (1) Everyone has duties to the community in which alone the free and
full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to
the purposes and principles of the United Nations.

Article 30. Nothing in this Declaration may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Preamble

197
The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the
ideal of free human beings enjoying civil and political freedom and freedom from
fear and want can only be achieved if conditions are created whereby everyone
may enjoy his civil and political rights, as well as his economic, social and cultural
rights,

Considering the obligation of States under the Charter of the United Nations to
promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the promotion
and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

PART I
Article 1

1. All people have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.

2. All people may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.

3. The States Parties to the present Covenant, including those having

responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations.
PART II
Article 2

1. Each State Party to the present Covenant undertakes to respect and to

ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,

198
 such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures,

each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions
of the present Covenant, to adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

a. To ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;

b. To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;

c. To ensure that the competent authorities shall enforce such remedies

when granted.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the
ideal of free human beings enjoying freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his economic,
social and cultural rights, as well as his civil and political rights,

Considering the obligation of States under the Charter of the United Nations to
promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the promotion
and observance of the rights recognized in the present Covenant,

199
Agree upon the following articles:

PART I
Article 1

1. All people have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.

2. All people may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.

3. The States Parties to the present Covenant, including those having

responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations.

PART II
Article 2

1. Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in
the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic
rights recognized in the present Covenant to non-nationals.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all economic, social and cultural rights set
forth in the present Covenant.

Article 4

200
The States Parties to the present Covenant recognize that, in the enjoyment of
those rights provided by the State in conformity with the present Covenant, the
State may subject such rights only to such limitations as are determined by law only
in so far as this may be compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any

State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights or freedoms recognized
herein, or at their limitation to a greater extent than is provided for in the
present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights

recognized or existing in any country in virtue of law, conventions,
regulations or custom shall be admitted on the pretext that the present
Covenant does not recognize such rights or that it recognizes them to a
lesser extent.

PART III
Article 6

1. The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work
which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve

the full realization of this right shall include technical and vocational guidance
and training programmes, policies and techniques to achieve steady
economic, social and cultural development and full and productive
employment under conditions safeguarding fundamental political and
economic freedoms to the individual.

GOVERNMENT OF HONGKONG VS OLALIA

Respondent was granted bail while in an extradition case with petitioner Hong Kong
special administrative region. Respondent judge granted said bail under the
following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

201
3. The Department of Justice is given immediate notice and discretion of filing
its own motion for hold departure order before this Court even in extradition
proceeding; and

4. Accused is required to report to the government prosecutors handling this

case or if they so desire to the nearest office, at any time and day of the
week; and if they further desire, manifest before this Court to require that all
the assets of accused, real and personal, be filed with this Court soonest, with
the condition that if the accused flees from his undertaking, said assets be
forfeited in favor of the government and that the corresponding
lien/annotation be noted therein accordingly.

Issue:

• Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to
bail;
• that there is nothing in the Constitution or statutory law providing that a
potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.

Held:

The constitutional provision on bail does not apply to extradition

proceedings.
In Government of United States of America v. Hon. Guillermo G. Purganan, speaking
through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that
the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings,". 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, J., 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 at 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, Art. VIII, 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.

At first glance, the above ruling applies squarely to private respondent’s case.
However, this Court cannot ignore the following trends in international law: (1) the
202
growing importance of the individual person in public international law
who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international
sphere; (3) the corresponding duty of countries to observe these universal
human rights in fulfilling their treaty obligations; and (4) the duty of this
Court to balance the rights of the individual under our fundamental law,
on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine that the subjects of
international law are limited only to states was dramatically eroded towards the
second half of the past century. For one, the Nuremberg and Tokyo trials after
World War II resulted in the unprecedented spectacle of individual defendants for
acts characterized as violations of the laws of war, crimes against peace, and
crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in
the former Yugoslavia. These significant events show that the individual
person is now a valid subject of international law.

The United Nations General Assembly adopted the Universal Declaration of

Human Rights in which the right to life, liberty and all the other
fundamental rights of every person were proclaimed.
While not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international
community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a
prospective deportee, held that under the Constitution, the principles set forth in
that Declaration are part of the law of the land. In 1966, the UN General
Assembly also adopted the International Covenant on Civil and Political Rights which
the Philippines signed and ratified. Fundamental among the rights enshrined therein
are the rights of every person to life, liberty, and due process.

The Philippine authorities are under obligation to make available to every person
under detention such remedies which safeguards their fundamental right to liberty.
These remedies include the right to be admitted to bail. While this Court in
Purganan limited the exercise of the right to bail to criminal proceedings, however,
in light of the various international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a reexamination of this
Court’s ruling in Purganan is in order.

First, we note that the exercise of the State’s power to deprive an

individual of his liberty is not necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such as deportation and quarantine,
have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to

our jurisprudential history. Philippine jurisprudence has not limited the
exercise of the right to bail to criminal proceedings only. This Court has
203
admitted to bail persons who are not involved in criminal proceedings. In
fact, bail has been allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance the obligation of
the Philippines under international conventions to uphold human rights.

In Mejoff v. Director of Prisons and Chirskoff v. Commission of

Immigration, this Court ruled that foreign nationals against whom no
formal criminal charges have been filed may be released on bail pending
the finality of an order of deportation. As previously stated, the Court in Mejoff
relied upon the Universal declaration of Human Rights in sustaining the detainee’s
right to bail.

If bail can be granted in deportation cases, we see no justification why it

should not also be allowed in extradition cases. Likewise, considering that the
Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are
administrative proceedings where the innocence or guilt of the person detained is
not in issue.

The means employed to attain the purpose of extradition is also "the

machinery of criminal law."

Extradition has thus been characterized as the right of a foreign power, created by
treaty, to demand the surrender of one accused or convicted of a crime within its
territorial jurisdiction, and the correlative duty of the other state to surrender him to
the demanding state. It is not a criminal proceeding. Even if the potential
extraditee is a criminal, an extradition proceeding is not by its nature
criminal, for it is not punishment for a crime, even though such
punishment may follow extradition. It is sui generis, tracing its existence wholly
to treaty obligations between different nations. It is not a trial to determine the guilt
or innocence of the potential extraditee. Nor is it a full-blown civil action, but one
that is merely administrative in character. Its object is to prevent the escape of
a person accused or convicted of a crime and to secure his return to the
state from which he fled, for the purpose of trial or punishment.

But while extradition is not a criminal proceeding, it is characterized by

the following: (a) it entails a deprivation of liberty on the part of the
potential extraditee and (b) the means employed to attain the purpose of
extradition is also "the machinery of criminal law." This is shown by Section 6
of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate
arrest and temporary detention of the accused" if such "will best serve the interest
of justice." We further note that Section 20 allows the requesting state "in case of
urgency" to ask for the "provisional arrest of the accused, pending receipt of the
request for extradition;" and that release from provisional arrest "shall not prejudice
re-arrest and extradition of the accused if a request for extradition is received
subsequently."

Obviously, an extradition proceeding, while ostensibly administrative,

bears all earmarks of a criminal process. A potential extraditee may be
204
subjected to arrest, to a prolonged restraint of liberty, and forced to
transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of
time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and
remained incarcerated until December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained for over two (2) years
without having been convicted of any crime. By any standard, such an
extended period of detention is a serious deprivation of his fundamental
right to liberty. In fact, it was this prolonged deprivation of liberty which
prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee,
however, there is no provision prohibiting him or her from filing a motion for bail, a
right to due process under the Constitution.

THE PRINCIPLE OF PACTA SUNT SERVANDA VS CONSTITUTIONAL LAW AND

INTERNATIONAL LAW
The time-honored principle of pacta sunt servanda demands that the Philippines
honor its obligations under the Extradition Treaty it entered into with the Hong Kong
Special Administrative Region. Failure to comply with these obligations is a setback
in our foreign relations and defeats the purpose of extradition. However, it does
not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s rights to life, liberty,
and due process. More so, where these rights are guaranteed, not only by
our Constitution, but also by international conventions, to which the
Philippines is a party. We should not, therefore, deprive an extraditee of his right
to apply for bail, provided that a certain standard for the grant is satisfactorily met.

Clear and convincing evidence" should be used in granting bail in

extradition cases.
An extradition proceeding being sui generis, the standard of proof required in
granting or denying bail can neither be the proof beyond reasonable doubt in
criminal cases nor the standard of proof of preponderance of evidence in civil cases.
While administrative in character, the standard of substantial evidence used in
administrative cases cannot likewise apply given the object of extradition law which
is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate
Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing
evidence" should be used in granting bail in extradition cases. According
to him, this standard should be lower than proof beyond reasonable doubt
but higher than preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a flight risk and
will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to

show that he is not a flight risk. Consequently, this case should be remanded to the

205
trial court to determine whether private respondent may be granted bail on the
basis of "clear and convincing evidence."

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

Nota bene:

a. REPRISAL is a coercive measure short of war, directed by a state

against another, in retaliation for acts of the latter and as means of
obtaining reparation or satisfaction for such acts. Reprisal involves
retaliatory acts which by themselves would be illegal. For example, for
violation of a treaty by a state, the aggrieved state seizes on the high
seas the ships of the offending state.

b. RETORSION is a legal but deliberately unfriendly act directed by a state

against another in retaliation for an unfriendly though legal act to compel
that state to alter its unfriendly conduct. An example of retorsion is
banning exports to the offending state.

c. The DECLARATORY THEORY OF RECOGNITION is a theory according to

which recognition of a state is merely an acknowledgment of the fact of its
existence. In other words, the recognized state already exists and can
exist even without such recognition. For example, when other countries
recognized Bangladesh, Bangladesh already existed as a state even
without such recognition.

d. RECOGNITION OF BELLIGERENCY 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
sizeable 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. For
example, Great Britain recognized a state of belligerency in the United
States during the Civil War,

e. CONTINENTAL SHELF of a coastal state comprises the sea-bed and

subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of 200 nautical miles from the
"baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental shelf does not extend up to that
distance.

f. EXEQUATUR is an authorization from the receiving state admitting the

head of a consular post to the exercise of his functions. For example, if the
Philippines appoints a consul general for New York, he cannot start
206
 performing his functions unless the President of the United States issues
an exequatur to him,

g. The principle of DOUBLE CRIMINALITY is the rule in extradition which

states that for a request to be honored the crime for which extradition is
requested must be a crime in both the requesting state and the state to
which the fugitive has fled. For example, since murder is a crime both in
the Philippines and in Canada, under the Treaty on Extradition between
the Philippines and Canada, the Philippines can request Canada to
extradite a Filipino who has fled to Canada.

h. PROTECTIVE PERSONALITY principle is the principle by which the state

exercise jurisdiction over the acts of an alien even if committed outside its
territory, if such acts are adverse to the interest of the national state.

i. INNOCENT PASSAGE means the right of continuous and expeditious

navigation of a foreign ship through the territorial sea of a state for the
purpose of traversing that sea without entering the internal waters or
calling at a roadstead or port facility outside internal waters, or
proceeding to or from internal waters or a call at such roadstead or port
facility. The passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal state.

j. JUS COGENS is a peremptory norm of general international law

accepted and recognized by the international community as a whole as a
norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character, An example is the prohibition against the use of force.

SUGGESTED ANSWERS TO THE 2009 BAR EXAM QUESTIONS ON PUBLIC

INTERNATIONAL LAW

XII.

William, a private American citizen, a university graduate and frequent

visitor to the Philippines, was inside the U.S. embassy when he got into a
heated argument with a private Filipino citizen. Then, in front of many
shocked witnesses, he killed the person he was arguing with. The police
came, and brought him to the nearest police station. Upon reaching the
station, the police investigator, in halting English, informed William of his
Miranda rights, and assigned him an independent local counsel. William
refused the services of the lawyer, and insisted that he be assisted by a
Filipino lawyer currently based in the U.S. The request was denied, and
the counsel assigned by the police stayed for the duration of the
investigation.

William protested his arrest.

207
[a] He argued that since the incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because the U.S. embassy grounds
are not part of Philippine territory; thus, technically, no crime under
Philippine law was committed. Is William correct? Explain your answer.
(3%)

Ans. No, William is not correct. While Article 22 of the Vienna Convention on
Diplomatic Relations provides that the premises of a diplomatic mission shall be
inviolable, and may not be entered by the police or by any other agent of the
receiving State, except with the consent of the Ambassador or the head of the
mission, it does not alter the fact, however, that such premises are still part of
Philippine territory. The concept of “exterritoriality,” under which diplomatic
premises are deemed to be part of the sovereign territory of the sending
State, has not been adopted in the Vienna Convention. Hence, a crime
committed on or within such premises by a private person like Williams who enjoys
no diplomatic immunity falls within the jurisdiction of Philippine courts.

XIII.

A terrorist group called the Emerald Brigade is based in the State of

Asyaland. The government of Asyaland does not support the terrorist
group, but being a poor country, is powerless to stop it.

The Emerald Brigade launched an attack on the Philippines, firing two

missiles that killed thousands of Filipinos. It then warned that more
attacks were forthcoming. Through diplomatic channels, the Philippines
demanded that Asyaland stop the Emerald Brigade; otherwise, it will do
whatever is necessary to defend itself.

Receiving reliable intelligence reports of another imminent attack by the

Emerald Brigade, and it appearing that Asyaland was incapable of
preventing the assault, the Philippines sent a crack commando team to
Asyaland. The team stayed only for a few hours in Asyaland, succeeded in
killing the leaders and most of the members of the Emerald Brigade, then
immediately returned to the Philippines.

[a] Was the Philippine action justified under the international law principle
of “self-defense”? Explain your answer. (3%)

Ans. Yes, the Philippine action was justified. Article 51 of the U.N. Charter
affirms the inherent right of States to individual or collective self-defence.

The terrorist group Emerald Brigade had already launched actual armed attacks on
the Philippines which killed thousands of Filipinos with a warning that more attacks
were forthcoming. Asyland, on the other hand, had failed to fulfill its obligations,
under international law, to prevent the use of its territory for the staging of terrorist
acts against the Philippines. As such, in the face of another imminent attack by the
Emerald Brigade, and it appearing that Asyland was incapable of preventing the

208
assault, the Philippines was therefore justified in resorting to military action to
protect its own security as an act of self-defence.

[b] As a consequence of the foregoing incident, Asyaland charges the

Philippines with violation of Article 2.4 of the United Nations Charter that
prohibits “the threat or use of force against the territorial integrity or
political independence of any State.” The Philippines counters that its
commando team neither took any territory nor interfered in the political
processes of Asyaland. Which contention is correct? Reasons. (3%)

Ans. The contention of the Philippines is the correct one. State practice and the
U.N. Security Council's actions after 9/11 indicate a trend towards
recognizing that a State that suffers large-scale violence perpetrated by
non-State actors located in another State has a right to use force when (1)
that other State proves unwilling or unable to reduce or eliminate the
source of the violence, (2) the use of force is proportional to the threat
posed by the non-State actor, and (3) the use of force is temporary and
does not result in non-consensual occupation or annexation of territory.

Under UN/A/RES/60/288 (2006), known as the UN global counter-terrorism strategy,

member States shall adopt a plan of action, including a number of measures to
prevent and combat terrorism, in particular by denying terrorists access to the
means to carry out their attacks, to their targets and to the desired impact of their
attacks.

[c] Assume that the commando team captured a member of the Emerald
Brigade and brought him back to the Philippines. The Philippine
Government insists that a special international tribunal should try the
terrorist. On the other hand, the terrorist argues that terrorism is not an
international crime and, therefore, the municipal laws of the Philippines,
which recognize access of the accused to constitutional rights, should
apply. Decide with reasons. (3%)

Ans. Terrorism is an international crime both in peace time and in times of

armed conflicts, and therefore it may be tried by a special international
tribunal. The municipal laws of the Philippines cannot apply because the terrorist
acts in question are transnational in nature; that is, not limited to the territory of the
Philippines and they do not fall under the extraterritorial criminal jurisdiction
of the Philippines under Article 2 of the Revised Penal Code.

When committed during peacetime, international terrorism may be prosecuted

under the different international conventions on the prevention, suppression and
punishment of terrorism, and when committed during an armed conflict, it may be
prosecuted as a distinct category of war crimes. International law indisputably bans
terrorism in time of armed conflict. Article 33(1) of the Fourth Geneva Convention of
1949 prohibits “all measures of terrorism against civilians.” A similar provision is
contained in the Second Additional Protocol of 1977. Article 4(2)(d) prohibits “acts
of terrorism” against all persons who do not take a direct part or have ceased to
take part in hostilities.
209
XIV.

The Philippine Government is negotiating a new security treaty with the

United States which could involve engagement in joint military operations
of the two countries’ armed forces. A loose organization of Filipinos, the
Kabataan at Matatandang Makabansa (KMM) wrote the Department of
Foreign Affairs (DFA) and the Department of National Defense (DND)
demanding disclosure of the details of the negotiations, as well as copies
of the minutes of the meetings. The DFA and the DND refused, contending
that premature disclosure of the offers and counter-offers between the
parties could jeopardize on-going negotiations with another country. KMM
filed suit to compel disclosure of the negotiation details, and be granted
access to the records of the meetings, invoking the constitutional right of
the people to information on matters of public concern.

[a] Decide with reasons. (3%)

Ans. The suit filed by KMM should be dismissed. It is true that the details of the
treaty negotiation, including the offers and counter-offers between the Philippine
Government and United States, are matters of public concern. However, it is also
well-established in jurisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public
concern or public interest, are recognized as privileged in nature.

As held in the recent case of Akbayan vs. Aquino (G.R. No. 170516, July 16, 2008),
the privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Supreme
Court in Chavez v. PCGG (360 Phil. 133, 764 [1998]) held that “information on
inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the
sake of national interest.” Even earlier, the same privilege was upheld in
People’s Movement for Press Freedom (PMPF) v. Manglapus (G.R. No. 84642,
September 13, 1988) wherein the Supreme Court stressed that “secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.”

[b] Will your answer be the same if the information sought by KMM pertains to
contracts entered into by the Government in its proprietary or commercial capacity?
Why or why not? (3%)

Ans. No, the answer will be different. Information pertaining to contracts

entered into by the Government in its proprietary or commercial capacity
are not covered by the doctrine of executive privilege. These information
are matters of public concern to which the people have the right to
information under Section 7 of the Bill of Rights. Under Section 7, citizens
shall be afforded access to official records, and to documents, and papers
pertaining to government transactions. Moreover, Section 28 of the Declaration of

210
Principles directs the State to adopt and implement a policy of full public disclosure
of all its transactions involving public interest.

1. What is exterritoriality?

- It is the fiction in international law by virtue of which foreign

persons and their things are exempted from the jurisdiction of the
State on the theory that they form an extension of the territory of
their own State.

2. What is extra-territoriality?

- It is the exemption of foreign persons from laws and jurisdiction of a

State in which they presently reside, an exemption which can only
exist by virtue of a treaty stipulation to this effect.

3. What is imperium?

- The right of the State to pass or enact its own laws and employ force
to secure obedience, maintain peace and order within its territorial
limits, defend the State against foreign invasion, and do any other
act of governance over its people and territory.

4. What is dominium?

- It refers to the independent proprietary right of possession, use,

conservation, disposition or sale, and control by the State over its
territorial lands.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

II. FUNDAMENTAL RIGHTS OF STATES

211
Intervention
Under the basic principles of international law:

1. The principle that states shall refrain in their international

relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations;

2. The duty not to intervene in matters within the domestic

jurisdiction of any state, in accordance with the Charter;

3. The principle of equal rights and self-determination of peoples;

4. The principle of sovereign equality of states; and

Sovereignty

- Independence from outside control; the Montivedeo Convention expresses

this in positive terms as including the capacity to enter into relations with
other States; this latter element of sovereignty, however, is dependent on
recognition; an entity may in fact possess all elements of a state but if one or
more states do not extend recognition to it, the entity would not be able to
establish relations with those states.

Concept of res nullius

- The definition of res nullius is "A thing which has no owner or A thing which
has been abandoned by its owner is as much res nullius as if it had never
belonged to anyone."
- The Philippines bases its claims of sovereignty over the Spratlys on the issues
of res nullius and geography. When Japan renounced its sovereignty over the
islands in the San Francisco Treaty in 1951, the islands became res nullius
and available for annexation.
- Two modes of territorial acquisition in International Law; namely, occupation
and prescription:
• Occupation is an original mode of territorial acquisition, and is effected
through possession and administration of the territory by or in behalf
of the acquiring State. The prime object of settlement by occupation is
the incorporation of unappropriated territory into the national domain
of the acquiring State. Only such territory as is not within the
dominion of any State may be the object of occupation. In
other words, the territory must be res nullius or terra nullius.
The term res nullius, as has been interpreted, does not require
that the territory be uninhabited, but that it be not already
occupied by a people or State whose political organization is
such as to cause its prior rights of occupancy to be recognized.
• We must concede that in the past European powers did not recognize
the title of settled peoples whose civilization was allegedly below the

212
 European standard. The emergence of non-European powers, and the
growing importance of new nations in the Afro-Asian bloc, have eroded
away this concept. At any rate, insofar as the British Government is
concerned, it is precluded from claiming that the Sultan of Sulu had a
title or a political organization below the European standard. All we
need to do is to refer back to the text, of Lord Granville's
correspondence.

Outer space – outer space begins where sovereignty over air space ends
- Outer space, wherever that might be, and celestial bodies, are not
susceptible to appropriation by any state.
- Under the 1967 Treaty on the exploration and use of outer space
• Exploration and use of the moon and other celestial bodies are for the
benefit and interest of all countries
• Outer space and the moon shall be free for exploration and use by all
states
• Outer space and the moon not subject to national appropriation
• Parties to treaty agree not to place in orbit around earth any objects
carrying nuclear weapons or any other kinds of weapons of mass
destruction install such on celestial bodies or station such weapons in
outer space in any other manner
• Moon and other celestial bodies shall be used by all states for peaceful
purposes.
• Astronauts are envoys of mankind in outer space and shall render
them assistance in every accident, distress, or emergency landing on
the territory of another state party or on the high seas. They shall be
safely and promptly returned to the state of registry of their space
vehicle.

Jurisdiction
- The authority to affect legal interests. Corresponding to the powers of the
government, jurisdiction can be
1. Jurisdiction to prescribe norms of conduct (legislative jurisdiction)
2. Jurisdiction to enforce the norms prescribed (executive jurisdiction)
3. Jurisdiction to adjudicate (judicial jurisdiction)

Diplomatic immunity

CALLADO VS IRRI

Callado was terminated by IRRI. Filed charges with the NLRC. IRRI set defense of
immunity. Labor arbiter said no immunity in labor case.

Held:

• IRRI's immunity from suit is undisputed.

Presidential Decree No. 1620, Article 3 provides:

213
 Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any
penal, civil and administrative proceedings, except insofar as that immunity has
been expressly waived by the Director-General of the Institute or his authorized
representatives.
• IRRI enjoy(s) immunities accorded to international organizations, which
determination has been held to be a political question conclusive upon the
Courts in order not to embarass a political department of Government.
• in WHO v. Hon. Benjamin Aquino:
- It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, and
where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government . . . or other officer acting under his direction. Hence, in
adherence to the settled principle that courts may not so exercise their
jurisdiction . . . as to embarass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that in such cases the
judicial department of (this) government follows the action of the political
branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.
- Further, we held that "(t)he raison d'etre for these immunities is the
assurance of unimpeded performance of their functions by the
agencies concerned.
- The grant of immunity from local jurisdiction to . . . and IRRI is clearly
necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the
host country in their internal workings. The exercise of jurisdiction
by the Department of Labor in these instances would defeat the very
purpose of immunity, which is to shield the affairs of international
organizations, in accordance with international practice, from political
pressure or control by the host country to the prejudice of member States of
the organization, and to ensure the unhampered the performance of their
functions.

CONSULS AND CONSULAR IMMUNITIES

Consuls are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas.
The head of a consular post may be admitted through an authorization letter from
the receiving state termed an exequatur. He may be declared persona non grata by
the receiving state, and in such event would be recalled or his functions with the
consular post terminated.

Under the Vienna Convention on Consular relations, pertinent provisions relating to

their functions are the following:

214
Art. 34 FREEDOM OF MOVEMENT (subject to laws and regulations, movement
and travel in the territory of the receiving State by the members of the
consular post)
Art. 35 FREEDOM OF COMMUNICAITON
Art. 36 COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING
STATE
Art. 41 PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
 Not be liable to arrest or detention pending trial except of a grave
crime
Art. 42 NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
Receiving state shall notify head of the consular post
Art. 43 IMMUNITY FROM JURISDICTION
 Consular officers and consular employees shall not be amenable to
the jurisdiction of judicial or administrative authorities of the
receiving state with respect to acts performed in the exercise
of consular functions
 First paragraph shall not apply with respect to a civil action either:
• Arising out of a contract concluded by the consular officer or
consular employee in which he did not contract
expressly or impliedly as an agent of the sending
state;
• By a third party for damages arising from an accident
in the receiving state, caused by a vehicle, vessel, or
aircraft.
Art. 44 LIABILITY TO GIVE EVIDENCE
Art. 45 WAIVER OF PRIVILEGES AND IMMUNITIES
 Sending state may waive, with regard to the consular post, any of
the privileges and immunities provided for in Art. 41, 43, 44

Case concerning US Diplomatic and Consular Staff in Teheran

• Iran did not break off diplomatic relations with the US government and in no
time declared the members of the consular staff persona non grata. They did not
employ remedies in ending the crisis. It allowed the group of militants to attack
and occupy the US Embassy by force and held the diplomatic and consular staff
hostage;
• The Iranian authorities' decision to continue the subjection of the Embassy to
occupation, and of its staff to detention as hostages, gave rise to repeated and
multiple breaches of Iran's treaty obligations, additional to those already
committed at the time of the seizure of the Emtbassy (1961 Convention: Arts.
22,24,25,26,27 and 29; 1963 Convention: inter alia, Art. 33; 1955 Tkaty, Art. iI
(4)).

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx

Diplomatic Immunity (2000)

215
No XX -A foreign ambassador to the Philippines leased a vacation house in Tagaytay
for his personal use. For some reason, he failed to pay rentals for more than one
year. The lessor filed an action for the recovery of his property in court.

a) Can the foreign ambassador invoke his diplomatic immunity to resist the lessor's
action?

(3%)

b) The lessor gets hold of evidence that the ambassador is about to return to his
home country. Can the lessor ask the court to stop the ambassador's departure
from the Philippines?

(2%)

SUGGESTED ANSWER:

a) No, the foreign ambassador cannot invoke his diplomatic immunity to resist the
action, since he is not using the house in Tagaytay City for the purposes of his
mission but merely for vacation. Under Article 3(l)(a) of the Vienna Convention on
Diplomatic Relations, a diplomatic agent has no immunity in case of a real action
relating to private immovable property situated in the territory of the receiving
State unless he holds it on behalf of the sending State for purposes of the mission.

b) No, the lessor cannot ask the court to stop the departure of the ambassador from
the Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall
not be liable to any form of arrest or detention. (per Dondee) The grounds cited by
YZ is tenable on the basis that the precept that a State cannot be sued in the courts
of a foreign state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head
of state, or his representative, but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit are those of a foreign government done by
its foreign agent, although not necessarily a diplomatic personage, but acting in his
official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed
to be, in effect, suing the state itself. (KHOSROW MINUCHER vs. COURT OF
APPEALS, G.R. No. 142396. February 11, 2003)

Diplomatic Immunity (2001)

No XX - Dr. Velen, an official of the World Health Organization (WHO) assigned in

the Philippines, arrived at the Ninoy Aquino International Airport with his personal
effects contained in twelve crates as unaccompanied baggage. As such, his
personal effects were allowed free entry from duties and taxes, and were directly
stored at Arshaine Corporation's warehouse at Makati, pending Dr. Velen's
216
relocation to his permanent quarters. At the instance of police authorities, the
Regional Trial Court (RTC) of Makati issued a warrant for the search and seizure of
Dr. Velen's personal effects in view of an alleged violation of the Tariff and Custom's
Code. According to the police, the crates contained contraband items. Upon protest
of WHO officials, the Secretary of Foreign Affairs formally advised the RTC as to Dr.
Velen's immunity. The Solicitor General likewise joined Dr. Velen's plea of immunity
and motion to quash the search warrant. The RTC denied the motion. Is the denial
of the motion to quash proper? (5%)

SUGGESTED ANSWER:

The denial of the motion is improper. As held in World Health Organization vs.
Aquino, 48 SCRA 242 (1972). as an official of the World Health Organization, Dr.
Velen enjoyed diplomatic immunity and this included exemption from duties and
taxes. Since diplomatic immunity involves a political question, where a plea of
diplomatic immunity is recognized and affirmed by the Executive Department, it is
the duty of the court to accept the claim of immunity

EXTRADITION

WRIGHT VS CA

Australia and the Government of the Philippines in the suppression of crime,

entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was
ratified in accordance with the provisions of Section 21, Article VII of the 1987
Constitution in a Resolution adopted by the Senate on September 10, 1990 and
became effective 30 days after both States notified each other in writing that the
respective requirements for the entry into force of the Treaty have been complied
with. Petitioner contends that the provision of the Treaty giving retroactive effect to
the extradition treaty amounts to an ex post facto law which violates Section 21 of
Article VI of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

HELD: Applying the constitutional principle, the Court has held that the
prohibition applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no absolutely no merit
in petitioner's contention that the ruling of the lower court sustaining the Treaty's
retroactive application with respect to offenses committed prior to the Treaty's
coming into force and effect, violates the Constitutional prohibition against ex post
facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a
piece of criminal legislation nor a criminal procedural statute. It merely
provides for the extradition of persons wanted for prosecution of an
offense or a crime which offense or crime was already committed or
consummated at the time the treaty was ratified.

III. LAW OF INTERNATIONAL OBLIGATIONS

217
PACTA SUNT SERVANDA VS REBUS SIC STANTIBUS

Pacta sunt servanda

• (Latin for "agreements must be kept"), is a brocard, a basic principle of civil
law and of international law.
• In its most common sense, the principle refers to private contracts,
stressing that contained clauses are law between the parties, and
implies that non-fulfilment of respective obligations is a breach of
the pact. The general principle of correct behaviour in commercial praxis —
and implies the bona fide — is a requirement for the efficacy of the whole
system, so the eventual disorder is sometimes punished by the law of some
systems even without any direct penalty incurred by any of the parties.
• With reference to international agreements, "every treaty in force is
binding upon the parties to it and must be performed by them in
good faith." Pacta sunt servanda is based on good faith. This entitles states
to require that obligations be respected and to rely upon the obligations
being respected. This good faith basis of treaties implies that a party
to the treaty cannot invoke provisions of its municipal (domestic)
law as justification for a failure to perform.
• The only limit to pacta sunt servanda is the peremptory norms of general
international law, called jus cogens (compelling law). The legal principle
clausula rebus sic stantibus, part of customary international law, also
allows for treaty obligations to be unfulfilled due to a compelling change in
circumstances.

Rebus sic stantibus

• In public international law, clausula rebus sic stantibus (Latin for "things thus
standing") is the legal doctrine allowing for treaties to become inapplicable
because of a fundamental change of circumstances. It is essentially an
"escape clause" that makes an exception to the general rule of pacta sunt
servanda (promises must be kept).
• Because the doctrine poses a risk to the security of treaties as its scope is
relatively unconfined, it requires strict regulations as to the conditions in which it
may be invoked.
• The doctrine is part of customary international law, but is also provided for in
the 1969 Vienna Convention on the Law of Treaties under Article 62
(Fundamental Change of Circumstance), although the doctrine is never
mentioned by name. Article 62 provides the only two justifications of the
invocation of rebus sic stantibus: first, that the circumstances existing at
the time of the conclusion of the treaty were indeed objectively
essential to the obligations of treaty (sub-paragraph A) and the
instance wherein the change of circumstances has had a radical effect
on the obligations of the treaty (sub-paragraph B).
• If the parties to a treaty had contemplated for the occurrence of the
changed circumstance the doctrine does not apply and the provision
remains in effect. Clausula rebus sic stantibus only relates to changed

218
 circumstances that were never contemplated by the parties. This principle
is clarified in the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1973).
• Although it is clear that a fundamental change of circumstances might justify
terminating or modifying a treaty, unilateral denunciation of a treaty is
prohibited; a party does not have the right to denounce a treaty
unilaterally.

IV. PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES

Article 33 The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their
own choice.

The Security Council shall, when it deems necessary, call upon the
parties to settle their dispute by such means.

Article 34 The Security Council may investigate any dispute, or any

situation which might lead to international friction or give rise
to a dispute, in order to determine whether the continuance of the
dispute or situation is likely to endanger the maintenance of
international peace and security.

Article 35 Any Member of the United Nations may bring any dispute, or
any situation of the nature referred to in Article 34, to the
attention of the Security Council or of the General Assembly.

A state which is not a Member of the United Nations may bring

to the attention of the Security Council or of the General
Assembly any dispute to which it is a party if it accepts in
advance, for the purposes of the dispute, the obligations of pacific
settlement provided in the present Charter.

The proceedings of the General Assembly in respect of matters

brought to its attention under this Article will be subject to the
provisions of Articles 11 and 12.

Article 36 The Security Council may, at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment.

The Security Council should take into consideration any

procedures for the settlement of the dispute which have
already been adopted by the parties.

In making recommendations under this Article the Security Council

should also take into consideration that legal disputes should as a
219
 general rule be referred by the parties to the International Court of
Justice in accordance with the provisions of the Statute of the Court.

Article 37 Should the parties to a dispute of the nature referred to in Article 33

fail to settle it by the means indicated in that Article, they shall refer it
to the Security Council.

If the Security Council deems that the continuance of the

dispute is in fact likely to endanger the maintenance of
international peace and security, it shall decide whether to
take action under Article 36 or to recommend such terms of
settlement as it may consider appropriate.

Article 38 Without prejudice to the provisions of Articles 33 to 37, the Security

Council may, if all the parties to any dispute so request, make
recommendations to the parties with a view to a pacific
settlement of the dispute.

V. INTERNATIONAL HUMANITARIAN LAW

Jus ad bellum

The rules of jus ad bellum are addressed, first and foremost, to heads of state. Since
political leaders are the ones who inaugurate wars, setting their armed forces in
motion, they are to be held accountable to jus ad bellum principles. If they fail in
that responsibility, then they commit war crimes. In the language of the Nuremberg
prosecutors, aggressive leaders who launch unjust wars commit “crimes against
peace.” What constitutes a just or unjust resort to armed force is disclosed to us by
the rules of jus ad bellum. Just war theory contends that, for any resort to war to be
justified, a political community, or state, must fulfil each and every one of the
following six requirements:

1. Just cause

This is clearly the most important rule; it sets the tone for everything which follows.
A state may launch a war only for the right reason. The just causes most frequently
mentioned include: self-defence from external attack; the defence of others from
such; the protection of innocents from brutal, aggressive regimes; and punishment
for a grievous wrongdoing which remains uncorrected. Vitoria suggested that all the
just causes be subsumed under the one category of “a wrong received.” Walzer,
and most modern just war theorists, speak of the one just cause for resorting to war
being the resistance of aggression. Aggression is the use of armed force in violation
of someone else's basic rights.

The basic rights of two kinds of entity are involved here: those of states; and those
of their individual citizens. International law affirms that states have many rights,
notably those to political sovereignty and territorial integrity. It thus affirms that
aggression involves the use of armed forces—armies, navies, air forces, marines,
missiles—in violation of these rights. Classic cases would be Nazi Germany into
220
Poland in 1939, and Iraq into Kuwait in 1990, wherein the aggressor used its armed
forces to invade the territory of the victim, overthrow its government and establish
a new regime in its place. Crucially, the commission of aggression causes the
aggressor to forfeit its own state rights, thereby permitting violent resistance. An
aggressor has no right not to be warred against in defence; indeed, it has the duty
to stop its rights-violating aggression.

But why do states have rights? The only respectable answer seems to be that they
need these rights to protect their people and to help provide them with the objects
of their human rights. As John Locke, and the U.S. Founding Fathers, declared:
governments are instituted among people to realize the basic rights of those
people. If governments do so, they are legitimate; if not, they have neither right nor
reason to exist. This is vital: from the moral point of view, only legitimate
governments have rights, including those to go to war. We need a theory of
legitimate governance to ground just war theory, and Aquinas perhaps saw this
more clearly than any classical member of the tradition. This connection to
legitimacy is consistent with the perspective on war offered so far: war, at its heart,
is a violent clash over how a territory and its people are to be governed.

Based on international law (see Roth), it seems like there are three basic criteria for
a legitimate government. If these conditions are met, the state in question has
rights to govern and to be left in peace. They are as follows. First, the state is
recognized as legitimate by its own people and by the international community.
There is an uncoerced general peace and order within that society, and the state is
not shunned as a pariah by the rest of the world. Second, the state avoids violating
the rights of other legitimate states. In particular, legitimate governments don't
commit aggression against other societies. Finally, legitimate states make every
reasonable effort to satisfy the human rights of their own citizens, notably those to
life, liberty and subsistence. States failing any of these criteria have no right to
govern or to go to war. We can speak of states satisfying these criteria as
legitimate, or “minimally just,” political communities.

Why do we need to talk about these rights? First, to give state rights moral
legitimacy and to avoid fetishizing state rights for their own sake. Second, to
describe what is wrong about aggression and why it justifies war in response.
Aggression is so serious because it involves the infliction of physical force in
violation of the most elemental entitlements people and their communities have: to
survive; to be physically secure; to have enough resources to subsist at all; to live in
peace; and to choose for themselves their own lives and societies. Aggression thus
attacks the very spine of human civilization itself. This is what makes it permissible
to resist with means as severe as war, provided the other jus ad bellum criteria are
also met. Third, talk of legitimacy is essential for explaining justice in a civil war,
wherein there isn't classical, cross-border aggression between competing countries
but, rather, a vicious fight over the one state between rival communities within a
formerly united society. The key to discerning morality in such cases revolves
around the idea of legitimacy: which, if any, side has minimal justice? Which side is
defending—or is seeking to establish—a legitimate political structure in our three-
fold sense? That's the side which it is permissible to: a) be part of; or b) if you're an
outsider, to support.
221
How does this conception of just cause impact on the issue of armed humanitarian
intervention? This is when a state does not commit cross-border aggression but, for
whatever reason, turns savagely against its own people, deploying armed force in a
series of massacres against large numbers of its own citizens. Such events
happened in Cambodia and Uganda in the 1970s, Rwanda in 1994, Serbia/Kosovo in
1998-9 and in Sudan/Darfur from 2004 to the present. Our definitions allow us to
say it's permissible to intervene on behalf of the victims, and to attack with
defensive force the rogue regime meting out such death and destruction. Why?
There's no logical requirement that aggression can only be committed across
borders. Aggression is the use of armed force in violation of someone else's basic
rights. That “someone else” might be: a) another person (violent crime); b) another
state (international or “external” aggression); or c) many other people within one's
own community (domestic or “internal” aggression). The commission of aggression,
in any of these forms, causes the aggressor to forfeit its rights. The aggressor has
no right not to be resisted with defensive force; indeed, the aggressor has the duty
to stop and submit itself to punishment. If the aggressor doesn't stop, it is entirely
permissible for its victims to resort to force to protect themselves—and for anyone
else to do likewise in aid of the victims. Usually, in humanitarian intervention,
armed aid from the international community is essential for an effective resistance
against the aggression, since domestic populations are at a huge disadvantage, and
are massively vulnerable, to the violence of their own state.

Terrorists can commit aggression too. There's nothing to the concept which
excludes this: they, too, can deploy armed force in violation of someone else's basic
rights. When they do so, they forfeit any right not to suffer the consequences of
receiving defensive force in response. Indeed, terrorists almost always commit
aggression when they act, since terrorism is precisely the use of random violence—
especially killing force—against civilians, with the intent of spreading fear
throughout a population, hoping this fear will advance a political objective. On 9/11,
the al-Qaeda terrorist group clearly used armed force, both to gain control of the
planes and then again when using the planes as missiles against the targets in The
Pentagon and The World Trade Center. This use of armed force was in violation of
America's state rights to political sovereignty and territorial integrity, and to all
those people's human rights to life and liberty. The terrorist strikes on 9/11 were
aggression—defiantly so, deliberately modelled after Pearl Harbor. As such, they
justified the responding attack on the Taliban regime in Afghanistan. The Taliban
had sponsored and enabled al-Qaeda's attack, by providing resources, personnel
and a safe haven to the terrorist group.

An important issue in just cause is whether, to be justified in going to war, one must
wait for the aggression actually to happen, or whether in some instances it is
permissible to launch a pre-emptive strike against anticipated aggression. The
tradition is severely split on this issue. Vitoria said you must wait, since it would be
absurd to “punish someone for an offense they have yet to commit.” Others, like
Walzer, strive to define the exceptional criteria, stressing: the seriousness of the
anticipated aggression; the kind and quality of evidence required; the speed with
which one must decide; and the issue of fairness and the duty to protect one's
people. If one knows a terrible attack is coming soon, one owes it to one's people to
222
shift from defense to offense. The best defense, as they say, is a good offense. Why
let the aggressor have the upper hand of the first strike? But that's the very issue:
can you attack first and not, thereby, yourself become the aggressor? Can striking
first still be considered an act of defence from aggression? International law, for its
part, sweepingly forbids pre-emptive strikes unless they are clearly authorized in
advance by the UN Security Council. These issues, of course, were highlighted in the
run-up to the 2003 U.S.-led pre-emptive strike on Iraq. The U.S. still maintains, in its
National Security Strategy, the right to strike first as part of its war on terror. Many
other countries find this extremely controversial.

2. Right intention.

A state must intend to fight the war only for the sake of its just cause. Having the
right reason for launching a war is not enough: the actual motivation behind the
resort to war must also be morally appropriate. Ulterior motives, such as a power or
land grab, or irrational motives, such as revenge or ethnic hatred, are ruled out. The
only right intention allowed is to see the just cause for resorting to war secured and
consolidated. If another intention crowds in, moral corruption sets in. International
law does not include this rule, probably because of the evidentiary difficulties
involved in determining a state's intent.

3. Proper authority and public declaration.

A state may go to war only if the decision has been made by the appropriate
authorities, according to the proper process, and made public, notably to its own
citizens and to the enemy state(s). The “appropriate authority” is usually specified
in that country's constitution. States failing the requirements of minimal justice lack
the legitimacy to go to war.

4. Last Resort.

A state may resort to war only if it has exhausted all plausible, peaceful alternatives
to resolving the conflict in question, in particular diplomatic negotiation. One wants
to make sure something as momentous and serious as war is declared only when it
seems the last practical and reasonable shot at effectively resisting aggression.

5. Probability of Success.

A state may not resort to war if it can foresee that doing so will have no measurable
impact on the situation. The aim here is to block mass violence which is going to be
futile. International law does not include this requirement, as it is seen as biased
against small, weaker states.

6. Proportionality.

A state must, prior to initiating a war, weigh the universal goods expected to result
from it, such as securing the just cause, against the universal evils expected to
result, notably casualties. Only if the benefits are proportional to, or “worth”, the
costs may the war action proceed. (The universal must be stressed, since often in
223
war states only tally their own expected benefits and costs, radically discounting
those accruing to the enemy and to any innocent third parties.)

Just war theory insists all six criteria must each be fulfilled for a particular
declaration of war to be justified: it's all or no justification, so to speak. Just war
theory is thus quite demanding, as of course it should be, given the gravity of its
subject matter. It is important to note that the first three of these six rules are what
we might call deontological requirements, otherwise known as duty-based
requirements or first-principle requirements. For a war to be just, some core duty
must be violated: in this case, the duty not to commit aggression. A war in
punishment of this violated duty must itself respect further duties: it must be
appropriately motivated, and must be publicly declared by (only) the proper
authority for doing so. The next three requirements are consequentialist: given that
these first principle requirements have been met, we must also consider the
expected consequences of launching a war. Thus, just war theory attempts to
provide a common sensical combination of both deontology and consequentialism
as applied to the issue of war.

Jus in bello

Jus in bello refers to justice in war, to right conduct in the midst of battle.
Responsibility for state adherence to jus in bello norms falls primarily on the
shoulders of those military commanders, officers and soldiers who formulate and
execute the war policy of a particular state. They are to be held responsible for any
breach of the principles which follow below. Such accountability may involve being
put on trial for war crimes, whether by one's own national military justice system or
perhaps by the newly-formed International Criminal Court (created by the 1998
Treaty of Rome).

We need to distinguish between external and internal jus in bello. External, or

traditional, jus in bello concerns the rules a state should observe regarding the
enemy and its armed forces. Internal jus in bello concerns the rules a state must
follow in connection with its own people as it fights war against an external enemy.

There are several rules of external jus in bello:

1. Obey all international laws on weapons prohibition.

Chemical and biological weapons, in particular, are forbidden by many treaties.
Nuclear weapons aren't so clearly prohibited but it seems fair to say a huge taboo
attaches to such weapons and any use of them would be greeted with incredible
hostility by the international community.

2. Discrimination and Non-Combatant Immunity.

Soldiers are only entitled to use their (non-prohibited) weapons to target those who
are, in Walzer's words, “engaged in harm.” Thus, when they take aim, soldiers must
discriminate between the civilian population, which is morally immune from direct
and intentional attack, and those legitimate military, political and industrial targets
involved in rights-violating harm. While some collateral civilian casualties are
224
excusable, it is wrong to take deliberate aim at civilian targets. An example would
be saturation bombing of residential areas. (It is worth noting that almost all wars
since 1900 have featured larger civilian, than military, casualties. Perhaps this is
one reason why this rule is the most frequently and stridently codified rule in all the
laws of armed conflict, as international law seeks to protect unarmed civilians as
best it can.)

3. Proportionality.

Soldiers may only use force proportional to the end they seek. They must restrain
their force to that amount appropriate to achieving their aim or target. Weapons of
mass destruction, for example, are usually seen as being out of proportion to
legitimate military ends.

4. Benevolent quarantine for prisoners of war (POWs).

If enemy soldiers surrender and become captives, they cease being lethal threats to
basic rights. They are no longer “engaged in harm.” Thus it is wrong to target them
with death, starvation, rape, torture, medical experimentation, and so on. They are
to be provided, as The Geneva Conventions spell out, with benevolent—not
malevolent—quarantine away from battle zones and until the war ends, when they
should be exchanged for one's own POWs. Do terrorists deserve such protection,
too? Great controversy surrounds the detainment and aggressive questioning of
terrorist suspects held by the U.S. at jails in Cuba, Iraq and Pakistan in the name of
the war on terror.

5. No Means Mala in Se. Soldiers may not use weapons or methods which
are “evil in themselves.”

These include: mass rape campaigns; genocide or ethnic cleansing; using poison or
treachery (like disguising soldiers to look like the Red Cross); forcing captured
soldiers to fight against their own side; and using weapons whose effects cannot be
controlled, like biological agents.

6. No reprisals.

A reprisal is when country A violates jus in bello in war with country B. Country B
then retaliates with its own violation of jus in bello, seeking to chasten A into
obeying the rules. There are strong moral and evidentiary reasons to believe that
reprisals don't work, and they instead serve to escalate death and make the
destruction of war increasingly indiscriminate. Winning well is the best revenge.

Internal jus in bello essentially boils down to the need for a state, even though it's
involved in a war, nevertheless to still respect the human rights of its own citizens
as best it can during the crisis. The following issues arise: is it just to impose
conscription, or press censorship? Can one curtail traditional civil liberties, and due
process protections, for perceived gains in national security? Should elections be
cancelled or post-poned? May soldiers disobey orders, e.g. refuse to fight in wars
they believe unjust? A comprehensive theory of wartime justice must include
225
consideration of them, and not merely focus on what one may do to the enemy. For
some of the worst atrocities in wartime have occurred within, and not between,
national borders. Some states, historically, have used the cloak of war with foreign
powers to engage in massive internal human rights violations, usually against some
disfavoured group. Other states, which are otherwise decent, panic amidst the
wartime situation and impose emergency legislation which turns out to have been
complete overkill, and which they later regret and view as the product of fear rather
than reason.

Jus post bellum

Jus post bellum refers to justice during the third and final stage of war: that of war
termination. It seeks to regulate the ending of wars, and to ease the transition from
war back to peace. There is little international law here—save occupation law and
perhaps the human rights treaties—and so we must turn to the moral resources of
just war theory. But even here the theory has not dealt with jus post bellum to the
degree it should. There is a newness, unsettledness and controversy attaching to
this important topic. To focus our thoughts, consider the following proposed
principles for jus post bellum:

1. Proportionality and Publicity.

The peace settlement should be measured and reasonable, as well as publicly

proclaimed. To make a settlement serve as an instrument of revenge is to make a
volatile bed one may be forced to sleep in later. In general, this rules out insistence
on unconditional surrender.

2. Rights Vindication.

The settlement should secure those basic rights whose violation triggered the
justified war. The relevant rights include human rights to life and liberty and
community entitlements to territory and sovereignty. This is the main substantive
goal of any decent settlement, ensuring that the war will actually have an improving
affect. Respect for rights, after all, is a foundation of civilization, whether national or
international. Vindicating rights, not vindictive revenge, is the order of the day.

3. Discrimination.

Distinction needs to be made between the leaders, the soldiers, and the civilians in
the defeated country one is negotiating with. Civilians are entitled to reasonable
immunity from punitive post-war measures. This rules out sweeping socio-economic
sanctions as part of post-war punishment.

4. Punishment #1.

When the defeated country has been a blatant, rights-violating aggressor,

proportionate punishment must be meted out. The leaders of the regime, in
particular, should face fair and public international trials for war crimes.

226
5. Punishment #2. Soldiers also commit war crimes. Justice after war requires
that such soldiers, from all sides to the conflict, likewise be held accountable to
investigation and possible trial.

6. Compensation.

Financial restitution may be mandated, subject to both proportionality and

discrimination. A post-war poll tax on civilians is generally impermissible, and there
needs to be enough resources left so that the defeated country can begin its own
reconstruction. To beggar thy neighbor is to pick future fights.

7. Rehabilitation.

The post-war environment provides a promising opportunity to reform decrepit

institutions in an aggressor regime. Such reforms are permissible but they must be
proportional to the degree of depravity in the regime. They may involve:
demilitarization and disarmament; police and judicial re-training; human rights
education; and even deep structural transformation towards a minimally just society
governed by a legitimate regime. This is, obviously, the most controversial aspect of
jus post bellum.

The terms of a just peace should satisfy all these requirements. There needs, in
short, to be an ethical “exit strategy” from war, and it deserves at least as much
thought and effort as the purely military exit strategy so much on the minds of
policy planners and commanding officers.

Any serious defection, by any participant, from these principles of just war
settlement should be seen as a violation of the rules of just war termination, and so
should be punished. At the least, violation of such principles mandates a new round
of diplomatic negotiations—even binding international arbitration—between the
relevant parties to the dispute. At the very most, such violation may give the
aggrieved party a just cause—but no more than a just cause—for resuming
hostilities. Full recourse to the resumption of hostilities may be made only if all the
other traditional criteria of jus ad bellum—proportionality, last resort, etc.—are
satisfied in addition to just cause.

Perhaps a few additional thoughts on coercive regime change should here be

added, in light of controversial recent events, especially in Afghanistan and Iraq.
Can coercive regime change ever be justified, or is it essentially an act of
imperialism? In my view, forcible post-war regime change can be permissible
provided: 1) the war itself was just and conducted properly; 2) the target regime
was illegitimate, thus forfeiting its state rights; 3) the goal of the reconstruction is a
minimally just regime; and 4) respect for jus in bello and human rights is integral to
the transformation process itself. The permission is then granted because the
transformation: 1) violates neither state nor human rights; 2) its expected
consequences are very desirable, namely, satisfied human rights for the local
population and increased international peace and security for everyone; and 3) the
post-war moment is especially promising regarding the possibilities for reform. And
the transformation will be successful when there's: 1) a stable new regime; 2) run
227
entirely by locals; which is 3) minimally just. There is extensive historical evidence
that this kind of success probably takes from 8 to 12 years to achieve (essentially, a
decade). Note that successful, rights-respecting coercive regime change can be
done, contrary to some pessimistic views; it was actually done in Germany and
Japan from 1945-55, and so it is neither conceptually nor empirically impossible. It's
very difficult, to be sure—and, in some cases, it's not a wise thing to do—but it's not
literally impossible.

• A review of the literature suggests something of a 10-point recipe for

transforming a defeated aggressive regime into one which is minimally just:
• Adhere diligently to the laws of war during the regime take-down and
occupation.
• Purge much of the old regime, and prosecute its war criminals.
• Disarm and demilitarize the society.
• Provide effective military and police security for the whole country.
• Work with a cross-section of locals on a new, rights-respecting constitution which
features checks and balances.
• Allow other, non-state associations, or “civil society”, to flourish.
• Forego compensation and sanctions in favour of investing in and re-building the
economy.
• If necessary, re-vamp educational curricula to purge past poisonous propaganda
and cement new and better values.
• Ensure, in a timely fashion, that the benefits of the new order will be: 1)
concrete; and 2) widely, and not narrowly, distributed. The bulk of the population
must feel their lives after the regime change are clearly better than their former
lives for the change to be sustainable.
• Follow an orderly, not-too-hasty exit strategy when the new regime can stand on
its own two feet. Again, this will probably take a decade of intensive effort.

To summarize this whole section, just war theory offers rules to guide decision-
makers on the appropriateness of their conduct during the resort to war, conduct
during war and the termination phase of the conflict. Its over-all aim is to try and
ensure that wars are begun only for a very narrow set of truly defensible reasons,
that when wars break out they are fought in a responsibly controlled and targeted
manner, and that the parties to the dispute bring their war to an end in a speedy
and responsible fashion that respects the requirements of justice.

INTERNATIONAL ARMED CONFLICT VS NON-INTERNATIONAL ARMED

CONFLICT

International humanitarian law distinguishes two types of armed conflicts, namely:

· international armed conflicts, opposing two or more States, and
· non-international armed conflicts, between governmental forces and
nongovernmentalarmed groups, or between such groups only. IHL treaty law
also establishes a distinction between non-international armed conflicts in the
meaning of common Article 3 of the Geneva Conventions of 1949 and non-
international armed conflicts falling within the definition provided in Art. 1 of
Additional Protocol II.
228
Legally speaking, no other type of armed conflict exists. It is nevertheless important
to underline that a situation can evolve from one type of armed conflict to another,
depending on the facts prevailing at a certain moment.

I. International Armed Conflict (IAC)

1) IHL Treaties

Common Article 2 to the Geneva Conventions of 1949 states that: "In addition to
the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of war
is not recognized by one of them. The Convention shall also apply to all cases of
partial or total occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance". According to this provision, IACs
are those which oppose "High Contracting Parties", meaning States. An IAC occurs
when one or more States have recourse to armed force against another State,
regardless of the reasons or the intensity of this confrontation. Relevant rules of IHL
may be applicable even in the absence of open hostilities. Moreover, no formal
declaration of war or recognition of the situation is required. The existence of an
IAC, and as a consequence, the possibility to apply International Humanitarian Law
to this situation, depends on what actually happens on the ground. It is based on
factual conditions. For example, there may be an IAC, even though one of the
belligerents does not recognize the government of the adverse party2. The
Commentary of the Geneva Conventions of 1949 confirms that "any difference
arising between two States and leading to the intervention of armed forces is an
armed conflict within the meaning of Article 2, even if one of the Parties denies the
existence of a state of war. It makes no difference how long the conflict lasts, or
how much slaughter takes place". Apart from regular, inter-state armed conflicts,
Additional Protocol I extends the definition of IAC to include armed conflicts in which
peoples are fighting against colonial domination, alien occupation or racist regimes
in the exercise of their right to self-determination (wars of national liberation).

2) Jurisprudence

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a
general definition of international armed conflict. In the Tadic case, the Tribunal
stated that "an armed conflict exists whenever there is a resort to armed force
between States".5 This definition has been adopted by other international bodies
since then.

3) Doctrine

The doctrine gives useful comments concerning the definition of an international

armed conflict. According to D. Schindler, "the existence of an armed conflict within
the meaning of Article 2 common to the Geneva Conventions can always be
assumed when parts of the armed forces of two States clash with each other. […]
Any kind of use of arms between two States brings the Conventions into effect". H.-
P. Gasser explains that "any use of armed force by one State against the territory of
229
another, triggers the applicability of the Geneva Conventions between the two
States. […] It is also of no concern whether or not the party attacked resists. […] As
soon as the armed forces of one State find themselves with wounded or
surrendering members of the armed forces or civilians of another State on their
hands, as soon as they detain prisoners or have actual control over a part of the
territory of the enemy State, then they must comply with the relevant convention".

The German Joint Services Regulations (ZDv) 15/2 says that "an international armed
conflict exists if one party uses force of arms against another party. […] The use of
military force by individual persons or groups of persons will not suffice".
II. Non-International Armed Conflict (NIAC)

1) IHL Treaties

Two main legal sources must be examined in order to determine what a NIAC under
international humanitarian law is: a) common Article 3 to the Geneva Conventions
of 1949; b) Article 1 of Additional Protocol II:

a) Non-International Armed Conflicts within the Meaning of Common Article 3

Common Article 3 applies to "armed conflicts not of an international character
occurring in the territory of one of the High Contracting Parties". These include
armed conflicts in which one or more non-governmental armed groups are involved.
Depending on the situation, hostilities may occur between governmental armed
forces and non-governmental armed groups or between such groups only. As the
four Geneva Conventions have universally been ratified now, the requirement that
the armed conflict must occur "in the territory of one of the High Contracting
Parties" has lost its importance in practice. Indeed, any armed conflict between
governmental armed forces and armed groups or between such groups cannot but
take place on the territory of one of the Parties to the Convention. In order to
distinguish an armed conflict, in the meaning of common Article 3, from less serious
forms of violence, such as internal disturbances and tensions, riots or acts of
banditry, the situation must reach a certain threshold of confrontation. It has been
generally accepted that the lower threshold found in Article 1(2) of APII, which
excludes internal disturbances and tensions from the definition of NIAC, also applies
to common Article 3.

Two criteria are usually used in this regard:

• First, the hostilities must reach a minimum level of intensity. This may be the
case, for example, when the hostilities are of a collective character or when
the government is obliged to use military force against the insurgents,
instead of mere police forces.11
• Second, non-governmental groups involved in the conflict must be
considered as "parties to the conflict", meaning that they possess organized
armed forces. This means for example that these forces have to be under a
certain command structure and have the capacity to sustain military
operations.

b) Non-International Armed Conflicts in the Meaning of Art. 1 of Additional Protocol II

230
A more restrictive definition of NIAC was adopted for the specific purpose of
Additional Protocol II. This instrument applies to armed conflicts "which take place
in the territory of a High Contracting Party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol". This
definition is narrower than the notion of NIAC under common Article 3 in two
aspects. Firstly, it introduces a requirement of territorial control, by providing that
non-governmental parties must exercise such territorial control "as to enable them
to carry out sustained and concerted military operations and to implement this
Protocol". Secondly, Additional Protocol II expressly applies only to armed conflicts
between State armed forces and dissident armed forces or other organised armed
groups. Contrary to common Article 3, the Protocol does not apply to armed
conflicts occurring only between non-State armed groups. In this context, it must be
reminded that Additional Protocol II "develops and supplements" common Article 3
"without modifying its existing conditions of application".14 This means that this
restrictive definition is relevant for the application of Protocol II only, but does not
extend to the law of NIAC in general. The Statute of the International Criminal Court,
in its article 8, para. 2 (f), confirms the existence of a definition of a non-
international armed conflict not fulfilling the criteria of Protocol II.

2) Jurisprudence

Case law has brought important elements for a definition of an armed conflict, in
particular regarding the non-international armed conflicts in the meaning of
common Article 3 which are not expressly defined in the Conventions concerned.
Judgments and decisions of the ICTY throw also some light on the definition of NIAC.
As mentioned above, the ICTY went on to determine the existence of a NIAC
"whenever there is […] protracted armed violence between governmental
authorities and organised armed groups or between such groups within a State".
The ICTY thus confirmed that the definition of NIAC in the sense of common Article 3
encompasses situations where "several factions [confront] each other without
involvement of the government's armed forces". Since that first ruling, each
judgment of the ICTY has taken this definition as a starting point.

3) Doctrine

Several recognized authors also commented very clearly on what should be

considered as a non-international armed conflict. Their comments are relevant in
first place to the conflicts which do not fulfil the strict criteria foreseen in Additional
Protocol II and provide useful elements to ensure the application of the guarantees
provided in common article 3 to the Geneva Conventions of 1949.

According to H.-P. Gasser, it is generally admitted that "non-international armed

conflicts are armed confrontations that take place within the territory of a State
between the government on the one hand and armed insurgent groups on the other
hand. […] Another case is the crumbling of all government authority in the country,
as a result of which various groups fight each other in the struggle for power"18.
231
D. Schindler also proposes a detailed definition: "The hostilities have to be
conducted by force of arms and exhibit such intensity that, as a rule, the
government is compelled to employ its armed forces against the insurgents instead
of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be
of a collective character, [i.e] they have to be carried out not only by single groups.
In addition, the insurgents have to exhibit a minimum amount of organization. Their
armed forces should be under a responsible command and be capable of meeting
minimal humanitarian requirements". M. Sassoli, writes "common Article 3 refers to
conflicts 'occurring in the territory of one of the High Contracting Parties,' whereas
Article 1 of Protocol II refers to those 'which take place in the territory of a High
Contracting Party.' According to the aim and purpose of IHL, this must be
understood as simply recalling that treaties apply only to their state parties. If such
wording meant that conflicts opposing states and organized armed groups and
spreading over the territory of several states were not ‘non•international armed
conflicts’, there would be a gap in protection, which could not be explained by
states’ concerns about their sovereignty. Those concerns made the law of
non•international armed conflicts more rudimentary. Yet concerns about state
sovereignty could not explain why victims of conflicts spilling over the territory of
several states should benefit from less protection than those affected by conflicts
limited to the territory of only one state. Additionally, Articles 1 and 7 of the Statute
of the International Criminal Tribunal for Rwanda extend the jurisdiction of that
tribunal called to enforce, inter alia, the law of non-international armed conflicts, to
the neighbouring countries. This confirms that even a conflict spreading across
borders remains a non•international armed conflict. In conclusion, internal conflicts
are distinguished from international armed conflicts by the parties involved rather
than by the territorial scope of the conflict."

III. Conclusion

On the basis of the analysis set out above, the ICRC proposes the following
definitions, which reflect the strong prevailing legal opinion:

1. International armed conflicts exist whenever there is resort to armed force

between two or more States.

2. Non-international armed conflicts are protracted armed confrontations

occurring between governmental armed forces and the forces of one or more armed
groups, or between such groups arising on the territory of a State [party to the
Geneva Conventions]. The armed confrontation must reach a minimum level of
intensity and the parties involved in the conflict must show a minimum of
organization.

VI. INTERNATIONAL TRADE LAW

GATT/WTO

GATT-WTO Ratification

232
In December 1994, the Philippine Congress ratified the Philippine
accession to the Uruguay Round General Agreement on Tariff and Trade
under the World Trade Organization (GATT-WTO). Specifically, under the
GATT-WTO, and other external agreements congruent to WTO, the
Philippines was committed to the following:

1. Removal of Quantitative Restrictions (QRs) and Conversion of QRs into their

Tariff Equivalents.
2. Reduction of Tariffs on Agricultural Products. Developing countries to reduce
average tariffs by 24% with a minimum 10% cut per tariff lines from 1995 to
2004.
3. Reduction of Production Subsidies. For developing countries, reduction of trade
distorting domestic subsidies by 13% from 1995 to 2004. However, under the
“de minimis” principle of the agreement, no reductions are required if the
domestic support is no more than 10%.
4. Minimum Access Volume (MAV). The allowing of annual imports at a lower tariff
of volumes equivalent to 3% of 1986-1988 consumption for 1995, increasing to
5% of 1986-1988 consumption by 2004.
5. Tariff Bindings. Countries will bind tariff rates at levels beyond which no further
increases will be imposed.
6. Prohibition of Additional Non-Tariff Measures. No new non-tariff measures, such
as import licensing, variable import levies, import quotas, and import bans may
be imposed.
7. Plant Variety Registration and Protection. Intervention and ownership of
biological products such as plant and microorganisms should be protected under
patent or the sui generis system or both.

To cushion the impact of trade reforms under GATT-WTO, the Philippine

government committed safety net measures to neutralize temporary
adjustments and dislocations in the sector and to enhance farmer’s
competitiveness. Some of these internal commitments of the Philippine
Government include:

1. Tariff Reduction on Inputs. For those inputs directly used for agricultural
modernization, the tariff rates were reduced to zero.
2. Trade Remedies. These are measures that provide industries relief from import
surges, declining import prices and/or dumping.
3. Reforms in the VAT for Agricultural Processors. Exemptions from the value-added
tax (VAT) of food and non-food agricultural products and marine commodities.
4. Budgetary Support in Agriculture. Under the Uruguay Action Plan of DA, the
budget support for agriculture from 1995 to1998 was estimated at P72.9B. Fifty-
eight percent of this should have come from DA-GAA and the rest from DAR,
DPWH-GAA, Asset Privatization Thrust (APT), Minimum Access Proceeds, Savings
and Reserves.

UNCITRAL

Composed of a diverse composition of member States, the UNCITRAL carries out

the goals of harmonizing and unifying international trade laws.16 “The
233
Commission has established six working groups to perform the substantive
preparatory work on topics within the Commission’s program of work. Each
working group is comprised of all member States of the Commission.” 17 Located
in Vienna, Austria, the Secretariat of UNCITRAL “carries out legal research on
subject matters within the program of work of UNCITRAL and prepares reports,
preliminary draft texts and commentaries on draft legal texts.”18 This research
forms the basis for topics that will be addressed by the working groups. In
addition to researching substantive legal issues, the Secretariat also “organizes
administrative services for meetings of the Commission and of its working
groups and groups of experts.

Scope

The scope of work originally carried out by the Commission was far narrower
than the wide range of topics addressed today. Over the past thirty-six years,
the Commission has addressed and recommended laws, rules, and legal guides
on topics ranging from international commercial arbitration22 to rules governing
commercial conciliation23 to a model law governing electronic commerce. “It is
noteworthy that UNCITRAL’s program of work avoids such critical problems as
tariffs, import quotas, export restrictions, and exchange controls.”25 Other
techniques to promote the harmonization and unification of international trade
laws include the creation of international conventions, model treaty provisions,
legal guides that “identify legal issues arising in a particular area,” and
recommendations to governments and international organizations.26
Also, the Commission provides “updated information on case law and
enactments of uniform commercial law, technical assistance in law reform
projects,” and offers regional and national seminars to promote the
Commission’s work. “In 1969, [UNCITRAL] authorized the Secretary General to
establish a Yearbook which would make the work of the Commission more
widely known and readily available.” Published in 1971, the first Yearbook
discussed UNCITRAL’s activities in 1968- 1970, the first three years of
UNCITRAL’s operation. The Yearbook demonstrates a genuine effort toward
educating the member States and provides “a rich store of information on the
most ambitious attempt yet at unification of private law on an international
scale.” Additionally, the Commission has worked, or is working, on topics such
as the international sale of goods and related transactions, international
transport of goods, international commercial arbitration and conciliation, public
procurement and infrastructure development, construction contracts,
international payments, electronic commerce, and cross-border insolvency.31
Currently, the six working groups are assigned the topics of privately financed
infrastructure projects, international arbitration and conciliation, transport law,
electronic commerce, insolvency law, and security interests.
Salient points

The Rules are divided into four sections: Section I – Introductory Rules (Articles 1-4),
Section II – Composition of the Arbitral Tribunal (Articles 5-14), Section III – Arbitral

234
Proceedings (Articles 15-30), and Section IV – The Award (Articles 31-41) In Section
I, the Rules set out the basic prerequisites for arbitration, such as the requirement
of writing, conveniently supplying the prospective parties to a contract (and, ergo,
to a dispute) with a model arbitration clause in a note to Article 1. Section II calls for
the selection of an odd number of one (1) to three (3) arbitrators, three (3) being
the default rule (Article 5). With respect to the appointment of arbitrators, the Rules
had to provide a solution for the composition of the tribunal in the absence of
consensus by the parties since UNCITRAL is not an institution. Hence, the Rules
introduced the notion of a party-agreed upon appointing authority (or, if parties
cannot agree, either party may request the Secretary General of the Permanent
Court of Arbitration at the Hague to designate an appointing authority). In
appointing the sole or the third arbitrator, the so-called “list procedure,” a concept
borrowed from the AAA practice,46 shall be used.47 The issues of challenging
procedure, covered in Articles 9- 12, center on the standard of “justifiable doubts as
to . . . impartiality or independence.” Article 10 clarifies that these standards apply
to party-appointed arbitrators, whereas paragraph 2 allows for a challenge of a
party’s own arbitrator, though not unconditionally.

The Rules cover the arbitral proceedings in great detail in Section III. Skipping the
provisions regarding the place of arbitration, language, claims, defenses,
amendments, time periods, Kompetenz- Kompetenz (Article 21(1)),48 and
separability49 (Article 21(2)), we turn to the matters of evidence and hearings in
Articles 24 and 25. The Rules do not provide for discovery, and Article 25(4) leaves
the tribunal free to determine the manner in which witnesses are examined (viz.,
whether it be under the common law tradition of examination primarily by the
lawyer and cross-examination by the other party’s lawyer, or under the civil law
tradition of examination from the bench, or perhaps a mixture). Another
discrepancy between civil and common law was resolved by adhering to a civil law
norm – experts are tribunal-appointed (Article 27(1)). The question of interim
measures shall be separately discussed later, but the Rules do provide for arbitral-
tribunal ordered measures (Article 26), and a rather narrowly defined requirement
of “security for the costs of such measures.” Turning to the arbitral award, Article
31 calls for a majority of arbitrators to agree, while Article 32 sets out the
requirements of writing, reasons, and signature. Consent of the parties is needed
for publication of the award.51 According to Article 33, the arbitrators may decide
on the merits either according to the applicable law designated by the parties, or
absent such designation, “the law determined by the conflict of laws rules which
they consider applicable” (Article 33(1)), or as amiables compositeurs, if expressly
authorized by the parties (Article 33(2)). However, the conflict of laws approach is
considered outdated and is rarely used. The Model Law approach of direct choice is
widely followed. Article 34 provides for an award on agreed terms, or award by
consent, and Articles 38-41 cover the issue of costs – with the requirement that the
tribunal, when fixing its fees, shall take into account the schedule of fees of the
appointing authority (Article 39(2)). The latter was necessary, as UNCITRAL is not an
arbitral institution and, consequently, has no schedule of fees.

235