Abrc2015 SCD2014

SURVEY
OF 2014 SC DECISIONS IN
POLITICAL LAW
Dean ED VINCENT S. ALBANO
IMMUNITY OF STATE FROM SUIT

Principle of immunity of state from suit; applicability to public officers and other States.

In Most Rev. Pedro D. Abrigo, et al. v. Scott Swift, et al., G.R. No. 206510, September 16, 2014, Villarama, J,
petitioner claims that the grounding, salvaging and postsalvaging operations of the USS Guardian cause and continue to
cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and TawiTawi, which events violate their
constitutional rights to a balanced and healthful ecology. They also sought a directive from the Court for the institution
of civil, administrative and criminal suits for acts committed in violation of environmental laws and regulations in
connection with the grounding incident.

They cited the following violations committed by US respondents under R.A. No. 10067: unauthorized entry
(Section 19); nonpayment of conservation fees (Section 21); obstruction of law enforcement officer (Section 30);
damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore, petitioners
assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for being
unconstitutional.

The US respondents were sued in their official capacity as commanding officers of the US Navy who had control
and supervision over the USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding
of the USS Guardian on the TRNP was committed while they were performing official military duties. Is this a suit
against the US government? Explain.
Answer: Yes. Considering that the satisfaction of a judgment against said officials will require remedial actions and
appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and
Robling.

Immunity of State from suit; a generally accepted principle of international law.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or nonsuability of the
State, is expressly provided in Sec.3, Article XVI of the 1987 Constitution which states that the State may not be sued
without its consent.

In United States of America v. Judge Guinto, the principle of state immunity from suit was discussed, as follows:
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section
3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that there can be no legal right against the authority which makes the law on which the
right depends.[Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium.
All states are sovereign equals and cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, unduly vex the peace of nations. [De
Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed
to pay the damages awarded against them, the suit must be regarded as against the state itself although
it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state
may move to dismiss the complaint on the ground that it has been filed without its consent.

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals, 445 Phil. 250 [2003], it was further expounded on the immunity of
foreign states from the jurisdiction of local courts, as follows:
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The precept that a State cannot be sued in the courts of a foreign state is a longstanding 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. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he is, under the maxim par in parem,
non habet imperium that all states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against an official would require the
state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded as being against the state
itself, although it has not been formally impleaded.

Diplomatic immunity is immunity from exercise of territorial jurisdiction; not from observance of law.
In the case of diplomatic immunity, the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.
(citing J.L. Brierly, The Law of Nations, Oxford University Press, 6thEdition, 1963, p. 244).
In United States of America v. Judge Guinto, supra., one of the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested following a buybust operation conducted by two officers of the US Air
Force, and was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425.
In a complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US Government which had not given its consent. The RTC denied the motion
but on a petition for certiorari and prohibition filed before the Court, the SC reversed the RTC and dismissed the
complaint, where it was held that petitioners US military officers were acting in the exercise of their official functions
when they conducted the buybust operation against the complainant and thereafter testified against him at his trial. It
follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another State
without the formers consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (jure imperii) from private, commercial and proprietary acts (jure gestionis). Under the restrictive
rule of State immunity, State immunity extends only to acts jure imperii. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. (United States of America v. Ruiz, 221 Phil. 179, 182183 & 184 (1985)).
In Shauf v. Court of Appeals, G.R. No. 90314, November 27, 1990, 191 SCRA 713, it was discussed the limitations
of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such
for acts contrary to law and injurious to the rights of plaintiff.As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al.: Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers by one whose rights have been invaded
or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the ground that, while claiming to act for
the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the
State within the constitutional provision that the State may not be sued without its consent. The
rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.
x x x x

Q Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to any action.
Even under the common law tort claims, petitioners asseverate that the US respondents are liable for
negligence, trespass and nuisance. Are the contentions correct? Why?
Held: No. The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines to promote common security interests between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies. The invocation of US federal tort laws and even common law is thus
improper considering that it is the VFA which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be filed
separately.
A ruling on the application or nonapplication of criminal jurisdiction provisions of the VFA to US personnel
who may be found responsible for the grounding of the USS Guardian, would be premature and beyond the province of
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a petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including the collection of administrative fines under
R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action charging the same violation of
an environmental law. (Rule 10, Rules of Procedure for Environmental Cases).

LEGISLATIVE DEPARTMENT

No violation of onetitle, one subject rule.

Q R.A. No. 9646 entitled An Act Regulating the Practice of Real Estate Service in the Philippines, Creating for
the Purpose a Professional Regulatory Board of Real Estate Service, Appropriating Funds Therefor and For
Other Purposes, establishes a regulatory system for the professionalization of the real estate service sector. It
extends its coverage to real estate developers with respect to their own properties. Henceforth, real estate
developers are prohibited from performing acts or transactions constituting real estate service practice
without first complying with registration and licensing requirements for their business, brokers or agents,
appraisers, consultants and salespersons.
In questioning the validity of the law, petitioners contended that since partnerships or corporations
engaged in marketing or selling any real estate development project in the regular course of business are now
required to be headed by fulltime, registered and licensed real estate brokers, this requirement constitutes
limitation on the property rights and business prerogatives of real estate developers which are not all reflected
in the title of R.A. No. 9646. Neither are real estate developers, who are already regulated under a different law,
P.D. No. 957, included in the definition of real estate service practitioners. Is the contention correct? Explain.
Answer: No. R.A. No. 9646 does not violate the onetitle, onesubject rule. The primary objective of R.A. No. 9646 is
expressed as follows:
SEC. 2. Declaration of Policy. The State recognizes the vital role of real estate service
practitioners in the social, political, economic development and progress of the country by promoting
the real estate market, stimulating economic activity and enhancing government income from real
propertybased transactions. Hence, it shall develop and nurture through proper and effective regulation
and supervision a corps of technically competent, responsible and respected professional real estate
service practitioners whose standards of practice and service shall be globally competitive and will
promote the growth of the real estate industry.

The inclusion of real estate developers is germane to the laws primary goal of developing "a corps of
technically competent, responsible and respected professional real estate service practitioners whose standards of
practice and service shall be globally competitive and will promote the growth of the real estate industry." Since the
marketing aspect of real estate development projects entails the performance of those acts and transactions defined as
real estate service practices under Section 3(g) of R.A. No. 9646, it is logically covered by the regulatory scheme to
professionalize the entire real estate service sector. (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real
Estate Service, et al., G.R. No. 197676, February 4, 2014).

Q Explain the basis and reason for the onetitle, one subject rule of a bill.
Answer: Section 26(1), Article VI of the Constitution states that every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.
In Farias v. The Executive Secretary, 463 Phil. 179 [2003], the Court ruled that the proscription is aimed
against the evils of the socalled omnibus bills and logrolling legislation as well as surreptitious and/or unconsidered
encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title.
(Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., G.R. No. 197676, February 4,
2014).

Q State the rule in determining whether there has been compliance with the constitutional requirement that
the subject of an act shall be expressed in its title. Explain.
Answer: Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly
construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed
in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive
enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end
and means necessary or convenient for the accomplishing of that object. Mere details need not be set forth. The title
need not be an abstract or index of the Act. (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate
Service, et al., G.R. No. 197676, February 4, 2014).

Q When is the onesubject requirement of a bill satisfied? Explain.
Answer: The onesubject requirement under the Constitution is satisfied if all the parts of the statute are related, and
are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the
general subject and title. An act having a single general subject, indicated in the title, may contain any number of
provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general
subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out
the general object. (Tio v. Videogram Regulatory Board, 235 Phil. 198, 204 [1987]).
It is also wellsettled that the "one titleone subject" rule does not require the Congress to employ in the title of
the enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details

therein. The rule is sufficiently complied with if the title is comprehensive enough as to include the general object which
the statute seeks to effect. (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., G.R.
No. 197676, February 4, 2014).

Power to abolish public office is lodged in the legislature.

Petitioners questioned the validity of RA 9497 creating the Civil Aviation Authority which abolished the Air
Transport Authority (RA 6656). It was contended that the real intention of RA 9497 was merely a reorganization of the
agency, not its entire abolition. They contended that an abolition of an office cannot have the effect of removing an
officer holding it if the office is restored under another name. They also contended that the incumbent ATO employees
constitutional right to security of tenure was impaired. Finally they contended that there was grave abuse of discretion
when Sec. 60 of the IRR provided for a holdover status of ATO employees which was not expressly provided for
under RA 9497. Are the contentions correct? Why?
Held: No. Well entrenched in this jurisdiction is the rule 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 destroy. A public office
is created either by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that brought it into existence. (Malaria Employees and
Workers Association of the Philippines, Inc. (MEWAP) v. Romulo, 555 Phil. 629, 637 (2007), citing Buklod ng Kawaning
EIIB v. Zamora, id. at 291; Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36, 4749).

Security of tenure impaired; purpose of abolition.
For the ATO employees security of tenure to be impaired, the abolition of the ATO must be done in bad faith.
In Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin, 553 Phil. 1, 7 (2007), it was said:
A valid order of abolition must not only come from a legitimate body, it must also be
made in good faith. An abolition is made in good faith when it is not made for political or
personal reasons, or when it does not circumvent the constitutional security of tenure of civil
service employees. Abolition of an office may be brought about by reasons of economy, or to
remove redundancy of functions, or a clear and explicit constitutional mandate for such
termination of employment. Where one office is abolished and replaced with another office vested
with similar functions, the abolition is a legal nullity. When there is a void abolition, the incumbent is
deemed to have never ceased holding office.

It also been held that, other than reasons of economy, making the bureaucracy more efficient is also indicative
of the exercise of good faith in, and a valid purpose for, the abolition of an office.
The purpose for the abolition of the ATO is clearly manifested in Section 2 of R.A. No. 9497 that it is the
declared policy of the State to provide safe and efficient air transport and regulatory services in the Philippines in order
to address the problems that go along with the fast emerging developments in the field of the globallycompetitive
aviation industry. (Civil Aviation Authority of the Phils. Employees Union v. Civil Aviation Authority, et al., G.R. No.
190120, November 11, 2014).

Q Petitioner posited that abolition of an office cannot have the effect of removing an officer holding it if the
office is restored under another name. Is the contention correct? Explain.
Answer: No. The CAAP, indeed assumed the functions of the ATO. However, the overlap in their functions does not
mean there was no valid abolition of the ATO. The CAAP has new and expanded features and functions which are
intended to meet the growing needs of a globally competitive civil aviation industry, adherent to internationally
recognized standards. Thus, in National Land Titles and Deeds Registration Administration v. Civil Service Commission,
G.R. No. 84301, April 7, 1993, 221 SCRA 145, 150 it was held that:
If the newly created office has substantially new, different or additional functions, duties or
powers, so that it may be said in fact to create an office different from the one abolished, even though it
embraces all or some of the duties of the old office it will be considered as an abolition of one office and
the creation of a new or different one. The same is true if one office is abolished and its duties, for
reasons of economy are given to an existing officer or office. (Civil Aviation Authority of the Phils.
Employees Union v. Civil Aviation Authority, et al., G.R. No. 190120, November 11, 2014).

EXECUTIVE DEPARTMENT

Power of control of the Office of the President; not absolute.

In Moran, Jr. v. Office of the President, et al., G.R. No. 192957, September 29, 2014, Villarama, J, there was
complaint against PGA Cars, Inc. pursuant to RA 7394, otherwise known as the Consumer Act of the Phils. seeking to
hold the latter liable for damages due to the imperfections of the BMW car it sold to complainant. The Consumer
Arbitration Officer ruled in favor of the complainant, but the DTI dismissed the appeal, hence, appeal was made to the
Office of the President which reversed the DTI and dismissed the complaint. Complainant filed a Petition for Certiorari
with the SC alleging that the OP has no jurisdiction to rule on violations involving RA 7394. The CA dismissed the
petition on the ground that it was a wrong mode of appeal. Is the dismissal of the petition for certiorari on the ground
that petitioner resorted to the wrong mode of appeal correct? Explain.
Held: No, because complainant availed of the proper remedy. The procedure for appeals to the OP is governed by
Administrative Order No. 18, Series of 1987. Section 1 thereof provides:
SECTION 1. Unless otherwise governed by special laws, an appeal to the Office of the
President shall be taken within thirty (30) days from receipt by the aggrieved party of the
decision/resolution/order complained of or appealed from
In Phillips Seafood (Philippines) Corporation v. The Board of Investments, 597 Phil. 649, 662 [2009], the SC
interpreted the above provision and declared that a decision or order issued by a department or agency need not be
appealed to the Office of the President when there is a special law that provides for a different mode of appeal.

Q Petitioner further contends that from the decision of respondent BOI, appeal to the Office of the President
should be allowed; otherwise, the constitutional power of the President to review acts of department
secretaries will be rendered illusory by mere rules of procedure. Is the contention correct? Why?
Answer: No. The executive power of control over the acts of department secretaries is laid down in Section 17, Article
VII of the 1987 Constitution. The power of control has been defined as the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter.
Such executive control is not absolute. The definition of the structure of the executive branch of
government, and the corresponding degrees of administrative control and supervision is not the exclusive preserve of
the executive. It may be effectively limited by the Constitution, by law, or by judicial decisions. All the more in
the matter of appellate procedure as in the instant case. Appeals are remedial in nature; hence, constitutionally
subject to this Courts rulemaking power. The Rules of Procedure was issued by the Court pursuant to Section 5,
Article VIII of the Constitution, which expressly empowers the Supreme Court to promulgate rules concerning the
procedure in all courts.
Parenthetically, Administrative Order (A.O.) No. 18 expressly recognizes an exception to the remedy of appeal
to the Office of the President from the decisions of executive departments and agencies. Under Section 1 thereof, a
decision or order issued by a department or agency need not be appealed to the Office of the President when there is a
special law that provides for a different mode of appeal. In the instant case, the enabling law of respondent BOI,
E.O. No. 226, explicitly allows for immediate judicial relief from the decision of respondent BOI involving
petitioners application for an ITH. E.O. No. 226 is a law of special nature and should prevail over A.O. No. 18.
In this case, a special law, RA 7394, likewise expressly provided for immediate judicial relief from decisions of
the DTI Secretary by filing a petition for certiorari with the proper court. Hence, private respondent should have
elevated the case directly to the CA through a petition for certiorari .
In filing a petition for certiorari before the CA raising the issue of the OPs lack of jurisdiction, complainant
Moran, Jr. thus availed of the proper remedy.

Augmentation of funds by the COMELEC; no need for specific legislation.

In Goh v. Bayron, et al., G.R. No. 212584, November 25, 2014, Carpio, J, there was a petition for the recall of
Mayor Bayron of Puerto Princesa, Palawan, but the COMELEC suspended all proceedings on the recall because it did not
have appropriation in the GAA of 2014 and the GAA did not provide the COMELEC with legal authority to commit public
funds for the recall process. This is inspite of the admission that it has savings. Hence, a petition for the issuance of
preliminary mandatory injunction was filed. Is the petition proper? Why?
Held: Yes, because there is no need for a line item appropriating funds and authorizing the augmentation of funds from
savings. The 1987 Constitution expressly provides the COMELEC with the power to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. The 1987
Constitution not only guaranteed the COMELECs fiscal autonomy, but also granted its head, as authorized by law, to
augment items in its appropriations from its savings. The 2014 GAA provides such authorization to the COMELEC
Chairman.

The line item appropriation for the Conduct and Supervision of x x x recall votes x x x in the 2014 GAA is
sufficient to fund recall elections. There is no constitutional requirement that the budgetary appropriation must be
loaded in contingent funds. The Congress has plenary power to lodge such appropriation in current operating
expenditures.

DISBURSEMENT ACCELERATION PROGRAM (DAP)

Q State the effect/s if the heads of offices are allowed to transfer funds within their respective offices. Explain.
Answer: By allowing to the heads of offices some power to transfer funds within their respective offices, the
Constitution itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers
among the three main branches of the Government. In Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133,
150, it was said that the Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on
the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards
the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based.
In the case of the President, the power to transfer funds from one item to another within the Executive has not
been the mere offshoot of established usage, but has emanated from law itself. It has existed since the time of the
American GovernorsGeneral. Act No. 1902 (An Act authorizing the GovernorGeneral to direct any unexpended balances
of appropriations be returned to the general fund of the Insular Treasury and to transfer from the general fund moneys
which have been returned thereto), passed on May 18, 1909 by the First Philippine Legislature, was the first enabling
law that granted statutory authority to the President to transfer funds. The authority was without any limitation, for
the Act explicitly empowered the GovernorGeneral to transfer any unexpended balance of appropriations for any
bureau or office to another, and to spend such balance as if it had originally been appropriated for that bureau or office.
(Araullo, et al. v. Aquino III, et al., supra.)

Q On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that the President shall
have the authority to transfer any fund appropriated for the different departments, bureaus, offices and
agencies of the Executive Department which are included in the General Appropriations Act, to any program,
project, or activity of any department, bureau or office included in the General Appropriations Act or approved
after its enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive
Department in the General Appropriations Act, from savings in the appropriations of another department,
bureau, office or agency within the Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution. The constitutionality of the Decree was questioned. Is the same valid? Explain.
Answer: No. In Demetria v. Alba, No. L71977, February 27, 1987, 148 SCRA 208, the SC declared the first paragraph of
Section 44 for contravening Section 16(5) of the 1973 Constitution, as it unduly overextended the privilege granted
under said Section 16. It empowered the President to indiscriminately transfer funds from one department, bureau,
office or agency of the Executive Department to any program, project or activity of any department, bureau or office
included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the
funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not
the transfer is for the purpose of augmenting the item to which said transfer is to be made. It did not only
completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise went beyond the tenor thereof. Indeed, such constitutional infirmities rendered the provision in
question null and void. (Araullo, et al. v. Aquino III, et al., supra.).

Constitutional authority to transfer funds.
It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987
Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President,
the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
x x x x

The foregoing history makes it evident that the Constitutional Commission included Section 25(5), supra, to
keep a tight rein on the exercise of the power to transfer funds appropriated by Congress by the President and the other
high officials of the Government named therein. The Court stated in Nazareth v. Villar:
In the funding of current activities, projects, and programs, the general rule should still be that
the budgetary amount contained in the appropriations bill is the extent Congress will determine as
sufficient for the budgetary allocation for the proponent agency. The only exception is found in Section
25 (5), Article VI of the Constitution, by which the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions are authorized to transfer appropriations to augment any item in the GAA for their
respective offices from the savings in other items of their respective appropriations. The plain language
of the constitutional restriction leaves no room for the petitioners posture, which we should now
dispose of as untenable.

Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987
Constitution

Q State the requisites for the valid transfer of appropriated funds. Explain.
Answer: The transfer of appropriated funds, to be valid under Art. VI, Section 25(5) of the Constitution must be made
upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to
transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective offices; and
(3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.
(Araullo, et al. v. Aquino III, et al., supra.).

First Requisite GAAs of 2011and 2012 lacked valid provisions to authorize transfers of funds under the DAP;
hence, transfers under the DAP were unconstitutional

Q The 2011 and 2012 GAAs, provide that the President of the Philippines, the Senate President, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions
enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from
savings in other items of their respective appropriations.

Are the provisions valid? Why?
Answer: No, they are textually unfaithful to the Constitution for not carrying the phrase for their respective offices
contained in Section 25(5). The impact of the phrase for their respective offices was to authorize only transfers of

funds within their offices (i.e., in the case of the President, the transfer was to an item of appropriation within the
Executive). The provisions carried a different phrase (to augment any item in this Act), and the effect was that the
2011 and 2012 GAAs thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even
if the item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the
Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to transfer appropriations
from the Executive to another branch, or to a constitutional commission. (Araullo, et al. v. Aquino III, et al., supra.).

Q Give the concept of savings. Explain.
Answer: Savings refer to portions or balances of any programmed appropriation in the GAA free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized; (ii)from appropriations balances arising from unpaid
compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this
Act at a lesser cost.
The three instances are a sure indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no longer existent. (Araullo, et al. v. Aquino
III, et al., G.R. No. 209135 & companion cases, July 11, 2014, Bersamin, J).

Crossbroader transfer of funds, unconstitutional.

Q It was admitted during the deliberations of the case that funds from the Executive Department were
transferred to the Congress, COMELEC and COA inorder to complete their own projects.
In defending the disbursements, the OSG contended that the Executive enjoyed sound discretion in
implementing the budget given the generality in the language and the broad policy objectives identified under
the GAAs; and that the President enjoyed unlimited authority to spend the initial appropriations under his
authority to declare and utilize savings, and in keeping with his duty to faithfully execute the laws. Is the cross
boarder transfer constitutional? Why?
Answer: No. Although the Executive was authorized to spend in line with its mandate to faithfully execute the
laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to
substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given
that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the
public wealth resided in Congress, not in the Executive. Moreover, leaving the spending power of the Executive
unrestricted would threaten to undo the principle of separation of powers. (Araullo, et al. v. Aquino III, et al., G.R. No.
209135 & companion cases, July 11, 2014, Bersamin, J).
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it
deliberates and acts on the budget proposal submitted by the Executive. Its power of the purse is touted as the very
foundation of its institutional strength, (Wander and Herbert (Ed.), Congressional Budgeting: Politics, Process and
Power (1984), p. 3) and underpins all other legislative decisions and regulating the balance of influence between the
legislative and executive branches of government. (Wander and Herbert (Ed.), Congressional Budgeting: Politics,
Process and Power (1984), at 133). Such enormous power encompasses the capacity to generate money for the
Government, to appropriate public funds, and to spend the money. Pertinently, when it exercises its power of the purse,
Congress wields control by specifying the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of
appropriations. For this purpose, appropriation involves two governing principles, namely: (1) a Principle of the Public
Fisc, asserting that all monies received from whatever source by any part of the government are public funds; and (2)
a Principle of Appropriations Control, prohibiting expenditure of any public money without legislative
authorization. To conform with the governing principles, the Executive cannot circumvent the prohibition by Congress
of an expenditure for a PAP by resorting to either public or private funds. Nor could the Executive transfer appropriated
funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP is
necessarily decreased. The terms of both appropriations will thereby be violated.

Q What does it mean when the Constitution provides that the President, etc. may be authorized to augment
anytime in the GAA for their respective offices. Explain.
Answer: By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any
item in the GAA for their respective offices, Section 25(5), has delineated borders between their offices, such that
funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation
of a deficient item or items. Thus, we call such transfers of funds crossborder transfers or crossborder
augmentations.
To be sure, the phrase respective offices used in Section 25(5), refers to the entire Executive, with respect to
the President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their respective
Chairpersons. (Araullo, et al. v. Aquino III, et al., supra.).

Application of the doctrine of operative facts.

Q The DAP and its implementing rules have been declared unconstitutional. It is a rule that unconstitutional
acts are void and cannot give rise to any right or obligation. Is the rule absolute? Why?

Answer: The rule is not absolute, because there is a need to recognize an exception to the rule especially in instances
where void law or act produced an almost irreversible result. An example is the implementation of the DAP to programs
of the government which cannot just be ignored. And this is the doctrine of operative facts.
The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of
its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no effect. (Yap v. Thenamaris Ships Management, G.R. No.
179532, May 30 2011, 649 SCRA 369, 381). But its use must be subjected to great scrutiny and circumspection, and it
cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and
fair play. (League of Cities Philippines v. COMELEC, G.R. No. 176951, August 24, 2010, 628 SCRA 819, 833). It applies
only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the
stringent conditions that will permit its application. (Araullo, et al. v. Aquino III, et al., supra.).

Q Is the doctrine of operative facts applicable to the DAP? Explain.
Answer: Yes. The doctrine of operative facts is applicable to the adoption and implementation of the DAP. Its application
to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could
not be ignored or could no longer be undone.
To be clear, the doctrine of operative facts extends to a void or unconstitutional executive act. The term
executive act is broad enough to include any and all acts of the Executive, including those that are quasilegislative and
quasijudicial in nature. In Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22,
2011, 660 SCRA 525, 545548, it was said that executive act is broad enough that it should be limited to statutes and
rules and regulations issued by the executive department that are accorded the same status as that of a statute or those
which are quasilegislative in nature.
For one, neither the De Agbayani case nor the Municipality of Malabang case elaborates what executive act
mean. Moreover, while orders, rules and regulations issued by the President or the executive branch have fixed
definitions and meaning in the Administrative Code and jurisprudence, the phrase executive act does not have such
specific definition under existing laws. It should be noted that in the cases cited by the minority, nowhere can it be
found that the term executive act is confined to the foregoing. Contrarily, the term executive act is broad enough
to encompass decisions of administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court. (Araullo, et al. v. Aquino III, et al.,
supra.).

Q The implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs
that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items
pertaining to other departments of the Government in clear violation of the Constitution. What would be the
effect if there would be no recognition of the consequences of the implementation in declaring the same
unconstitutional? Explain.
Answer: To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation
constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and
the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the
offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in
good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such
burden.
The implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the
country. Like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms
and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most undesirable wastefulness.

The doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the
DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities. (Araullo, et al. v. Aquino III, et al., supra.).

Araullo, et al. v. Aquino III, et al.,
G.R. No. 209287 & companion cases,
February 3, 2015, Bersamin, J

Q In their Motion for Reconsideration, the respondents argued that the Executive has not violated the GAA
because savings as a concept is an ordinary species of interpretation that calls for legislative, instead of judicial,
determination. Rule on the contention. Explain.
Answer: The argument is not correct

The petitions raised the question of the constitutionality of the acts and practices under the DAP, particularly
their nonconformity with Section 25(5), Article VI of the Constitution and the principles of separation of power and
equal protection. Hence, the matter is still entirely within the Courts competence, and its determination does not
pertain to Congress to the exclusion of the Court. Indeed, the interpretation of the GAA and its definition of savings is a
foremost judicial function. This is because the power of judicial review vested in the Court is exclusive. (Araullo, et al. v.
Aquino III, et al., G.R. No. 209287 & companion cases, February 3, 2015, Bersamin, J). As clarified in Endencia and Jugo v.
David:
Under our system of constitutional government, the Legislative department is assigned the
power to make and enact laws. The Executive department is charged with the execution of carrying out
of the provisions of said laws. But the interpretation and application of said laws belong
exclusively to the Judicial department. And this authority to interpret and apply the laws
extends to the Constitution. Before the courts can determine whether a law is constitutional or
not, it will have to interpret and ascertain the meaning not only of said law, but also of the
pertinent portion of the Constitution in order to decide whether there is a conflict between the
two, because if there is, then the law will have to give way and has to be declared invalid and
unconstitutional.
We have already said that the Legislature under our form of government is assigned the
task and the power to make and enact laws, but not to interpret them. This is more true with
regard to the interpretation of the basic law, the Constitution, which is not within the sphere of
the Legislative department. If the Legislature may declare what a law means, or what a specific
portion of the Constitution means, especially after the courts have in actual case ascertained its
meaning by interpretation and applied it in a decision, this would surely cause confusion and
instability in judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law of the Constitution may be
undermined or even annulled by a subsequent and different interpretation of the law or of the
Constitution by the Legislative department. That would be neither wise nor desirable, besides
being clearly violative of the fundamental principles of our constitutional system of
government, particularly those governing the separation of powers.
It cannot be ignored that the petitions primarily and significantly alleged grave abuse of discretion on the part
of the Executive in the implementation of the DAP. The resolution of the petitions thus demanded the exercise by the
Court of its aforedescribed power of judicial review as mandated by the Constitution. (Araullo, et al. v. Aquino III, et al.,
G.R. No. 209287 & companion cases, February 3, 2015, Bersamin, J).

Strict construction on the accumulation and utilization of savings.

Q The decision of the Court has underscored that the exercise of the power to augment shall be strictly
construed by virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the
amount fixed by Congress for the purpose. Necessarily, savings, their utilization and their management will
also be strictly construed against expanding the scope of the power to augment. State the reason for such a
strict interpretation of the rule. Explain.
Answer: Such a strict interpretation is essential in order to keep the Executive and other budget implementers within
the limits of their prerogatives during budget execution, and to prevent them from unduly transgressing Congress
power of the purse. Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of whether the
DAP is viewed as an effective tool of stimulating the national economy, the acts and practices under the DAP should
remain illegal and unconstitutional as long as the funds used to finance the projects mentioned therein are sourced
from savings that deviated from the relevant provisions of the GAA, as well as the limitation on the power to augment
under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the best intentions must come
within the parameters defined and set by the Constitution and the law. Laudable purposes must be carried out through
legal methods. (Brillantes, Jr. v. Commission on Elections, G.R. No. 163193, June 15, 2004, 432 SCRA 269, 307; Araullo,
et al. v. Aquino III, et al., supra.).

Q Respondents contended, however, that withdrawn unobligated allotments and unreleased appropriations
under the DAP are savings that may be used for augmentation, and that the withdrawal of unobligated
allotments were made pursuant to Section 38 Chapter 5, Book VI of the Administrative Code; that Section 38
and Section 39, Chapter 5, Book VI of the Administrative Code are consistent with Section 25(5), Article VI of
the Constitution, which, taken together, constitute a framework for which economic managers of the nation
may pull various levers in the form of authorization from Congress to efficiently steer the economy towards the
specific and general purposes of the GAA; and that the Presidents augmentation of deficient items is in
accordance with the standing authority issued by Congress through Section 39. Rule on the contention. Explain.
Answer: The contention is not correct.

Section 25(5), Article VI of the Constitution states:
No law shall be passed authorizing any transfer of appropriations; however, the President,
the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment
any item in the general appropriations law for their respective offices from savings in other items of
their respective appropriations.

Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:
Except as otherwise provided in the General Appropriations Act and whenever in his
judgment the public interest so requires, the President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any
other expenditure authorized in the General Appropriations Act, except for personal services
appropriations used for permanent officials and employees.
Except as otherwise provided in the General Appropriations Act, any savings in the regular
appropriations authorized in the General Appropriations Act for programs and projects of any
department, office or agency, may, with the approval of the President, be used to cover a deficit
in any other item of the regular appropriations.
In the Decision, it was said that:

Unobligated allotments, on the other hand, were encompassed by the first part of the
definition of savings in the GAA, that is, as portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance. But the first part of the definition was further
qualified by the three enumerated instances of when savings would be realized. As such, unobligated
allotments could not be indiscriminately declared as savings without first determining whether any of
the three instances existed. This signified that the DBMs withdrawal of unobligated allotments had
disregarded the definition of savings under the GAAs.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to
justify the withdrawal of unobligated allotments. But the provision authorized only the suspension or
stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:
Moreover, the DBM did not suspend or stop further expenditures in accordance
with Section 38, supra, but instead transferred the funds to other PAPs.

Section 38 refers to the authority of the President to suspend or otherwise stop further expenditure of funds
allotted for any agency, or any other expenditure authorized in the General Appropriations Act. When the President
suspends or stops expenditure of funds, savings are not automatically generated until it has been established that such
funds or appropriations are free from any obligation or encumbrance, and that the work, activity or purpose for which
the appropriation is authorized has been completed, discontinued or abandoned. (Araullo, et al. v. Aquino III, et al.,
supra.).
Although the withdrawal of unobligated allotments may have effectively resulted in the suspension or stoppage
of expenditures through the issuance of negative Special Allotment Release Orders (SARO), the reissuance of withdrawn
allotments to the original programs and projects is a clear indication that the program or project from which the
allotments were withdrawn has not been discontinued or abandoned. Consequently, the Court have pointed out in the
Decision, the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease
to exist, rendering the declaration of the funds as savings impossible. In this regard, the withdrawal and transfer of
unobligated allotments remain unconstitutional. But then, whether the withdrawn allotments have actually been
reissued to their original programs or projects is a factual matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which shortened the availability of
appropriations for MOOE and capital outlays, and those which were transferred to PAPs that were not determined to be
deficient, are still constitutionally infirm and invalid.

Q Sec. 39 of the Administrative Code provides for the power to augment savings in any item in the
appropriations law. Is the law valid? Why?
Answer: No. Section 39 is evidently in conflict with the plain text of Section 25(5), Article VI of the Constitution because
it allows the President to approve the use of any savings in the regular appropriations authorized in the GAA for
programs and projects of any department, office or agency to cover a deficit in any other item of the regular
appropriations. As such, Section 39 violates the mandate of Section 25(5) because the latter expressly limits the
authority of the President to augment an item in the GAA to only those in his own Department out of the savings in
other items of his own Departments appropriations. Accordingly, Section 39 cannot serve as a valid authority to justify
crossborder transfers under the DAP. Augmentations under the DAP which are made by the Executive within its
department shall, however, remain valid so long as the requisites under Section 25(5) are complied with. (Araullo, et al.
v. Aquino III, et al., supra.).

Q Should there be augmentation of savings, is it required that there should be an item in the project to
which the savings may be transferred? Explain.
Answer: Yes. In Nazareth v. Villar, G.R. No. 188635, January 29, 2013, 689 SCRA 385, it was ruled that there must be an
existing item, project or activity, purpose or object of expenditure with an appropriation to which savings may be
transferred for the purpose of augmentation. Accordingly, so long as there is an item in the GAA for which Congress had
set aside a specified amount of public fund, savings may be transferred thereto for augmentation purposes. This
interpretation is consistent not only with the Constitution and the GAAs, but also with the degree of flexibility allowed
to the Executive during budget execution in responding to unforeseeable contingencies. (Araullo, et al. v. Aquino III, et
al., supra).

Crossborder transfers are constitutionally impermissible.

Q The respondents assailed the pronouncement of unconstitutionality of crossborder transfers made by the
President. They submitted that Section 25(5), Article VI of the Constitution prohibits only the transfer of
appropriation, not savings. They relate that crossborder transfers have been the practice in the past, being
consistent with the Presidents role as the Chief Executive. Rule on the contention? Explain.
Answer: The contention is not correct. Crossboarder transfer of funds is in violation of Sec. 25(5), Article VI of the
Constitution. In fact, Sec. 39 of the Administrative Code which was used to justify such transfer is in conflict with the
Constution, hence, it is unconstitutional. (Araullo, et al. v. Aquino III, et al., supra.).

PARDONING POWER

Q Former President Joseph Estrada filed his certificate of candidacy for Mayor of Manila in the 2013 elections.
Atty. RisoVidal filed a petition for his disqualification contending that Estrada has been convicted of the crime

of plunder and the SB imposed the penalty of reclusion perpetua with perpetual absolute disqualification. She
based her petition under Sec. 40 of the Local Government Code which provides for the disqualification of
persons who have been sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment. Furthermore, she cited Sec. 12 of the Omnibus Election
Code which disqualifies a person who has been convicted of a crime involving moral turpitude from running for
public office. Estrada contended that he is qualified because he was granted absolute pardon by former
President Arroyo. The COMELEC decided in his favor ruling that the pardon granted to him was an absolute
pardon and that he was restored to his civil and political rights. RisosVidal argued that the pardon was not
absolute as evidenced by the acceptance of Estrada with the condition in the third Whereas Clause that he has
publicly committed to no longer seek an elective position or office. She contended that the executive clemency
would not have been granted without such condition, hence, when he ran for public office, he committed a
breach of the pardon. She contended that even with the pardon, Estrada could not run because of the
requirements under Articles 36 & 41 of the Revised Penal Code, the disqualifications must be expressly
remitted in the pardon. The pardon granted did not expressly remit the accessory penalty of perpetual
absolute disqualification to hold public office. She argued that it is not enough that the pardon makes a general
statement that the pardon carriers with it the restoration of civil and political rights. She argued that such
constraints are mandatory that shun a general or implied restoration of civil and political rights in pardons.

She cited Monsanto v. Factoran, Jr., 252 Phil. 192, 207 [1989], where it was said that [t]he restoration of
the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. She further argued that such express restoration is further
demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably
indicating that the privilege to hold public office was not restored to him.
The OSG contended that [w]hile at first glance, it is apparent that [former President Estradas]
conviction for plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC], the
subsequent grant of pardon to him, however, effectively restored his right to run for any public office. The
restoration of his right to run for any public office is the exception to the prohibition under Section 40 of the
LGC, as provided under Section 12 of the OEC. As to the seeming requirement of Articles 36 and 41 of the
Revised Penal Code, i.e., the express restoration/remission of a particular right to be stated in the pardon, the
OSG asserted that an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x would be
stretching too much the clear and plain meaning
of the aforesaid provisions. Lastly, contended that the Whereas Clause of the pardon is not an integral part of
the decree of the pardon and cannot therefore serve to restrict its effectivity. Is the petition proper? Why?
Answer: No. The petition for certiorari lacks merit. Former President Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the right to seek public elective office. The wording of
the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered
by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the
language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia
RisosVidl v. COMELEC, et al., G.R. No. 206666, January 21, 2015, Leonardo de Castro, J).

The pardoning power of the President cannot be limited by legislative action.

Q May Congress provide for a law that may limit the pardoning power of the President? explain.
Answer: No. The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IXC, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.
x x x x
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws,
rules, and regulations shall be granted by the President without the favorable recommendation of the
Commission.

The only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2)
cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued
that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

In Cristobal v. Labrador, 71 Phil. 34, 38 [1940] and Pelobello v. Palatino,72 Phil. 441, 442 [1941] the SC declared
that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action. In Monsanto v. Factoran, Jr. it was also said that a pardon, being a presidential prerogative, should not
be circumscribed by legislative action. The exercise of the pardoning power is discretionary in the President and may
not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.
This doctrine of nondiminution or nonimpairment of the Presidents power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception from the pardoning power of the President

in the form of offenses involving graft and corruption that would be enumerated and defined by Congress through the
enactment of a law. (Atty. RisosVidal v. COMELEC, et l., supra.).

The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

Q RisosVidal contended that Articles 36 & 41of the RPC contain special textual commands which must be
strictly followed in order to free the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.

Article 36, provides that a pardon shall not work the restoration of the right to hold public office, or the
right to suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnitys imposed upon
him by the sentenced.

Article 41 provides that penalties of reclusion perpetua and reclusion temporal shall carry with them
that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon. Is the contention correct? Explain.
Answer: No. Articles 36 and 41 of the Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating penal statutes.

A rigid and inflexible reading of the above provisions of law, is unwarranted, especially so if it will defeat or
unduly restrict the power of the President to grant executive clemency.
It is wellentrenched in this jurisdiction that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis non est
recedendum. From the words of a statute there should be no departure. (Republic v. Camacho, G.R. No. 185604, June 13,
2013, 698 SCRA 380, 398). The phrase in the presidential pardon at issue which declares that former President Estrada
is hereby restored to his civil and political rights substantially complies with the requirement of express restoration.
(Atty. RisosVidal v. COMELEC, et al., supra.).

Q In his Dissent Justice Marvic M.V.F. Leonen argued that there was no express remission and/or restoration
of the rights of suffrage and/or to hold public office in the pardon granted to former President Estrada, as
required by Articles 36 and 41 of the Revised Penal Code. He pointed out that the codal provisions must be
followed by the President, as they do not abridge or diminish the Presidents power to extend clemency. He
opined that they do not reduce the coverage of the Presidents pardoning power. Is his contention correct?
Why?
Answer: No. The overbroad statement that Congress may dictate as to how the President may exercise his/her power of
executive clemency is not correct. The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation of powers deeply ingrained in our system of government
which ordains that each of the three great branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere. (Bureau of Customs Employees Association (BOCEA) v.
Teves, G.R. No. 181704, December 6, 2011, 661 SCRA 589, 604). Moreso, this fundamental principle must be observed if
noncompliance with the form imposed by one branch on a coequal and coordinate branch will result into the
diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full
effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that
may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of
Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive
clemency. All that the said provisions impart is that the pardon of the principal penalty does not carry with it the
remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. (Atty. Risos
Vidal v. COMELEC, et al., supra.).

Q Did the text of the pardon include the principal and accessory penalty? Explain.
Answer: Yes. The pardon extended to former President Estrada shows that both the principal penalty of reclusion
perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency
extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that
followed, which states that (h)e is hereby restored to his civil and political rights, expressly remitted the accessory
penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and
perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua.
(Atty. RisosVidal v. COMELEC, et al., supra.).

The third preambular clause of the pardon did not operate to make the pardon conditional.


Q Atty. RisosVidal contended that the third preambular clause of the pardon that Estrada publicly
acknowledged that he will not seek another public office made the pardon conditional. Is the contention
correct? Why?
Answer: No. The third preambular clause of the pardon, i.e., [w]hereas, Joseph Ejercito Estrada has publicly committed to
no longer seek any elective position or office, neither made the pardon conditional, nor militate against the conclusion
that former President Estradas rights to suffrage and to seek public elective office have been restored. This is especially
true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term
civil and political rights as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory
clause that explains the reasons for the enactment, usually introduced by the word whereas. (People v. Balasa, 356
Phil. 362, 396 [1998]). Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the
operative language of the statute. (Llamado v. Court of Appeals, 256 Phil. 328, 339 [1989]). In this case, the whereas
clause is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to
limit the scope of the pardon. (Atty. RisosVidal v. COMELEC, et al., supra.).

Q In his dissent Justice Leonen emphasized that the pardon in question is not absolute nor plenary in scope
despite the statement that former President Estrada is hereby restored to his civil and political rights, that is,
the foregoing statement restored to former President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute disqualification made up of, among others, the
rights of suffrage and to hold public office. He added that had the President chosen to be so expansive as to
include the rights of suffrage and to hold public office, she should have been more clear on her intentions. Is the
contention correct? Why?
Answer: No. The statement [h]e is hereby restored to his civil and political rights, is crystal clear the pardon granted
to former President Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in scope,
complete and plenary in character, as the term political rights adverted to has a settled meaning in law and
jurisprudence.
The omission of the qualifying word full can be construed as excluding the restoration of
the rights of suffrage and to hold public office. There appears to be no distinction as to the coverage of the term full
political rights and the term political rights used alone without any qualification. How to ascribe to the latter term the
meaning that it is partial and not full defies ones understanding. More so, it will be extremely difficult to identify
which of the political rights are restored by the pardon, when the text of the latter is silent on this matter. Exceptions to
the grant of pardon cannot be presumed from the absence of the qualifying word full when the pardon restored the
political rights of former President Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon. (Atty. RisosVidal v. COMELEC, et al., supra.).

ARTICLE VIII JUDICIARY DEPARTMENT

Requisite of the power of judicial review.

Once again, the SC in Funa v. The Chaiman, CSC Francisco Duque III, et al., G.R. No. 191672, November 25, 2014,
Bersamin, J, the SC the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated, 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 opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case. (Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management, G.R. No.
164987, April 24, 2012, 670 SCRA 373, 382).

Political question

In the case of The Diocese of Baccolod, etc. v. COMELEC, et al., G.R. No. 205728, January 21, 2015, Leonen, J, the
respondents contended that the size of the tarpaulin and its reasonableness is a political question, hence, not within the
ambit of the SCs power of review. Is the contention correct? Why?
Held: No. In Taada v. Cuenco, 103 Phil. 1051 [1957], Per J. Concepcion, En Banc, the court previously elaborated on the
concept of what constitutes a political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government, with
discretionary power to act.

The case does not call for the exercise of prudence or modesty. There is no political question. It can be acted
upon by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of the
Constitution.
A political question arises in constitutional issues relating to the powers or competence of different agencies
and departments of the executive or those of the legislature. The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation, presumptively, this court should act with

deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.

Political question does not preclude judicial review.
The concept of a political question, however, never precludes judicial review when the act of a constitutional
organ infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have
the discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.
Marcos v. Manglapus, 258 Phil. 479 [1989], Per J. Cortes, En Banc, limited the use of the political question
doctrine:
When political questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.

How this court has chosen to address the political question doctrine has undergone an evolution since the time
that it had been first invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context
of the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend
was followed in cases such as Daza v. Singson, 259 Phil. 980 [1989] and Coseteng v. Mitra Jr., G.R. No. 86649, July 12,
1990, 1987 SCRA 377.

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution
involving the removal of petitioners from the Commission on Appointments. In times past, this would have involved a
quintessentially political question as it related to the dominance of political parties in Congress. However, in these
cases, the court exercised its power of judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a constitutional duty or power was exercised.
This approach was again reiterated in Defensor Santiago v. Guingona, Jr., 359 Phil. 276 [1998].
In Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 [2000], the court declared again that the possible
existence of a political question did not bar an examination of whether the exercise of discretion was done with grave
abuse of discretion. In that case, this court ruled on the question of whether there was grave abuse of discretion in the
Presidents use of his power to call out the armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto, 406 Phil. 1 [2001], the court ruled that the legal question as to whether a former
President resigned was not a political question even if the consequences would be to ascertain the political legitimacy of
a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of
constitutional issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its
power of judicial review expanding on principles that may avert catastrophe or resolve social conflict.
Decisions of the court on political question has not been static or unbending. In Llamas v. Executive Secretary
Oscar Orbos, 279 Phil. 920 [1991], the court held:
While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule
that when the issue involved concerns the validity of such discretionary powers or whether said
powers are within the limits prescribed by the Constitution, We will not decline to exercise our
power of judicial review. And such review does not constitute a modification or correction of
the act of the President, nor does it constitute interference with the functions of the President.

The concept of judicial power in relation to the concept of the political question was discussed most extensively
in Francisco v. HRET. (460 Phil. 830 [2003]). In this case, the House of Representatives argued that the question of the
validity of the second impeachment complaint that was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of the court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring
and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the
new Constitution which expanded the definition of judicial power as including 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. As well observed by
retired Justice Isagani Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests that this duty (and power)
is available even against the executive and legislative departments including the President and the
Congress, in the exercise of their discretionary powers.

Francisco also provides the cases which show the evolution of the political question, as applied in the following
cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:
The allocation of constitutional boundaries is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, (t)he political
question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in
appropriate cases. (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, the Court ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from resolving
it under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. x x x (Emphasis and italics supplied.)
. . . .

In our jurisdiction, the determination of whether an issue involves a truly political and
nonjusticiable question lies in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political bodies. If there are, then our
courts are dutybound to examine whether the branch or instrumentality of the government
properly acted within such limits. (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the existence of
constitutionally imposed limits justifies subjecting the official actions of the body to the scrutiny and review of
this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that
this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political
question brings.

POLICE POWER

No violation of due process; law an exercise of police power.

Q Petitioners assailed the validity of the provisions of R.A. No. 9646 contending that they are unduly
oppressive and infringe the constitutional rule against deprivation of property without due process of law.
They stressed that real estate developers are now burdened by law to employ licensed real estate brokers to
sell, market and dispose of their properties. Despite having invested a lot of money, time and resources in their
projects, petitioners averred that real estate developers will still have less control in managing their business
and will be burdened with additional expenses. Is the contention correct? Why?
Answer: The contention is not correct. There is no deprivation of property as no restriction on their use and enjoyment
of property is caused by the implementation of R.A. No. 9646. If petitioners as property owners feel burdened by the
new requirement of engaging the services of only licensed real estate professionals in the sale and marketing of their
properties, such is an unavoidable consequence of a reasonable regulatory measure.
Indeed, no right is absolute, and the proper regulation of a profession, calling, business or trade has always
been upheld as a legitimate subject of a valid exercise of the police power of the State particularly when their conduct
affects the execution of legitimate governmental functions, the preservation of the State, public health and welfare and
public morals. In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of
regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violate the due
process clause is to ignore the settled practice, under the mantle of police power, of regulating entry to the practice of
various trades or professions. (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al.,
G.R. No. 197676, February 4, 2014 citing JMM Promotion and Management, Inc. v. Court of Appeals, 329 Phil. 87, 100
[1996]).

Q What could be the intention of Congress in enacting RA 9646? Explain.
Answer: It is an exercise of police power. The legislature recognized the importance of professionalizing the ranks of
real estate practitioners by increasing their competence and raising ethical standards as real property transactions are
"susceptible to manipulation and corruption, especially if they are in the hands of unqualified persons working under
an ineffective regulatory system." The new regulatory regime aimed to fully tap the vast potential of the real estate
sector for greater contribution to our gross domestic income, and real estate practitioners "serve a vital role in
spearheading the continuous flow of capital, in boosting investor confidence, and in promoting overall national
progress." (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., G.R. No. 197676,
February 4, 2014 citing Carlos Superdrug Corp. v. Department of Social Welfare and Development, 553 Phil. 120, 132
133 2007]).


Similarity with Senior Citizens Law.
R.A. No. 9646 a valid exercise of the States police power. As said in another case challenging the
constitutionality of a law granting discounts to senior citizens:
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, 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. (Remman Ent. Inc., et al. v. Professional Regulatory Board of Real Estate
Service, et al., G.R. No. 197676, February 4, 2014 citing Carlos Superdrug Corp. v. Department of Social
Welfare and Development, 553 Phil. 120, 132133 2007]).

BILL OF RIGHTS
DUE PROCESS and EQUAL PROTECTION
No Violation of Equal Protection Clause

Q Section 28 of R.A. No. 9646 exempts from its coverage natural and juridical persons dealing with their own
property, and other persons such as receivers, trustees or assignees in insolvency or bankruptcy proceedings
from having licensed real estate brokers in dealing with their properties. However, real estate developers are
specifically mentioned as an exception from those enumerated therein. Petitioners argued that this provision
violates the equal protection clause because it unjustifiably treats real estate developers differently from those
exempted persons who also own properties and desire to sell them. They insisted that no substantial
distinctions exist between ordinary property owners and real estate developers as the latter, in fact, are more
capable of entering into real estate transactions and do not need the services of licensed real estate
brokers. They assailed the RTC decision in citing the reported fraudulent practices as basis for the exclusion of
real estate developers from the exempted group of persons under Section 28(a). Is the trial courts ruling
correct? Why?
Answer: Yes. The trial courts ruling that R.A. No. 9646 does not violate the equal protection clause is correct.
R.A. No. 9646 was intended to provide institutionalized government support for the development of "a corps of
highly respected, technically competent, and disciplined real estate service practitioners, knowledgeable of
internationally accepted standards and practice of the profession." Real estate developers at present constitute a sector
that hires or employs the largest number of brokers, salespersons, appraisers and consultants due to the sheer number
of products (lots, houses and condominium units) they advertise and sell nationwide. As early as in the 70s, there has
been a proliferation of errant developers, operators or sellers who have reneged on their representation and
obligations to comply with government regulations such as the provision and maintenance of subdivision roads,
drainage, sewerage, water system and other basic requirements. To protect the interest of home and lot buyers from
fraudulent acts and manipulations perpetrated by these unscrupulous subdivision and condominium sellers and
operators, P.D. No. 957 was issued to strictly regulate housing and real estate development projects. Hence, in
approving R.A. No. 9646, the legislature rightfully recognized the necessity of imposing the new licensure requirements
to all real estate service practitioners, including and more importantly, those real estate service practitioners working
for real estate developers. Unlike individuals or entities having isolated transactions over their own property, real
estate developers sell lots, houses and condominium units in the ordinary course of business, a business which is highly
regulated by the State to ensure the health and safety of home and lot buyers. (Remman Ent. Inc., et al. v. Professional
Regulatory Board of Real Estate Service, et al., G.R. No. 197676, February 4, 2014 citing Carlos Superdrug Corp. v.
Department of Social Welfare and Development, 553 Phil. 120, 132133 2007]).

Q The equal protection clause allows classification. State the requirements of valid classification. Explain.
Answer: Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the
classification should be based on real and substantial differences having a reasonable relation to the subject of the
particular legislation. (Mayor Villegas v. Hiu Chiong Tsai Pao Ho, 175 Phil. 443, 448 [1978]). If classification is germane
to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the
classification does not violate the equal protection guarantee. (Remman Ent. Inc., et al. v. Professional Regulatory Board
of Real Estate Service, et al., G.R. No. 197676, February 4, 2014).
The foregoing shows that substantial distinctions do exist between ordinary property owners exempted under
Section 28(a) and real estate developers like petitioners, and the classification enshrined in R.A. No. 9646 is reasonable
and relevant to its legitimate purpose, R.A. No. 9646 is valid and constitutional. (Remman Ent. Inc., et al. v. Professional
Regulatory Board of Real Estate Service, et al., G.R. No. 197676, February 4, 2014).

Temporary protection order under RA 9262 can be issued ex parte; time is of the essence.

Q The issuance of a Temporary Protection Order by the Court under RA 9262 ex parte was challenged as
violative of the right to due process. Is the contention correct? Why?
Answer: No. A protection order is an order issued to prevent further acts of violence against women and their children,
their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties
from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control
of their life.

The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all
the remedies necessary to curtail access by a perpetrator to the victim; to accord the victim and any designated family
or household member safety in the family residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor
children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their
financial support.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a
writ of preliminary attachment which is issued without notice and hearing because the time in which the hearing will
take could be enough to enable the defendant to abscond or dispose of his property, in the same way, the victim of
VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if
notice and hearing were required before such acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the necessities of protecting vital public interests,
among which is protection of women and children from violence and threats to their personal safety and security. (Tua
v. Hon. Mangrobang, et al., G.R. No. 170701, January 22, 2014, Peralta, J).

Q In what way is the respondent in an application for TPO afforded the right to due process? Explain.
Answer: When the TPO is issued ex parte, the court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that
notice, copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are
initially effective for thirty (30) days from service on the respondent.

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the
notice upon the respondent requiring him to file an opposition to the petition within give (5) days from service. The
date of the preliminary conference and hearing on the merits shall likewise be indicated on the notice.

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits
of witnesses and shall show cause why a temporary or permanent protection order should not be issued.

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of
the charges imputed to him and afforded an opportunity to present his side. The essence of due process is to be found in
the reasonable opportunity to be heard and submit any evidence one may have in support of ones defense. To be
heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. (Tua v.
Hon. Mangrobang, et al., G.R. No. 170701, January 22, 2014, Peralta, J).

SEARCH & SEIZURE

Arrest in flagrante delicto.

Q Accused was caught in flagrante delicto in possessing four (4) heatsealed plastic packets of shabu in his
wallet that was tucked in his pocket. He had no authority to possess the same. Are the things seized admissible
in evidence? Explain.
Answer: Yes, considering that he was caught in flagrante delicto. The appellant had no legal authority to possess the
four heatsealed plastic packet of shabu. Settled is the rule that possession of dangerous drugs constitutes prima facie
evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation
of such possession. As such, the burden of evidence is shifted to the accused to explain the absence of knowledge or
animus possidendi, which the appellant in this case miserably failed to do. (People v. Rom, G.R. No. 198452, February 19,
2014).

RA 10175 CYBERCRIME LAW

Q Sec. 4(a)(1) of the Cybercrime Law provides that it is unlawful for any person to have access to the whole or
any part of a computer system as it violates the confidentiality, integrity and availability of computer data
system. Petitioners questioned the constitutionality of the law for failing to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people, hence, unconstitutional. Is the
contention correct? Explain.
Answer: Nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what is essentially a condemnable act accessing the computer system of
another without right. It is a universally condemned conduct. (Disini, Jr., et al. v. The Sec. of Justice, et al., G.R. No.
203335 & other cases, February 11, 2014).
The strict scrutiny standard, an American constitutional construct is useful in determining the constitutionality
of laws that tend to target a class of things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is

necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Later,
the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights, as expansion from its earlier applications to equal protection. (White Light
Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 437).

Q Sec. 4(a)(3) penalizes the intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the introduction or
transmission of viruses, as it violates the confidentiality, integrity and availability of computer data and
systems. Petitioners claimed that it suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms. Is the contention correct? Explain.
Answer: No. Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms. But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what
essentially is a form of vandalism, the act of willfully destroying without right the things that belong to others, in this
case their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other peoples computer systems and private documents. (Disini, Jr., et al. v.
The Sec. of Justice, et al., G.R. No. 203335 & other cases, February 11, 2014).

Q Sec. 4(b)(3) penalizes the intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of
identifying information belonging to another, whether natural or juridical, without right. Petitioners claimed
that it violates the constitutional rights to due process and to privacy and correspondence, and transgresses
the freedom of the press. Is the contention correct? Why?
Answer: No. The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of
the right protected by the guarantee against unreasonable searches and seizures. The right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection. (Morbe v.
Mutuc).

In In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, 535 Phil. 687,
714715 [2006] it was said that the zones of privacy are recognized and protected in our laws. Within these zones, any
form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard accorded to these zones arises not only from our conviction that the right to privacy is a
constitutional right and the right most valued by civilized men, but also from our adherence to the Universal
Declaration of Human Rights which mandates that, no one shall be subjected to arbitrary interference with his privacy
and everyone has the right to the protection of the law against such interference or attacks. (Disini, Jr., et al. v. The Sec.
of Justice, et al., G.R. No. 203335 & other cases, February 11, 2014).

Q It was contended that such law is void because of overbreadth. Rule on the contention. Explain.
Answer: The contention is not correct. The charge of invalidity of this section based on the overbreadth doctrine will
not hold water since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of
another. There is no fundamental right to acquire anothers personal data. (Disini, Jr., et al. v. The Sec. of Justice, et al.,
G.R. No. 203335 & other cases, February 11, 2014).

Q Sec. 4(c)(1) penalizes the willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claimed that it violates the freedom of expression clause of the Constitution. They
expressed fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when done
for favor in cyberspace. In common usage, the term favor includes gracious kindness, a special privilege
or right granted or conceded, or a token of love (as a ribbon) usually worn conspicuously. This meaning
given to the term favor embraces socially tolerated trysts. The law as written would invite law enforcement
agencies into the bedrooms of married couples or consenting individuals. Is the contention correct? Why?
Answer: No. There is no intention to penalize a private showing x x x between and among private persons x x x
although that may be a form of obscenity to some. The element of engaging in a business is necessary to constitute
the illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor
and consideration. This includes interactive prostitution and pornography, i.e., by webcam. (Disini, Jr., et al. v. The Sec.
of Justice, et al., G.R. No. 203335 & other cases, February 11, 2014).

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity. The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply
only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended. (Disini, Jr., et
al. v. The Sec. of Justice, et al., G.R. No. 203335 & other cases, February 11, 2014).

Q Section 19 provides that when a computer data is prima facie found to be in violation of the provisions of
this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contested Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. Rule on the contentions. Explain.
Answer: The contentions are correct for being violative of the constitutional guarantee against unreasonable searches
and seizures. The provision is unconstitutional. Section 2, Article III of the 1987 Constitution provides that the right to
be secure in ones papers and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its
control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search
warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction
on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged
to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates
some law, for to do so would make him judge, jury, and executioner all rolled into one.
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one
of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule. Section 19, however, merely requires that the data to be blocked be found prima facie in violation
of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in
relation to any penal provision. It does not take into consideration any of the three tests mentioned above. (Disini, Jr., et
al. v. The Sec. of Justice, et al., G.R. No. 203335 & other cases, February 11, 2014).

DELEGATION OF POWERS

Q Sec. 26(a) provides that the Cybercrime Coordinating Center (CICC) shall have the powers to formulate a
national cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses
through a computer emergency response team (CERT). Petitioners mainly contended that Congress invalidly
delegated its power when it gave the Cybercrime Investigation and Coordinating Center (CICC) the power to
formulate a national cybersecurity plan without any sufficient standards or parameters for it to follow. Is the
Answer: No. In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its
terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to
do is to enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries
of the delegates authority and prevent the delegation from running riot. (Gerochi v. Department of Energy, 554 Phil.
563 [2007]).
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity. (Disini, Jr., et al. v. The Sec. of Justice, et al., G.R. No. 203335 &
other cases, February 11, 2014).

Right to speedy trial can be waived if not asserted.

In Barcelona v. Lim, et al., G.R. No. 189171, June 3, 2014, Sereno, J, petitioner contended that his right to speedy
disposition of his case was violated since it was resolved 6 years after he filed his appeal. He sought for exoneration. He
contended that he made several phone calls to followup or inquire about the status of his case. Rule on his contention.
Explain.
Held: The contention is not correct. Section 16, Rule III of the 1987 Philippine Constitution, provides that all persons
shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies.
The right to a speedy disposition of cases is guaranteed by the Constitution. The concept of speedy disposition
is flexible. The fact that it took the CSC six years to resolve the appeal of petitioner does not, by itself, automatically
prove that he was denied his right to the speedy disposition of his case. After all, a mere mathematical reckoning of the
time involved is not sufficient, as the facts and circumstances peculiar to the case must also be considered. (Binay v.
Sandiganbayan, 374 Phil. 413, 447 [1999]; Castillo v. Sandiganbayan, 384 Phil. 604, 613 [2000]).

Caballero v. Alfonso, Jr., 237 Phil. 154, 163 [1987], laid down the guidelines for determining the applicability of
Section 16, Rule III, to wit:
In the determination of whether or not the right to a speedy trial has been violated, certain
factors may be considered and balanced against each other. These are length of delay, reason for the
delay, assertion of the right or failure to assert it, and prejudice caused by the delay. x x x.

The CSC maintained that petitioner failed to assert such right before the proceedings in the CSC and, even
assuming that there was delay in resolution of his appeal before the CSC, no prejudice was caused to him.

The alleged telephone calls made by petitioner are selfserving and lack corroborative evidence. Since there is
no way of ascertaining whether or not he actually made these phone calls, this allegation cannot be given any probative
value.
The right to speedy trial, as well as other rights conferred by the Constitution or statute, may be waived except
when otherwise expressly provided by law. Ones right to the speedy disposition of his case must therefore be asserted.

(Guiani v. Sandiganbayan, 435 Phil. 467 [2002]). Due to the failure of petitioner to assert this right, he is considered to
have waived it.

FREEDOM OF EXPRESSION

Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional guaranty of
freedom of expression, of speech and of the press.
The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said.
And where there is a need to reach a large audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak and to
reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the aggregatebased airtime limits unreasonably restricts the guaranteed
freedom of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental Law. [F]reedom of
speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake
of democracy. (In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in
Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 070913, August 8, 2008, 561 SCRA 395,
437). Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest. (GMA
Network Inc. v. COMELEC, G.R. No. 205357. September 2, 2014, Peralta, J).

In regard to limitations on political speech relative to other state interests, an American case observed:
A restriction on the amount of money a person or group can spend on political communication
during a campaign necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience reached. This is because virtually
every means of communicating ideas in todays mass society requires the expenditure of money. The
distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches
and rallies generally necessitate hiring a hall and publicizing the event. The electorates increasing
dependence on television, radio, and other mass media for news and information has made these
expensive modes of communication indispensable instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial, rather than merely
theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending
relative to a clearly identified candidate, 18 U.S.C. 608(e)(1) (1970 ed., Supp. IV), would appear to
exclude all citizens and groups except candidates, political parties, and the institutional press from any
significant use of the most effective modes of communication. Although the Acts limitations on
expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain campaigning by candidates
who raise sums in excess of the spending ceiling. (Buckley v. Valeo, 424 U.S. 1, 1920 [1976]).

Aggregatebased airtime is unreasonable and arbitrary; reasons.

The assailed rule on aggregatebased airtime limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the
adverted reason for imposing the aggregatebased airtime limits leveling the playing field does not constitute a
compelling state interest which would justify such a substantial restriction on the freedom of candidates and political
parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the
absence of a clearcut basis for the imposition of such a prohibitive measure. In this particular instance, what the
COMELEC has done is analogous to letting a bird fly after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregatebased time limits on broadcast time
when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and
dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as
many of the electorates as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these
airtimes in different dialects would greatly hamper the ability of such candidate to express himself a form of
suppression of his political speech.
Respondent itself states that [t]elevision is arguably the most costeffective medium of dissemination. Even a
slight increase in television exposure can significantly boost a candidate's popularity, name recall and electability. If
that be so, then drastically curtailing the ability of a candidate to effectively reach out to the electorate would
unjustifiably curtail his freedom to speak as a means of connecting with the people. (GMA Network Inc. v. COMELEC,
G.R. No. 205357. September 2, 2014).

Section 9(a) of Resolution 9615 is violative of the peoples right to suffrage.
Fundamental to the idea of a democratic and republican state is the right of the people to determine their own destiny
through the choice of leaders they may have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. It was said that:

x x x As long as popular government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be the means by which the great
reservoir of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He
has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when called
upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is
the reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable,
liberality. x x x (Moya v. Del Fierro, 69 Phil. 199, 204 [1939]).

Competition in ideas and governmental policies is at the core of our electoral process and of the First
Amendment freedoms. (Williams v. Rhodes, 393 U.S. 23, 32 [1968]). Candidates and political parties need adequate
breathing space including the means to disseminate their ideas. This could not be reasonably addressed by the very
restrictive manner by which the respondent implemented the time limits in regard to political advertisements in the
broadcast media.

Monitoring requirement is valid; reasonable.

Q Section 7(d) of the Resolution provides that during the campaign period, it is unlawful for any newspaper
or publication, radio, television or cable television station, or other mass media, or any person making use of
the mass media to sell or to give free of charge print space or air time for campaign or election propaganda
purposes to any candidate or party in excess of the size, duration or frequency authorized by law or these
rules. Petitioner GMA contended that compliance with the New Rules in order to avoid administrative or
criminal liability would be unfair, cruel and oppressive, hence, unreasonable. Is the contention correct? Why?
Held: No. The Reporting Requirement for the Comelecs monitoring is reasonable. It is a basic postulate of due process,
specifically in relation to its substantive component, that any governmental rule or regulation must be reasonable in its
operations and its impositions. Any restrictions, as well as sanctions, must be reasonably related to the purpose or
objective of the government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry.
(GMA Network Inc. v. COMELEC, G.R. No. 205357. September 2, 2014).

Q It was likewise contended that such requirement constitutes prior restraint. Is the contention correct?
Why?
Held: No. Such a requirement is a reasonable means adopted by the COMELEC to ensure that parties and candidates are
afforded equal opportunities to promote their respective candidacies. Unlike the restrictive aggregatebased airtime
limits, the directive to give prior notice is not unduly burdensome and unreasonable, much less could it be
characterized as prior restraint since there is no restriction on dissemination of information before broadcast.
Additionally, it is relevant to point out that in the original Resolution No. 9615, the paragraph in issue was
worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview,
bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or onthespot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission on Elections, political conventions,
and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of
this provision. To determine whether the appearance or guesting in a program is bona fide, the
broadcast stations or entities must show that (1) prior approval of the Commission was secured;
and (2) candidates and parties were afforded equal opportunities to promote their candidacy.
Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the
presentation of newscasts, news interviews, news documentaries, and onthespot coverage of news
events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done
to modify the requirement from prior approval to prior notice. While the former may be suggestive of a censorial
tone, thus inviting a charge of prior restraint, the latter is more in the nature of a contentneutral regulation designed to
assist the poll body to undertake its job of ensuring fair elections without having to undertake any chore of approving
or disapproving certain expressions. (GMA Network Inc. v. COMELEC, G.R. No. 205357. September 2, 2014).

The right to reply provision is reasonable.
In the same way that the Court finds the prior notice requirement as not constitutionally infirm, it similarly
concludes that the right to reply provision is reasonable and consistent with the constitutional mandate.

Q Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides that all registered political
parties, partylist groups or coalitions and bona fide candidates shall have the right to reply to charges
published or aired against them. The reply shall be given publicity by the newspaper, television, and/or radio
station which first printed or aired the charges with the same prominence or in the same page or section or in
the same time slot as the first statement.
The attack on the validity of the right to reply provision is primarily anchored on the alleged ground
of prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or of the
freedom of the press. Is the contention correct? Why?

Answer: No. The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible
elections, a task addressed to the COMELEC to provide for a right to reply. Given that express constitutional mandate, it
could be seen that the Fundamental Law itself has weighed in on the balance to be struck between the freedom of the
press and the right to reply. Accordingly, one is not merely to see the equation as purely between the press and the
right to reply. Instead, the constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible
elections would necessarily have to be factored in trying to see where the balance lies between press and the demands
of a righttoreply.
Moreover, in Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections,
G.R. No. 132922, April 21, 1998, 289 SCRA 337, the Supreme Court ruled that in truth, radio and television broadcasting
companies, which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere
privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form
of public service. (GMA Network Inc. v. COMELEC, G.R. No. 205357. September 2, 2014).

Freedom of expression, etc.

In The Diocese of Bacolod, etc. v. COMELEC, et al., G.R. No. 191728, January 21, 2015, Leonen, J, petitioners
posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral of Bacolod with approximate
size of 6 feet by 10 feet. They were posted within public view. One of the tarpaulins contained the heading Conscience
Vote and listed the candidates as either AntiRH) Team Buhay with a check mark or (PRORH) Team Patay) with an
X mark. The Election Officer of Bacolod City issued a Notice to Remove the Campaign Materials within 3 days for being
oversized. It was affirmed by the Legal Department of the COMELEC, otherwise, the petitioners would be prosecuted for
an electoral offense. They filed a petition for certiorari and prohibition with prayer for preliminary injunction and TRO
due to imminent threat of prosecution for their exercise of the freedom of expression. They contended that the removal
of the tarpaulin was in violation of their fundamental right to freedom of expression. Respondents contended that the
tarpaulin is an election propaganda which is subject to regulation, especially so that it was oversized. Rule on the
contention.
Held: The contention of the COMELEC is not correct. Article III, Sec. 4 of the Constitution provides that 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. The right to freedom of expression was upheld in ABSCBN v.
COMELEC, 380 Phil. 780 [2000], when the SC overruled the COMELEC when it prevented ABSCBN from conducting exit
surveys. In Prinucias v. Fugoso, 80 Phil. 75 [1948], the SC likewise recognized the constitutional right to freedom of
speech; to peaceful assembly and to petition for redress of grievances, although not absolute when it issued a writ of
mandamus to compel the Mayor of Manila to issue a permit to use the street.

Size does matter.

Q Does the size of the tarpaulin matter? Why?
Answer: Yes. The form of expression is just as important as the information conveyed that it forms part of the
expression. It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to
view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser time to
view the content of a tarpaulin. The larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an
ordinary persons perspective, those who post their messages in larger fonts care more about their message than those
who carry their messages in smaller media. The perceived importance given by the speakers, to their cause is also part
of the message. The effectivity of communication sometimes relies on the emphasis put by the speakers and on the
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more convinced of the
point made by authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers might want to communicate. Rather than simply placing the
names and images of political candidates and an expression of support, larger spaces can allow for brief but memorable
presentations of the candidates platforms for governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our government.

Q When does the size become more salient? Explain.
Answer: The importance of the size becomes more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept hostage by brief and
catchy but meaningless sound bites extolling the character of the candidate. Worse, elections sideline political
arguments and privilege the endorsement by celebrities. Rather than provide obstacles to their speech, government
should in fact encourage it. Between the candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate, the former have better incentives
to avoid difficult political standpoints and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place. (See Navarro v. Villegas, GR No. L31687,
February 26, 1970, 31 SCRA 730, 732 and Reyes v. Bagatsing, 210 Phil. 457, 476 (1983)). They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution. (The Diocese of Bacolod, etc. v. COMELEC, et al., G.R.
No. 205728, January 21, 2015).

Not all speech are treated the same.

Q Are all types of speech trialed the same where they occupy a preferred position in the heirarcy of rights?
Explain.
Answer: No. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in
order that it may not be injurious to the equal right of others or those of the community or society. The difference in
treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the
permissible scope of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and
may be penalized. (Chavez v. Gonzales, 569 Phil. 155, 199 (2008) [Per C.J. Puno, En Banc]).

Q Are political and commercial speech the same? Explain.
Answer: No. Political and commercial speech are different. Political speech refers to speech both intended and received
as a contribution to public deliberation about some issue, (Freedom of Speech and Expression, 116 HARV. L. REV. 272
[2002], citing Cass R. Sunstein, Free Speech Now, THE BILL OF RIGHTS IN THE MODERN STATE 255, 304 [1992])
fostering informed and civicminded deliberation. (Freedom of Speech and Expression, 116 HARV. L. REV. 272, 278
(2002)). On the other hand, commercial speech has defined as speech that does no more than propose a commercial
transaction. (See Eric Barendt, Tobacco Advertising: The Last Puff?, PUB. L. 27 (2002)).

The expression resulting from the content of the tarpaulin is, however, definitely political speech. (The Diocese
of Bacolod, etc. v. COMELEC, et al., G.R. No. 191728, January 21, 2015).

Q Justice Brion pointed out that freedom of expression is not the god of rights to which all other rights and
even government protection of state interest must bow. Is the contention correct? Explain.
Answer: Yes. The right to freedom of expression is indeed not absolute. Even some forms of protected speech are still
subject to some restrictions. The degree of restriction may depend on whether the regulation is contentbased or
contentneutral. (See Chavez v. Gonzales, 569 Phil. 155, 204205 (2008) [Per C.J. Puno, En Banc]. See also Erwin
Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Courts Application,
74 S. CAL. L. REV. 49, 51 (2000)). Contentbased regulations can either be based on the viewpoint of the speaker or the
subject of the expression.

Q COMELEC contended that the order for removal of the tarpaulin is a contentneutral regulation. The order
was made simply because petitioners failed to comply with the maximum size limitation for lawful election
propaganda.
On the other hand, petitioners argued that the present size regulation is contentbased as it applies
only to political speech and not to other forms of speech such as commercial speech. Is the contention of the
COMELEC correct? Explain.
Answer: Mo. [A]ssuming arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, its still unconstitutional for lack of a clear and reasonable nexus with a constitutionally sanctioned
objective.
The regulation may reasonably be considered as either contentneutral or contentbased. (See for instance
Wilson R. Huhn, Assessing the Constitutionality of Laws That Are Both ContentBased and ContentNeutral: The Emerging
Constitutional Calculus, 79 IND. L. J. 801 (2004).228 Chavez v. Gonzales, 569 Phil. 155, 207208 (2008)). Regardless, the
disposition of this case will be the same. Generally, compared with other forms of speech, the proposed speech is
contentbased.
The interpretation of COMELEC contained in the questioned order applies only to posters and tarpaulins that
may affect the elections because they deliver opinions that shape both their choices. It does not cover, for instance,
commercial speech. Worse, COMELEC does not point to a definite view of what kind of expression of noncandidates
will be adjudged as election paraphernalia. There are no existing bright lines to categorize speech as electionrelated
and those that are not. This is especially true when citizens will want to use their resources to be able to raise public
issues that should be tackled by the candidates as what has happened in this case. COMELECs discretion to limit speech
in this case is fundamentally unbridled.
Size limitations during elections hit at a core part of expression. The content of the tarpaulin is not easily
divorced from the size of its medium. Contentbased regulation bears a heavy presumption of invalidity, and this court
has used the clear and present danger rule as measure. (Chavez . Gonzales, 569 Phil. 155, 207208 [2008]). Thus, in
Chavez v. Gonzales:
A contentbased regulation, however, bears a heavy presumption of invalidity and is measured
against the clear and present danger rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague.

Under this rule, the evil consequences sought to be prevented must be substantive, extremely serious and the
degree of imminence extremely high. Only when the challenged act has overcome the clear and present danger rule
will it pass constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality.
Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling
and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment of the right of freedom

of expression. There is no reason for the state to minimize the right of noncandidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone elses constitutional rights.

Distinction between contentbased and contentneutral restriction.
Contentbased restraint or censorship refers to restrictions based on the subject matter of the utterance or
speech. In contrast, contentneutral regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech. (See Primicias v. Fugoso, 80 Phil. 71 (1948) [Per J. Feria, En Banc]; Reyes v. Bagatsing,
210 Phil. 457 (1983)).
The court defined contentneutral restraints starting with the 1948 case of Primicias v. Fugoso. (80 Phil. 71
[1948]). The ordinance in this case was construed to grant the Mayor discretion only to determine the public places that
may be used for the procession or meeting, but not the power to refuse
the issuance of a permit for such procession or meeting. The court explained that free speech and peaceful assembly are
not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of thers having equal rights,
nor injurious to the rights of the community or society.
The earlier case of Calalang v. Williams, 70 Phil. 726 [1940], involved the National Traffic Commission
resolution that prohibited the passing of animaldrawn vehicles along certain roads at specific hours. The court
similarly iscussed police power in that the assailed rules carry out the legislative
policy that aims to promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public.
As early as 1907, United States v. Apurado, 7 Phil. 422 [1907], recognized that more or less disorder will mark
the public assembly of the people to protest gainst grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement. . . . It is with this backdrop that the state is justified in imposing
restrictions on incidental matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, the court summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of time as regards the date, public place, and time of the
assembly. (Reyes v. Bagatsing, 210 Phil. 457, 475 [1983]). This would afford the public official time to inform applicants
if there would be valid objections, provided that the clear and present danger test is the standard used for his decision
and the applicants are given the opportunity to be heard. This ruling was practically codified in Batas Pambansa No.
880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid contentneutral regulation. In the
2006 case of Bayan v. Ermita, 522 Phil. 201 [2006], the court discussed how Batas Pambansa No. 880 does not prohibit
assemblies but simply regulates their time, place, and manner. (See also Osmea v. COMELEC, 351 Phil. 692, 719
(1998)). In 2010, this court found in Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24, 2010,
613 SCRA 518), that respondent Mayor Atienza committed grave abuse of discretion when he modified the rally permit
by changing the venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be
heard.

Q Respondent invoked its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and credible
election.
Justice Brion in his dissenting opinion discussed that size limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes gives
candidates and their supporters the incentive to post larger posters, and this places candidates with more
money and/or with deeppocket supporters at an undue advantage against candidates with more humble
financial capabilities. Rule on the contention. Explain.
Answer: The contention is not quite correct. First, Adiong v. COMELEC has held that this interest is not as
important as the right of [a private citizen] to freely express his choice and exercise his right of free speech. (G.R. No.
103956, March 31, 1992, 207 SCRA 712, 722). In any case, faced with both rights to freedom of speech and equality, a
prudent course would be to try to resolve the tension in a way that protects the right of participation.
Second, the pertinent election laws related to private property only require that the private property owners
consent be obtained when posting election propaganda in the property. (Rep. Act No. 9006, sec. 9; COMELEC Resolution
No. 9615, sec. 17(b)). This is consistent with the fundamental right against deprivation of property without due process
of law. The present facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case. (The Diocese of Baccolod, etc. v. COMELEC, et al., G.R. No. 205728).
Q Respondents likewise cited the Constitution on their authority to recommend effective measures to
minimize election spending. Specifically, Article IXC, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
. . . .
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and nuisance candidates. Is the
Answer: No. This does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2) by three feet (3) size
limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.
Adiong v. COMELEC that compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal significance. (G.R. No. 103956, March 31,

1992, 207 SCRA 712, 722). In fact, speech with political consequences, as in this case, should be encouraged and not
curtailed. The size limitation will not serve the objective of minimizing election spending considering there is no limit
on the number of tarpaulins that may be posted. (The Diocese of Baccolod, etc. v. COMELEC, et al., G.R. No. 205728).

Q One of the requisites of contentneutral restriction is that the governmental interest is unrelated to the
suppression of free expression. It was contended that the size regulation of the tarpaulin is not unrelated to the
suppression of the freedom of expression, hence, it is not alid. Is the contention correct? Explain.
Answer: Yes. The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the
restriction, but more so at the effects of such restriction, if implemented. The restriction must not be narrowly tailored
to achieve the purpose. It must be demonstrable. It must allow alternative avenues for the actor to make speech.
The size regulation is not unrelated to the suppression of speech. Limiting the maximum size of the tarpaulin
would render ineffective petitioners message and violate their right to exercise freedom of
expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of dissuading expressions with
political consequences. These should be encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction does not pass even the lower test of intermediate scrutiny for contentneutral regulations.
The action of the COMELEC in this case is a strong deterrent to further speech by the electorate. Given the
stature of petitioners and their message, there are indicators that this will cause a chilling effect on robust discussion
during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan, the
medium is the message. McLuhans colleague and mentor Harold Innis has earlier asserted that the materials on
which words were written down have often counted for more than the words themselves. (M. Ethan Katsh,
Cybercrime, Cyberspace and Cyberlaw, J. ONLINE L. Art. 1, par. 7 [1995]; The Diocese of Baccolod, etc. v. COMELEC, et
al., G.R. No. 205728).

Q What is the nature of the message in the tarpaulin? Explain.
Answer: The message of petitioner, taken as a whole, is an advocacy of a social issue that it deeply believes. Through
rhetorical devices, it communicates the desire of Diocese that the positions of those who run for a political osition on this
social issue be determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily even almost incidentally will cause the election or nonelection of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a literary form that employs such devices as sarcasm,
irony and ridicule to deride prevailing vices or follies, (See Leslie Kim Treiger, Protecting Satire Against Libel Claims: A
New Reading of the First Amendments Opinion Privilege, 98 YALE L.J. 1215 (1989)) and this may target any individual or
group in society, private and government alike. It seeks to effectively communicate a greater purpose, often used for
political and social criticism because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . .
Nothing is more thoroughly democratic than to have the highandmighty lampooned and spoofed. (citing Falwell v.
Flynt, 805 F.2d 484, 487 (4th Cir. 1986)). Northrop Frye, wellknown in this literary field, claimed that satire had two
defining features: one is wit or humor founded on fantasy or a sense of the grotesque and absurd, the other is an object
of attack. (See Joseph Brooker, Law, Satire, Incapacity: Satire Bust: The Wagers of Money, 17 LAW & LITERATURE 321,
327 (2005), citing Northrop Frye, Anatomy of Criticism: Four Essays 224 (1957) Decision 56 G.R. No. 205728). Thus,
satire frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, Team Patay does not refer to a list of dead individuals nor could the
Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the candidates in his list was to
cause death intentionally. The tarpaulin caricatures political parties and parodies the intention of those in the list.
Furthermore, the list of Team Patay is juxtaposed with the list of Team Buhay that further emphasizes the theme of
its author: Reproductive health is an important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia
from candidates and political parties are more declarative and descriptive and contain no sophisticated literary allusion
to any social objective. Thus, they usually simply exhort the public to vote for a person with a brief description of the
attributes of the candidate. For example Vote for [x], Sipag at Tiyaga, Vote for [y], Mr. Palengke, or Vote for [z], Iba
kami sa Makati.
The courts construction of the guarantee of freedom of expression has always been wary of censorship or
subsequent punishment that entails evaluation of the speakers viewpoint or the content of ones speech. This is
especially true when the expression involved has political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on the part of any human institution no matter how
endowed with the secular ability to decide legal controversies with finality entails that we are not the keepers of all
wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has
always been a libertarian virtue whose version is embedded in our Bill of Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given us pause. The unforgiving but insistent
nuance that the majority surely and comfortably disregards provides us with the checks upon reality that may soon
evolve into creative solutions to grave social problems. This is the utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to express or communicate.

Tarpaulin and its message are not religious speech.

Q It was contended by the petitioners that the COMELEC in issuing the questioned notice and letter violated
the right of petitioners to the free exercise of their religion. Is the contention correct? Why?

Answer: No. At the outset, the Constitution mandates the separation of church and state. This takes many forms. Article
III, Section 5 of the Constitution, for instance provides:
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.

There are two aspects of this provision. The first is the nonestablishment clause. (See Ebralinag v. The Division
Superintendent of Schools of Cebu, G.R. No. 95770, March 1, 1993, 219 SCRA 256). Second is the free exercise and
enjoyment of religious profession and worship. (See Islamic Dawah Council of the Philippines, Inc. v. Office of the
Executive Secretary, 453 Phil. 440 (2003) [Per J. Corona, En Banc]. See also German, et al. v. Barangan, et al., 220 Phil.
189 (1985)).
The second aspect is at issue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act
immune from any secular regulation. (See Pamil v. Teleron, 176 Phil. 51 (1978)). The religious also have a secular
existence. They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious
expression. This notwithstanding petitioners claim that the views and position of the petitioners, the Bishop and the
Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings. . . .
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu, G.R.
No. 95770, March 1, 1993, 219 SCRA 256, in claiming that the court emphatically held that the adherents of a
particular religion shall be the ones to determine whether a particular matter shall be considered ecclesiastical in
nature. The court in Ebralinag exempted Jehovahs Witnesses from participating in the flag ceremony out of respect for
their religious beliefs, [no matter how] bizarre those beliefs may seem toothers. The court found a balance between
the assertion of a religious practice and the compelling necessities of a secular command. It was an early attempt at
accommodation of religious beliefs.
In Estrada v. Escritor, 455 Phil. 411 [2003], the court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies that
take religion specifically into account not to promote the governments favoured form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As
Justice Brennan explained, the government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere
in which voluntary religious exercise may flourish.

The court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a
secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion. (Estrada v. Escritor, 455 Phil. 411, 506 (2003) [Per J. Puno, En Banc], citing Lemon v.
Kurtzman, 403 U.S. 602, 612613 (1971)).
The tarpaulin, on its face,does not convey any religious doctrine of the Catholic church. That the position of
the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does not, by itself,
bring the expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates
classified under Team Patay and Team Buhay according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal encyclicals to support their claim that the expression on
the tarpaulin is an ecclesiastical matter. The church doctrines relied upon by petitioners are not binding upon the court.
The position of the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the face of
the tarpaulin precludes any doubt as to its nature as speech with political consequences and not religious speech.
Furthermore, the definition of an ecclesiastical affair in Austria v. National Labor Relations Commission, 371
Phil. 340 [1999] cited by petitioners finds no application in the present case. The posting of the tarpaulin does not fall
within the category of matters that are beyond the jurisdiction of civil courts
as enumerated in the Austria case such as proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities with attached religious significance.

OMBUDSMAN

Independence of the Ombudsman; Deputy Ombudsman.

Q Section 8(2) of RA 6770 otherwise known as the Ombudsman Act vests disciplinary authority over the
Deputy Ombudsman upon the President. Is this valid? Why?
Answer: No, since it violates the independence of the Office of the Ombudsman. In more concrete terms, subjecting the
Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive
Department are subject to the Ombudsmans disciplinary authority, cannot but seriously place at risk the independence
of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key
officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the
constitutionallygranted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly

collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but
inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act a agents of the
Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in
her subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls
external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major problem for the government. For these reasons, Section 8(2)
of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void. (Emilio
Gonzales III v. Office of the President, et al., G.R. No. 196232, January 28, 2014).

Q Is the Office of the Special Prosecutor entitled to the same independence enjoyed by the Office of the
Ombudsman? Why?
Answer: No. By a vote of 87 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar as the
Special Prosecutor is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally
within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the
Constitution. (Emilio Gonzales III v. Office of the President, et al., G.R. No. 196232, January 28, 2014).

CIVIL SERVICE COMMISSION

Designation of CSC Chairman to the Board of GSIS, ECC, etc. violates the independence of the Commission.

Q Pursuant to E.O. No. 864, CSC Chairman Francisco Duque III was designated as a member of the Board of
Directors of the GSIS, Philhealth, ECC and HDMF. Atty. Dennis Funa questioned the constitutionality of the
designation alleging that the same infringed on the independence of the CSC and that such position cannot be ex
officio. The respondents however maintained the validity of the EO as it preserved the independence of the CSC
since the GOCCs are excluded from the supervision and control that the secretaries and heads exercise over the
departments to which they are attached. Ultimately, these GOCCs are exempted from the executive control of
the President. Whose contention is correct? Explain.
Held: The contention of the petitioner is correct. The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective
charters with various powers and functions to carry out the purposes for which they were created. While powers and
functions associated with appointments, compensation and benefits affect the career development, employment status,
rights, privileges, and welfare of government officials and employees, the GSIS, PHILHEALTH, ECC and HDMF are also
tasked to perform other corporate powers and functions that are not personnelrelated. All of these powers and
functions, whether personnelrelated or not, are carried out and exercised by the respective Boards of the GSIS,
PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF, he may exercise these powers and functions, which are not anymore derived from his
position as CSC Chairman, such as imposing interest on unpaid or unremitted contributions, issuing guidelines for the
accreditation of health care providers, or approving restructuring proposals in the payment of unpaid loan
amortizations. The Court also notes that Duques designation as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of additional compensation that is disallowed by
the concept of an ex officio position by virtue of its clear contravention of the proscription set by Section 2, Article IXA
of the 1987 Constitution. This situation goes against the principle behind an ex officio position, and must, therefore, be
held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duques designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the independence of the CSC. Under Section 17,
Article VII of the Constitution, the President exercises control over all government offices in the Executive Branch. An
office that is legally not under the control of the President is not part of the Executive Branch. The Court has aptly
explained in Rufino v. Endriga:
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasijudicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal and
constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also
not one of the independent constitutional bodies. Neither is the CCP a quasijudicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative
Code of 1987, any agency not placed by law or order creating them under any specific department falls
under the Office of the President.
Since the President exercises control over all the executive departments, bureaus, and offices,
the President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President shall have control of all executive . . . offices, x x x Section 17, Article VII
of the 1987 Constitution does not exempt any executive office one performing executive functions
outside of the independent constitutional bodies from the Presidents power of control. There is no
dispute that the CCP performs executive, and not legislative, judicial, or quasijudicial functions.
The Presidents power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of departments,
agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or
decisions of a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises control of all the
executive departments, bureaus, and offices. There can be no instance under the Constitution where an

officer of the Executive branch is outside the control of the President. The Executive branch is unitary
since there is only one President vested with executive power exercising control over the entire
Executive branch. Any office in the Executive branch that is not under the control of the President is a
lost command whose existence is without any legal or constitutional basis. (Emphasis supplied)

As provided in their respective charters, PHILHEALTH and ECC have the status of a government corporation
and are deemed attached to the Department of Health45 and the Department of Labor,46 respectively. On the other
hand, the GSIS and HDMF fall under the Office of the President.47 The corporate powers of the GSIS, PHILHEALTH, ECC
and HDMF are exercised through their governing Boards, members of which are all appointed by the President of the
Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and the members of their respective governing
Boards are under the control of the President. As such, the CSC Chairman cannot be a member of a government entity
that is under the control of the President without impairing the independence vested in the CSC by the 1987
Constitution. (Dennis Funa v. The Chairman, CSC, Francisco Duque III, et al., G.R. No. 191672, November 25, 2014,
Bersamin, J).

Nepotism includes appointment by a group of individuals.

In CSC v. Cortes, G.R. No. 200103, April 23, 2014, Abad, J, the respondent was appointed as Information Officer V
of her father by virtue of a resolution of the CHR en banc. When it was questioned by the CSC due to nepotism, it was
contended that it was the Commission en banc that appointed her, not her father. Further, it was contended that the
prohibition against nepotism does not apply to a group of persons. His father even abstained from voting on her
appointment. Rule on the contention. Explain.
Held: The contention is not correct. It is absurd to declare that the prohibitive veil on nepotism does not include
appointments made by a group of individuals acting as a body. What cannot be done directly cannot be done indirectly.
This principle is elementary and does not need explanation. Certainly, if acts that cannot be legally done directly can be
done indirectly, then all laws would be illusory.
His appointment by the Commission En Banc, where her father is a member, is covered by the prohibition. Her
abstention from voting did not cure the nepotistic character of the appointment because the evil sought to be avoided
by the prohibition still exists. His mere presence during the deliberation for the appointment created an impression of
influence and cast doubt on the impartiality and neutrality of the Commission En Banc.
To rule that the prohibition applies only to the Commission, and not to the individual members who compose
it, will render the prohibition meaningless. Apparently, the Commission En Banc, which is a body created by fiction of
law, can never have relatives to speak of.

Concept of nepotism.
Nepotism is defined as an appointment issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following: (1) appointing authority; (2) recommending authority; (3) chief of the
bureau or office; and (4) person exercising immediate supervision over the appointee. Here, it is undisputed that
respondent Cortes is a relative of Commissioner Mallari in the first degree of consanguinity, as in fact Cortes is the
daughter of Commissioner Mallari.

Exceptions.
By way of exception, the following shall not be covered by the prohibition: (1) persons employed in a
confidential capacity; (2) teachers; (3) physicians; and (4) members of the Armed Forces of the Philippines. In the
present case, however, the appointment of respondent Cortes as IO V in the CHR does not fall to any of the exemptions
provided by law.

Purpose of prohibition.
The purpose of Section 59 on the rule against nepotism is to take out the discretion of the appointing and
recommending authority on the matter of appointing or recommending for appointment a relative. The rule insures the
objectivity of the appointing or recommending official by preventing that objectivity from being in fact tested. Clearly,
the prohibition against nepotism is intended to apply to natural persons. It is one pernicious evil impeding the civil
service and the efficiency of its personnel. (Civil Service Commission v. Dacoycoy, 366 Phil. 86 (1999)).

COMELEC

Political ads; COMELEC without power to compute ads time to aggregate time basis.

In GMA Network, Inc. v. COMELEC, G.R. No. 205357, & other companion cases, September 2, 2014, Peralta, J,
there was a question on the validity of Sec. 9(a) of COMELEC Resolution No. 9615 limiting broadcast and radio
advertisements of candidates and political parties for local and national elective positions to an aggregate total of one
hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contended that such
restrictive regulation on allowable broadcast time violated freedom of the press, impaired the peoples right to suffrage
as well as their right to information relative to the exercise of their right to choose who to elect during the elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number of
minutes that candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No.
9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said provision state, that each
bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.

It further provides that each bona fide candidate or registered political party for a locally elective office shall be
entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
During the previous elections the COMELEC interpreted Section 6 of R.A. No. 9006, regarding airtime
limitations, to mean that a candidate is entitled to the aforestated number of minutes per station. For the May 2013
elections, however, respondent COMELEC changed the interpretation from a per station basis, to a total aggregate
basis.
The COMELEC reasoned out that the Resolution was intended to level the playing fields between the moneyed
and the poor candidates. Is the resolution valid? Why?
Held: No. COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions
relative to the airtime limitations on political advertisements. This essentially consists in computing the airtime on
an aggregate basis involving all the media of broadcast communications compared to the past where it was done on
a per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction of the allowable
minutes within which candidates and political parties would be able to campaign through the air. It is not within the
power
of
the
Comelec
to
do
so.

The COMELEC has no power to change the rule from per station basis to aggregate time basis. That the
COMELEC has the power to level the playing field is not sufficient basis.

ELECTION LAW

Residence does not mean that a person must be at home 24 hours a day.

In Jalover, et al. v. Osmena, et al., G.R. No. 209286, September 23, 2014, Brion, J, there was a Petition to Deny
Due Course and to Cancel the Certificate of Candidacy of Osmena for Mayor of Toledo City. It was alleged that he did not
own any property in the City and that his place of residence belongs to his son and that he was never a resident of
Toledo City. On the other hand, Osmena contended that he owns properties in Toledo City and that he has established
his residence therein as early as or even before 2004. He became a registered voter in Toledo City as early as 2006. The
COMELEC dismissed the petition and ruled that Osmena did not commit material misrepresentation in his COC. The
COMELEC en banc upheld the ruling stating that a candidate is not required to have his own house in a place in order to
establish his residence or domicile in a place citing Sabili v. COMELEC & Librea, G.R. No. 193261, April 24, 2012, 670
SCRA 664. It is enough that he should have lived in the locality even in a rented house or that of a friend or relative.
Petition was filed with the SC contending that the COMELEC committed grave abuse of discretion in not holding that
Osmena false representation in his COC. Is the contention correct? Why?
Held: No. The law does not require a person to be in his home twentyfour (24) hours a day, seven (7) days a week, to
fulfill the residency requirement. In Fernandez v. House Electoral Tribunal, G.R. No. 187478, December 21, 2009, 608
SCRA 733, it was ruled that the fact that a few barangay health workers attested that they had failed to see petitioner
whenever they allegedly made the rounds in Villa de Toledo is of no moment, especially considering that there were
witnesses (including petitioner's neighbors in Villa de Toledo) that were in turn presented by petitioner to prove that
he was actually a resident of Villa de Toledo, in the address he stated in his COC. x x x It may be that whenever these
health workers do their rounds petitioner was out of the house to attend to his own employment or business.
Similarly, the fact that Osmea has no registered property under his name does not belie his actual residence
in Toledo City because property ownership is not among the qualifications required of candidates for local election.
(Sabili v. COMELEC). It is enough that he should live in the locality, even in a rented house or that of a friend or
relative. To use ownership of property in the district as the determinative indicium of permanence of domicile or
residence implies that only the landed can establish compliance with the residency requirement. In Perez v. COMELEC,
G.R. No. 133944, 375 Phil. 1106, 11171118 (1999), the SC sustained the COMELEC when it considered as evidence
tending to establish a candidates domicile of choice the mere lease (rather than ownership) of an apartment by a
candidate in the same province where he ran for the position of governor.

Nature of false representation.
The false representation that these provisions mention pertains to a material fact, not to a mere innocuous
mistake. This is emphasized by the consequences of any material falsity: a candidate who falsifies a material fact cannot
run; if he runs and is elected, cannot serve; in both cases, he or she can be prosecuted for violation of the election
laws. Obviously, these facts are those that refer to a candidates qualifications for elective office, such as his or her
citizenship and residence.
Separate from the requirement of materiality, a false representation under Section 78 must consist of a
deliberate attempt to mislead, misinform, or hide a fact, which would otherwise render a candidate ineligible. In other
words, it must be made with the intention to deceive the electorate as to the wouldbe candidate's qualifications for
public office. In Mitra v. COMELEC, it has held that the misrepresentation that Section 78 addresses cannot be the result
of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no
deception of the electorate results. The deliberate character of the misrepresentation necessarily follows from a
consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run.
The minimum requirement under our Constitution and election laws for the candidates residency in the
political unit they seek to represent has never been intended to be an empty formalistic condition; it carries with it a
very specific purpose: to prevent stranger[s] or newcomer[s] unacquainted with the conditions and needs of a
community from seeking elective offices in that community. (Torayno, Sr. v. COMELEC, 392 Phil. 342, 352 (2000)).
The requirement is rooted in the recognition that officials of districts or localities should not only be
acquainted with the metes and bounds of their constituencies; more importantly, they should know their
constituencies and the unique circumstances of their constituents their needs, difficulties, aspirations, potentials for

growth and development, and all matters vital to their common welfare. Familiarity or the opportunity to be familiar
with these circumstances can only come with residency in the constituency to be represented.

Osmna has been proclaimed winner in the electoral contest and has therefore the mandate of the electorate.

In the case of Frivaldo v. Comelec, G.R. Nos. 120295 and 123755, 327 Phil. 521 (1996), that [i]n any action
involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the
issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority.
To successfully challenge a winning candidates qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so zealously protect and promote. The reason for such
liberality stems from the recognition that laws governing election contests must be construed to the end that the will of
the people in the choice of public officials may not be defeated by mere technical objections. (Alberto v. COMELEC, G.R.
No. 132242, July 27, 1999, 311 SCRA 215, 222).
COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of
our ruling that COC mandatory requirements before elections are considered merely directory after the people shall
have spoken. Where a material COC misrepresentation under oath is made, thereby violating both our election and
criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our
laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the
electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorates will.
With the conclusion that Osmea did not commit any material misrepresentation in his COC, there is no reason
to appeal to the primacy of the electorates will. We cannot deny, however, that the people of Toledo City have spoken
in an election where residency qualification had been squarely raised and their voice has erased any doubt about their
verdict on Osmeas qualifications.

A COC cancellation proceeding partakes of the nature of disqualification case; votes are stray votes.

In Mayor Gamal Hayudini v. COMELEC, et al., G.R. No. 207900, April 22, 2014, Peralta, J, there was a
petition to cancel the COC of a mayoralty candidate on the ground of a false representation in the COC which
pertained to a material fact which is a ground for cancellation of the COC under Sec. 78 of the Omnibus Election
Code. He stated in his COC that he was a resident of the place where he was running for Mayor when in fact, he
was not. While he won in the election, his proclamation was nullified, hence, he contended that the nullification
was not proper as there was no petition to annul his proclamation. Is the contention correct? Explain.
Held: No. The nullification of his proclamation as a winning candidate is also a legitimate outcome a necessary legal
consequence of the cancellation of his CoC pursuant to Section 78. A CoC cancellation proceeding essentially partakes
of the nature of a disqualification case. The cancellation of a CoC essentially renders the votes cast for the candidate
whose certificate of candidacy has been cancelled as stray votes. If the disqualification or CoC cancellation or denial
case is not resolved before the election day, the proceedings shall continue even after the election and the proclamation
of the winner. Meanwhile, the candidate may be voted for and even be proclaimed as the winner, but the COMELEC's
jurisdiction to deny due course and cancel his or her CoC continues. This rule likewise applies even if the candidate
facing disqualification has already taken his oath of office. The only exception to this rule is in the case of congressional
and senatorial candidates where the COMELEC ipso jure loses jurisdiction in favor of either the Senate or the House of
Representatives Electoral Tribunal after the candidates have been proclaimed, taken the proper oath, and also assumed
office. (Regina Ongsiako Reyes v. COMELEC, et al., G.R. No. 207264, June 25, 2013).

Mere change in office location is not transfer.

Q Elsie Causing was the Local Civil Registrar of Barotac Nuevo, Iloilo, but before the elections of 2010, she was
detailed at the Office of the Mayor, a few steps away from her office. She questioned her detail alleging that it
violated COMELEC Resolution No. 8737 Series of 2009 in relation to Sec. 261(g) (h) & (x) of the Omnibus
Election Code which prohibits the transfer or detail whatsoever of any employee or officer in the civil service
without prior authority of the COMELEC. The Mayor contended that he merely transferred her office from her
original office to his office in order to closely supervise her after receiving complaints against her. She
thereafter continued to perform her tasks and received salaries as Municipal Civil Registrar even after her
transfer to the Office of the Mayor. The COMELEC dismiss the complaint seeking to charge the Mayor criminally.
Is the dismissal correct? Why?
Answer: Yes, because there was no transfer or detail of the petitioner. The only personnel movements prohibited by
COMELEC Resolution No. 8737 were transfer and detail. Transfer is defined in the Resolution as any personnel
movement from one government agency to another or from one department, division, geographical unit or subdivision
of a government agency to another with or without the issuance of an appointment; is the movement of an employee
from one agency to another without the issuance of an appointment. Having acquired technical and legal meanings,
transfer and detail must be construed as such. Obviously, the movement involving Causing did not equate to either a
transfer or a detail within the contemplation of the law if Mayor Biron only thereby physically transferred her office
area from its old location to the Office of the Mayor some little steps away. The argument that the phrase any transfer
or detail whatsoever encompassed any and all kinds and manner of personnel movement, including the mere change
in office location is not correct. (Causing v. COMELEC, et al., G.R. No. 199139, September 9, 2014, Bersamin, J).

COC cancelled; he was never a candidate.

As held in Aratea v. COMELEC, which is a case for cancellation of CoC under Section 78 of the Omnibus Election
Code, a cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid
votes. Whether a certificate of candidacy is cancelled before or after the elections is immaterial, because the
cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being
void ab initio. Since the winning mayoralty candidate's certificate of candidacy was void ab initio, he was never a
candidate at all and all his votes were considered stray votes, and thus, proclaimed the second placer, the only qualified
candidate, who actually garnered the highest number of votes, for the position of Mayor.
Since he was never a valid candidate, the votes cast for him should be considered stray votes, Consequently, the
COMELEC properly proclaimed the other candidate, who garnered the highest number of votes in the remaining
qualified candidates for the mayoralty post, as the dulyelected Mayor.
The will of the electorate is still actually respected even when the votes for the ineligible candidate are
disregarded. The votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an
election for these do not constitute the sole and total expression of the sovereign voice. On the other hand, those votes
for the eligible and legitimate candidates form an integral part of said voice, which must equally be given due respect , if
not more. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013).

LOCAL GOVERNMENTS

Plebiscite; the phrase by the qualified voters therein includes all voters in the LGU affected; issue, a novel one
of first impression.

In Umali v. COMELEC, et al., G.R. No. 203974, & companion cases, April 22, 2014, there was a request for the
President to declare Cabanatuan City into a highly urbanized city (HUC) which was granted, subject to the ratification in
a plebiscite by the qualified voters therein. The COMELEC issued a resolution that only the registered voters of the City
shall participate as in the plebiscite which was questioned by petitioner contending that the voters of the entire
province of Nueva Ecija should participate the entire province would be adversely affected. On the other hand, the
Mayor contended that only the voters of Cabanatuan City should participate, citing the plebiscite in Tacloban, Puerto
Princesa and LapuLapu City. The COMELEC ruled that only the voters of Cabanutuan City shall participate. Is the ruling
correct? Why?
Held: No. The phrase "by the qualified voters therein" in Sec. 453 means the qualified voters not only in the city
proposed to be converted to an HUC but also the voters of the political units directly affected by such conversion in
order to harmonize Sec. 453 with Sec. 10, Art. X of the Constitution.
The respondents are mistaken in construing Sec. 453 in a vacuum. Their interpretation of Sec. 453 of the LGC
runs afoul of Sec. 10, Art. X of the Constitution which explicitly requires that all residents in the "political units directly
affected" should be made to vote.
Respondents make much of the plebiscites conducted in connection with the conversion of Puerto Princesa
City, Tacloban City and LapuLapu City where the ratification was made by the registered voters in said cities alone. It is
clear, however, that the issue of who are entitled to vote in said plebiscites was not properly raised or brought up in an
actual controversy. The issue on who will vote in a plebiscite involving a conversion into an HUC is a novel issue, and
this is the first time that the Court is asked to resolve the question. As such, the past plebiscites in the aforementioned
cities have no materiality or relevance to the instant petition. Suffice it to say that conversion of said cities prior to this
judicial declaration will not be affected or prejudiced in any manner following the operative fact doctrinethat the
actual existence of a statute prior to such a determination is an operative fact and may have consequences which cannot
always be erased by a new judicial declaration.

The entire province of Nueva Ecija will be directly affected by Cabanatuan Citys conversion.
a. "Political units directly affected" defined
In identifying the LGU or LGUs that should be allowed to take part in the plebiscite, what should primarily be
determined is whether or not the unit or units that desire to participate will be "directly affected" by the change. To
interpret the phrase, Tan v. COMELEC, No. L73155, July 11, 1986, 142 SCRA 727 and Padilla v. COMELEC, G.R. No.
103328, October 19, 1992, 214 SCRA 735 are worth revisiting.
We have ruled in Tan, involving the division of Negros Occidental for the creation of the new province of
Negros del Norte, that the LGUs whose boundaries are to be altered and whose economy would be affected are entitled
to participate in the plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes it imperative that there
be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is substantial alteration of the boundaries.
It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental
would necessarily be substantially altered by the division of its existing boundaries in order that there
can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected.
The first would be the parent province of Negros Occidental because its boundaries would be
substantially altered. The other affected entity would be composed of those in the area subtracted from
the mother province to constitute the proposed province of Negros del Norte.
x x x x
To form the new province of Negros del Norte no less than three cities and eight municipalities
will be subtracted from the parent province of Negros Occidental. This will result in the removal of
approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries
will be consequently substantially altered. It becomes easy to realize that the consequent effects of the
division of the parent province necessarily will affect all the people living in the separate areas of Negros
Occidental and the proposed province of Negros del Norte. The economy of the parent province as well
as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be
the case, either or both of these political groups will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite
contemplated therein.

Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:
SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or
its boundary substantially altered, except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or
units affected.
Despite the change in phraseology compared to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the
latter case of Padilla. As held, the removal of the phrase "unit or" only served to sustain the earlier finding that what is
contemplated by the phase "political units directly affected" is the plurality of political units which would participate in
the plebiscite.
In the more recent case of Miranda, the interpretation in Tan and Padilla was modified to include not only
changes in economic but also political rights in the criteria for determining whether or not an LGU shall be considered
"directly affected." Nevertheless, the requirement that the plebiscite be participated in by the plurality of political units
directly affected remained.

b. Impact on Economic Rights
To recall, it was held in Miranda that the changes that will result in the downgrading of an LGU from an
independent component city to a component city cannot be categorized as insubstantial, thereby necessitating the
conduct of a plebiscite for its ratification. In a similar fashion, Umali itemized the adverse effects of Cabanatuan Citys
conversion to the province of Nueva Ecija to justify the provinces participation in the plebiscite to be conducted.
Often raised is that Cabanatuan Citys conversion into an HUC and its severance from Nueva Ecija will result in
the reduction of the Internal Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC.
The conversion into an HUC carries the accessory of substantial alteration of boundaries and that the province
of Nueva Ecija will, without a doubt, suffer a reduction in territory because of the severance of Cabanatuan City. The
residents of the city will cease to be political constituencies of the province, effectively reducing the latters population.
Taking this decrease in territory and population in connection with the above formula, it is conceded that Nueva Ecija
will indeed suffer a reduction in IRA given the decrease of its multipliers values.
Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of its share in IRA once
Cabanatuan City attains autonomy. In view of the economic impact of Cabanatuan Citys conversion, petitioner Umalis
contention, that its effect on the province is not only direct but also adverse, deserves merit.

LGUs have the power to classify and reclassify their properties; police power measure.

Q Ordinance No. 8187, otherwise known as An Ordinance Amending Ord. No. 8119, Otherwise Known as The
Manila Comprehensive Land Use and Zoning Ordinance of 2006 By Creating a Medium Industrial Zone (12)
and Heavy Industrial Zone (13). The creation of the industrial zones lifted the prohibition against owners and
operators of businesses including Chevron and the other oil companies from operating in designated
commercial zones, an industrial zone prior to the enactment of Ordinance No. 8027. The petition is a sequel to
the case of SJS v. Mayor Atienza, J. where the SC found that said ordinance (No. 8027) was enacted to safeguard
the rights to life, security and safety of the inhabitants of Manila, hence it ordered the operators of the
Pandacan depots to immediately relocate and transfer their oil terminals. But despite the finality of said
judgment, the City of Manila enacted an ordinance, (Ordinance No. 8171) repealing Ordinance No. 8027 on the
theory that a local government unit can classify and reclassify its own properties. Pursuant to the Local
Government Code, the LGU is in the best position to determine the needs of its constituents that the removal of
the oil depots in the Pandacan area is necessary to protect the residents of Manila from catastrophic
devastation in case of a terrorist attack on the Pandacan Terminals. The oil companies contended that the
Pandacan terminals have never been the subject of terrorist attacks, hence, the petitions are based on
unfounded fears and mere conjectures. They went on to identify measures to ensure the safety of the people
even with the presence of the terminals, like compliance with preventive measures set by the Bureau of Fire
Protection and have scaled down their depots. Rule on the contention of the oil companies. Explain.
Answer: The contention is not correct. The threat of terrorism is imminent. It remains. Even assuming that the
respondents and intervenors were correct, the very nature of the depots where millions of liters of highly flammable
and highly volatile products, regardless of whether or not the composition may cause explosions, has no place in a
densely populated area. Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or
otherwise, would definitely cause not only destruction to properties within and among neighboring communities but
certainly mass deaths and injuries.

With regard to the scaling down of the operations in the Pandacan Terminals, which the oil companies continue
to insist to have been validated and recognized by the MOU, the Court, in G.R. No. 156052, has already put this issue to
rest. It specifically declared that even assuming that the terms ratifying the MOU gave it full force and effect only until
30 April 2003.

The steps taken by the oil companies therefore, remain insufficient to completely remove the dangers posed by
the presence of the terminals in a thickly populated area. For given that the threat sought to be prevented may strike at
one point or another, no matter how remote it is, we cannot allow the right to life to be dependent on the unlikelihood

of an event. Statistics and theories have no place in situations where the very life of not just an individual but residents
of big neighborhood is at stake. In SJS v. Atienza, it was held that Ord. No. 8027 is a valid exercise of police power, as it
safeguards the rights to life, security and safety of all the inhabitants of Manila. (SJS, et al. v. Lim, G.R. No. 187836 &
companion cases, November 25, 2014, Perez, J).
Q What compelled the SC in affirming the validity of Ordinance No. 8027 upon which they declared some
provisions of Ordinance No. 8187? Explain.
Answer: It is the removal of the danger to life not the mere subdual of risk of catastrophe, which made the SC favor
Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compelled the affirmance of such decision in SJS v.
Atienza, where the SC said that Ordinance No. 8027 was enacted for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare of the residents of Manila. The Sanggunian was impelled to take
measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan
Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to
commercial.
The following facts were found by the Committee on Housing, Resettlement and Urban
Development of the City of Manila which recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile
products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel,
gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace; and
(4) in case of an explosion or conflagration in the depot, the fire could spread to the
neighboring communities.

The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist target. As long as there is such a
target in their midst, the residents of Manila are not safe. It threat.

Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027.
Without a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair
to the inhabitants of the City of Manila and its leaders who have categorically expressed their desire for
the relocation of the terminals. Their power to chart and control their own destiny and preserve their
lives and safety should not be curtailed by the intervenors warnings of doomsday scenarios and threats
of economic disorder if the ordinance is enforced.

The same best interest of the public guides the present decision. The Pandacan oil depot remains a terrorist
target even if the contents have been lessened. In the absence of any convincing reason to persuade this Court that the
life, security and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots, we hold
that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and unconstitutional. (SJS, et al. v. Lim, supra.).

LGU has the power to impose fees for purposes of regulation in the exercise of police power.

Q Smart Communications, Inc. constructed a telecommunications tower within the territorial jurisdiction of
the Municipality. The construction of the tower was for the purpose of receiving and transmitting cellular
communications within the covered area.

On July 30 2003, the Municipality passed Ordinance No. 18, series of 2003, entitled An Ordinance
Regulating the Establishment of Special Projects.
On August 24, 2004, Smart received from the Permit and Licensing Division of the Office of the Mayor of
the Municipality an assessment letter with a schedule of payment for the total amount of P389,950.00 for
Smarts telecommunications tower.
Due to the alleged arrears in the payment of the assessment, the Municipality also caused the posting of
a closure notice on the telecommunications tower.
On September 9, 2004, Smart filed a protest, claiming lack of due process in the issuance of the
assessment and closure notice. In the same protest, Smart challenged the validity of Ordinance No. 18 on which
the assessment was based which the municipality denied.
After its Motion for Reconsideration was denied, it appealed to the Court of Tax Appeals which denied
the petition. Before the SC, it contended that the LGU cannot impose the said fees which are in the form of tax
not regulatory, but revenue raising. It contended that the designation of fees in the ordinance is not controlling.
Is the contention correct? Explain.
Answer: The primary purpose of Ordinance No. 18 is to regulate the placing, stringing, attaching, installing, repair and
construction of all gas mains, electric, telegraph and telephone wires, conduits, meters and other apparatus listed
therein, which included Smarts telecommunications tower. Clearly, the purpose of the assailed Ordinance is to regulate
the enumerated activities particularly related to the construction and maintenance of various structures. The fees in
Ordinance No. 18 are not impositions on the building or structure itself; rather, they are impositions on the activity
subject of government regulation, such as the installation and construction of the structures. (Angeles University
Foundation v. City of Angeles, G.R. No. 189999, June 27, 2012, 675 SCRA 539, 373).

Since the main purpose of Ordinance No. 18 is to regulate certain construction activities of the identified
special projects, which included cell sites or telecommunications towers, the fees imposed in Ordinance No. 18 are

primarily regulatory in nature, and not primarily revenueraising. While the fees may contribute to the revenues of the
Municipality, this effect is merely incidental. Thus, the fees imposed in Ordinance No. 18 are not taxes. (Smart
Communications, Inc. v. Mun. of Malvar, Batangas, G.R. No. 204429, February 18, 2014).

Q Does the LGU have the power to impose the fees? Explain.
Answer: Yes. Section 5, Article X of the 1987 Constitution 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 government.

Consistent with this constitutional mandate, the LGC grants the taxing power to each local government unit.
Specifically, Section 142 of the LGC grants municipalities the power to levy taxes, fees, and charges not otherwise levied
by provinces. Section 143 of the LGC provides for the scale of taxes on business that may be imposed by municipalities
while Section 147 of the same law provides for the fees and charges that may be imposed by municipalities on business
and occupation. (Smart Communications, Inc. v. Mun. of Malvar, Batangas, G.R. No. 204429, February 18, 2014).

Q When is an imposition, a tax or mere regulation? Explain.
Answer: In Progressive Development Corporation v. Quezon City, 254 Phil. 635 [1989]; City of Iloilo v. Villanueva, 105 Phil.
337 [1959], it was declared that if the generating of revenue is the primary purpose and regulation is merely
incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that incidentally revenue is also
obtained does not make the imposition a tax.
In Victorias Milling Co., Inc. v. Municipality of Victorias,134 Phil. 180 [1968], it was reiterated that the purpose
and effect of the imposition determine whether it is a tax or a fee, and that the lack of any standards for such imposition
gives the presumption that the same is a tax. The designation given by the municipal authorities does not decide
whether the imposition is properly a license tax or a license fee. The determining factors are the purpose and effect of
the imposition as may be apparent from the provisions of the ordinance. Thus, when no police inspection, supervision,
or regulation is provided, nor any standard set for the applicant to establish, or that he agrees to attain or maintain, but
any and all persons engaged in the business designated, without qualification or hindrance, may come, and a license on
payment of the stipulated sum will issue, to do business, subject to no prescribed rule of conduct and under no guardian
eye, but according to the unrestrained judgment or fancy of the applicant and licensee, the presumption is strong that
the power of taxation, and not the police power, is being exercised. (Smart Communications, Inc. v. Mun. of Malvar,
Batangas, G.R. No. 204429, February 18, 2014).

Q Is the ordinance constitutional? Explain.
Answer: Yes. Smart merely pleaded for the declaration of unconstitutionality of Ordinance No. 18 in the Prayer of the
Petition, without any argument or evidence to support its plea. Nowhere in the body of the Petition was this issue
specifically raised and discussed. Significantly, Smart failed to cite any constitutional provision allegedly violated by
respondent when it issued Ordinance No. 18.

Settled is the rule that every law, in this case an ordinance, is presumed valid. To strike down a law as
unconstitutional, Smart has the burden to prove a clear and unequivocal breach of the Constitution, which Smart
miserably failed to do. In Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R.
No. 164987, April 24, 2012, 670 SCRA 373, it was held that to justify the nullification of the law or its implementation,
there must be a clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of
proof establishing unconstitutionality, the Court must sustain legislation because to invalidate a law based on x x x
baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which
approved it. This presumption of constitutionality can be overcome only by the clearest showing that there was indeed
an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down. (Smart
Communications, Inc. v. Mun. of Malvar, Batangas, G.R. No. 204429, February 18, 2014).

ADMINISTRATIVE LAW

Q RA 3720, as amended by Executive Order No. 175, s. 1987 prohibits, inter alia, the manufacture and sale of
pharmaceutical products without obtaining the proper CPR from the FDA.In this regard, the FDA has been
deputized by the same law to accept applications for registration of pharmaceuticals and, after due course,
grant or reject such applications. To this end, the said law expressly authorizes the Secretary of Health, upon
the recommendation of the FDA Director, to issue rules and regulations that pertain to the registration of
pharmaceutical products.
In accordance with his rulemaking power under RA 3720, the Secretary of Health issued AO 67, s.
1989 in order to provide a comprehensive set of guidelines covering the registration of pharmaceutical
products. AO 67, s. 1989, requires, among others, that certain pharmaceutical products undergo BA/BE testing
prior to the issuance of CPR, contrary to respondents assertion that it was Circular Nos. 1 and 8, s. 1997 that
required such tests. What is the nature of AO 67 & Circular Nos. 1 & 8? Explain.
Answer: AO 67, s. 1989 is actually the rule that originally introduced the BA/BE testing requirement as a component of
applications for the issuance of CPRs covering certain pharmaceutical products. As such, it is considered an
administrative regulation a legislative rule to be exact issued by the Secretary of Health in consonance with the
express authority granted to him by RA 3720 to implement the statutory mandate that all drugs and devices should first
be registered with the FDA prior to their manufacture and sale. Considering that neither party contested the validity of
its issuance, the Court deems that AO 67, s. 1989 complied with the requirements of prior hearing, notice, and
publication pursuant to the presumption of regularity accorded to the government in the exercise of its official duties.

On the other hand, Circular Nos. 1 and 8, s. 1997 cannot be considered as administrative regulations because
they do not: (a) implement a primary legislation by providing the details thereof; (b) interpret, clarify, or explain
existing statutory regulations under which the FDA operates; and/or (c) ascertain the existence of certain facts or
things upon which the enforcement of RA 3720 depends. In fact, the only purpose of these circulars is for the FDA to
administer and supervise the implementation of the provisions of AO 67, s. 1989, including those covering the BA/BE
testing requirement, consistent with and pursuant to RA 3720. Therefore, the FDA has sufficient authority to issue the
said circulars and since they would not affect the substantive rights of the parties that they seek to govern as they are
not, strictly speaking, administrative regulations in the first place no prior hearing, consultation, and publication are
needed for their validity.
In sum, the Court holds that Circular Nos. 1 and 8, s. 1997 are valid issuances and binding to all concerned
parties, including the respondents in this case.

PUBLIC OFFICERS

De facto officer.

In Dennis B. Funa v. The Chairman, CSC Francisco Duque III, et al., G.R. No. 191672, November 25, 2014,
Bersamin, J, the SC ruled that the CSC Chairman cannot be designated as a member of the Board of GSIS, ECC, Philhealth
as it violated the independence of the CSC and that the position is not ex officio office.
In view of the application of the prohibition under Section 2, Article IXA of the 1987 Constitution, Duque did
not validly hold office as Director or Trustee of the GSIS, PHILHEALTH, ECC and HDMF concurrently with his position of
CSC Chairman. Accordingly, he was not to be considered as a de jure officer while he served his term as Director or
Trustee of these GOCCs. A de jure officer is one who is deemed, in all respects, legally appointed and qualified and
whose term of office has not expired. (48Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830).
Duque was a de facto officer during his tenure as a Director or Trustee of the GSIS, PHILHEALTH, ECC and
HDMF. In Civil Liberties Union v. Executive Secretary,49 the Court has said:
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held that in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and
may in an appropriate action recover the salary, fees and other compensations attached to the office.
This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public
should benefit by the services of an officer de facto and then be freed from all liability to pay any one for
such services. Any per diem, allowances or other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may therefore be retained by them. (G.R. Nos.
83896 & 83815, February 22, 1991, 194 SCRA 317).

A de facto officer is one who derives his appointment from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment is valid on its face. (50Dimaandal v. Commission on Audit, G.R. No.
122197, June 26, 1998, 291 SCRA 322, 330). He may also be one who is in possession of an office, and is discharging its
duties under color of authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer. (see also The Civil Service Commission v. Joson, Jr., G.R. No.
154674, May 27, 2004, 429 SCRA 773, 786). Consequently, the acts of the de facto officer are just as valid for all
purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned.

Presumption of validitys of Duques acts.
In order to be clear, therefore, the Court holds that all official actions of Duque as a Director or Trustee of the
GSIS, PHILHEALTH, ECC and HDMF, were presumed valid, binding and effective as if he was the officer legally appointed
and qualified for the office. (See Seeres v. Commission on Elections, G.R. No. 178678, April 16, 2009, 585 SCRA 557,
575). This clarification is necessary in order to protect the sanctity and integrity of the dealings by the public with
persons whose ostensible authority emanates from the State. Duques official actions covered by this clarification
extend but are not limited to the issuance of Board resolutions and memoranda approving appointments to positions in
the concerned GOCCs, promulgation of policies and guidelines on compensation and employee benefits, and adoption of
programs to carry out the corporate powers of the GSIS, PHILHEALTH, ECC and HDMF.

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In the Decision, it was said that:

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