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INTERNATIONAL LAW

Jus Cogens Norm and Erga Omnes

Article 53 of the Vienna Convention on the law of treaties defines jus cogens norm as: a peremptory norm of general international
law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is
permitted and which can only be modified by a subsequent norm of general international law having the same character.

A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory
norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify y agreement. Jus cogens
norms are recognized in the Vienna Convention on the Law of Treaties as a ground for invalidity and termination of treaties, when
they are in conflict with such norms. (Magallona, Fundamentals of Public International Law 2005)

Case: Vinuya vs Executive Secretary Romulo

FACTS:

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the DOJ,
and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established for the
purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War.

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the comfort women
stations in the Philippines. But officials of the Executive Department declined to assist the petitioners, and took the position that the
individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations
against Japan before the International Court of Justice (ICJ) and other international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco
Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.

On January 15, 1997, the Asian Womens Fund and the Philippine government signed a Memorandum of Understanding for medical
and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of
Social Welfare and Development.

ISSUE:
WON the Executive Department committed grave abuse of discretion in not espousing petitioners claims for official apology and
other forms of reparations against Japan.

RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether
to espouse petitioners claims against Japan.

Political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.
One type of case of political questions involves questions of foreign relations. It is well-established that the conduct of the foreign
relations of our government is committed by the Constitution to the executive and legislativethe politicaldepartments of the
government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or
decision. are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil.

But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to
the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is
this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and
other officials.
The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy
interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the to
overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has been constitutionally committed.

From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the Executive must be given ample discretion to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal
system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. By taking up the
case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its subjects, respect for the rules of international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national
law, if means are available, with a view to furthering their cause or obtaining redress. All these questions remain within the province
of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown that the
crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty
to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed
by States towards the community of states as a whole. Essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis--vis another State in the field of diplomatic protection. By
their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to
have a legal interest in their protection; they are obligations erga omnes.

The term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation,
and can be modified only by general international norms of equivalent authority

Case: Province of North Cotabato vs The Government of the RP


FACTS:
The Government of the Republic of the Philippines (GRP) and the Moro-Islamic Liberation Front (MILF) were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) in Malaysia. The signing of the MOA-AD was not to materialize,
however, for upon motion of the petitioners, the Court issued a Temporary Restraining Order enjoining the GRP from signing the
same.

The Solicitor General, who represents the respondents, summarizes the MOA-AD by stating that the same contained, among others,
the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end
of 1999 up to early 2000, the MILF attached a number of municipalities in Central Mindanao, President Joseph Estrada declared and
carried an all-out war against the MILF.

When President Gloria Macapagal Arroyo assumed office, the military offensive against the MILF was suspended and the government
sought a resumption of the peace talks.

The parties in Kuala Lampur, Malaysia finally signed the MOA-AD between the GRP and the MILF. The MILF thereafter suspended all
its military actions.

Invoking the right to information on matters of public concern, the petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MA-AD and to prohibit the slated signing of the MOA-AD and the holding of public
consultation thereon. They also pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP from
signing the same.

III. ISSUES

Procedural Issues:
A. Ripeness of the controversy;
B. Locus Standi;
C. Mootness of the controversy;
D. Appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and
executive officials.

Substantial Issues:
1. Did the GRP violate constitutional and statutory provisions on public consultation and the right to information when they
negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
IV. RULING OF THE COURT

PROCEDURAL ISSUES

A. RIPENESS OF THE CONTROVERSY

An Actual case of controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical of abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. The Court can decide the constitutionality of an act or treaty
only when a proper case between the opposing parties is submitted for judicial determination.

Related to he requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when
the act being challenged has a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication
it is a prerequisite that something had been accomplished or performed by either branch before a court may come into the picture,
and petitioner must allege he existence of an immediate or threatened injury to itself as a result of the challenged action. He must
show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning
that:

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactment as
well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a
proposal that does not automatically create legally demandable rights and obligations until the list of operative acts
required have been duly complied with.

The Solicitor Generals arguments failed to persuade.

The authority of the GRP Negotiating Panel is defined by Executive Order NO. 3, issued on February 28, 2001. The said executive
order requires that the governments policy framework for peace, including the systematic approach and the administrative structure
for carrying out the comprehensive peace process.

The present petitions allege that the respondents GRP Panel and the PAPP drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing them of the proceedings.

Furthermore, the petitions allege that the provisions of the MOA-Ad violate the Constitution. The MOA-AD provides that any
provision of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework, implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed the to the MILF the amendment of the Constitution.
Such acts constitute another violation of its authority.

As the petitions allege acts or omissions on the part of the respondent that exceed their authority, by violating their duties under
E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for certiorari, prohibition and
mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed on the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle
the dispute.

B. LOCUS STANDI

For a party to have locus standi, one must allege such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.

Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question
frequently arises as to this interest in the constitutional question raised.

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.

The Court retains discretion whether or not to allow a taxpayers suit.

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative
but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.
An organization may be granted standing to assert the rights of its members, but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other
LGUs.

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing
intervention, such as a legal interest in the matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi,

has exercised, highlighted in the case of David v. Macapagal-Arroyo, where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in
view of their seriousness, novelty and weight as precedents. The Courts forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens
and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds.
The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of undeniable transcendental importance
clothes them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce
compliance by respondents of the publics constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member
of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality
on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices
to clothe them with standing.

3. MOOTNESS OF THE CONTROVERSY

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Courts
issuance of a Temporary Restraining Order.

Contrary too to respondents position, the MOA-AD cannot be considered a mere list of consensus points, especiallygiven its
nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these consensus points, foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary
changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are
not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD,
the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the countrys
territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had
done in a number of landmark cases. There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents actions are capable of repetition, in another or any form.

SUBSTANTIVE ISSUES

A. Did the GRP violate constitutional and statutory provisions on public consultation and the right to information when
they negotiated and later initialed the MOA-AD?

Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill
of Rights:

Sec.7.The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by
law.

The public has legitimate interest in matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful
democratic decision-making if they are denied access to information of general interest. Information is needed to enable
the members of society to cope with the exigencies of the times. As has been aptly observed: Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow
inevitably ceases. x

In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of
general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the
nation so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains
responsive to the changes desired by the people.

The MOA-AD is a matter of Public Concern

That the subject of the information sought in the present cases is a matter of public concern faces no serious challenge. In fact,
respondents admit that the MOA-AD is indeed of public concern.

In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds, the need for
adequate notice to the public of the various laws, the civil service eligibility of a public employee, the proper management of GSIS
funds allegedly used to grant loans to public officials, the recovery of the Marcoses alleged ill-gotten wealth, and the identity of
party-list nominees, among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at
large.

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

Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Certainly, a
consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the
right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed policy of full disclosure of all its
transactions involving public interest.

Intended as a splendid symmetry to the right to information under the Bill of Rights is the policy of public disclosure under Section
28, Article II of the Constitution reading:

Sec.28.Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full
public disclosure of all its transactions involving

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters
of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody demands.

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy,
with the peoples right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy. These
provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the
people.

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for reasonable safeguards. The complete and effective exercise of the right to information
complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is
absurd to say that the broader right to information on matters of public concern is already enforceable while the correlative duty of
the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot
thus point to the absence of an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government
and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.

The imperative of a public consultation, as a species of the right to information, is evident in the marching orders to respondents.
The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is
manifestly provided by E.O. No. 3. The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the peoples participation.

One of the three underlying principles of the comprehensive peace process is that it should be community-based, reflecting the
sentiments, values and principles important to all Filipinos and shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community. Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of peoples participation in the peace process.

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate continuing consultations, contrary
to respondents position that plebiscite is more than sufficient consultation.

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to conduct regular dialogues with the
National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace process. E.O. No. 3 mandates the establishment
of the NPF to be the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and
concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as
for government[-]civil society dialogue and consensus-building on peace agenda and initiatives.

In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a corollary to the constitutional
right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.

As for respondents invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound
reason when contrasted with E.O. No. 3s explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the publics right even before the GRP makes its official recommendations
or before the government proffers its definite propositions. It bear emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD. By unconditionally complying with the Courts August 4, 2008 Resolution, without a prayer
for the documents disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State policy to require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and peoples organizations, and
other concerned sectors of the community before any project or program is implemented in their respective jurisdictions is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required.No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies.The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act, which entails, among other
things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison dtre of the MOA-
AD, without which all other stipulations or consensus points necessarily must fail. In proceeding to make a sweeping declaration on
ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended
the boundaries of their authority.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.

B. Do the contents of the MOA-AD violate the Constitution and the laws?

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert
that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of
the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful
to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law
concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in


the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE
and the Central Government.

4.The relationship between the Central Government and the Bangsamoro with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact.
A period of transition shall be established in a Government and the BJE.

The nature of the associative relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of association in international law, and the MOA-ADby its
inclusion of international law instruments in its TORplaced itself in an international legal context, that concept of association may
be brought to bear in understanding the use of the term associative in the MOA-AD.
In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on
their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically
the following: the BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state
or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims
to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for its validity the amendment of
constitutional provisions, specifically the following provisions of Article X:

SECTION1.The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall provided.

SECTION15.There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution
and the national sovereignty as well as

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other
states.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that the creation of the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
autonomous region in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM during the 2001 plebisciteBaloi, Munai, Nunungan, Pantar, Tagoloan and Tangkalare
automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier
in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for
then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution

The MOA-AD would not comply with Article X, Sec. 20 of the Constitution since that provision defines the powers of autonomous
regions as follows:

SECTION20.Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for legislative powers over:
1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural resources;

4. Personal, family, and property relations;

5. Regional urban and rural planning development;

6. Economic, social, and tourism development;

7. Educational policies;

8. Preservation and development of the cultural heritage; and

9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
(Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would
expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES which states: The BJE is free to enter into any economic
cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x. Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in
external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the
President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the states.

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be
effected.

That constitutional provision states: The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development. (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law.

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of Bangsamoro people
used in the MOA-AD.

Paragraph 1 on Concepts and Principles states:

1.It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected.

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than
lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:

As used in this Organic Act, the phrase indigenous cultural community refers to Filipino citizens residing in the
autonomous region who are:

(a)Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other
sectors of the national community; and
(b)Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions.

Article II, Section 2 of the Constitution states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons, held that the Universal Declaration of Human
Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples, understood not merely as the entire population of
a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede
from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that the right of
a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status
beyond convention and is considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, freely determine their political status and freely pursue their economic, social, and cultural development.

The peoples right to self-determination should not, however, be understood as extending to a unilateral right of
secession. A distinction should be made between the right of internal and external self-determination.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary
international lawa question which the Court need not definitively resolve herethe obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like
the forced dispossession of their landsa function that is normally performed by police officers. If the protection of a right so
essential to indigenous peoples identity is acknowledged to be the responsibility of the State, then surely the protection of rights less
significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous
peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous
peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as
follows:

1.Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage
in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity
of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as
presently worded.

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No.
3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to think outside the box, so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would require new legislation and constitutional
amendments.

The inquiry on the legality of the suspensive clause, however, cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the Presidents
power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution
does not mean that she has no such authority.

Similarly, the Presidents power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by
simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nations
constitutional structure is required.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from
submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit
to the electorate the question of calling such a convention.

While the President does not possess constituent powersas those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendumshe may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.

From the foregoing discussion, the principle may be inferred that the Presidentin the course of conducting peace negotiationsmay
validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the Presidents suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine peoples initiative. The only
initiative recognized by the Constitution is that which truly proceeds from the people.

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It
protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare

An armed conflict is a contested incompatibility which concerns government and/or territory where the use of armed force
between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.

Categories of Armed Conflicts


a. International Armed Conflicts
b. Internal or non-international Armed Conflicts
A non-international (or "internal") armed conflictrefers to a situation of violence involving
protractedarmed confrontations between government forces and one or more organized armed groups, or between such
groups themselves, arising on the territory of a State.
c. War of National Liberation

IHL vs Human Rights Law

International humanitarian law and international human rights law are two distinct but complementary bodies of law. They are both
concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law
applies at all times, in peace and in war.

Both international humanitarian law and human rights law apply in armed conflicts.

However, a State cannot suspend or waive certain fundamental rights that must be respected in all circumstances. These include the
right to life, the prohibition of torture and inhuman punishment or treatment, the outlawing of slavery or servitude, the principle of
legality and the non-retroactivity of the law and the right to freedom of thought, conscience and religion.
States have a legal duty to respect and implement both IHL and human rights law.

International Humanitarian Law International Human Rights Law


IHL cannot be suspended international human rights law allows a State to
suspend a number of human rights if it faces asituation
of emergency
Compliance with IHL requires a state to introduce
national legislation to implement its obligations, to train
its military and to bring to trial those in grave breach of Human rights law also contains provisions requiring a
such law. State to take legislative and other appropriate measures
to implement its rules and punish violations.

IHL is based on the Geneva and Hague Conventions, International human rights law is more complex and
Additional Protocols and a series of treaties governing unlike IHL includes regional treaties. The main global
means and methods of waging war such as those legal instrument is the Universal Declaration of Human
banning blinding laser weapons, landmines and Rights adopted by the UN General Assembly in 1948.
chemical and biological weapons, as well as customary Other global treaties include the International Covenant
law. on Civil and Political Rights, the International Covenant
on Economic, Social and Cultural Rights as well as
treaties on the prevention and punishment of torture
and other forms of cruel, inhuman or degrading
treatment or punishment, on the elimination of racial
discrimination and discrimination against women, or on
the rights of the child.

Regional human rights conventions or charters have


been adopted in Europe, the Americas, Africa, and the
Arab region.

In situations of armed conflict, human rights law


complements and reinforces the protection afforded by
International Humanitarian Law.

International environmental law (sometimes, international ecological law) is a field of international law regulating the
behavior of states and international organizations with respect to the environment.

The Biosafety Protocol and its Implementation

8. What is the exact name of the Biosafety Protocol?

The full name of the Biosafety Protocol is "the Cartagena Protocol on Biosafety to the Convention on Biological Diversity." Cartagena
is the name of the city in Colombia where the Biosafety Protocol was originally scheduled to be concluded and adopted in February
1999. However, due to a number of outstanding issues, the Protocol was finalized and adopted a year later on 29 January 2000 in
Montreal, Canada.
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9. What is the objective of the Protocol?


In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development,
the objective of the Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and
use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and
sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary
movements. (see Article 1)
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10. What is the "precautionary approach"? How is it reflected in the Protocol?

One of the outcomes of the United Nations Conference on Environment and Development (also known as the Earth Summit) held in
Rio de Janeiro, Brazil, in June 1992, was the adoption of the Rio Declaration on Environment and Development, which contains 27
principles to underpin sustainable development. One of these principles is Principle 15 which states that "In order to protect the
environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation."
Elements of the precautionary approach find reflection in a number of the provisions of the Protocol, such as:

The preamble, reaffirming "the precautionary approach contained in Principle 15 of the Rio Declaration on environment and
Development; ".

Article 1, indicating that the objective of the Protocol is "in accordance with the precautionary approach contained in
Principle 15 of the Rio Declaration on environment and Development";

Article 10.6 and 11.8, stating:


"Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the
potential adverse effects of an LMO on biodiversity, taking into account risks to human health, shall not prevent a Party of
import from taking a decision, as appropriate, with regard to the import of the LMO in question, in order to avoid or
minimize such potential adverse effects."

Annex III on risk assessment, stating:

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11. What does the Protocol cover?

The Protocol applies to the transboundary movement, transit, handling and use of all living modified organisms that may have
adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.
(see Article 4)
However, LMOs that are pharmaceuticals for humans are excluded from the scope of the Protocol if they are covered by other
international agreements or arrangements. (see Article 5)

ELECTION LAWS
I. Art V, Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

Qualifications:
1. Citizen of RP
2. Not disqualified by law
3. At least 18
4. Resident of at least 1 year in RP
5. Resident of place where to vote at least 6 mos immediately preceeding election

Case: Kabataan Partylist vs Comelec

II. Filing of Certificate of Candidacy


What is the effect of filing a certificate of candidacy on an appointive position/ appointed officer vs elective position/officer?

Omnibus Election Code


Section 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Case: Quinto vs Comelec (resolution on the MR upholding sec 66)

Remedies before election: Omnibus Election Code


Section 8 Election Code to be available in polling places. - A printed copy of this Code in English or in the national language shall be
provided and be made available by the Commission in every polling place, in order that it may be readily consulted by any person in
need thereof on the registration, revision and election days.

Section 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce
or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.

Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to
give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in
mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the
certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

Various Jurisdiction in Election Protest and Petition for Quo Warranto


Election Protest vs Quo Warranto

a. An election protest can only contemplate a post-election scenario. The Supreme Court has no jurisdiction over cases brought
directly before it questioning the qualifications of a candidate for the presidency, before the elections are held. Ordinary
usage would characterize a contest in reference to a post-election scenario. Election contests consist of either an election
protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the
winning candidate from office (Tecson v. COMELEC, 424 SCRA 277).
b.
c. Election protest refers to an election contest relating to the election and returns of elective officials, grounded on frauds or
irregularities in the conduct of the elections, the casting and counting of the ballots and the preparation and canvassing of
returns. The issue is who obtained the plurality
of valid votes cast. (Sec. 3 (c), Rule 1, Rules of Procedure in Election Contests).

d. Quo warranto refers to an election contest relating to the qualifications of an election official on the ground of ineligibility or
disloyalty to the Republic of the Philippines. The issue is whether the respondent possesses all the qualifications and none of
the disqualifications prescribed by law (Sec. 3 (e), Rule 1, Rules of Procedure in Election Contests).
e.
f. While an elective official may only be considered a presumptive winner as his/ her proclamation was under protest, does not
make him/ her less than a duly elected official (Ong v. Alegre, G.R. No. 163295, 23 January 2006).
g.
h. Certiorari, not an election protest or quo warranto, is the proper recourse to review a COMELEC resolution approving the
withdrawal of the nomination of its original nominees and substituting them with others even if the substitute nominees
have already been proclaimed and have taken their oath of office (Lokin, Jr. v. COMELEC, G.R. No. 179431-32, 22 June
2010)

Art 9-C, Sec. 2, par 2


Section 2. The Commission on Elections shall exercise the following powers and functions:

Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be
final, executory, and not appealable.

Art. 7, Sec 4, par. 7


The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the purpose.

Art. 6, Sec 1
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

JURISDICTION IN ELECTION PROTEST


Election Protest- refers to an election contest involving the election and returns of elective officials, grounded on fraud or
irregularities committed in the conduct of elections ie. In the casting and the counting of the ballots, in the consolidation of votes and
in the canvassing of the returns, not otherwise classified as pre-proclamation controversy cognizable by the Comelec. The issue is
who obtained the plurality of valid votes cast.

It is a special summary proceeding the object of which is to expedite the settlement of controversy between candidates as to who
received the majority of the legal ballots.

Consequence if adverse party is unseated: protestant may assume office after protestee is unseated.

As a general rule, the proper remedy after the proclamation of the winning candidate would be to file a regular election protest or a
petition for quo warranto before the proper forum and within the term fixed by law.
Presidential Electoral Tribunal The SC En Banc , constituting itself as the PET is the sole judge of
all contests relating to the election, returns and qualifications of
the President or VP and may promulgate its own rules for that
purpose
Senate Electoral Tribunal The Senate shall have an electoral tribunal which shall be the sole
judge of all contests relating to the election, returna and
qualifications of its members .
Nine members:
3 SC Justices (Senior Justice shall be the chairman)
6 Senate members chosen accdg to proportional representation
House of Representatives Electoral Tribunal Nine members:
3 SC Justices (Senior Justice shall be the chairman)
6 House members chosen accdg to proportional representation
COMELEC 1. Original Jurisdiction
Exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional,
provincial and city officials.

Any voter contesting the election of any regional, provincial and


city officer on the ground of ineligibility or disloyalty to RP shall file
a sworn petition for quo warranto with the Comelec within 10 days
after proclamation.

Decisions, final orders or rulings involving Municipal and Barangay


offices shall be final, executor and not appealable.

2. Appellate Jurisdiction
Exclusive appellate jurisdiction over all contest involving
a. elective municipal officials decided by the RTC
b. elective barangay officials decided by the MTC.

The decision on election contest involving municipal offices filed


with the RTC may be appealed to the Comelec within 5 days from
the promulgation or receipt of a copy thereof by the aggrieved
party. The Comelec shall decide the appeal within 60 days to 6
months, which shall be finals, unappealable and executory.

RTC For quo warranto of municipal office on grounds of ineligibility or


disloyalty to RP within 10 days after proclamation

MTC For quo warranto of barangay office on grounds of ineligibility or


disloyalty to RP within 10 days after proclamation
===============================================================================

LAW ON PUBLIC OFFICERS AND LOCAL GOVERNMENT CODE

Requisites for the Creation of an LGU


Art. 10, Constitution
Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.

Case: SEMA vs Comelec


The Province of Maguindanao is part of ARMM. Cotabato City is part of the province of Maguindanao but it is not part of ARMM

because Cotabato City voted against its inclusion in a plebiscite held in 1989. Maguindanao has two legislative districts. The

1st legislative district comprises of Cotabato City and 8 other municipalities.

A law (RA 9054) was passed amending ARMMs Organic Act and vesting it with power to create provinces, municipalities, cities and

barangays. Pursuant to this law, the ARMM Regional Assembly created Shariff Kabunsuan (Muslim Mindanao Autonomy Act 201)

which comprised of the municipalities of the 1st district of Maguindanao with the exception of Cotabato City.

For the purposes of the 2007 elections, COMELEC initially stated that the 1 st district is now only made of Cotabato City (because of

MMA 201). But it later amended this stating that status quo should be retained; however, just for the purposes of the elections, the

first district should be called Shariff Kabunsuan with Cotabato City this is also while awaiting a decisive declaration from Congress

as to Cotabatos status as a legislative district (or part of any).

Bai Sandra Sema was a congressional candidate for the legislative district of S. Kabunsuan with Cotabato (1 st district). Later, Sema

was contending that Cotabato City should be a separate legislative district and that votes therefrom should be excluded in the voting

(probably because her rival Dilangalen was from there and D was winning in fact he won). She contended that under the

Constitution, upon creation of a province (S. Kabunsuan), that province automatically gains legislative representation and since S.

Kabunsuan excludes Cotabato City so in effect Cotabato is being deprived of a representative in the HOR.

COMELEC maintained that the legislative district is still there and that regardless of S. Kabunsuan being created, the legislative

district is not affected and so is its representation.

ISSUE: Whether or not RA 9054 is unconstitutional. Whether or not ARMM can create validly LGUs.

HELD: RA 9054 is unconstitutional. The creation of local government units is governed by Section 10, Article X of the Constitution,

which provides:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially
altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.

Thus, the creation of any of the four local government units province, city, municipality or barangay must comply with three

conditions.

1. First, the creation of a local government unit must follow the criteria fixed in the Local Government Code.

2. Second, such creation must not conflict with any provision of the Constitution.

3. Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or

local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can

delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no

conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal

councils, the power to create barangays within their jurisdiction, subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. Hence, ARMM cannot validly create

Shariff Kabunsuan province.

Note that in order to create a city there must be at least a population of at least 250k, and that a province, once created, should

have at least one representative in the HOR. Note further that in order to have a legislative district, there must at least be 250k

(population) in said district. Cotabato City did not meet the population requirement so Semas contention is untenable. On the other

hand, ARMM cannot validly create the province of S. Kabunsuan without first creating a legislative district. But this can never be

legally possible because the creation of legislative districts is vested solely in Congress. At most, what ARMM can create are

barangays not cities and provinces.

Limitation of Term of Office of Elective Local Officials


Case: Borja vs Comelec
FACTS:
Private respondent Jose T. Capco, Jr. was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June
30, 1992. On September 2, 1989, he became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter,
Capco ran and was elected and served as Mayor for two more terms, from 1992 to 1998.
On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros for the May 11, 1998 elections. Petitioner
Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the ground that Capco have already
served as Mayor for 3 consecutive terms from September 2, 1989 to June 30, 1998; hence, he would be ineligible to serve for
another term.
The Second Division of the Comelec ruled in favor of the petitioner and declared the private respondent disqualified from
running for reelection as mayor of Pateros. However, on the motion of private respondent Comelec en banc reversed the decision on
the basis that the Constitution and the Local Government Code provide that the three-term limitation refers to the term of office for
which the local official was elected and no reference to succession to an office to which he was not elected. Accordingly, such
succession into office is not counted as one (1) term for the purposes of the computation of the three-term limitation.
Capco was subsequently voted and proclaimed as mayor. Thus, this petition for certiorari brought to set aside the resolution
of the Comelec and seek a declaration that that private respondent is disqualified to serve another term as Mayor of Pateros.
Petitioner argued that it is irrelevant that private respondent became mayor by succession because the purpose of the constitutional
provision in limiting the number of terms elective local officials may serve is to prevent a monopolization of political power.

ISSUE:
Whether or not a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term
is considered to have served a term in that office for the purpose of the three-term limit.

HELD:
The Court ruled in the negative.
Article X, Section 8 of the Constitution provides that the term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected.
This provision is restated in Section 43(b) of the Local Government Code (R.A. No. 7160):
SEC. 43. Term of Office.. . .
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service
for the full term for which the elective official concerned was elected . . . .
The Court held that the policy embodied in the constitutional provision (Article X, Section 8) is not only to prevent the
establishment of political dynasties but also to enhance the freedom of choice of the people. Furthermore, the term limit for elective
local officials must be taken to refer to the right to be elected as well as the right to serve the same elective position.
Hence, it is not enough that an individual has served three consecutive terms in an elective local office; he must also have
been elected to the same position for the same number of times before the disqualification can apply.
In this case, Capco was qualified to run again as mayor in the next election because he was not elected to the office of
mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he
only continued the service, interrupted by the death, of the deceased mayor. The vice-mayors assumption of the mayorship in the
event of the vacancy is more a matter of chance than of design. Thus, his service in that office should not be counted in the
application of any term limit.

NOTES:
A consideration of the historical background of Article X, Section 8 of the Constitution reveals that the members of the
Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with
preventing the monopolization of political power.

They rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years
there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term. Monsod warned against prescreening candidates [from] whom the
people will choose as a result of the proposed absolute disqualification, considering that the draft constitution contained
provisions recognizing peoples power.
A fundamental tenet of representative democracy is that the people should be allowed to choose those whom they please to
govern them.

To bar the election of a local official because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Not only historical examination but textual analysis as well supports the ruling of the COMELEC that Article X, Section 8
contemplates service by local officials for three consecutive terms as a result of election.

The first sentence speaks of the term of office of elective local officials and bars such official[s] from serving for more than
three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full
term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be
one for which [the official concerned] was elected. The purpose of this provision is to prevent a circumvention of the limitation on
the number of terms an elective local official may serve. Conversely, if he is not serving a term for which he was elected because he
is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term
notwithstanding his voluntary renunciation of office prior to its expiration.
Difference between the cases of a vice- mayor and that of a member of the House of Representatives who succeeds
another who dies, resigns, becomes incapacitated, or is removed from office.

The vice- mayor succeeds to the mayorship by operation of law while the Representative is elected to fill the vacancy. In a real
sense, therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to
limit the right to be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather
than refute what we believe to be the intendment of Article X, Section 8 with regard to elective local officials, the case of a
Representative who succeeds another confirms the theory.
The Vice- President is elected primarily to succeed the President in the event of the latters death, permanent disability,
removal, or resignation.

There is another reason why the Vice- President who succeeds to the Presidency and serves in that office for more than four years
is ineligible for election as President. The Vice- President is elected primarily to succeed the President in the event of the latters
death, permanent disability, removal, or resignation. While he may be appointed to the cabinet, his becoming one is entirely
dependent on the good graces of the President. In running for Vice- President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice- President the candidate who they think can fill the
Presidency in the event it becomes vacant. Hence, service in the Presidency for more than four years may rightly be considered
as service for a full term.

Case: Aldovino vs Comelec


FACTS:
Lucena City councilor Wilfredo F. Asilo was elected to the said office for three consecutive terms: 1998-2001, 2001-2004, and 2004-
2007. In September 2005, during his third term of office, the Sandiganbayan issued an order of 90-day preventive suspension
against him in relation to a criminal case. The said suspension order was subsequently lifted by the Court, and Asilo resumed the
performance of the functions of his office.

Asilo then filed his certificate of candidacy for the same position in 2007. His disqualification was sought by herein petitioners on the
ground that he had been elected and had served for three consecutive terms, in violation of the three-term Constitutional limit.

ISSUE: WON the suspensive condition interrupts the three-term limitation rule of COMELEC?

RULING:
NO. The preventive suspension of public officials does not interrupt their term for purposes of the three-term limit rule under the
Constitution and the Local Government Code (RA 7160).

The candidacy of Lucena City Councilor Wilfredo F. Asilo for a fourth term in the 2007 elections was in contravention of the three-
term limit rule of Art. X, sec. 8 of the Constitution since his 2004-2007 term was not interrupted by the preventive suspension
imposed on him, the SC granted the petition of Simon B. Aldovino, Danilo B. Faller, and Ferdinand N. Talabong seeking Asilos
disqualification.

Preventive suspension, by its nature, does not involve an effective interruption of service within a term and should therefore not be
a reason to avoid the three-term limitation, held the Court. It noted that preventive suspension can pose as a threat more potent
than the voluntary renunciation that the Constitution itself disallows to evade the three-term limit as it is easier to undertake and
merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been
imposed.

Doctrine of Condonation
Case: Conchita Carpio Morales vs CA

DOCTRINE OF CONDONATION
Condonation has been defined as a victims express or implied forgiveness of an offense by treating the offender as if there had been
no offense.

Preventive suspension is merely a preventive measure, a preliminary


step in an administrative investigation. The purpose of the suspension order is
to prevent the accused from using his position and the powers and
prerogatives of his office to influence potential witnesses to tamper with
records which may be vital in the prosecution of the case against him. If after
such investigation, the charge is established and the person investigated is
found guilty of acts warranting his suspension or removal, then he is
suspended, removed or dismissed. This is the penalty.

ABANDONEMENT OF THE CONDONATION DOCTRINE


Public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated by the 1987
Constitution, is plainly inconsistent with the idea that an elective local officials administrative liability for misconduct committed
during a prior tem term can be wiped off by the fact that he was elected to a second term of office, or even to another elective post.
Election is not a mode of condoning an administrative offense, and there is simply not constitutional or statutory basis in our
jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising
from an offense done during a prior term. In this jurisdiction liability arising from administrative offense may be condoned by the
President.

Besides, it is contrary to human experience that the electorate would have full knowledge of a public officials misdeeds. The
Ombudsman correctly points out that most corrupt acts of public officers are shrouded in secrecy and concealed from the public.
Misconduct committed by an elective official is easily covered up and it almost always unknown to the electorate when they
cast their votes. That being said, the Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. It
was a doctrine adopted from one calss of US ruling way back in 1959 and thus, out of touch and not rendered obsolete by the
current legal regime. In consequence it is high time for this court to abandon the condonation doctrine. Hence, while the future
may ultimately uncover a doctrines error, it should be, as a general rule, recognize as a good law prior to its abandonment. The
condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect.

RA 6770- The Ombudsman Act of 1989


Section 14. Restrictions. No writ of injunction shall be issued by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme
Court, on pure question of law.

Section 21. Official Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials
who may be removed only by impeachment or over Members of Congress, and the Judiciary.

Section 24. Preventives Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided.

Preventive Suspension
Preventive Suspension vs Penalty Suspension

Civil Service Law

c. In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be
imposed in each case. The disciplining authority may impose the penalty of removal from the service, transfer,
demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months'
salary, or reprimand
Sec. 37. Disciplinary Jurisdiction. - (a) The Commission shall decide upon appeal all administrative cases involving the
imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary,
demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the
Commission by a private citizen against a government official or employee in which case it may hear and decide the
case or it may deputize any department or agency or official or group of officials to conduct the investigation. The
results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed
or other action to be taken. library

(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their
jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or
fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and
pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the department head

(d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the
event he wins an appeal

Sec. 41. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer
or employee under his authority pending an investigation, if the charge against such officer or employee involves
dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe
that the respondent is guilty of charges which would warrant his removal from the service

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against
the officer or employee under preventive suspension is not finally decided by the disciplining authority within the
period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service: Provided,That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the
period of suspension herein provided.

Sec. 43. Removal of Administrative Penalties or Disabilities. - In meritorious cases and upon recommendation of the
Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or
employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service

Local Government Code

Section 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:


(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and
given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence
the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single
preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event
that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than
ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120)
days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is
due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority.

Section 64. Salary of Respondent Pending Suspension. - The respondent official preventively suspended from office shall receive no
salary or compensation during such suspension; but upon subsequent exoneration and reinstatement, he shall be paid full salary or
compensation including such emoluments accruing during such suspension.

Section 65. Rights of Respondent. - The respondent shall be accorded full opportunity to appear and defend himself in person or by
counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of
documentary process of subpoena or subpoena duces tecum.

Section 66. Form and Notice of Decision. -

(a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days
after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing
stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be
furnished the respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every
administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets
the qualifications required for the office.

(c) The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the
candidacy of the respondent for any elective position.

Section 67. Administrative Appeals. - Decisions in administrative cases may, within thirty (30) days from receipt thereof, be
appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component cities and the
sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of
highly urbanized cities and independent component cities.

Decisions of the Office of the President shall be final and executory.

Section 68. Execution Pending Appeal. - An appeal shall not prevent a decision from becoming final or executory. The respondent
shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such
appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the
pendency of the appeal.

Case: Ocampo vs Enriquez (Marcos Burial)


There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias. None is present in this case.

I
The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence

There is no merit to the contention.

As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the Martial
Law period such as the proposed Marcos burial at the LNMB.

Taada v. Angara already ruled that the provisions in Article II of the Constitution are not self-executing.

In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement them x x
x.
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing provision considering that a law should be passed by the
Congress to clearly define and effectuate the principle embodied therein. As a matter of fact, pursuant thereto, Congress enacted
R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees"), R.A. No. 6770 ("The Ombudsman Act of
1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder), and Republic Act No. 9485 ("Anti-Red Tape Act of
2007"). To complement these statutes, the Executive Branch has issued various orders, memoranda, and instructions relative to the
norms of behavior/code of conduct/ethical standards of officials and employees; workflow charts/public transactions; rules and
policies on gifts and benefits; whistle blowing and reporting; and client feedback program.

Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of Art. XIV
refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism and respect for
human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in relation to the recovery of
Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect prohibition to Marcos' interment at
the LNMB.

The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to " ensure that the laws be faithfully executed,"
which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987, is likewise not violated by public respondents. Being
the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the officials and
employees of his or her department. Under the Faithful Execution Clause, the President has the power to take "necessary and proper
steps" to carry into execution the law. The mandate is self-executory by virtue of its being inherently executive in nature and is
intimately related to the other executive functions. It is best construed as an imposed obligation, not a separate grant of power. The
provision simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is
obliged to obey and execute them.

Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB does not
contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners.

A. On R.A. No. 289


Petitioners miserably failed to provide legal and historical bases as to their supposition that the LNMB and the National Pantheon are
one and the same.

The National Pantheon does not exist at present. To date, the Congress has deemed it wise not to appropriate any funds for its
construction or the creation of the Board on National Pantheon. This is indicative of the legislative will not to pursue, at the moment,
the establishment of a singular interment place for the mortal remains of all Presidents of the Philippines, national heroes, and
patriots.

Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard that the
LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put into question the
validity of the burial of each and every mortal remains resting therein, and infringe upon the principle of separation of powers since
the allocation of plots at the LNMB is based on the grant of authority to the President under existing laws and regulations.

Also, the Court shares the view of the OSG that the proposed interment is not equivalent to the consecration of Marcos' mortal
remains. The act in itself does not confer upon him the status of a "hero." Despite its name, which is actually a misnomer, the
purpose of the LNMB, both from legal and historical perspectives, has neither been to confer to the people buried there the title of
"hero" nor to require that only those interred therein should be treated as a "hero."

B. On R.A. No. 10368


For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the LNMB because
the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a deposed dictator and has
recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs) under his regime. They insist that the
intended act of public respondents damages and makes mockery of the mandatory teaching of Martial Law atrocities and of the lives
and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in nature but a political action of the
State through the Legislative and Executive branches by providing administrative relief for the compensation, recognition, and
memorialization of human rights victims.

Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture,
enforced or involuntary disappearance, and other gross human rights violations committed from September 21, 1972 to February 25,
1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation to provide reparation to said victims
and/or their families for the deaths, injuries, sufferings, deprivations and damages they experienced. They are entitled to monetary
and non-monetary reparation.

This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it includes the
prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually contemplates. With its victim-
oriented perspective, our legislators could have easily inserted a provision specifically proscribing Marcos' interment at the LNMB as a
"reparation" for the HRVVs, but they did not. As it is, the law is silent and should remain to be so. This Court cannot read into the
law what is simply not there. It is irregular, if not unconstitutional, for Us to presume the legislative will by supplying material details
into the law. That would be tantamount to judicial legislation.

Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the interment of
Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to the law. The subject
memorandum and directive of public respondents do not and cannot interfere with the statutory powers and functions of the Board
and the Commission. It must be emphasized that R.A. No. 10368 does not amend or repeal, whether express or implied, the
provisions of the Administrative Code or AFP Regulations G 161-375:

repeals by implication are not favored. In order to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest
case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed.
There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be
such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard
does not suffice. x x x

C. On International Human Rights Laws


The ICCPR, as well as the U.N. principles on reparation and to combat impunity, call for the enactment of legislative measures,
establishment of national programmes, and provision for administrative and judicial recourse, in accordance with the country's
constitutional processes, that are necessary to give effect to human rights embodied in treaties, covenants and other international
laws. The U.N. principles on reparation expressly states:

Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal
obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal
obligations under international human rights law and international humanitarian law which are complementary though
different as to their norms[.][Emphasis supplied]

The Philippines is more than compliant with its international obligations. When the Filipinos regained their democratic institutions
after the successful People Power Revolution that culminated on February 25, 1986, the three branches of the government have done
their fair share to respect, protect and fulfill the country's human rights obligations, to wit:

The 1987 Constitution contains provisions that promote and protect human rights and social justice.

As to judicial remedies, aside from the writs of habeas corpus, amparo, and habeas data, the Supreme Court promulgated on March
1, 2007 Administrative Order No. 25-2007.
On the part of the Executive Branch, it issued a number of administrative and executive orders (13 in total).

Finally, the Congress passed 16 laws affecting human rights.

Contrary to petitioners' postulation, our nation's history will not be instantly revised by a single resolve of President Duterte, acting
through the public respondents, to bury Marcos at the LNMB. Whether petitioners admit it or not, the lessons of Martial Law are
already engraved, albeit in varying degrees, in the hearts and minds of the present generation of Filipinos. As to the unborn, it must
be said that the preservation and popularization of our history is not the sole responsibility of the Chief Executive; it is a joint and
collective endeavor of every freedom-loving citizen of this country.

II.
The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of malice,
ill will or personal bias

Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a revered national
shrine where the mortal remains of our country's great men and women are interred for the inspiration and emulation of the present
generation and generations to come. They erred.

A. National Shrines

As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or structures
hallowed and revered for their history or association as declared by the NHCP. As sites of the birth, exile, imprisonment, detention or
death of great and eminent leaders of the nation, it is the policy of the Government to hold and keep the national shrines as sacred
and hallowed place. P.O. No. 105 strictly prohibits and punishes by imprisonment and/or fine the desecration of national shrines by
disturbing their peace and serenity through digging, excavating, defacing, causing unnecessary noise, and committing unbecoming
acts within their premises. R.A. No. 10066 also makes it punishable to intentionally modify, alter, or destroy the original features of,
or undertake construction or real estate development in any national shrine, monument, landmark and other historic edifices and
structures, declared, classified, and marked by the NHCP as such, without the prior written permission from the National Commission
for Culture and the Arts (NCAA).
As one of the cultural agencies attached to the NCAA, the NHCP manages, maintains and administers national shrines, monuments,
historical sites, edifices and landmarks of significant historico-cultural value. In particular, the NHCP Board has the power to approve
the declaration of historic structures and sites, such as national shrines, monuments, landmarks and heritage houses and to
determine the manner of their identification, maintenance, restoration, conservation, preservation and protection.
Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as national shrines,
which have been under the administration, maintenance and development of the Philippine Veterans Affairs Office (PVAO) of the
DND. Among the military shrines is the LNMB in Taguig City, Metro Manila.

B. The Libingan Ng Mga Bayani

At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places served as
grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places throughout the
country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting tribute and final resting place of
Filipino military personnel who died in World War II.

On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the supervision and
control of the Secretary of National Defense. Among others, PVAO shall administer, develop and maintain military shrines.

Contrary to the dissent, P.D. No. 105 does not apply to the LNMB. Despite the fact that P.D. No. 208 predated P.D. No. 105, the LNMB
was not expressly included in the national shrines enumerated in the latter. The proposition that the LNMB is implicitly covered in the
catchall phrase "and others which may be proclaimed in the future as National Shrines" is erroneous because:

(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.

(2) Following the canon of statutory construction known as ejusdem generis, the LNMB is not a site "of the birth, exile,
imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are the
following national shrines: x x x Excluded are the military memorials and battle monuments declared as national shrines
under the PVAO, such as: the LNMB.

(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO.

Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and not to each
and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a revered
and respected ground. Neither does it negate the presumed individual or collective "heroism" of the men and women buried or will
be buried therein. That being said, the interment of Marcos, therefore, does not constitute a violation of the physical, historical, and
cultural integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in terms of its
prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and that its military code
produced a salutary effect in the Philippines' military justice system. Hence, relevant military rules, regulations, and practices of the
U.S. have persuasive, if not the same, effect in this jurisdiction.

Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant dead who have
served in the U.S. Armed Forces.

The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer, develop, and
maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the Office of the President.

The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does
not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature. This is why President
Duterte is not bound by the alleged 1992 Agreement between former President Ramos and the Marcos family to have the remains of
Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind political agreements
entered into by his predecessors, and to determine policies which he considers, based on informed judgment and presumed wisdom,
will be most effective in carrying out his mandate.

Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public purposes any
of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation. At present, there is no law or executive issuance specifically excluding the land in which
the LNMB is located from the use it was originally intended by the past Presidents. The allotment of a cemetery plot at the LNMB for
Marcos as a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a
veteran, and a Medal of Valor awardee, whether recognizing his contributions or simply his status as such, satisfies the public use
requirement.

The disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable public
services rendered. Likewise, President Duterte's determination to have Marcos' remains interred at the LNMB was inspired by his
desire for national healing and reconciliation.

Presumption of regularity in the performance of official duty prevails over petitioners' highly disputed factual allegation that, in the
guise of exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude)
and bayad utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the
factual basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.

C. AFP Regulations on the LNMB


A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB underscores the
nature and purpose of the LNMB as an active military cemetery/grave site.

Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP Regulations G
161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The regulation
stated that the Chief of Staff shall be responsible for the issuance of interment directive for all active military personnel for
interment, authorized personnel (such as those former members of the AFP who laterally entered or joined the Philippine Coast
Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and reservists enumerated therein. The Quartermaster
General is tasked to exercise over-all supervision in the implementation of the regulation and the Commander ASCOM, PA through
the Commanding Officer of Grave Services Unit is charged with the registration of the deceased/graves, the allocation of specific
section/area at the LNMB for interment of deceased, the preparation of grave sites, and the supervision of burials.

Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents
or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f)
Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and
CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities; (g) Former members of the AFP who
laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas;
(i) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former Presidents, Secretaries of
Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff.
Similar to AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a) Personnel who were
dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of
an offense involving moral turpitude.

In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in
determining who are entitled and disqualified to be interred at the LNMB.

Interestingly, even if they were empowered to do so, former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who
were themselves aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The
validity of AFP Regulations G 161-375 must, therefor, be sustained for having been issued by the AFP Chief of Staff acting under the
direction of the Secretary of National Defense, who is the alter ego of the President.

x x x In Joson v. Torres, we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit in
this wise:

Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations
are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in
person or the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved
or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.)

It has been held that an administrative regulation adopted pursuant to law has the force and effect of law and, until set aside, is
binding upon executive and administrative agencies, including the President as the chief executor of laws.

1. Qualification under the AFP Regulations

AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra vires for purportedly
providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB.

As stated, the purpose of the LNMB, both from the legal and historical perspectives, has neither been to confer to the people buried
there the title of "hero" nor to require that only those interred therein should be treated as a "hero." In fact, the privilege of
internment at the LNMB has been loosen up through the years. Since 1986, the list of eligible includes not only those who rendered
active military service or military-related activities but also non-military personnel who were recognized for their significant
contributions to the Philippine society (such as government dignitaries, statesmen, national artists, and other deceased persons
whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense). In
1998, the widows of former Presidents, Secretaries of National Defense and Chief of Staff were added to the list. Whether or not the
extension of burial privilege to civilians is unwarranted and should be restricted in order to be consistent with the original purpose of
the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had rendered significant active military
service and military-related activities.

Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National
Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt practices,
we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be acknowledged based on
the other positions he held or the awards he received. In this sense, We agree with the proposition that Marcos should be viewed and
judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly, just a human who erred like us.

Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049 declares the policy of the State "to
consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness of the military." For the
"supreme self-sacrifice and distinctive acts of heroism and gallantry," a Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to a lot of social services and financial rewards and benefits
On the other hand, in recognizing their patriotic services in times of war and peace for the cause of freedom and democracy; for the
attainment of national unity, independence, and socioeconomic advancement; and for the maintenance of peace and order, R.A. No.
6948, as amended, grants our veterans and their dependents or survivors with pension (old age, disability, total administrative
disability, and death) and non-pension (burial, education, hospitalization, and medical care and treatment) benefits as well as
provisions from the local governments. Under the law, the benefits may be withheld if the Commission on Human Rights certifies to
the AFP General Headquarters that the veteran has been found guilty by final judgment of a gross human rights violation while in
the service, but this factor shall not be considered taken against his next of kin.
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP Regulations G 161-375.
He was neither convicted by final judgment of the offense involving moral turpitude nor dishonorably separated/reverted/discharged
from active military service.

It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft and
corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By going into exile,
he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably escaped the prospect of facing
accountability for his crimes. They also contend that his removal in the 1986 popular uprising is a clear sign of his discharge from the
AFP. The People Power Revolution was the direct exercise of the Filipinos' power to overthrow an illegitimate and oppressive regime.
As a sovereign act, it necessarily includes the power to adjudge him as dishonorably discharged from the AFP.

Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any offense
involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to answer for a criminal
offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be presum innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf."

The various cases cited by petitioners, which were decided with finality by courts here and abroad, have no bearing in this case since
they are merely civil in nature; hence, cannot and do not establish moral turpitude.

Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is eligible to
be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there is a favorable
recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no right can be said to have
ripen. Until then, such inchoate right is not legally demandable and enforceable.

Assuming that there is a property right to protect, the requisites of equal protection clause are not met. In this case, there is a real
and substantial distinction between a military personnel and a former President. The conditions of dishonorable discharge under the
Articles of War attach only to the members of the military. There is also no substantial distinction between Marcos and the three
Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not convicted of a crime
involving moral turpitude. In addition, the classification between a military personnel and a former President is germane to the
purposes of Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine for military memorials, it is also an
active military cemetery that recognizes the status or position held by the persons interred therein.

Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired veteran pursuant to
R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military service.

With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the same should
be viewed in light of the definition provided by AFP Regulations G 161-375 to the term " active service" which is "[s]ervice rendered
by a military person as a Commissioned Officer, enlisted man/woman, probationary officer, trainee or draftee in the Armed Forces of
the Philippines and service rendered by him/her as a civilian official or employee in the Philippine Government prior to the date of
his/her separation or retirement from the Armed Forces of the Philippines, for which military and/or civilian service he/she shall have
received pay from the Philippine Government, and/or such others as may be hereafter be prescribed by law as active service (PD
1638, as amended)." To my mind, the word "service" should be construed as that rendered by a military person in the AFP, including
civil service, from the time of his/her commission, enlistment, probation, training or drafting, up to the date of his/her separation or
retirement from the AFP. Civil service after honorable separation and retirement from the AFP is outside the context of "service"
under AFP Regulations G 161-375.

Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is tantamount to his
dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-Chief of
the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Dishonorable
discharge through a successful revolution is an extra-constitutional and direct sovereign act of the people which is beyond the ambit
of judicial review, let alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said
political act of the people should not be automatically given a particular legal meaning other than its obvious consequence- that of
ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices from
multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for instance, to
divine the exact implications or significance of the number of votes obtained in elections, or the message from the number of
participants in public assemblies. If the Court is not to fall into the pitfalls of getting embroiled in political and oftentimes emotional,
if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars - clear constitutional and legal rules -
not by the uncertain, ambiguous and confusing messages from the actions of the people.
Case: Mosqueda vs Pilipino Banana Growers
FACTS:

Sangguniang Panglungsod of Davao enacted Ordinance No. 0309-07, Series of 2007: An Ordinance Banning Aerial spraying as an
agricultural practice in all agricultural activities by all agricultural entities in Davao City

RTC: rendered ordinance valid and unconstitutional

ISSUES:

WON the ordinance banning aerial spraying is unconstitutional Constitutional right to health and to a healthful and balanced ecology.

RULING:
(Still pending SC decision)

CA: UNCONSTITUTIONAL & INVALID EXERCISE OF POLICE POWER


It is within the mandate and authority of the City of Davao to enact Ordinance since it is a measure that has an ostensible LAWFUL
SUBJECT: protection of public health and the environment against the alleged harmful effects of aerial spraying of pesticides or
fungicides.

However, UNLAWFUL MEANS since unduly oppressive to individuals and the three months period shift from aerial spraying to ground
spraying unreasonable, oppressive and impossible to comply with.

City of Davao lacked:


- Technical understanding on the intricacies of the engineering works required for the efficient operation of banana plantations,
indifference to corporeal rights of banana planters to protect and enhance their investments.
- To abandon aerial spraying without affording them enough time to convert and adopt other spraying practices would preclude the
banana planters from being able to fertilize their plantations Such an apparent eventuality would prejudice the operation of the
plantations and the economic repercussions thereof would just be akin to shutting down the venture.

Also, since SEPARABILITY CLAUSE IS NON-EXISTING, the whole ordinance is unconstitutional.


No scientific basis for banning aerial spraying. Testimonies in favor of City of Davao did not prove that the aerial spraying of
substances is the proximate cause of the various ailments the victims allegedly suffered.
EQUAL PROTECTION CLAUSE it does NOT classify which substances are prohibited from being applied aerially even as reasonable
distinctions should be made in terms of the hazards, safety or beneficial effects of liquid substances to the public health, livelihood
and the environment
Ordinance is confiscation of property without due process of law, it deprives plantation owners of the lawful and beneficial use of
such areas to be ceded, without just compensation (with regards to buffer zones required by the ordinance)
PRESS FREEDOM

Case: Bayan vs Ermita

Facts
The petitioners were divided into three groups namely: Bayan, et al, Jess del Prado, et al, , Kilusang Mayo Uno (KMU), et al,
KMU, et al., as citizens and taxpayers of the Philippines, averred that their right as organizations and individuals were violated when
the rally they organized on October 6, 2005 which was scheduled to proceed along Espaa Avenue in front of the University of Santo
Tomas and going towards Mendiola bridge was violently dispersed by policemen implementing Batas Pambansa No. 880.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a),
as well as the Calibrated Preemptive Response policy. They seek to stop violent dispersals of rallies under the "no permit, no rally"
policy and the CPR policy recently announced.

Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant
on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. They argue that B.P. No. 880
requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger.
According to them, BP 880 also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time
and place of a public assembly form part of the message which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words lawful cause, opinion, protesting or influencing suggest
the exposition of some cause not espoused by the government. Also, the phrase maximum tolerance shows that the law applies to
assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict
scrutiny test. This petition and two other petitions were ordered to be consolidated on February 14, 2006.
During the course of oral arguments, the petitioners, in the interest of a speedy resolution of the petitions, withdrew the
portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as
applied to the rallies of September 20, October 4, 5 and 6, 2005.

Issue
Whether the Calibrated Pre-emptive Response and the Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12, 13(a) and
14(a) are violative of Art. III Sec. 4 of the Philippine Constitution as it causes a disturbing effect on the exercise by the people of the
right to peaceably assemble.

Held
Section 4 of Article III of the Philippine 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 peaceably assemble and petition for redress of grievances, together with freedom of speech, of expression,
and of the press, is a right that enjoys dominance in the sphere of constitutional protection. For this rights represent the very basis
of a functional democratic polity, without which all the other rights would be meaningless and unprotected.

However, it must be remembered that the right, while sacrosanct, is not absolute, citing Primicias v. Fugoso1 and Reyes v.
Bagatsing2. It may be regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to
the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the
sovereign police power, which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people.
B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of
the assemblies. B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The
reference to lawful cause does not make it content-based because assemblies really have to be for lawful causes, otherwise they
would not be peaceable and entitled to protection. Neither the words opinion, protesting, and influencing in of grievances
come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit
of all rallyist and is independent of the content of the expression in the rally. Furthermore, the permit can only be denied on the
ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a
recognized exception to the exercise of the rights even under the Universal Declaration of Human Rights and The International
Covenant on Civil and Political Rights.
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the
other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is
for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it
is subject to the constitutionally-sound "clear and present danger" standard.
Wherefore, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880
through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public parks or plaza in every city or municipality that has not yet
complied with section 15 of the law.
Furthermore, Calibrated pre-emptive response (CPR), insofar as it would purport to differ from or be in lieu of maximum
tolerance, is null and void and respondents are enjoined to refrain from using it and to strictly observe the requirements of maximum
tolerance, The petitions are dismissed in all other respects, and the constitutionality of Batas Pambansa No. 880 is hereby sustained.

Content Neutral Restriction vs Content Based Restriction

Content-based restrictions are imposed because of the content on the speech and are therefore, subject to the clear-and-present-
danger test. For example, a rule such as that involved in Sanidad vs Comelec prohibiting columnists, commentators, and announcers
from campaigning either for or against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster
under strict scrutiny. These restrictions are censorial and therefore bear a heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.

Content-of neutral restrictions on the other hand, like Sec. 11b , of RA 6646 which prohibits the sale or donation of print space and
air time to political candidates duringthe campaign period, are not concerned with the content of the speech. These regulations need
only a substantial government interest to support them. A deferential standard of review will suffice to test their validity. The clear-
and-present-danger rule is inappropriate as a test for determining the constitutional validity of law, like Sec 11b of RA 6646, which
are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present-danger test to such
regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.

The test for this difference in the level of justification for the restriction of speech is content-based restrictions distort public debate,
have improper motivation and are usually imposed because of fear of how people will react to a particular speech. No such reasons
underlie content-neutral regulations, like regulation of time, place and manner of holding public assemblies under BP 880, the Public
Assembly Act of 1985. (Osmena vs Assembly Act of 1985. (Osmena vs Comelec Comelec 1998)

FREEDOM OF RELIGION

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

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

Art. VI, Section 29.


No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious
teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.

Art. XIII, Section 3.

At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in
public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities
of the religion to which the children or wards belong, without additional cost to the Government.

Case: Diocese of Bacolod vs Comelec

FACTS:

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral
of Bacolod. Each Tarpaulin was approximately six feet (6) by ten feet (10) in size. They were posted on the front walls of the
cathedral within public view. The first tarpaulin contains the message IBASURA RH Law referring to the Reproductive Health Law of
2012 or Reproductive Act No. 10354. The second tarpaulin is the subject of the present case. This tarpaulin contains the heading
Conscience Vote and lists candidates as either (Pro-RH) Team Buhay with a check mark, or (Anti-RH) Team Patay with an X
mark. The electoral candidates were classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as
the Reproductive Health Law. Those who voted for the passing of the law were classified by petitioners as comprising Team Patay,
while those who voted against it form Team Buhay.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a
Notice to Remove Campaign Materials addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the
tarpaulins removal within three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size
requirements of two feet (2) by three feet (3).
On February 25, 2013, petitioners replied requesting among others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of legal remedies, the tarpaulin
be allowed to remain.
On February 27, 2013, COMELEC Law Department issued a letter ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense against petitioners. The letter of COMELEC Law Department was silent on
the remedies available to petitioners.
Concerned about the imminent threat of prosecution for their exercise of free speech, petitioners initiated this case through
this petition for certiorari and prohibition with application for preliminary injunction and temporary restraining order.
Held:
The Concept of Political Question
The case before this court 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.

The concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes
a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

I. E. Exhaustion of Administrative Remedies


The argument of exhaustion of remedies is not proper in this case. Despite the alleged non-exhaustion of administrative
remedies, the controversy is already ripe for adjudication. Ripeness is the prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture.

Petitioners exercise of their right to free speech, given the message and their medium, had understandable relevance
especially during the elections. COMELECs letter threatening the filing of election offense against petitioners is already an actionable
infringement of this right. The impending threat of criminal litigation is enough to curtail petitioners speech.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is within
the exceptions to the principle. In Chua vs. Ang, the Supreme Court held that exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to when: (a) when there is violation of due process; (b) when the issue
involved is purely a legal question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
(d) when there is estoppels on the part of the administrative agency concerned; (e) when there is irreparable injury; (f) when the
respondent is a department secretary whose acts as an alter ego of the President bear the implied and assumed approval of the
latter; (g) when to require exhaustion of administrative remedies would be unreasonable; (h) when it would amount to a nullification
of a claim; (i) when the subject matter is a private land in land case proceedings; (j) when the rule does not provide a plain, speedy
and adequate remedy; or (k) when there are circumstances indicating the urgency of judicial intervention.

The circumstances emphasized are squarely applicable with the present case. First, petitioners allege that the assailed
issuances violated their right to freedom of expression and the principle of separation of church and state which is a purely legal
question. Second, the circumstances of the present case indicate the urgency of judicial intervention considering the issue then on
RH Law as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this case would be
unreasonable.

I. Whether it is relevant to determine whether the tarpaulins are not political advertisements or election
propaganda considering that petitioner is not a political candidate.

II. A. COMELEC had no legal basis to regulate expressions made by private citizens
COMELEC does not have the authority to regulate the enjoyment of the preferred right of freedom of expression exercised
by a non-candidate in this case.

The tarpaulin was not paid for by any candidate or political party. There was no allegation that petitioners coordinated with
any of the persons named in the tarpaulin regarding the posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law.

Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an election campaign as
follows:
(b) The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a
particular or candidates to a public office which shall include:
1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against any candidate;
3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate
for public office;
4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate;
or
5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The aforementioned acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to
public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of probable issues in a forthcoming election on attributes or criticisms against
probable candidates proposed to be nominated in a forthcoming political party convention shall be not be construed as part of any
election campaign or partisan political activity contemplated under this Article.

II.B. The violation of the constitutional right to freedom of speech and expression
Article III, Section 4 of the Constitution states that No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of people peaceably to assemble and petition the government for redress of grievances.

The form of expression is just as important as the information conveyed that it forms part of the expression. The present
case is in point. Large tarpaulins are not analogous to time and place. They are fundamentally part of the expression protected under
Article III, Section 4 of the Constitution.

Size matters in the form of expression based on the following reasons: (a) it enhances efficiency in communication; (b) the
size of the tarpaulin may underscore the importance of the message to the reader; and (c) larger space allows for more messages.

There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of
expression. First, this relates to the right of the people to participate in the public affairs, including the right to criticize government
actions. Second, free speech should be encouraged under the concept of a market place of ideas. Third, free speech involves self-
expression that enhances human dignity. Fourth, expression is a marker of group identity. Fifth, the Bill of Rights, free speech
included, is supposed to protect individuals and minorities against majoritarian abuses perpetrated through the framework of
democratic governance. Lastly, free speech must be protected under the safety valve theory.

Every citizens expression with political consequences enjoys a high degree of protection. However, the right to freedom of
expression is 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 content-based or content-neutral.

Petitioners argue that that the present size regulation is content-based as it applies only to political speech and not to other
form of speech such as commercial speech. Size limitations during election hit at a core part of expression. The content of the
tarpaulin is not easily divorced from the size of its medium.

Content-based regulation 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. 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 tarpaulins to justify curtailment of the right of
freedom of expression. There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone elses constitutional rights.

III. Whether the tarpaulins are a form of expression (protected speech), or election propaganda/political
advertisement.
The message of petitioners in this case will certainly not be what candidates will carry in their election posters or media
ads. 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 desires of the Diocese that the position of those who run for a political position on this social issue be
determinative of the the public will vote.

Article IX-C, Section 4 states that The Commission may, during the election period, supervise of regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or its subsidiary. Such supervision or regulation shall aim to ensure
equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.

Article XIII, Section 1 also states that The Congress shall give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its increments.

Regulation of speech in the context of electoral campaigns made by the persons who are not candidates or who do not
speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range
of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not
candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided
by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object.
The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or
on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin
tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law Section 3.3 of Republic Act
No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 if applied to this case, will not pass the test of reasonability. A fixed
size for election posters or tarpaulins without any relation to the distance from the intended average audience will be arbitrary. At
certain distances, posters measuring 2 by 3 feet could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences.

IV. Whether the 22 February 2013 notice/order by Election Officer Majarucon and the 27 February 2013 order by the
COMELEC Law Department violate the principle of separation of church and state.

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that it
encompasses even the citizens private property." Consequently, it violates Article III, Section 1 of the Constitution which provides
that no person shall be deprived of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it.
Furthermore, this court ruled that the regulation in Adiong violates private property rights wherein, the right to property
may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the
part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in private
property without the consent of the owners of such private property. COMELEC has incorrectly implemented these regulations.
Consistent with our ruling in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin
in their own private property is an impermissible encroachment on the right to property.

V. Whether the action of the petitioners in posting its tarpaulin violates the constitutional principle of separation of
church and state.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu 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. This 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 to others." This 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.

As aptly argued by COMELEC, however, 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.
Case: Southern Hemisphere vs Anti-terrorism Council

FACTS:
Petitioner-organizations assert locus standi on the basis of being suspected communist fronts by the government, whereas
individual petitioners invoke the transcendental importance doctrine and their status as citizens and taxpayers.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, and PCR allege they have been subjected to close security surveillance
by state security forces, their members followed by suspicious persons and vehicles with dark windshields, and their
offices monitored by men with military build. They likewise claim they have been branded as enemies of the State.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD, and
Agham would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations
fronting for the CPP and NPA. They claim such tagging is tantamount to the effects of proscription without following the
procedure under the law.
Meanwhile, IBP and CODAL base their claim of locus standi on their sworn duty to uphold the Constitution.
Petitioners claim that RA 9372 is vague and broad, in that terms like widespread and extraordinary fear and panic among
the populace and coerce the government to give in to an unlawful demand are nebulous, leaving law enforcement
agencies with no standard to measure the prohibited acts.

ISSUES:
1. WON petitioners resort to certiorari is proper NO.
2. WON petitioners have locus standi NO.
3. WON the Court can take judicial notice of the alleged tagging NO.
4. WON petitioners can invoke the transcendental importance doctrine NO.
5. WON petitioners can be conferred locus standi as they are taxpayers and citizens NO.
6. WON petitioners were able to present an actual case or controversy NO.
7. WON RA 9372 is vague and broad in defining the crime of terrorism NO.
8. WON a penal statute may be assailed for being vague as applied to petitioners NO.
9. WON there is merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity NO.

HELD AND RATIO:


1. Petition for certiorari is improper.
a. Certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule
65 of the Rules of Court states that petition for certiorari applies when any tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
b. Petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of
their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.
c. The power of judicial review has 4 requisites:
i. There must be an actual case or controversy.
ii. Petitioners must possess locus standi.
iii. Question of constitutionality must be raised at the earliest opportunity.
iv. The issue of constitutionality must be the lis mota of the case.

The present case lacks the 1st 2 requisites, which are the most essential.

2. Petitioners lack locus standi.


a. Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure concrete
adverseness.
b. In Anak Mindanao Party-List Group v. The Executive Secretary, locus standi has been defined as that requiring:
i. That the person assailing must have a direct and personal interest AND
ii. That the person sustained or is in immediate danger of sustaining some direct inquiry as a result of the
act being challenged.
c. For a concerned party to be allowed to raise a constitutional question, he must show that:
i. He has personally suffered some actual or threatened injury;
ii. The injury is fairly traceable to the challenged action; AND
iii. The injury is likely to be redressed by a favorable action.
d. RA 9372 is a penal statute. While Chavez v. PCGG holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases
involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation.
Such necessitates closer judicial scrutiny of locus standi.
e. The mere invocation of the duty to preserve the rule of law does no, however, suffice to clothe the IBP or any of its
members with standing. They failed to sufficiently demonstrate how its mandate under the assailed statute revolts
against its constitutional rights and duties.
f. Former Senator Ma. Ana Consuelo Madrigal who claims to have been the subject of political surveillance also
lacks locus standi. The same is true for Wigberto Taada and Osmea III, who cite their being a human rights
advocate and an oppositor, respectively. No concrete injury has been pinpointed, hence, no locus standi.

3. Court cannot take judicial notice of the alleged tagging.


a. Matters of judicial notice have 3 material requisites:
i. matter must be one of common and general knowledge
ii. must be well and authoritatively settled, not doubtful or uncertain or capable of accurate and ready
determination
iii. known to be within thelimits of the jurisdiction of the court
b. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It can be
said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Hence, it can
be said that judicial notice is limited to: (1) facts evidenced by public records and (2) facts of general notoriety.
c. A court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a
fact of which the Court has no constructive knowledge.
d. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA
9371 has been filed against them, 3 years after its effectivity, belies any claim of imminence of their perceived
threat emanating from the so-called tagging. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization and members.
e. Notwithstanding the statement of Ermita and Gonzales that the Arroyo administration will adopt the US and EU
classification of CPP and NPA as terrorist organizations, there is yet to be filed before the courts an application to
declare the CPP and NPA organizations as domestic terrorist or outlawed organization under RA 9372.
4. In Kilosbayan v. Guingona,to invoke the transcendental doctrine, the following are the determinants:
a. The character of the funds or other assets involved in the case
b. The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government;
c. The lack of any other party with a more direct and specific interest in the questions being raised

In the case at bar, there are other parties not before the Court with direct and specific interests in the questions being
raised.

5. Petitioners cannot be conferred upon them as taxpayers and citizens.


a. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, whereas
citizen standing must rest on direct and personal interest in the proceeding.
b. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation,
while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of
the law.
c. Generalized interest, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence
of a direct and personal interest is key.

6. Petitioners fail to present an actual case or controversy. None of them faces any charge under RA 9372.
a. Judicial power operates only when there is an actual case or controversy. An actual case or controversy means an
existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.
b. Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest. The pleadings must show:
i. an active antagonistic assertion of a legal right and
ii. a denial thereof
c. However, a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to
provide a basis for mounting a constitutional challenge. This, however, is qualified by the presence of sufficient
facts.
d. Prevailing American jurisprudence allows adjudication on the merits when an anticipatory petition clearly shows
that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would be a
justiciable controversy. However, in the case at bar, the petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity. No demonstrable threat has been
established, much less a real and existing one.
e. Petitioners have yet to show any connection between the purported surveillance and the implementation of RA
9372. Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as communist
fronts in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to
render an advisory opinion, which is not its function. If the case is merely theorized, it lies beyond judicial review
for lack of ripeness. Allegations of abuse must be anchored on real events.

7. The doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only
to free speech cases and that RA 9372 regulates conduct, not speech.
a. Romualdez v. Sandiganbayan: The overbreadth and the vagueness doctrines have special application only to free
speech cases, and are not appropriate for testing the validity of penal statutes.
b. Romualdez v. COMELEC. A facial invalidation of criminal statutes is not appropriate, but the Court nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense under the
Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.
c. The aforementioned cases rely heavily on Justice Mendozas Separate Opinion in the Estrada case: Allegations that
a penal statute is vague and overbroad do not justify a facial review of its validity. A facial challenge is allowed to
be made to a vague statute and to one, which is overbroad because of possible chilling effect upon protected
speech. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect. If facial
challenge is allowed, the State may well be prevented from enacting laws against socially harmful conduct.
Overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for
testing the validity of penal statutes.

8. Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the
definition of terrorism in RA 9372 is legally impossible absent an actual or imminent chargeagainst them.
a. The doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
i. A statute or acts suffers from the defect of vagueness when:
1. It lacks comprehensible standards that men of common intelligence must necessarily guess at its
meaning and differ as to its application. It is repugnant to the Constitution in 2 ways:
a. Violates due process for failure to accord fair notice of conduct to avoid
b. Leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.
ii. The overbreadth doctrine decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means, which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.
b. A facial challenge is likewise different from an as applied challenge.
i. As applied challenge considers only extant facts affecting real litigants.
ii. Facial challenge is an examination of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the assumption or prediction that its very existence
may cause others not before the court to refrain from constitutionally protected speech or activities.
1. Under no case may ordinary penal statutes be subjected to a facial challenge. If facial challenge
to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution
would be possible.

9. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity.
a. Section 3 of RA 9372 provides the following elements of the crime of terrorism:
i. Offender commits an act punishable under RPC and the enumerated special penal laws;
ii. Commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and
panic among the populace;
iii. The offender is actuated by the desire to coerce the government to give in to an unlawful demand.
b. Petitioners contend that the element of unlawful demand in the definition of terrorism must necessarily be
transmitted through some form of expression protected by the free speech clause. The argument does not
persuade. What RA 9372 seeks to penalize is conduct, not speech.
c. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of
an element of the crime. Almost every commission of a crime entails some mincing of words on the part of
offender. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the
intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech.